Using a Trauma-Informed Practice Framework to Examine How South Australian Judges Respond to Trauma in the Lives of Aboriginal Defendants

Katherine J Mclachlan

doi:10.21428/88de04a1.04778d50

Abstract

This article uses a trauma-informed practice framework to examine how South Australian superior court judges acknowledge defendant trauma when sentencing Aboriginal defendants. Trauma-informed sentencing requires that judges realise the presence of trauma, recognise its relevance, respond in a way that is informed by trauma and act to avoid re-traumatisation. By analysing sentencing remarks of 42 defendants identified as Aboriginal, the presence of trauma-informed practice was explored, in terms of judicial decision-making, the sentencing process and the sanction imposed. While not holistic summaries of judgesâ reasoning, sentencing remarks are intended to enable the parties and the community to understand sentencing logic. Analysis indicated that judges realised trauma was present in the lives of many Aboriginal defendants but did not always overtly recognise a link between trauma and criminal behaviour and were unlikely to refer to a defendantâs trauma history or use trauma-informed principles of practice in their sentencing response.

Highlights

This article used an established trauma-informed practice framework to examine how judges of South Australian superior courts acknowledged defendant trauma when sentencing Aboriginal defendants
Analysis indicated that judges realised trauma was present in the lives of many Aboriginal defendants but did not always overtly recognise a link between trauma and criminal behaviour and were unlikely to refer to a defendant’s trauma history or use trauma-informed principles of practice in their sentencing response
Often judges used trauma-informed practices in court when responding to traumatised defendants, these could “merely reflect good practice in ensuring defendants have participatory rights in the court process” (McLachlan, 2021, p. 14), given that the Australian Guide to Judicial Conduct requires judicial practices that are respectful of defendants (Australian Institute of Judicial Administration, 2017)

Summary

Introduction

This article used an established trauma-informed practice framework to examine how judges of South Australian superior courts acknowledged defendant trauma when sentencing Aboriginal defendants. Trauma in the lives of people who offend (as both an experience and the impacts of those experiences) is prevalent (Malvaso et al, 2021; Ministry of Justice, 2013; Wolff & Shi, 2012), and the compounded effects of collective and direct trauma experienced by Aboriginal defendants is notable (Menzies, 2019). Australian Aboriginal people are highly resilient in the face of collective trauma experiences that undermine their cultures and identity. The impacts of unresolved trauma increase the likelihood that people will engage in harmful and criminalised behaviour, such as substance abuse, violence, and aggression (Australian Law Reform Commission [ALRC], 2017; Atkinson, 2008). Current sentencing approaches based on specific deterrence and individual responsibility are limited in their effectiveness when responding to people with complex and compound trauma. There is a lack of understanding of how defendants’ trauma histories influence sentencing

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Conclusion