Indigenous disparity in lower court imprisonment decisions: A study of two Australian jurisdictions, 1998 to 2008

Abstract

This paper reports the findings from statistical analyses comparing the probability of receiving a prison sentence by Indigenous status in the lower courts of South Australia and New South Wales over an 11 year period (1998 to 2008). The primary aim was to identify whether there was a relationship between Indigenous status and imprisonment after controlling for other factors known to impact sentencing decisions. It was found that: For each year, adjusting for social background, past and present criminality and court processing factors reduced the initial baseline differences between Indigenous and non-Indigenous defendants in both jurisdictions (New South Wales and South Australia). • Overall, Indigenous defendants were more likely to receive a prison sentence, compared with non-Indigenous defendants in comparable circumstances in both jurisdictions (New South Wales and South Australia). • The pattern of disparity over time varied between the two jurisdictions of New South Wales and South Australia. In South Australia, in the period pre-2001, there was evidence of parity and even leniency. However, in more recent years, Indigenous offenders were more likely to receive a prison sentence. By contrast, Indigenous offenders had higher odds of imprisonment throughout the entire period in New South Wales. So there is some support for the differential involvement hypothesis across the entire time period, but some negative disparity remains. More importantly, the analysis suggests that the gap in the decision to imprison in the lower courts between Indigenous and non-Indigenous offenders may well be increasing in both jurisdictions. The finding of negative discrimination across time in the lower courts of South Australia and New South Wales stands in contrast with prior research undertaken in Australia at the higher court level where either equality or leniency is found to be extended to Indigenous offenders (Bond & Jeffries 2011a, 2011b, 2011c, 2010a; Bond, Jeffries & Weatherburn 2011; Jeffries & Bond 2009). The focal concerns perspective of sentencing and/or methodological limitations around the variables used in the statistical sentencing models may provide some explanation for the contrasting findings in higher/lower court research. According to the focal concerns perspective, sentencing is likely impacted by practical constraints including limited organisational resources, which place pressure on judicial officers. By contrast with the higher courts, lower court magistrates are required to make sentencing determinations under tighter time constraints and with less information. The focal concerns perspective proposes that when constrained in these ways, judicial officers may utilise 'perceptual shorthands' (ie community-based stereotypes) to make sentencing determinations. In the North American racial/ethnic sentencing disparities research, these perpetual shorthands are argued to play out in ways that increase judicial assessments of risk and blameworthiness for African American and Latino defendants. Perceptions of Indigenous peoples as 'deviant', 'dysfunctional', 'disintegrated' and 'pathological' also pervade Australian society (Jeffries & Bond 2011). The other factor that may account for differences in the higher/lower court research is that these contrasting findings may reflect variance in the number and kinds of sentencing factors considered in these studies. Typically in Australia, statistical explorations of Indigeneity and higher court sentencing include a broad range of sentencing factors, such as information about offenders' social contexts (eg employment status, familial situation, health) and offence contexts (eg presence of co-offenders, evidence of premeditation; eg see Jeffries & Bond 2009). However, even if these factors could have been included in the current analyses (they were not available in the court data), reduction in the Indigenous/non-Indigenous sentencing difference would likely be minimal. As discussed above, the restrictive context of lower court sentencing environments suggests that this more detailed level of information is less likely made available to sentencing magistrates. Further, the consistency of the Indigenous finding across time in two Australian jurisdictions provides strength to the argument of disparate treatment at the lower court level. © Australian Institute of Criminology 2012.