Trauma-informed sentencing in South Australian courts
| DOI | http://doi.org/10.1177/26338076221113073 |
| Published date | 01 December 2022 |
| Date | 01 December 2022 |
| Subject Matter | Articles |
Trauma-informed sentencing
in South Australian courts
Katherine J McLachlan
Parole Board of South Australia, Adelaide, SA, Australia; Flinders
Criminology, College of Business, Government and Law, Flinders
University, Adelaide, SA, Australia
Abstract
Recently the concepts of ‘compassionate courts’,‘humane justice’,‘kindness in court’, and
trauma-informed practice have emerged in legal theory and practice in the US, England,
Scotland and Australia. This article uses a trauma-informed practice framework to examine
how South Australian superior court judges acknowledge defendant trauma in sentencing.
Trauma-informed sentencing practice requires that judges realise the presence of trauma, rec-
ognise its relevance, respond in a way that is informed by trauma and act to resist re-trauma-
tisation. By using this ‘4Rs’framework to analyse sentencing remarks of 448 defendants
published in 2019, the presence of trauma-informed practice was explored. Analysis indicated
that judges realised trauma was present in the lives of many defendants, particularly women
and Aboriginal peoples, but did not always overtly recognise a link between trauma and crim-
inal behaviour and were unlikely to refer to a defendant’s trauma history or use trauma-
informed principles of practice in their sentencing response. Research findings were presented
to judicial officers at a Judicial Development Day in 2021. The article reflects on those discus-
sions as well as the primary research, when making recommendations for future sentencing
practice primary for the judiciary, but also for legislators and legal practitioners.
Keywords
Trauma-informed, sentencing, trauma-informed practice, therapeutic jurisprudence, adverse
childhood experiences
Date received: 14 January 2022; accepted: 20 June 2022
Corresponding author:
Katherine J McLachlan, Senior Lecturer, Criminology, Flinders University, GPO Box 2100, Adelaide, South Australia
5001, Australia
Email: katherine.mclachlan@flinders.edu.au
Article
Journal of Criminology
2022, Vol. 55(4) 495–513
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/26338076221113073
journals.sagepub.com/home/anj
Introduction
Imprisonment does not reduce re-offending and may instead increase the risk of re-offending
compared to non-custodial sanctions (Day et al., 2021a, 2021b; Petrich et al., 2021).
Consequently, in the US, UK and Australia, alternative sentencing approaches have
emerged, including ‘compassionate courts’(Hueston, 2021), ‘humane justice’(Rowles &
Haji, 2020), ‘kindness in court’(Smith, 2019), and trauma-informed criminal justice
(Bagaric et al., 2019; Bradley, 2017; Durr, 2020; Ellison & Munro, 2017; Jackson et al.,
2021; Kezelman & Stavrolpoulos, 2016). These strategies are intended to reduce future offend-
ing and protect the safety of the community more effectively than incarceration by recognising
that many people who offend have experienced (and continue to experience) significant adver-
sity, trauma and social exclusion which is associated with their offending behaviour.
Trauma-informed practices have been found to be effective in prisons and the community,
as behaviour management strategies, safety strategies for correctional staff and clients
(Jones, 2018; Miller & Najavits, 2012) and are of particularly interest to those who work in
Indigenous justice in countries like Australia given the capacity to strengthen understanding
of the cultural context in which criminal behaviour and criminal sanctions occur. At a
minimum, trauma-informed criminal justice requires that practitioners recognise engagement
with the criminal justice system need not be fundamentally traumatic.
Trauma and crime
There is no universally accepted definition or understanding of the construct of ‘trauma’. In this
study, trauma is understood to be the negative impacts of adversity. Adversity includes distres-
sing acute events and chronic adverse experiences (Randall & Haskell, 2013). Chronic adverse
experiences may be either a series of repeated experiences, ongoing experiences or a combin-
ation of intergenerational trauma and direct trauma. Intergenerational trauma specifically
relates to trauma ‘across familial generations’(Menzies, 2019, p. 2), such that ‘unacknow-
ledged or unresolved trauma in previous generations [is] linked to dysfunction within an
extended family in later generations’(Atkinson et al., 2014, p. 294). Intergenerational
trauma has been identified as an important construct in the Australian context, particularly in
relation to Aboriginal and Torres Strait Islander peoples who have layered experiences of
chronic and cumulative trauma, from the time of colonisation and continuing today
(Anthony, 2013; Atkinson, 2008).
1
Thus, in this study, ‘complex trauma’(i.e. the compounded
impact of multiple or prolonged traumatic stressors, leading to chronic dysfunction; Kezelman
& Stavrolpoulos, 2012) is understood to be the psychological, emotional or physiological
impact of adversity on an individual’s functioning and wellbeing.
The concept of ‘complex trauma’is differentiated from post-traumatic stress disorder
(PTSD), which is a psychiatric diagnostic category used to understand the impact of specific
traumatic experiences (Bottalico & Bruni, 2012, p. 112; see also APA, 2013). Researchers
and practitioners have found that relying on a PTSD diagnosis as a measure of traumatisation
is limited because ‘the diagnostic category of PTSD was developed in response to the symp-
toms seen in survivors of one-off, or relatively contained events, such as a natural disaster
…[not capturing] the effects of chronic and/or multiple types of victimisation’(Wall &
Quadara, 2014, p. 2). Thus, while PTSD by definition is a medicalised marker of the presence
and impact of trauma, it is not the only reliable indicator (Boswell, 2016).
496 Journal of Criminology 55(4)
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