Cultural context and sentencing: content analysis of sentencing remarks for Indigenous defendants of domestic violence in the Northern Territory, Australia

Abstract

ABSTRACT The focal concerns perspective was developed to understand differential sentencing outcomes for minority defendants in the United States. Although the focal concerns perspective dominates empirical sentencing research, its application in Australia has limitations in understanding sentencing disparities of Indigenous defendants, especially around cultural and customary contexts. In Australia, this limitation is exasperated by jurisdictional nuances and that certain sentencing – like for domestic violence – requires consideration of cultural factors. Using content analysis, we examined the extent to which cultural and customary contexts were acknowledged within the sentencing remarks of 72 Indigenous spousal domestic violence defendants sentenced in the Northern Territory Supreme Court between April 2015 to April 2016. We found limited acknowledgement of culture and customary practices for Indigenous defendants. Around a third of transcripts referred to Indigenous cultural factors. When cultural factors were identified, the impacts on sentencing were absent, superficial, or applied in a way to remove cultural meaning. Consequently, there was little evidence that sentencing courts adequately accounted for the unique experiences of Indigenous people. This can further marginalise Indigenous people, decrease the capacity for healing and rehabilitation at sentencing, and increase sentencing disparities. We consider plausible strategies for judicial decision-making processes that ensure cultural and customary contexts.