Harsher sentences?

Indigeneity and prison sentence length

in Western Australia’s higher courts
Christine E.W. Bond
Queensland University of Technology

Samantha Jeffries
Queensland University of Technology

Abstract
Overall, reviews of international sentencing research conclude that offenders’
race/ethnicity has a direct effect on sentencing outcomes. Although specific
research on Indigenous status and sentencing is much more limited, there is
emerging evidence that Indigeneity also has a direct impact on sentencing
outcomes. While North American research suggests harsher outcomes,
Australian research indicates more lenient outcomes at some stage of the
process. The current study examines the effect of Indigenous status on the
length of imprisonment decision in Western Australia’s higher courts. We
found that Indigenous offenders receive shorter terms of imprisonment than
non-Indigenous offenders in statistically similar circumstances. We argue that
our findings are broadly consistent with focal concerns of blameworthiness,
risk and practical concerns having an impact on decisions about length of
term. However, Indigeneity does not evoke the same judicial perceptions of
race as suggested by prior North American research.
Keywords: courts, disparity, focal concerns, Indigenous, sentencing

Recent reviews of international research on sentencing disparities generally

conclude that there is empirical evidence of direct racial and ethnic disparity
in sentencing outcomes, at least for African-American and Latino criminal
defendants. Independent of other crucial sentencing determinates, minority

Journal of Sociology © 2011 The Australian Sociological Association, Volume 48(3): 266–286
DOI:10.1177/1440783311413486 www.sagepublications.com

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 Bond & Jeffries: Harsher sentences?  267

defendants appear to be punished more harshly than non-minority defen-

dants (Mitchell, 2005; Spohn, 2000). However, the effect of race/ethnicity
and sentence severity appears to vary according to the sentencing stage
under investigation. Racial/ethnic minority offenders are more likely to be
disadvantaged at the initial decision to imprison (in/out) than at the subse-
quent decision concerning length of sentence. For example, Spohn’s (2000)
review of 40 studies (which used appropriate multivariate techniques and
included controls for current and past criminality) found that in 50 percent
of in/out sentencing estimates racial/ethnic minority offenders were more
likely to be imprisoned. In contrast, only 30 percent of estimates for length
of imprisonment term found race/ethnicity significantly increased sentence
lengths (Spohn, 2000: 455–6).
Research examining the impact of Indigenous status on sentencing is
much more limited, with most research occurring recently in Australia
(Jeffries and Bond, 2010a). There is some support for a direct negative
relationship between Indigenous status and sentencing (i.e. harsher out-
comes for Indigenous offenders), in the few studies conducted outside of
Australia. Indigenous defendants are more likely to be imprisoned (Munoz
and McMorris, 2002 [US]), and once jailed, sometimes receive longer terms
(Alvarez and Bachman, 1996 [US]; Everett and Wojtkiewicz, 2002 [US]; cf.
Weinrath, 2007 [Canada] who found that Indigenous status had no direct
impact on length of term).
However, Australian research suggests a different picture of the effect of
Indigenous status on sentencing outcomes. In adult higher and lower courts
in New South Wales, researchers found close to parity between Indigenous
and non-Indigenous defendants in the likelihood of receiving a prison term
(Snowball and Weatherburn, 2006, 2007), and no difference in length of
term in the higher courts but shorter sentences in the lower courts after
adjusting for demographics, plea, current and past criminality (Bond et al.,
in press). In contrast, in the adult higher courts in Western Australia and
South Australia, Bond and Jeffries (2010, female-only sample) and Jeffries
and Bond (2009) found there was leniency favouring Indigenous offenders
in the decision to imprison, net of demographic characteristics, current and
past criminality, the context of offence commission, court process (e.g.
remand), and social background factors (e.g. substance abuse). But, in
South Australia, when sentence length was decided, Indigenous offenders
were sanctioned more harshly than their non-Indigenous in statistically
similar circumstances (Jeffries and Bond, 2009). This pattern of results sug-
gests that, in Australia and unlike North America, Indigenous status may
invoke leniency at some stage of the sentencing process.
To further explore this pattern of leniency, this article explores the effect
of Indigenous status on the length of imprisonment decision in Western
Australia.

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268  Journal of Sociology 48(3)

Explaining the judicial sentencing decision

In the late 1990s, Steffensmeier et al. (1998) put forward a focal concerns
perspective of sentencing which has become the dominant explanation for
the differential treatment of racial (i.e. lack) and ethnic minority groups (i.e.
Latinos) in the North American courts. According to this perspective, sen-
tencing decisions are driven by three ‘focal’ concerns: ‘blameworthiness’,
‘community protection’, and ‘the practical constraints and consequences’ of
sentencing decisions (Steffensmeier et al., 1998: 766–8).
Blameworthiness. This first concern is associated with offender culpabil-
ity and responsibility, focusing on the seriousness of the offence and the
amount of harm caused by the crime. Typically, offence seriousness is con-
ceptualized in terms of maximum tariffs, or other statutory classifications
(Bond and Jeffries, 2010; Bond et al., in press; Jeffries and Bond, 2009;
Steffensmeier et al., 1998: 766; White and Perrone, 2005: 155 ). In addi-
tion, there is a range of factors associated with the commission of the
offence that might increase judicial assessments of offence seriousness and
the offender’s culpability, such as being convicted of multiple offences, the
presence of co-offenders, evidence of premeditation, victim impact and
whether the offence occurred in public or private (Ashworth, 1995: 129–
30; Bond and Jeffries, 2010; Bond et al., in press; Daly, 1994: 95; Jeffries
and Bond, 2009; Jeffries et al., 2003). Other circumstances may mitigate
offender blameworthiness. Research shows that personal histories of abuse
and victimization (both in childhood and adulthood) and poor physical and
mental health (including substance abuse/misuse) may mitigate sentences,
as they may change judicial assessments of the offender’s level of culpability
(Allen, 1987; Jeffries and Bond, 2009; Jeffries, 2002a, 2002b).
Community protection. The second focal concern highlights the need for
sentencing judges to make predictions about the risk offenders pose to the
community, based on factors such as current crime seriousness and criminal
history (Jeffries and Bond, 2009; Steffensmeier et al., 1998). Custodial
remand could also affect sentencing decisions (Jeffries et al., 2003). Refusal
by police and previous judicial actors to release offenders back into the
community may influence judges’ perceptions of risk (Jeffries and Bond,
2009). Additionally, offender characteristics such as familial situation,
employment status, and substance abuse may be considered (Jeffries et al.,
2003; Jeffries and Bond, 2009, 2010b).
Practical constraints and consequences. Finally, in making sentencing
decisions, judges also need to take into account a host of practical con-
cerns, including organizational constraints (e.g. the need to ensure a regu-
lar case flow through the court), offender level constraints (i.e. the
capacity of an offender to ‘do time’), the social costs of sentencing on the
offender’s family (especially children), and community or political expec-
tations that may impact the court’s general societal standing (Steffensmeier

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 Bond & Jeffries: Harsher sentences?  269

et al., 1998: 766–7, see also Bond et al., in press; Johnson et al., 2008:
744–6; Steffensmeier and Demuth 2001: 708–10).
However, Steffensmeier et al. (1998) argued that judges lack comprehen-
sive and reliable information on certain aspects of offenders and their cases
around these focal concerns. As a result, this allows stereotypes or ‘percep-
tual shorthands’ linked to race/ethnicity, gender and age to enter into the
decision-making process (Steffensmeier and Demuth 2001: 708–10). In the
absence of relevant and verified information, judges resort to these percep-
tual cues in order to make their assessments and their subsequent sentenc-
ing decision (see also Bond et al., in press; Johnson et al., 2008: 744–6). For
example, research suggests that judges attach a higher social cost to wom-
en’s imprisonment than men’s because of assumptions regarding the superi-
ority of women’s care-giving capacities (Jeffries, 2002a, 2002b). Or lack of
direct information on dangerousness can lead the courts (along with the
general public) to assume that youth pose more future risk to the commu-
nity than older people (Bond et al., in press; Jeffries and Bond, 2009).
In the United States, statistical findings of disparity against racial/
ethnic minority groups led sentencing scholars to conclude that racial/
ethnic minority statuses carry with them criminal stereotypes which
result to a subconscious judicial reliance on that status characteristic as
an indicator of blameworthiness (first focal concern) and dangerousness
(second focal concern) (see e.g. Steffensmeier and Demuth, 2001;
Steffensmeier et al., 1998). It is the attribution of increased blame and
risk to ethnic/racial minorities that produces sentencing differentials
between whites and non-whites.
In contrast, there is evidence to suggest that, in Australia, Indigeneity
may not impact the focal concerns of judges in the same way as racial and
ethnic statuses do in the United States. For example, Snowball and
Weatherburn (2007: 286) argue that ‘in light’ of their research findings in
New South Wales (of virtual equality in the likelihood of receiving a prison
term), Indigenous status is unlikely to invoke the same criminal stereotype
as race (i.e. African American status) does in the United States, and thus,
judges are not subconsciously drawing on Indigenous status as a negative
indicator of offender blameworthiness and dangerousness. Later investiga-
tions of sentence length in New South Wales also support this interpreta-
tion: Indigenous status is not operating to increase attributions of
blameworthiness and risk (Bond et al., in press).
Similarly, and also in the context of the initial decision to imprison,
Jeffries and Bond (2009) suggest that it seems likely, given their finding that
Indigenous defendants are less likely to be imprisoned, that judges in South
Australia are not ‘drawing negative ethnic/racial stereo-types, as [North
American] attribution theorists suggest’ (Jeffries and Bond, 2009).1 Rather,
a defendant’s Indigenous status may trigger judicial perceptions about the
lives of Indigenous offenders and the impact of colonization on their lived

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270  Journal of Sociology 48(3)

experiences that may mitigate sentencing, particularly in light of the

broader political context following the Royal Commission into Aboriginal
Deaths in Custody (Jeffries and Bond, 2009, 2010b).
Thus Australian research suggests that Indigeneity is producing differing
patterns of results across sentencing decisions and jurisdiction. Moreover,
the Australian historical, political and economic context also means that
offenders’ race and ethnicity may play out differently, allowing us to con-
tribute to further theoretical development in understanding the sentencing
process.

The current study

The research reported here will extend our understanding of Indigeneity
and higher court sentencing through an analysis of length of imprisonment
term in the additional Australian jurisdiction of Western Australia. Analyses
of the first sentencing stage (the decision to imprison) showed that, similar
to prior research in New South Wales, Indigenous status had no direct effect
on the decision to imprison in Western Australia’s higher courts, after
adjusting for other sentencing factors (Bond and Jeffries, 2011). This arti-
cle, after adjusting for differences in other legally relevant and background
factors, focuses on the following questions:
1. does Indigeneity have a direct effect on length of imprisonment term in
Western Australia’s higher courts?
2. does Indigeneity have an indirect effect on length of imprisonment term
in Western Australia’s higher courts?
3. are there Indigenous–gender sub-group differences (interactive effects)
in length of imprisonment term in Western Australia’s higher courts?

Data and methods

In this study, we use a sample of offenders convicted in the Western
Australian higher courts (District and Supreme) for the years 2003 to 2005.
Offences sentenced in the higher courts are defined as indictable and
include the most serious types of crimes as defined in Western Australian
criminal law. Higher court judges have the power to sentence offenders to
terms of imprisonment up to the statutory maximum.
Our offender-level data came from a number of sources. We primarily
relied on an administrative database compiled by the Western Australian
Crime Research Centre which provided information on sex, Indigenous
status, age at the time of sentencing, criminal history (prior prison terms,
prior arrests), offence type and seriousness, number of conviction counts,
initial plea, and sentence type and length. However, other important sen-
tencing information (e.g. remand status, offence contexts and social infor-
mation) was not available from the Crime Research Centre’s databases.

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 Bond & Jeffries: Harsher sentences?  271

Thus, we selected a random sample of 1000 offenders, stratified equally by

sex and Indigenous status, to allow for further manual data collection from
pre-sentencing reports and judicial sentencing remarks. In our sample, a
total of 589 criminal defendants received a sentence of imprisonment.
However, 26 (or 4.4 percent) cases were excluded due to missing data. The
final sample for analysis consisted of 563 offenders with a prison sentence,
of which 51.9 percent (n = 292) were Indigenous, and 40.7 percent (n =
229) were female.
A negative binomial model of length of imprisonment was used to esti-
mate the separate independent impact of Indigenous status on length of
imprisonment in months (dependent variable) for principal offence while
controlling for other sentencing factors (described in Table 1). The negative
binomial model, treating length of imprisonment as a count variable (num-
ber of months), allowed us to model the skewed empirical distribution of
the dependent variable, as well as producing more interpretable estimated
coefficients than the conventional OLS model of a logged dependent vari-
able. Length of imprisonment was highly skewed with overdispersion (hav-
ing a mean of 24.23 months and a variance of 454.51). The use of the
negative binomial, over the poisson, distribution form was confirmed by
the likelihood ratio test.2
In sentencing research, there is also the issue of selection bias. As sen-
tencing outcomes are only observed for certain offenders, sentencing deci-
sions are non-random events (Bushway et al., 2007), which may result in
the accumulation of disadvantage for some offenders as their cases prog-
ress. Where sentencing decisions have been conceptualized as a two-step
process (judges first decide whether to imprison, and then make a decision
about length), selection bias is conventionally corrected, at least partially,
by the inclusion of a hazard rate, or predicted probabilities, of the previous
decision (using the Heckman two-step approach: see, e.g. Steffensmeier and
Demuth, 2001; Ulmer and Johnson, 2004). For example, in our case, we
would include an estimate of the predicted likelihood of being sentenced to
prison for each offender (estimated from a probit model) in the length of
imprisonment linear regression model. Unfortunately, among other estima-
tion problems, the inclusion of this hazard rate frequently introduces col-
linearity between the estimates of risk and the substantive independent
variables, especially in cases where instrumental variables could not be used
in the initial prediction model (Benson and Walker, 1988; Bushway et al.,
2007). As we do not have instrumental variables, and the best model pre-
dicting imprisonment includes the same independent variables as the length
of term model, we are not able to adequately correct for selection. Thus we
report the models without a hazard rate correction.
Prior analysis of the initial decision to imprison shows that Indigenous
defendants are equally likely to receive a sentence of imprisonment
(Bond and Jeffries, 2011). Higher risks of imprisonment come from

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272  Journal of Sociology 48(3)

other circumstances of offenders’ backgrounds and cases (circumstances

that might be associated with Indigenous status). Those offenders who
are male, have more extensive criminal histories, have been on remand,
were convicted of multiple charges, and caused physical injury to their
victims are more likely to be in our analysis sample, compared to the
population of convicted offenders.

Independent variables
We include four groups of independent variables in our analysis of the rela-
tionship between Indigenous status and the length of imprisonment term:
offender demographics, offender’s social background, past and current
offending, and case characteristics. Their coding is summarized in Table 1.
Offender characteristics. Indigenous status is a perceived appearance-
based measure of Indigeneity from police arrest data, which is used by the
Western Australian Crime Research Centre to supplement the large amount
of missing values in the original court data.3 In addition to Indigenous sta-
tus, we also control for sex and age (with a squared component to account
for the non-linear relationship with the decision to imprison as indicated by
past research: Steffensmeier et al., 1995).
Social background. Offenders’ social histories are key elements in expla-
nations of sentencing decisions. Some research shows that personal histories
of abuse and victimization (both in childhood and adulthood), and poor
physical and mental health (including substance abuse/misuse) may mitigate
sentences, as they may change judicial assessments of offenders’ level of
culpability and future risk (Allen, 1987; Jeffries and Bond, 2009; Jeffries,
2002a, 2002b). Yet most statistical analyses of sentencing (especially those
focused on the impact of race/ethnicity) have not included measures of these
variables in their models. Based on information provided in pre-sentencing
reports and judicial sentencing remarks, we measure an offender’s familial
ties, employment status, health situation, presence of substance abuse issues,
and the existence of prior victimization experiences (such as abuse).
Past and current offending. Past research shows that prior criminal his-
tory and current offence seriousness are the strongest predictors of sen-
tencing outcome (Mitchell, 2005; Steffensmeier and Demuth, 2006). To
measure prior criminal history, we created an additive standardized index
of number of prior arrests, number of prior arrests in the same category,
and number of prior prison terms. We use the National Offence Index
(NOI) to measure the seriousness of the offender’s current principal
offence (Australian Bureau of Statistics, 1997).4 The NOI ranks all offence
classifications contained within the Australian Standard Offence
Classification System in order of seriousness from 1 to 155, with 1 being
the most serious and 155 being the least serious.5 To assist in the interpre-
tation of the findings, this was reverse-coded, so that higher values reflect
more serious offences.

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 Table 1: Description of study variables (Western Australia, higher courts, 2003–5)
Measures
Independent Variables
Offender demographics
  Indigenous status
  Sex
  Age
Social background
   In paid employment
  Familial ties
   Poor physical/mental health
  Substance abuse
   Negative life experiences
Past and current offending
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   Seriousness of criminal history
Description
0 = non-Indigenous; 1 = Indigenous. Based on police assessment of defendants’ physical
characteristics.
0 = male; 1= female
At time of sentencing, (in years)
(Note: the referent category for these measures is absence noted in the file, or information not
mentioned.)
0 = no paid employment recorded; 1 = in paid employment
0 = no familial ties recorded; 1 = minimal familial ties; 2 = moderate familial ties; 3 = moderate
to strong familial ties; 4 = strong familial ties. Additive index of whether or not offenders had
children, primary childcare responsibilities, partners (i.e. boyfriend/girlfriend, de facto, husband/
wife) and lived with family.
0 = no health problems noted; 1 = poor mental and/or physical health identified
0 = no problems with substance abuse noted; 1 = under the influence of substances at the time of
offence and/or has a general problem with substance abuse
0 = no victimization noted; 1 = victimization in childhood and/or adulthood noted
(Note: the referent category for the context of the offence measures is absence noted in the file,
or information not mentioned.)
Sum of standardized z scores for number of prior criminal convictions, number of prior criminal
convictions in the same offence category as the current offence, number of prior imprisonment
terms.
Bond & Jeffries: Harsher sentences?  273
 Table 1: (Continued)
Measures
   Seriousness of principal offence
   Multiple conviction counts
  Co-offenders present
   Occurred in private
   Evidence of premeditation
   Victim physically injured
Case xharacteristics
   Early plea of guilt
  On remand
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Dependent variable
   Length of imprisonment term
Description
274  Journal of Sociology 48(3)
Reverse coded National Offence Index (NOI). Developed by the Australian Bureau of Statistics
(1997), the NOI ranks all offence classifications contained within the Australian Standard
Offence Classification System in order of seriousness from 1 to 155 with 1 being the most
serious and 155 being the least serious. This index was reverse coded for ease of interpretation.
0 = no; 1 = yes, more than one conviction count
0 = no co-offenders identified; 1 = acted with co-offenders
0 = not known to have occurred in a private residence; 1 = known to have occurred in a private
residence
0 = no evidence of premeditation noted; 1 = yes, evidence of premeditation
0 = none recorded; 1 = yes
0 = no plea of guilt before trial (including no pleas); 1 = plea of guilt
0 = not in custody, or custody status not known at time of sentencing; 1 = custody. Based on
most serious remand outcome.
In months
 Bond & Jeffries: Harsher sentences?  275

Additional measures of offence seriousness include: a dummy variable

which indicated whether the offender had multiple conviction counts; and
a series of dummy variables indicating the context of the current offence
(whether there were co-offenders involved; whether the offence occurred in
a private residence; whether there was evidence of premeditation; and
whether there was any physical injury caused to a victim). Past studies sug-
gest that the circumstances in which the offence occurred may impact on
judicial perceptions of blameworthiness and future risk posed by the
offender (Ashworth, 1995: 129–30; Bond and Jeffries, 2010; Daly, 1994:
95; Jeffries and Bond, 2009; Jeffries et al., 2003).
Case characteristics. Type of plea and offender’s remand (i.e. whether an
offender was given bail or held in custody) status were also included.
Refusal by police and previous judicial actors to release offenders back
into the community may influence judges’ perceptions of risk (Jeffries and
Bond, 2009; Jeffries et al., 2003). Guilty pleas may be associated with
sentencing outcomes, although this could be due to the expression of
remorse inherent in that plea, and/or the saving of time and work to the
court and its personnel. We include a measure for early guilty plea, as pleas
that occur on the day of, or during the trial, have already incurred organi-
zational time and costs.

Results
Descriptive statistics by Indigenous status for the variables used in the
analysis are shown in Table 2. The t-test and z-test statistics (as appropriate)
were calculated to examine any differences between means and proportions
for Indigenous and non-Indigenous offenders. As shown in Table 2, on
average, Indigenous offenders receive significantly shorter prison terms
(20.50 months) than non-Indigenous offenders (28.25 months). Indigenous
offenders are also younger (28.76 years vs 33.35 years), less likely to have
been in paid employment (18.84 percent vs 33.21 percent), have higher
familial ties (1.8 vs 1.5), and are more likely to have substance abuse issues,
including being under the influence at the time of the offence (90.75 percent
vs 71.59 percent) compared to non-Indigenous offenders. Although there
were no statistically significant differences in seriousness of the current
offence and its context, there were significant differences in criminal history
(more extensive for Indigenous offenders), presence of multiple convictions
(less likely for Indigenous offenders), presence of an early guilty plea (more
likely for Indigenous offenders), and being on remand (more likely for
Indigenous offenders) (see Table 2).

Effect of Indigenous status on length of imprisonment term

Table 3 summarizes the negative binomial estimates of the length of
imprisonment on Indigenous status, other offender demographics, social

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276  Journal of Sociology 48(3)

Table 2: Indigenous differences in offender demographics, social background, past

and current offending, case characteristics, and length of term (Western Australia,
higher courts, 2003–5, N = 563)

Total Indigenous Non-Indigenous

Measures (%) (%) (%) Sig.a

Independent variables
Offender demographics
  Indigenous 51.87 — —
  Female 40.67 39.04 42.44 NS
   Age (in years) M = 30.97b M = 28.76 M = 33.35 p < 0.0001
(SD = 9.55) (SD = 8.13) (SD = 10.38)
Social background
   In paid employment 25.75 18.84 33.21 p < 0.001
  Familial ties M = 1.66b M = 1.80 M = 1.50 p < 0.01
(SD = 1.32) (SD = 1.29) (SD = 1.35)
  Poor physical/ 50.98 45.89 56.46 p < 0.05
mental health
  Substance abuse 81.53 90.75 71.59 p < 0.0001
  Negative life 59.33 59.59 59.04 NS
experiences
Past and current offending
  Seriousness of M = 23.65b M = 32.73 M = 13.87 p < 0.0001
criminal history (SD = 22.33) (SD = 24.17) (SD = 14.93)
(unstandardized)c
  Seriousness of M = 103.74b M = 100.93 M = 106.77 (a)
principal offence c
(SD = 35.43) (SD = 35.69) (SD = 34.96)
  Multiple conviction 39.79 33.22 46.86 p < 0.01
counts
  Co-offenders 28.95 30.14 37.68 NS
present
   Occurred in private 53.29 52.05 54.61 NS
  Evidence of 77.80 75.68 80.07 NS
premeditation
  Victim physically 19.72 21.58 17.71 NS
injured
Case characteristics
   Early plea of guilt 65.54 77.05 53.14 p < 0.0001
  On remand 54.71 62.33 46.49 p < 0.001
Dependent variable
  Length of M = 24.23b M = 20.50 M = 28.25 p < 0.0001
imprisonment term (SD = 21.32 (SD = 15.08 (SD = 25.88)
(in months)
Number of cases 563 292 271
Notes: a From t-tests for difference between means or z-tests for difference between proportions (as
appropriate). To address issues of skewness in the continuous variables, the Wilcoxon test for
equality between medians was also calculated. In all but seriousness of the principal offence, the
same conclusions were reached. The difference between Indigenous and non-Indigenous offenders
on offence seriousness was statistically significant at p < 0.05 for the Wilcoxon test.
b
Median: age (29 years); overall familial situation (1, or minimal ties); criminal history index
(18); offence seriousness (98); length of term (18 months).
c
For ease of interpretation of the group differences, the unstandardized criminal history index
is reported.

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 Bond & Jeffries: Harsher sentences?  277

background, past and current offending, and case characteristics. Each

conceptual group of variables was entered into the model in blocks, so that
we could also examine the indirect impact of Indigenous status. Each block
of variables significantly improved the fit of the model (see Table 3).
Incident rate ratios (IRR) are reported. To interpret, incident rate ratios are
a multiplier of the count (number of months), with values greater than 1.0
indicating an increase in the number of months, and values less than 1.0
indicating a reduction in the number of months. For example, an IRR of
2.0 indicates that each unit increase in the independent variable doubles the
number of months of imprisonment.
After adjusting for other offender characteristics, social background fac-
tors, past and current offending, and case characteristics, Indigenous status
significantly reduces the length of term. On average, Indigenous offenders
receive 82.5 percent fewer months than non-Indigenous offenders in statis-
tically similar circumstances (see Table 3, Case characteristics model).
Earlier work suggested that Indigenous status does not have a direct effect
on the decision to imprison (Bond and Jeffries, 2011). However, these
results indicate that, in contrast, Indigenous status has a direct lenient effect
on the length of prison term decision.
Further, as other sentencing factors are added to the model, the size of
this leniency effect reduces (i.e. the estimated incident rate ratio increases
towards 1.0, or parity: see Table 3). The pattern of results across the four
models suggests that some of the impact of Indigenous status may be
indirect, mediated through other factors such as familial ties, substance
abuse issues, negative life experiences, multiple conviction counts and
early guilty plea.
The remaining estimated effects are broadly consistent with our expecta-
tions from prior sentencing research. First, criminal history does not have a
significant influence on the length of prison term decision, with an esti-
mated incident rate ratio close to 1.0; while offence seriousness does sig-
nificantly increase the length of term (see Table 3, Case characteristics
model). Also, as anticipated from past research, the presence of multiple
conviction counts increased length of term (by 1.23 compared to those
without multiple convictions), and making an early plea of guilty decreased
the term of imprisonment (by 0.83 fewer months compared to those not
making an early plea) (see Table 3).
Second, most of the context of the commission of the offence variables
did not have a significant effect on the length of term decision (see Table 3).
The one exception was the presence of evidence of premeditation, which
unexpectedly reduced sentence length (by 0.84 times compared to cases
where there was no evidence of premeditation). Conceptually, premedita-
tion should be an aggravating factor, increasing assessments of blamewor-
thiness and culpability. Further research, not within the limits of the current
article, to explore this unexpected finding is warranted (such as the

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 Table 3: Negative binomial results of the length of imprisonment on offender demographics, social background, past and current offending,
case characteristics (Western Australia, higher courts, 2003–5, N = 563)
Past and current offending
Demographics model Social background model model Case characteristics model
a a a a
Measure b (s.e.) IRR b (s.e.) IRR b (s.e.) IRR b (s.e.) IRR

Indigenous -0.296 (0.057)*** 0.744 -0.245 (0.059)*** 0.783 -0.232 (0.058)*** 0.793 -0.192 (0.058)** 0.825
status
278  Journal of Sociology 48(3)

Female -0.265 (0.056)*** 0.767 -0.273 (0.057)*** 0.761 -0.219 (0.051)*** 0.803 -0.211 (0.052)*** 0.810
Age 0.047 (0.016)** 1.048 0.056 (0.016)*** 1.058 0.051 (0.015)** 1.052 0.052 (0015)*** 1.054
Age2 -0.001 (0.000)** 0.999 -0.001 (0.000)*** 0.999 -0.001 (0.000)*** 0.999 -0.001 (0.000)*** 0.999
In paid -0.102 (0.066) 0.903 -0.116 (0.060) 0.891 -0.117 (0.059)* 0.890
employment
Familial ties -0.084 (0.021)*** 0.920 -0.056 (0.019)** 0.945 -0.061 (0.019)** 0.940
Poor physical/ 0.034 (0.058) 1.034 0.030 (0.052) 1.031 0.015 (0.520) 1.015
mental health
Substance -0.189 (0.076)* 0.828 -0.085 (0.071) 0.918 -0.081 (0.070) 0.923
abuse
Negative life 0.142 (0.058)* 1.153 0.130 (0.053)* 1.139 0.131 (0.053)* 1.140
experiences
Seriousness of -0.007 (0.010) 0.993 -0.005 (0.010) 0.995
criminal
history

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Seriousness of 0.008 (0.001)*** 1.008 0.007 (0.001)*** 1.007
principal
offence
(Continued)
 Table 3: (Continued)

Past and current offending

Demographics model Social background model model Case characteristics model
a a a a
Measure b (s.e.) IRR b (s.e.) IRR b (s.e.) IRR b (s.e.) IRR
Multiple 0.224 (0.051)*** 1.251 0.207 (0.051)*** 1.230
conviction
counts
Co-offenders -0.0004 (0.056) 1.000 -0.003 (0.056) 0.997
present
Occurred in -0.096 (0.058) 0.909 -0.088 (0.058) 0.915
private
Evidence of -0.162 (0.068)* 0.850 -0.169 (0.068)* 0.844
premeditation
Victim -0.047 (0.067) 0.954 -0.039 (0.067) 0.961
physically
injured
Early plea of -0.186 (0.053)*** 0.831
guilt
On remand -0.009 (0.057) 0.991
Constant 2.579 (0.284)*** 2.619 (0.284)*** 1.917 (0.272)*** 2.053 (0.273)***
c2 (d.f.) 60.90(4)*** 94.20(9)*** 236.12(16)*** 248.37(18)***

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Dc2 (d.f.) --- 33.31(5)*** 141.92(7)*** 12.25(2)**
Note: a Incident rate ratios reported.
Bond & Jeffries: Harsher sentences?  279
280  Journal of Sociology 48(3)

examination of sentencing transcripts to assess how judges refer to the pres-

ence of premeditation, as well as the investigation of interactive effects
between premeditation and other variables).6
Finally, of the social background factors, familial ties and the presence of
negative life experiences continued to have a statistically significant impact
on prison sentence length, after adjusting for other variables in the model
(see Table 3). Consistent with the focal concerns perspective, increasing
familial ties significantly reduced sentence length. With each unit increase
in familial ties, the length of term reduced on average by 0.94, suggesting
support for a social costs argument about the removal of embedded family
members. However, the presence of negative life experiences significantly
aggravated sentence length (for a similar result, see also Jeffries and Bond,
2009). Compared to offenders without any documented negative life expe-
riences, having histories of victimization and abuse increased the length of
term by 1.14 (see Table 3). Preliminary analyses of sentencing transcripts
suggests it may be the impact on the offender of the experience, rather than
its presence as measured here, that may matter in judicial assessments of
offenders and cases: removing an offender from their environment might be
perceived as resulting in more options for defendants.

Effect of Indigeneity–gender on the length of imprisonment term

The joint effect of Indigenous status by gender on the length of term is
reported in Table 4. We estimated a negative binomial model of length of
term with dummy variables for each Indigenous/gender sub-group, adjust-
ing for all variables used in the full model shown in Table 3. The reference
group is non-Indigenous males.
Table 4 shows that Indigenous males, Indigenous females and non-
Indigenous females have on average significantly shorter sentences com-
pared to non-Indigenous males. Prior international research suggests that
minority males are treated more harshly than other sex–ethnic/race group
combinations (e.g. Spohn and Beichner 2000; Steffensmeier and Demuth,
2006; Steffensmeier et al., 1998). In contrast, our results suggest that
Indigenous males receive shorter terms (by 0.84) than non-Indigenous
males, terms of similar length to non-Indigenous females. Also, unlike
expectations based on prior research, we found that Indigenous females
may receive the most lenient treatment (see Table 4). This pattern of joint
effects is quite different from that found for the decision to imprison in this
jurisdiction (see Bond and Jeffries, 2011).

Discussion
This study explores the effect of Indigeneity on the length of imprisonment
decision. We highlight here three key findings. First, in Western Australia’s
higher courts, Indigenous status has a direct negative effect on the length

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 Bond & Jeffries: Harsher sentences?  281

Table 4: Joint effects of indigenous status and gender on length of imprisonment,

net of other controls (Western Australia, higher courts, 2003–5, N = 563)
Length of imprisonment decision
Sub-groupa b (s.e.)b IRRc
Indigenous male -0.179 (0.071) *
0.836
Indigenous female -0.405 (0.078)*** 0.667
Non-Indigenous female -0.195 (0.074) **
0.823
c2 (d.f.) 248.47(19)***
*
p<0.05 ** p<0.01 *** p<0.001
Notes: a Non-Indigenous male is the referent category.
b
The table reports gender-Indigenous status interactions added to the full negative bino-
mial model reported in Table 3. With one exception, all other variables in the interaction
model show the same patterns of significance as in the full non-interaction model in Table
3. The exception is ‘in paid employment’, which is no longer significant at conventional
levels (p = 0.055).
c
Incident rate ratio reported.

of term decision, even after controlling for other important sentencing

determinants. Thus, although earlier work found that Indigenous status
had no statistically significant impact on the decision to imprison in
Western Australia’s higher courts (Bond and Jeffries, 2011), there is evi-
dence of leniency favouring Indigenous criminal defendants on the length
decision. Findings of leniency in length of imprisonment terms have been
found in other Australian jurisdictions (e.g. Queensland higher courts:
Bond et al., 2010; New South Wales lower courts: Bond et al., in press).
Further, this study adds to a growing body of research showing differing
patterns of leniency in the sentencing of Indigenous offenders (compared
to non-Indigenous offenders) across types of decisions and Australian
jurisdictions.
What this work suggests is that Australian judges are showing some leni-
ency in the sentencing of Indigenous offenders at some point. This contrasts
strikingly with North American research, where minority defendants (includ-
ing Native American/Canadians) are generally treated more harshly in sen-
tencing. In the Australian context, perceptions of fear and danger, linked to
racial and ethnic background, do not appear to be driving judicial assess-
ments of blameworthiness and risk (unlike what is being shown by North
American studies). Rather, perceptions of chronic dysfunction, marginalization
and the impact of colonization practices on Indigenous communities seem to
influence judicial assessments of blame and risk (see e.g. Jeffries and Bond,
2010b).
Second, the intersection of Indigenous status and gender matters. In par-
ticular, after adjusting for other sentencing factors, we found that

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282  Journal of Sociology 48(3)

Indigenous males, Indigenous females and non-Indigenous females had

significantly shorter prison sentences than non-Indigenous males. Unlike
international research (and previous work in Western Australia on the deci-
sion to imprison), this suggests that minority males may not receive harsher
outcomes than other groups for this particular decision type (e.g. Bond and
Jeffries, 2011; Steffensmeier and Demuth, 2006; Steffensmeier et al., 1998).
Once again, this finding reinforces our interpretation that Indigenous
offenders (particularly males) are not associated with stereotypes of crimi-
nal dangerousness in the judicial decision-making process.
Third, unlike most North American research, this study included mea-
sures of social and personal histories of criminal defendants (although we
recognize the limitations of our measures of the presence or absence of
characteristics). Interestingly, some of these measures had significant effects
on the length of term decision: having paid employment, strong family ties
and the presence of negative life experiences significantly impacted on sen-
tence length, net of other factors. Yet, earlier Australian work on the deci-
sion to imprison showed few, if any, meaningful effects of these factors (see
e.g. Bond and Jeffries, 2011; Jeffries and Bond, 2009). Part of the answer
lies in better conceptualization and measurement of personal and social
histories that offenders bring to the court. For example, judges do not sim-
ply note the presence of certain social factors, but also assess the impact on,
or response of defendants to those factors (Bond and Jeffries, 2011).
However, researchers also do not fully understand the ways in which differ-
ent factors contribute to assessments of blame, future risk and practical
concerns, and, in turn, how the assessment process may differ by the type
of sentencing decision being made.
In short, our findings can be interpreted in ways broadly consistent with
the focal concerns perspective: judicial assessments of blame, future risk
and practical concerns contribute to decisions about length of term.
However, the traditional North American argument within focal concerns
that race is linked to judicial perceptions of danger and risk, thus contribut-
ing to harsher outcomes for racial/ethnic minority defendants cannot be
supported. At least for Indigenous defendants in Australia, any judicial
perceptions of greater danger and risk appear to be off-set by concerns
about harmful consequences of long imprisonment to Indigenous offenders
and their communities.
These findings, together with the growing body of work around
Indigenous sentencing disparities, also point to a number of continuing
gaps in furthering theoretical development of the judicial sentencing
process. A key issue is explaining the variations in outcomes between
jurisdictions, both nationally and internationally. Although there is evi-
dence of leniency in the Australian jurisdictions that have been studied,
these patterns differ, indicating that similar perceptions and discourses
around Indigenous offenders may play out differently. Moreover, the

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 Bond & Jeffries: Harsher sentences?  283

assessment of Indigenous offenders in the Australian context is different

from other common law nations with Indigenous populations (New
Zealand, Canada and the United States), suggesting the importance of the
larger political and historical context. These differences indicate the need
for national and international comparative research to explore the differen-
tial attributions that occur in the sentencing process.
Further qualitative explorations of judicial sentencing are also needed to
address the limitations of quantitative analyses in capturing the meaning of
sentencing stories (Daly, 1994; Jeffries and Bond, 2009, 2010b). Analyses
of sentencing remarks will aid our understanding of sub-group differences,
and the judicial discourses associated with Indigenous males and females.
These types of analyses will also assist in a better conceptualization of social
background and context of offence factors: what is it about these factors
that judges are attending to? We recognize that sentencing remarks are
public justifications of the sentence. However, an examination of these jus-
tifications is an important way of understanding the implied cultural dis-
courses surrounding Indigenous offenders that form the context in which
offenders are sentenced.
Finally, to better understand the way the perceptions of Indigenous
offenders shape assessments of blameworthiness, future risk and practical
concerns, interviews with judges are vital. In particular, exploring the way
judges think about cases and offenders would allow us to gain a more
nuanced theoretical understanding of how information about cases and
offenders is transformed into observed sentencing outcomes.

Funding and acknowledgements

This work was supported by a grant from the Australian Institute for Aboriginal
and Torres Strait Islander Studies. We acknowledge the work of the Crime Research
Centre (The University of Western Australia) in producing useable administrative
data on the courts. We also thank the Department of the Attorney-General (Western
Australia) and the Department of Corrective Services (Western Australia) for their
assistance and support of this project. In particular, we are sincerely grateful to Vicki
Williams, Emma Clegg, Nadia Donatelli and Lorettah Ho. We also thank the
anonymous reviewers for their thoughtful comments.
This article does not reflect the policies or views of the Department of Corrective
Services (Western Australia).

Notes
1 Recall that, in South Australia, the initial leniency in the decision to imprison
was followed by Indigenous criminal defendants receiving longer imprisonment
terms. Jeffries and Bond (2009) argued that the longer imprisonment terms may
be an artifact of the earlier lenience at the initial sentencing decision, allowing
judges also to demonstrate a ‘get tough’ approach for more serious offending.

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284  Journal of Sociology 48(3)

2 There are no standard diagnostics for negative binomial models. Thus, we esti-
mated the logged OLS model, and examined relevant diagnostics (multicol-
linearity, outliers, influential cases) as a rough guide to potential problems.
3 Indigenous status data is derived from the Western Australia Police Service
Identity Code field for Ethnic Appearance. The field, completed for operational
purposes, is based on the attending police officer’s subjective assessment of the
person’s appearance. Care should be exercised in interpreting analyses, as a
subjective assessment means it is possible that a person attributed to a particular
group does not belong to that group.
4 By principal offence, we mean the offence that received the highest sentencing
penalty, with prison being the highest. If two offences received the same penalty,
the offence with the highest statutorily defined penalty is the principal offence.
Where the same, the first charge is selected. This definition is derived from the
South Australian Office of Crime Statistics and Research.
5 In 1997, the Australian Bureau of Statistics developed the Australian Standard
Offence Classification System, a numerical ordering of offences defined in com-
mon law or in Australian legal codes (Australian Bureau of Statistics, 1997).
6 Thanks to one anonymous reviewer who suggested that the unexpected direc-
tion could be the result of an interaction between premeditation and offence
type.

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Biographical notes
Christine E.W. Bond is a lecturer in the School of Justice, Queensland
University of Technology. Address: School of Justice, Queensland
University of Technology, GPO Box 2434, Brisbane, QLD 4001, Australia.
[email: christine.bond@qut.edu.au]

Samantha Jeffries is a senior lecturer in the School of Justice, Queensland

University of Technology. Address: School of Justice, Queensland
University of Technology, GPO Box 2434, Brisbane, QLD 4001, Australia.
[email: s.jeffries@qut.edu.au]

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