Grant 11/09-10: The Sentencing of Indigenous Offenders in the Lower Courts: A Study of Three Australian Jurisdictions

Indigenous disparities in imprisonment sentences are well-documented. Yet, there have been few systematic attempts made by researchers in Australia to explain these disparities in the imprisonment decision-making of the lower courts (cf. Bond and Jeffries, 2011a; Bond, Jeffries and Weatherburn, 2011). Further, little is known about how Indigeneity impacts non imprisonment decision making. This study undertook exploratory and explanatory regression based statistical analyses of Indigeneity and lower court sentencing in South Australia, New South Wales and Western Australia.  Results showed that, under like circumstances:

  1. Indigenous defendants were more likely than non-Indigenous offenders to be sentenced to prison in all three study jurisdictions. While this finding was consistent across time (1998-2008,) the pattern differed by jurisdiction.
  2. Indigenous defendants were less likely than non-Indigenous offenders to be sentenced to a monetary order (compared to other non-imprisonment penalties).
  3. Indigenous defendants were sentenced to monetary orders of a lesser amount than non-Indigenous offenders.
  4. The impact of Indigeneity on imprisonment terms varied by study jurisdictions. In South Australia, Indigenous defendants were sentenced to shorter terms than non-Indigenous offenders. In New South Wales, Indigenous offenders were sentenced to almost equal prison terms. In Western Australia, Indigenous offenders received longer terms of imprisonment.

Within the context of the framework of focal concerns, this study assessed the evidence of three sentencing disparities hypotheses (i.e. differential involvement, negative and positive discrimination).  Although requiring further investigation, the consistent finding of harshness in the decision to imprison Indigenous offenders is particularly concerning. Based on the focal concerns approach, a possible reason for this pattern is lack of time and information in lower court sentencing hearing. The pressures on lower court decision-making, and its consequent impact on Indigenous defendants, points to the need for the extension and development of strategies that allow more detailed and reliable information to be placed before magistrates at the time of sentencing (e.g. Indigenous sentencing courts).