Sentencing Indigenous and Non-Indigenous Women in Western Australia’s Higher Courts

This article presents results from an exploratory study seeking to examine the role of sentencing in the continuing overrepresentation of Indigenous women in Western Australia’s prisons. Sentencing data from Western Australia’s higher courts indicate that Indigenous women were less likely than non-Indigenous women to be sentenced to a term of imprisonment when appearing before the court for comparable offending behaviour and histories.

An examination of the sentencing remarks of Indigenous and non-Indigenous criminal defendants in South Australia’s Higher Courts

Recent Australian research on Indigenous sentencing primarily explores whether disparities in sentencing outcomes exist. Little is known about how judges perceive or refer to Indigenous defendants and their histories, and how they interpret the circumstances of Indigenous defendants in justifying their sentencing decisions. Drawing on the ‘focal concerns’ approach, this study presents a narrative analysis of a sample of judges’ sentencing remarks for Indigenous and non-Indigenous criminal defendants convicted in South Australia’s Higher Courts. The analysis found that the sentencing stories of Indigenous and non-Indigenous offenders differed in ways that possibly reduced assessments of blameworthiness and risk for Indigenous defendants.

Sex and sentencing disparity in South Australia’s higher courts

In Australia, studies examining sex differences in sentencing are limited. Using data from South Australia’s higher courts, this article explores a study on the impact of sex on the decision to imprison and the length of imprisonment. After adjusting for past and current criminality, results showed that men were significantly more likely than women to be sentenced to a term of imprisonment and that when sentence length was decided, men received longer periods of incarceration. Furthermore, the study’s results suggest that different factors may be important in determining sentencing outcomes for women and men.

Sentencing indigenous and non-indigenous women in Western Australia's higher courts : A summary of the main findings of a narrative study

This paper presents the main findings of a narrative examination of higher court sentencing remarks to explore the relationship between Indigeneity and sentencing for female defendants in Western Australia. Using the theoretical framework of focal concerns, we found that key differences in the construction of blameworthiness and risk between the sentencing stories of Indigenous and non-Indigenous female offenders, through the identification of issues such as mental health, substance abuse, familial trauma and community ties. Further, in the sentencing narratives, Indigenous women were viewed differently in terms of social costs of imprisonment.

Narratives of mitigation : sentencing Indigenous criminal defendants in South Australia’s Higher Courts

In their statistical analyses of higher court sentencing in South Australia, Jeffries and Bond (2009) found evidence that Indigenous offenders were treated more leniently than non-Indigenous offenders, when they appeared before the court under similar numerical circumstances. Using a sample of narratives for criminal defendants convicted in South Australia’s higher courts, the current article extends Jeffries and Bond’s (2009) prior statistical work by drawing on the ‘focal concerns’ approach to establish whether, and in what ways, Indigeneity comes to exert a mitigating influence over sentencing. Results show that the sentencing stories of Indigenous and non-Indigenous offenders differed in ways that may have reduced assessments of blameworthiness and risk for Indigenous defendants. In addition, judges highlighted a number of Indigenous-specific constraints that potentially could result in imprisonment being construed as an overly harsh and costly sentence for Indigenous offenders.

Sentencing and public confidence : results from a national Australian survey on public opinions towards sentencing

This paper examines the critical issue of public confidence in sentencing, and presents findings from Phase I of an Australia-wide sentencing and public confidence project. Phase I comprised a nationally representative telephone survey of 6005 participants. The majority of respondents expressed high levels of punitiveness and were dissatisfied with sentences imposed by the courts. Despite this, many were strongly supportive of the use of alternatives to imprisonment for a range of offences. These nuanced views raise questions regarding the efficacy of gauging public opinion using opinion poll style questions; indeed the expected outcome from this first phase of the four phase sentencing and public confidence project. The following phases of this project, reported on elsewhere, examined the effects of various interventions on the robustness and nature of these views initially expressed in a standard ‘top of the head’ opinion poll.

Measuring the effects of small group deliberation on public attitudes towards sentencing : benefits and challenges

This article reports on the outcomes of small group deliberations on levels of punitiveness and public confidence in the sentencing functions of Australian criminal courts, conducted as part of a larger project investigating public attitudes to sentencing. One hypothesis of the project as a whole was that a more informed and involved public is likely to be less punitive in their views on the sentencing of offenders, and to express less cynical views about the role of sentencing courts. The aim of the small group deliberations as part of the broader project was to engender a more thoughtful and considered approach by participants to issues around sentencing. It was hypothesised that the opportunity to discuss, deliberate and consider would lead to a measurable reduction in punitiveness and an increase in people’s confidence in the courts. While the results do indeed indicate such changes in attitudes, the current study also shed light on some of the conceptual, methodological and practical challenges inherent in this type of research.

Sentencing and public confidence in Australia: The dynamics and foci of small group deliberations

This study is the first of its kind in Australia to use the deliberative small group methodology to explore participants’ deeper, nuanced thoughts on specific criminal justice issues in order to gain insight into the underlying beliefs that influence people’s opinions on sentencing. The use of small group discussions allows an analysis of the dynamics of people’s interactions and the potential of these to elicit deeper, more thoughtful deliberation. Participants’ comments around two policy areas – mandatory sentencing and the use of alternatives to imprisonment – were founded on concerns about the need for judges to tailor the sentence to fit the specific circumstances of each case. The methodology itself has shown that people may change their initial opinions on complex issues when given the opportunity to discuss and reflect on their beliefs.

Occupational Health and Safety, Courts and Crime: the legal construction of occupational health and safety offences in Victoria

This book reports on an empirically-based study of the manner in which the Magistrates' Courts in Victoria, construct occupational health and safety (OHS) issues when hearing prosecutions for offences under the Victorian OHS legislation. Prosecution has always been a controversial element in the enforcement armoury of OHS regulators, but at the same time it has long been argued that the low level of fines imposed by courts has had an important chilling effect on the OHS inspectorate's enforcement approaches, and on the impact of OHS legislation. Using a range of empirical research methods, including three samples of OHS prosecutions carried out in the Victorian Magistrates' Courts, Professor Johnstone shows how courts, inspectors, prosecutors and defence counsel are involved in filtering or reshaping OHS issues during the prosecution process, both pre-trial and in court. He argues that OHS offences are constructed by focusing on "events", in most cases incidents resulting in injury or death. This "event-focus" ensures that the attention of the parties is drawn to the details of the incident, and away from the broader context of the event. During the court-based sentencing process defence counsel is able to adopt a range of techniques which isolate the incident from its micro and macro contexts, thereby individualising and decontextualising the incident.

Safety, courts and crime: occupational safety and health prosecutions in the Magistrates' courts

This paper reports on an empirically based study of occupational safety and health prosecutions in the Magistrates' courts in the State of Victoria, Australia. It examines the way in which the courts construct occupational safety and health issues during prosecutions against alleged offenders, and then theorises the role of the criminal law in health and safety regulation. The paper argues that courts, inspectors, prosecutors and defence counsel are involved in filtering or reshaping occupational safety and health issues during the prosecution process, both pre-trial and in court. An analysis of the pattern of investigation of health and safety offences shows that they are constructed by focusing on 'events', in most cases incidents resulting in injury or death. This 'event focus' ensures that the attention of the parties is drawn to the details of the incident and away from the broader context of the event. This broader context includes the way in which work is organised at the workplace and the quality of occupational safety and health management (the micro context), and the pressures within capitalist production systems for occupational safety and health to be subordinated to production imperatives (the macro context). In particular, during the court-based sentencing process, defence counsel is able to adopt a range of 'isolation' techniques that isolate the incident from its micro and macro contexts, thereby individualising and decontextualising the incident. The paper concludes that the legal system plays a key role in decontextualising and individualising health and safety issues, and that this process is part of the 'architecture' of the legal system, and a direct consequence of the 'form of law'.

The disunity of employment law and sentencing

This article discusses the lack of integration between criminal sanctions and employment deprivations (in the form of being dismissed from employment or disqualified from working in certain industries). Offenders who are employed in certain industries, especially the professions, often suffer a far greater net punishment upon being found guilty of a criminal offence than other offenders, thereby violating the principle of proportionality and the (related) principle of equality in the impact of sanctions. The reason that such a situation has developed is because criminal sanctions and employment deprivations have evolved from different streams of jurisprudence. This article argues that sentencers should impose a ‘net’ sanction for a criminal offence, thereby merging these streams of jurisprudence. This would require courts to be vested with the power to suspend or disqualify people from being employed in certain occupations. The legal analysis in this article focuses on case and statutory law in Australia, however, the same broad principles apply in all common law jurisdictions, including the UK. Hence, the reform proposals suggested in this article are relevant throughout the common law world.

Addressing the curious black spot that is the separation between the principle of legality and sentencing

The principle of legality has evolved into a clear and entrenchedjurisprudential mechanism for protecting common law rights and freedoms. It operates as a shield to preserve the scope of application of fundamental rights and fre edoms. In recent years it has been increasingly applied by the courts to limit the scope of legislative provisions which potentially impinge on human rights and fundamental freedoms. Yet there is one domain where the principle of legality is conspicuously absent: sentencing. Ostensibly, this is paradoxical. Sentencing is the realm where the legalsystem operates in its most coercive manner against individuals. In thisarticle, we argue that logically the principle of legality has an importantrole in the sentencing system given the incursions by criminal sanctionsinto a number of basic rights, including the right to liberty, the freedom ofassociation and the deprivation of property. By way of illustration, we setout how the principle of legality should apply to the interpretation of keystatutory provisions. To this end, we argue that the objectives of generaldeterrence and specifi c deterrence should have less impact in sentencing. It is also suggested that judges should be more reluctant to send offenders with dependants to terms of imprisonment. Injecting the principle of legality into sentencing law and practice would result in the reduction in severity of a large number of sanctions, thereby reducing the frequency and extent to which the fundamental rights of offenders are violated. The methodology set out in this article can be applied to alter the operation of a number of legislative sentencing objectives and rules.

Rights versus reality : the difficulty of providing 'access to English' in Queensland Courts

This report was developed out of a Legal Practitioner on Trust Account Fund grant from the Department of Justice and Attorney-General in Queensland, to review the Aboriginal English in the Courts Handbook. Judges, Magistrates, barristers and court staff were interviewed about the Handbook. The findings extend beyond Aboriginal English into access to English in Queensland Courts. Recommendations are made about language difficulties faced by witnessed and the ability to the courts to respond to them.

Discrimination or Differential Involvement? A Review of the Research Exploring the Impact of Indigenous Status on Sentencing

Existing court data suggest that adult Indigenous offenders are more likely than non-Indigenous defendants to be sentenced to prison but once imprisoned generally receive shorter terms. Using findings from international and Australian multivariate statistical analyses, this paper reviews the three key hypotheses advanced as plausible explanations for these differences: 1) differential involvement, 2) negative discrimination, 3) positive discrimination. Overall, prior research shows strong support for the differential involvement thesis, some support for positive discrimination and little foundation for negative discrimination in the sentencing of Indigenous defendants. Where discrimination is found, we argue that this may be explained by the lack of a more complete set of control variables in researchers’ multivariate models.