Sentencers’ attitudes toward women in the Criminal Justice System –

Explanations for sentencing treatment disparities between Indigenous and non-

Indigenous women

Marisela Velazquez, PhD CandidateJames Cook University

Women defendants Contact with the policing system

Offender rate• Despite decreases, Indigenous women continue to experience

higher offending rates than their non-Indigenous counterparts

Women’s offender rate by Indigenous status and selected states/territory

(per 100,000 population), 2007-2013  Indigenous

  2007-08 2008-09 2009-10 2010-11 2011-12 2012-13

Queensland   7,192 7,370 6,707 6,852 7,046

South Australia 8,203 8,453 8,791 8,232 8,600 8,885

Northern Territory 4,294 3,404 3,195 2,674 3,042 3,737

New South Wales 5,591 4,378 4,243 4,090 3,223 3,485

             

  Non-Indigenous

  2007-08 2008-09 2009-10 2010-11 2011-12 2012-13

Queensland   712 724 660 679 680

South Australia 504 522 551 539 503 506

Northern Territory 385 370 366 330 313 380

New South Wales 603 388 417 405 292 381

Women defendants Contact with the policing system

Offender rate• Current disparities in women’s offending patterns resonates

with trends from nearly 20 years ago

• Dated surveys and other data on police arrests show that Indigenous women are more likely to be arrested than non-Indigenous women

• Disproportionate rates have long been claimed to reflect the conduct of policing

Women defendants Contact with the policing system

Offender rate in Queensland• Indigenous women are 10 times more likely to offend

that non-Indigenous women: 7,046 vs. 680

2008-09 2009-10 2010-11 2011-12 2012-130

1,000

2,000

3,000

4,000

5,000

6,000

7,000

8,000

Women's offender rate, Queensland, 2008-2013

IndigenousNon-Indigenous

Per

100

,000

pop

ula

tion

Women defendantsContact with the policing system

Criminogenic behaviour• Crime generally remains non-serious and non-violent

(with some increases in violent crimes)

• Indigenous women show higher proportions of violent offences than non-Indigenous women

Women in the CJSContact with the court system

Finalised Proven guilty Sentenced

Selected Higher courts data on women defendants by Indigenous status, Qld. (2009-2012)

Selected Magistrates’ court data on women defendants by Indigenous status, Qld. (2009-2012)

 Higher Courts Indigenous Non-Indigenous

  2009-10 2010-11 2011-12 2009-10 2010-11 2011-12

Number of women finalised (excluding traffic offences) 174 136 142 549 483 399

Indigenous/non-Indigenous women as % of women finalised 21 18 22 66 63 63

Indigenous/non-Indigenous women as % of Indigenous/non-Indigenous offenders finalised 22 19 20 14 13 13

% of Indigenous/non-Indigenous offenders finalised proven guilty 75 79 77 76 78 77

Magistrates' Courts Indigenous Non-Indigenous

   2009-10 2010-11  2011-12  2009-10  2010-11  2011-12 

Number of women finalised (excluding traffic offences) 5,640 5,261 5,061 11,915 11,368 11,579

Indigenous/non-Indigenous women as % of women finalised 27 28 27 57 60 63

Indigenous/non-Indigenous women as % of Indigenous/non-Indigenous offenders finalised 45 45 44 24 25 27

% of Indigenous/non-Indigenous offenders finalised proven guilty 92 91 91 89 88 87

Women defendantsContact with the prison system

Indigenous women are at present 24 times more likely to be imprisoned than non-Indigenous women

The gap in prison rates between both groups of women has widened

Women’s prisoner rates (per 100,000 population), 2000 – 2013

Indigenous Non-Indigenous2013 415 172012 405 172011 358 162010 374 182009 360 182008 365 1720072006 366 162005 338 162004 301 212003 296 202002 285 192001 294 202000 251 19

Women defendantsContact with the prison system

Indigenous women are more likely to serve time in prison for violent offences than non-Indigenous women

Percentage of Indigenous women in prison by most serious offence type, 2007 – 2013  2007 2008 2009 2010 2011 2012 2013Homicide 8 9 8 7 9 8 8Acts intended to cause injury (AICI) 30 33 31 35 33 33 34Sexual assault and related offences 1 0.5 0.7 1 0.6 0.5 0.8Dangerous or negligent acts endangering persons 1 1 2 3 3 4 3Abduction and related offences   0.7 0.5 0.8 1 0.8 1Robbery, extortion and related offences 8 9 9 7 8 9 9Unlawful entry with intent 14 13 10 11 12 15 15Theft and related offences 10 8 9 9 8 7 8Deception and related offences 3 2 3 2 3 4 3Illicit drug offences 4 4 6 4 2 4 4Weapons and explosives offences 0.5 0.7 0.5 0.5 0.5 0.5 0.4Property damage and environmental pollution 2 2 1 0.8 2 1 2Public order offences   1 0.8 0.8 1 0.9 0.9Road traffic and motor vehicle regulatory offences 6 5 5 4 5 4 5Offences against justice procedures, government security and operations 13 12 14 13 10 9 9Miscellaneous offences 0.5 0.5 0.5       0.4

Women defendantsContact with the prison system

Non-Indigenous women have a lower likelihood of serving time for violent offences; instead, increases in illicit drug offences

Percentage of non-Indigenous women in prison by most serious offence type, 2007 – 2013  2007 2008 2009 2010 2011 2012 2013Homicide 12 12 11 12 13.1 12 11Acts intended to cause injury (AICI) 10 11 10 11 11 9 9Sexual assault and related offences 2 2 2 3 3.1 3 3Dangerous or negligent acts endangering persons 1 1 2 2 2 2 2Abduction and related offences 0.5 0.9 0.9 0.8 0.9 0.9 1Robbery, extortion and related offences 7 6 6 6 5 6 6Unlawful entry with intent 8 9 7 7 6 7 8Theft and related offences 10 8 11 9 8 9 8Deception and related offences 14 14 15 14 13 14 12Illicit drug offences 19 19 22 23 24 25 25Weapons and explosives offences 0.4 0.7 0.6 0.5 0.3 0.4 0.4Property damage and environmental pollution 1 2 1 1 1 2 0.8Public order offences 0.6 1 0.6 0.5 0.5 0.5 0.4Road traffic and motor vehicle regulatory offences 3 3 3 2 3 2 2

Offences against justice procedures, government security and operations 10 10 7 8 8 8 10Miscellaneous offences 0.8 2 0.8 0.8 1 0.3 0.6

Women defendantsAll criminal justice jurisdictions

Over-representation of Indigenous women across the CJS

• Patterns of disparities across all CJ jurisdictions is not new

• Resonates with historical facts of minority women vs white women’s treatment

• International and across Australia

Indigenous women - Higher courtsEmerging research

Higher courts – NSW, SA, WA

• Contradicts historical facts of punitive treatment for minority women

• Indigenous women are being given lenient treatment for comparable offences

• Lower likelihood of imprisonment sentences for Indigenous women than non-Indigenous women

Indigenous women – Higher courtsEmerging research

Judiciary’s assessment of offenders and crime

Focal concerns perspectives• Blameworthiness

• Risk/community protection

• Constraints

Research projectObjectives

Aim is to gauge sentencers’ explanations for sentencing discrepancies of Indigenous women

Two key explanations from criminology will be critically analysed for their applicability to the context of Indigenous women’s sentencing compared with non-Indigenous women’s sentencing in the higher courts in North Queensland

   The key questions:

• Why are the higher courts more lenient toward Indigenous women defendants?

• If sentencers say that they impose prison sentences as ‘last resort’ for women defendants, why do Indigenous women continue to be imprisoned at such high rates?

• How have changes in legislation contributed to policy changes on sentencing?

Research projectFramework

Focal concerns perspective• Blameworthiness• Risk/community protection• Constraints

Feminist criminology• Women are generally treated more leniently than men

due to their criminogenic behaviour • Femininity role • Advance understandings of how race and ethnic status

impacts the treatment of minority women in the CJS

Research projectExplanation

Positive discrimination – lenient treatment• Sentencing decisions may favour Indigenous offenders

• Product of judicial awareness of the historical inequalities (e.g. colonisation).

• Sentencers’ response to political and community expectations to reduce Indigenous over-representation

Research projectExplanation

Differential involvement – punitive treatment• Differences in sentencing outcomes may be a function

of differences in offending patterns and criminal histories

• Sentence is not based on Indigenous status (e.g. not race-based discrimination)

Research projectQualitative methodology

Interviews• Participants – judiciary who presides over cases involving

women offenders in the higher courts• Semi-structured, open-ended interviews

Observations• Analyse how gender is constructed in courtrooms• Field notebooks will be analysed through thematic coding

Analysis of court transcripts• Analysis will be from the previous 25 years

ResearchAnalysis of data collection

Data collection from interviews, observations, and court transcripts will be analysed through thematic coding

Will pair thematic coding with a grounded theory-style coding of themes raised from data

Observe for links between punitive and lenient treatment and women’s Indigeneity

ResearchQualitative methodology

Limitations• Sentencers are not the sole factor for women’s

treatment in CJS

• Target group – Sentencers

References Australian Bureau of Statistics (ABS) 2012b. Criminal courts, Australia, 2010-11. Cat no. 4513.0

Canberra: ABS.

Australian Bureau of Statistics (ABS) 2013. Prisoners in Australia. cat. no. 4517.0.

Canberra: ABS. Australian Bureau of Statistics (ABS) 2009. Prisoners in Australia. cat. no. 4517.0. Canberra: ABS. Bartels, L. (2010). Indigenous women’s offending patterns: A literature review. Research and Public

Policy Series no. 107. Canberra: Australian Institute of Criminology.

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