Does indigeneity matter? Sentencing Indigenous offenders in South Australia's higher courts.

In Australia, research investigating Indigenous differences in sentencing is limited. This study examines the impact of offenders' Indigenous status on the decision to imprison and length of imprisonment in South Australia's Higher Courts. Results indicate that Indigenous offenders were less likely than their non-Indigenous counterparts to be sentenced to a term of imprisonment when appearing before the court under similar circumstances. However, when sentence length was decided, Indigenous offenders were sentenced to longer periods of imprisonment. The theoretical implications of these research findings are explored including conflict and focal concerns (attribution) perspectives.

Keywords: sentencing, Indigenous people

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It has been just over 15 years since the final report of The Royal Commission into Aboriginal Deaths in Custody (1991) was released. The Royal Commission was established to investigate growing public concern about the deaths of Indigenous Australians in custody. It concluded that Indigenous persons in custody do not die at a greater rate than non-Indigenous persons, but that the overwhelming difference is the high rate at which Indigenous people come into custody compared with others in the community (The Royal Commission into Aboriginal Deaths in Custody, 1991).

The Royal Commission (1991) made 339 recommendations for reform that included, but were not limited to, instituting changes in the operation of the criminal justice system to reduce levels of Indigenous overrepresentation. Nonetheless, Indigenous imprisonment rates have risen since the Royal Commission and, more significantly, the gap between the proportions of Indigenous to non-Indigenous Australians in prison has widened. In 1992, Indigenous prisoners comprised 14% of the total prison population. As at June 30, 2006, this proportion had increased to 24%, even though Indigenous people only comprise around 2.4% of the total Australian population (Australian Bureau of Statistics, 2001, 2006). As at June 30, 2006, Indigenous Australians were nearly 13 times more likely than non-Indigenous Australians to be in prison (Australian Bureau of Statistics, 2006). The age standardised rate of imprisonment for Indigenous persons in 2006 was 1,668 per 100,000 adult population, compared with a rate of less than 1,200 per 100,000 in 1992 (Australian Bureau of Statistics, 2006; Australia Institute of Criminology, 2005, p. 90).

Treatment at the point of sentencing could provide some explanation for the continuing overrepresentation of Indigenous offenders in Australia's prisons. Government data show that Indigenous offenders are more likely to be sentenced to imprisonment and, in some cases, receive longer terms of imprisonment than non-Indigenous offenders (see Baker, 2001; Castle & Barnett, 2000; Loh & Ferrante, 2001). This finding might reflect differential sentencing practices generally favouring non-Indigenous offenders; an alternative explanation could be higher rates of Indigenous participation in serious crime. In this case, sentencing decisions handed down by the court may simply be a response to differences in offending behaviours (Weatherburn, Fitzgerald, & Hua, 2003, p. 1).

International research concerning criminal sentencing indicates that there is a strong correlation between the seriousness of the offender's criminal history, the severity of the offender's crime(s) and sentencing. Offenders exhibiting more extensive and more serious forms of criminality tend to receive harsher sentences. In addition, such studies (the majority of which are North American) generally show that race/ethnicity plays an important role in contemporary sentencing practice (see reviews by Mitchell, 2005; Spohn, 2000).