Identifying Aboriginal and Torres Strait Islander offenders and victims in judicial sentencing remarks

Abstract

Judicial Sentencing Remarks (JSRs) have been utilised by several researchers, as a publicly available data source, to explore topics such as alcohol and other drug involvement in intimate partner homicide; the use of therapeutic jurisprudence; narratives of mitigation for Aboriginal offenders; and the identification and impact of trauma in the sentencing of homicide offenders (to name a few). There is inconsistency in the existing literature regarding the methodology for identifying offenders as Aboriginal and/or Torres Strait Islander. Appropriate and correct identification of Aboriginal and Torres Strait Islander peoples in the criminal justice system is important because of the distinct differences in how Aboriginal and Torres Strait Islander peoples experience the criminal justice system, including sentencing and punishment. We retrospectively developed a manual algorithm to identify offenders and victims as “Aboriginal and/or Torres Strait Islander”, “non-Aboriginal and/or Torres Strait Islander” or “Unknown”. This paper provides an overview of the development and the application of the algorithm and discusses the importance of transparency in Aboriginal and Torres Strait Islander identification processes when using JSRs as a data source.

Keywords

Judicial sentencing remarks Aboriginal and Torres Strait Islander methodology content analysis algorithm

Introduction

Judicial sentencing remarks (JSRs) have been used as a data source to investigate both judicial practise and offender characteristics (Bouhours & Daly, 2007; Hall et al., 2016; Jackson et al., 2021; Lawler et al., 2020; Lowenstein, 2016; Potts & Weare, 2018; Sullivan, 2017; Tutton, 2017; Whittle & Hall, 2018). JSRs are a rich data source, generally including extensive detail about the offence and the offender. Despite this, there is inconsistency in the existing literature regarding the methodology for identifying offenders as Aboriginal and/or Torres Strait Islanders. Appropriate and correct identification of Aboriginal and Torres Strait Islander peoples in the criminal justice system is important because of the distinct differences in how Aboriginal and Torres Strait Islander peoples experience the criminal justice system, including sentencing and punishment (Cunneen, 2018).

While Aboriginal and Torres Strait Islander peoples account for 3.3.% of the total Australian population (Australian Bureau of Statistics, 2018a), they make up 29% of the national prison population (Australian Bureau of Statistics, 2020). In the Northern Territory (NT) of Australia, where the Aboriginal and Torres Strait Islander population accounts for 30% of the population, the prison population is 84% Aboriginal and Torres Strait Islander peoples (Australian Bureau of Statistics, 2020). In the NT, Aboriginal and Torres Strait Islander peoples are 12 times more likely to be imprisoned compared to non-Aboriginal and/or Torres Strait Islander people (Tubex et al., 2020). Aboriginal and Torres Strait Islander offenders are more likely to serve their full sentence without parole (45% compared to 21% non-Aboriginal and/or Torres Strait Islander offenders) and more likely to have previously been incarcerated (81% compared to 29% non-Aboriginal and/or Torres Strait Islander offenders) (Tubex et al., 2020).

The factors which lead to this overrepresentation are complex and overlapping. The Australian Institute of Criminology highlights that overrepresentation results from “an accumulation of conspicuous street offences and fine default, over-zealous policing, and disadvantage throughout the juvenile, and later judicial, processes” (Hazlehurst & Dunn, 1988, p. 2). While there certainly are clear contributing factors – such as the over-policing of Aboriginal and Torres Strait Islander peoples (O’Brien, 2021) – other aspects, like disadvantage throughout judicial processes, are more complex and intrinsically linked to social and economic status. The 1991 Royal Commission into Aboriginal Deaths in Custody noted two overarching areas for reforms. The first was the criminal justice system itself and the second was the factors which bring Aboriginal and Torres Strait Islander peoples into contact with the criminal justice system (Johnston, 1991). These factors include employment, housing, education, health, and poverty (Cunneen, 2006). Although many Aboriginal and Torres Strait Islander peoples are employed and well-educated with high social economic status, when compared to non-Aboriginal and/or Torres Strait Islander Australians, more Aboriginal and Torres Strait Islander peoples experience unemployment (50.9% compared to 20.1%), have not completed Year 12 or equivalent (34.1% compared with 9.6%), and have a lower median weekly household income ($553 compared to $915; Australian Institute of Health & Welfare, 2021a, 2021b, 2021c). These intersecting inequities stem from the ongoing impacts of colonisation and subsequent deep structural marginalisation and disadvantage, beginning with genocidal policies and practises, and continued through “government policies that attempted over time to displace, ‘protect’, disperse, convert and eventually assimilate” (Dudgeon et al., 2014, p. 30). The laws which have supported policies of colonisation, like any law, must be enforced by an entity, and thus the role of the Australian criminal justice system is itself “an agent of colonial policy”, enabling containment, control, and removal (Cunneen, 2009, p. 210).

Following a guilty verdict or plea, the presiding judge is required to sentence the offender. This process involves the judge providing an overview of the offence, the offender, and mitigating and aggravating factors relevant to sentencing, followed by the sentence itself. This process is captured by JSRs which, for offenders sentenced in the NT Supreme Court, are publicly available as (almost) verbatim transcripts¹. Since February 2001, the Supreme Court of the Northern Territory has published the full text of all sentencing decisions on its website to “ensure ease of public access to those decisions and to supplement media reporting” (Supreme Court of the Northern Territory, 2020). The remarks are retained on the website for 3 months post-sentencing (Supreme Court of the Northern Territory, 2020).

As noted above, several academic analyses of JSRs to investigate both judicial practices and offender characteristics have been undertaken (Bouhours & Daly, 2007; Hall et al., 2016; Jackson et al., 2021; Lawler et al., 2020; Lowenstein, 2016; Potts & Weare, 2018; Sullivan, 2017; Tutton, 2017; Whittle & Hall, 2018). While some literature does identify Aboriginal and/or Torres Strait Islander offenders and/or victims in JSRs, some are unclear regarding their methodology of identification (Hall et al., 2016; Lawler et al., 2020; Whittle & Hall, 2018). The identification of Aboriginal and Torres Strait Islander peoples is complex and has been historically fraught (Australian Bureau of Statistics, 2018b). Aboriginal and Torres Strait Islander identity has often been “constructed and imposed, manipulated and used” by governments in the pursuit of assimilationist policies (Dudgeon et al., 2014, p. 34). Records of Aboriginal and Torres Strait Islander identity have historically been used as a means of control, often resulting in surveillance and the removal of children (Andrews, 2018) and so many Aboriginal people hid their identities for their family's safety (Clark, 2000). In recent years the population of Aboriginal and Torres Strait Islander peoples has grown faster than can be explained by births alone, in part due to an increase in identification (Andrews, 2018). However, identification remains a fraught subject for some. Although contested by some, the Commonwealth Definition of an Aboriginal and Torres Strait Islander person is generally accepted (Dudgeon et al., 2014). That is, “a person of Aboriginal and Torres Strait Islander descent who identifies as an Aboriginal or Torres Strait Islander and is accepted as such by the community in which he or she lives” (Australian Bureau of Statistics, 2014). Even with this definition, however, there remains a range of issues in relation to how Aboriginal and Torres Strait Islander peoples are identified in government-collected data (Griffiths et al., 2021). For example, operationally, the Standard Aboriginal and/or Torres Strait Islander Question put forward by the Australian Bureau of Statistics is unable to capture the third element of the Commonwealth definition (community acceptance; Australian Bureau of Statistics, 2014).

We posit that transparency regarding the methodology for the identification of offenders as Aboriginal and Torres Strait Islanders in JSRs is essential for two reasons. Firstly, the use of a clear, predefined process reduces the risk of unconscious bias when identifying offenders as Aboriginal and Torres Strait Islanders. Secondly, it ensures the visibility of Aboriginal and Torres Strait Islander peoples in reporting, which in turn allows for appropriate focus on any Aboriginal and/or Torres Strait Islander-specific issues arising from the findings. There is “a legacy of Indigenous invisibility and inappropriate collections and uses of data pertaining to Indigenous peoples”, both in Australia and overseas (Griffiths et al., 2021, p. 2).

The primary author (Clifford) of this paper is non-Indigenous. She is a PhD student co-supervised by the senior author (Griffiths), who is an epidemiologist and Yawuru woman. Griffiths academic work includes a focus on Indigenous identification and the rights of all people to be counted. KG worked with Clifford to develop a retrospective manual algorithm to identify offenders and victims as Aboriginal and Torres Strait Islanders, initially expanding on the “acknowledgement of offenders' Indigeneity” as described by Jeffries and Bond (2010). This paper outlines the process of that development and application, followed by a discussion on the importance of Aboriginal and Torres Strait Islander identification when analysing JSRs.

Process

The authors would like to note that due to the nature of JSRs some examples included may be upsetting to Aboriginal and Torres Strait Islander readers.

This project was granted ethics approval by the Human Research Ethics Committee of the NT Department of Health and Menzies School of Health Research (HREC-2020-3898) and reciprocal approval by the Central Australian Human Research Ethics Committee. While JSRs are freely accessible to the public, the identification of offenders, victims and/or communities has the potential to cause undue distress. All names have been changed, and pseudonyms used.

Initially, Clifford coded 70 JSRs using a structured coding instrument. This instrument is described in detail elsewhere (Clifford et al., 2022). Within this instrument, there were categories for the Aboriginal and/or Torres Strait Islander status of both the offender(s)² and victim(s), and a requirement to provide evidence for this categorisation. Offenders and victims could be categorised as either “Aboriginal and/or Torres Strait Islander”, “non-Aboriginal and/or Torres Strait Islander” or “Unknown”. This was followed by an “Evidence for Aboriginal and Torres Strait Islander status” variable, which was populated with direct quotes from the JSRs, and explanation of why the categorisation was selected. Clifford initially categorised the offenders and victims in 70 JSRs, using this process. Griffiths then reviewed this component of the coding instrument with Clifford and provided feedback. Based on the types of details which may indicate Aboriginal and Torres Strait Islander status available in the JSRs, Griffiths and Clifford jointly created a tiered system of evidence to answer each of the following questions:

Is the offender Aboriginal and/or Torres Strait Islander?

Is the offender non-Aboriginal and/or Torres Strait Islander?

Is the victim Aboriginal and/or Torres Strait Islander?

Is the victim non-Aboriginal and/or Torres Strait Islander?

This process was both inductive and iterative, based on the type of evidence available within the data source. These questions were considered the most appropriate, based on the details that could be extracted from the JSRs. We recognise that there are existing mechanisms for identification, but these did not align with the type of details presented in JSRs. For example, we did not attempt to align the tiered system with the Commonwealth Definition for an Aboriginal and Torres Strait Islander person. Although several JSRs explicitly discuss the first element of the definition, the second element requires self-identification. While offenders have usually worked with their legal representation to provide most of the information reiterated by the judge within the JSR, to consider any part of the judge's statement “self-identification” necessitates a notable assumption. Given the lack of explicit offender and victim voice in relation to self-identification, the authors consider this element unable to be fulfilled. Regarding the third element, there are recognised challenges associated with operationalising this element of the Commonwealth Definition. As with many data sources, there is limited to no inclusion of community perspectives that would indicate acceptance as Aboriginal and/or Torres Strait Islander by the community in which he or she lives.

If an offender or victim did not meet the level of evidence required to be identified as “Aboriginal and/or Torres Strait Islander” or “non-Aboriginal and/or Torres Strait Islander”, they were categorised as “Unknown”. Using the four algorithms, Clifford coded all JSRs delivered between July and December 2020 (n = 146), including recoding the initial 70. As has been noted by other analyses of JSRs, demographic information regarding victims is more challenging to ascertain, because the purpose of sentencing remarks is to focus on the offender, the offence they committed, and the subsequent sentence (Whittle & Hall, 2018). Therefore, identification of victims as Aboriginal and/or Torres Strait Islander was informed by triangulation of other details within the offence. For example, Victim is related to Aboriginal offender and Offending occurred in remote Aboriginal community and/or Town Camp (details provided in Table 1). Triangulation strategies are recommended to support research quality and have historically been used to improve identification of Aboriginal and Torres Strait Islander peoples within existing administrative data (Kelaher et al., 2010; Schütze et al., 2017).

Table 1.

Is the victim Aboriginal and/or Torres Strait Islander?

If Tier 1 evidence present = Code as Aboriginal
If Tier 2 evidence present = Do not code as Aboriginal
If at least two Tier 2 examples present = Code as Aboriginal
Evidence type	Description	Example from JSR	Explanation
Tier 1 Evidence
Direct identity reference	A statement that the victim is Aboriginal	“There is, in fact, far, far, far too much violence in our community, especially against Aboriginal women, and often inflicted by their partners or their ex-partners”. “The courts must do what they can to see that the pervasive violence against women in Aboriginal communities is reduced”.	Almost always judges will denounce the offenders’ actions and link them to the broader context in which the offending has occurred. Several interpersonal violence offences included statements which indicated the victim was Aboriginal.
Tier 2 Evidence
Victim is related to Aboriginal offender	A statement that the victim is related through kinship to the offender who is an Aboriginal person	“In the Aboriginal way, you are her uncle and she is your niece”. “The two of you are related and you are members of the same tribe”.	Victims who were related to the Aboriginal offenders through kinship relationships were considered likely to also be Aboriginal (Franks et al., 1996).
Offending occurred in remote Aboriginal community and/or Town Camp	A statement that the current offending occurred in a remote Aboriginal Community and/or Town Camp	No example provided to preserve privacy.	As outlined above, in remote Aboriginal Communities and/or Town Camps the vast majority of residents are Aboriginal (Australian Bureau of Statistics, 2017).
Victim's residence (or family residence) is in a remote Aboriginal community	A statement that the victim (or the victim's family) lives in a remote Aboriginal Community and/or Town Camp.	“You did not normally live together, but you lived with your respective families in [Aboriginal remote community]”.	As outlined above, in remote Aboriginal Communities and/or Town Camps the vast majority of residents are Aboriginal (Australian Bureau of Statistics, 2017).
Reference to participation in Aboriginal culture	A statement which indicates participation in Aboriginal culture, law, and lore	“She says that, culturally, you should not have entered that room anyway. That was why she hid there, thinking that you would not come in”. “When she was recovering, she could not feed, bathe or dress herself. Her big sister had to do that for her, which caused them both shame for cultural reasons”.	As noted above, many Aboriginal people take part in distinct cultural practices.
Reference to Aboriginal community dynamics	A statement which indicates participation in Aboriginal cultural dynamics in community	“One of the other consequences of your conduct is that it has caused trouble between families on the community”.	Aboriginal cultural dynamics may be referred to within JSR, when an offence has caused ongoing tensions between the offender and the victim's family, as a result of “a cultural obligation to defend one's family” (Coffin et al., 2010, p. 82).

Evidence was categorised by tiers, based on the strength of the evidence. The strength was determined based on cultural and/or academic references and the extent of contextual knowledge required to interpret the evidence.

The manual algorithm provides a yes or no to code offenders and victims as Aboriginal and/or Torres Strait Islander and non-Indigenous (detailed in the below tables). There is no score or liminal that must be reached.

Is the offender Aboriginal and/or Torres Strait Islander?

The table below provides the algorithm used to ascertain if an offender was Aboriginal and/or Torres Strait Islander. Tables 2 and 3 summarise the evidence which informed the algorithm.

Table 2.

Tiers of evidence for Aboriginal and/or Torres Strait Islander identity.

Tier 1	Strong evidence. A direct identity statement OR characteristic/situation which is extremely likely to indicate Aboriginal/Torres Strait Islander identity.
Tier 2	Moderate evidence. Characteristic/situation which is very likely to indicate Aboriginal and/or Torres Strait Islander identity. Possible that interpretation may be influenced by level of contextual knowledge.
Tier 3	Weak evidence. Characteristic/situation which may be more likely for an Aboriginal and/or Torres Strait Islander person but may also be applicable for a non-Indigenous person OR characteristic/situation is very likely to indicate Aboriginal/Torres Strait Islander identity but is challenging to interpret without significant existing contextual understanding of the area/jurisdiction.

Table 3.

Tiers of evidence for non-Indigenous identity.

Tier 1	Strong evidence. A direct identity statement OR a characteristic/situation which is extremely likely to indicate non-Indigenous identity.
Tier 2	Moderate evidence. Characteristic/situation which is very likely to indicate non-Indigenous identity.

Is the victim Aboriginal?

The table below provides the algorithm used to ascertain if a victim was Aboriginal. In the below table we have summarised the evidence which informed the algorithm (Table 4).

Table 4.

Is the offender Aboriginal and/or Torres Strait Islander?

If one Tier 1 example present	=	Code as Aboriginal ⁴
If one Tier 2 example present	=	Do not code as Aboriginal
If at least two Tier 2 examples present	=	Code as Aboriginal
If one Tier 3 example present	=	Do not code as Aboriginal
If one Tier 2 example and two Tier 3 examples present	=	Code as Aboriginal
Evidence type	Description	Example from JSR	Explanation
Tier 1 Evidence
Direct identity statement	A statement that the offender is Aboriginal.	“You are a 39-year-old [Aboriginal language group] man”. “You are an initiated [Aboriginal language group] man”. “[Offender] is a 42-year-old man of Aboriginal descent”.	When an offender's cultural heritage or the cultural heritage of their parents is clearly identified by the judge they are coded as such. This is consistent with the approach used by Jeffries and Bond (2010).
Direct identity statement about parents	A statement that the offenders’ parent(s) is/are Aboriginal.	“Your mother was an [Aboriginal language group] woman”. “Your mother, who is supporting you in court today, is of Italian descent and your father is an Aboriginal man”.	See above.
Belonging to country	A statement that specifies a particular area as the offender's (or their family's) Country.	“You were born in [town], which is your mother's country”. “In that letter, you requested to be ordered to be returned to Western Australia, which is your country”.	The notion of belonging to “Country” is a core tenet of Aboriginal identity (Dudgeon et al., 2014). References to “your Country” or “your family's Country” (within Australia) was considered strong evidence that the offender was Aboriginal, consistent with Jeffries and Bond (2010).
Employed in Aboriginal identified position	A statement that the offender is/has been employed in an Aboriginal identified position.	For example, Aboriginal Liaison Officer; interpreter for the Aboriginal Interpreter Service.	Aboriginal identified positions may only be filled by an Aboriginal applicant (Australian Human Rights Commission, 2020).
Speak only Aboriginal language(s)	A statement that the offender only speaks Aboriginal language(s); may be identified by Aboriginal language translator in court.	“…go through the details of the sentence with [offender] while the interpreter is here, because I know that suspended sentence is the worst thing to interpret, especially in court when you have not been given prior notice of it”. “Madam Interpreter, I now have to refer to some matters which may be difficult to interpret, including assessments by psychologists”. “You have limited reading and writing skills and limited spoken English. Your first language is [Aboriginal language], but you can also understand [other Aboriginal language]”.	It is highly unusual for a non-Aboriginal person to be fluent in an Aboriginal language. Although non-Aboriginal residents may learn common words and/or phrases when living in locations where local language is strong and non-Aboriginal people are the minority, even this practice is not consistently adopted (Department of Infrastructure et al., 2020). Therefore, the authors consider the likelihood that a non-Aboriginal person cannot speak English fluently but can speak Aboriginal language(s) to be extremely low.
Tier 2 evidence
Reference to elements of Aboriginal culture	A statement which indicates participation in Aboriginal culture, law, and/or lore.	“You have…been involved in men's ceremonies and you have cultural obligations for family and community”. “You have been through traditional law”. “Your counsel has told the court that you went through law and ceremony in the [Aboriginal language group] tradition when you were 14 years old”.	Many Aboriginal people take part in distinct cultural practices, including sorry business (Carlson & Frazer, 2018); men's and women's business; and traditional law and ceremony (Adams, 2006). In addition to these practices, there are also cultural obligations, which largely function through kinship structures (Gibson, Dudgeon, & Crockett, 2020).
Reference to Aboriginal family structures	A statement which indicates participation within Aboriginal family structures.	“…support from your grandmothers; a number of them were involved”. “…along with your aunty's children, who are your cousin-brothers”. “You were married in the Aboriginal way”.	While Aboriginal familial structures are not homogeneous across language groups, there are elements of common practice. These include the extension of terms that would only be used for direct descents/relations in non-Aboriginal family structures (Bell, 2013). These relationships are often referenced within sentencing remarks. There are also references to marriage “in the Aboriginal way”, which Bell (2013) explains as “a way of confirming to themselves and others their sovereign right as traditional owners and custodians of land and language in Australia, rather than following other ways determined by churches and white government law (p. 72)”.
Speaks Aboriginal language and English	A statement that the offender speaks Aboriginal language(s) and English	“I am told that you can speak fluently in [Aboriginal language] and that you regularly engage in conversations speaking language, although I gather that English is your first language”. “You speak [Aboriginal language] and English”.	As noted above, it is uncommon for a non-Aboriginal and/or Torres Strait Islander person to fluently speak an Aboriginal language, although not unheard of, and so if the offender can speak both English and an Aboriginal language this has been considered Tier 2 evidence.
Aboriginal service provider	A statement that the offender is the client of an Aboriginal service provider	“A representative of NAAJA who has worked with you for over five years and who will work with you after your release from prison…”. “He also suffers from a variety of medical conditions as set out in exhibit D1 in a letter from Wurli-Wurlinjang”.	A number of organisations in the NT provide services specifically for Aboriginal people (e.g., North Australian Aboriginal Justice Agency; Aboriginal Medical Services; etc.).
Offending occurred in an Aboriginal community	A statement that the current offending occurred in a remote Aboriginal community and/or Town Camp	No example is provided to preserve privacy.	The majority of individuals who live in remote NT Aboriginal communities are Aboriginal e.g., 97.4% of residents in the ABS Non-Aboriginal and/or Torres Strait Islander Area “Laynhapuy – Gumatj Homelands” are Aboriginal. Similarly, 94.2% of Alice Springs Town Camp residents are Aboriginal (Australian Bureau of Statistics, 2017).
Tier 3 evidence
Characteristics that are perceived to indicate Aboriginal status	A statement regarding a characteristic or situation that is not Aboriginal specific but is commonly used to refer to or discuss Aboriginal people by both Aboriginal and non-Aboriginal people.	“Your counsel told the Court previously that when you were long-grassing in Darwin or Katherine”. “…[you were] together with the victim and other family members, when you started jealousing and became angry”.	There are several terms which are unofficially used when discussing Aboriginal people by both Aboriginal and non-Aboriginal people. This includes terms like “long-grassing” (Quilty et al., 2016), jealousing (Burbank, 2014; Frost, 2014); and shame (Harkins, 1990; McKnight et al., 2018).
Last name	Offender's last name is in an Aboriginal language	No example provided to preserve privacy.	Some Aboriginal people have family names in an Aboriginal language, and the written structure of Aboriginal languages is recognisably different from languages which are Indo-European, like English.

Is the offender non-Aboriginal and/or Torres Strait Islander?

The below table provides the algorithm used to ascertain if an offender was non-Aboriginal and/or Torres Strait Islander. Below the table we have summarised the evidence which informed the algorithm (Table 5).

Table 5.

Is the offender non-Indigenous?

If Tier 1 evidence present	=	Code as non-Aboriginal and/or Torres Strait Islander
If Tier 2 evidence present	=	Do not code as non-Aboriginal and/or Torres Strait Islander
If at least two Tier 2 examples present	=	Code as non-Aboriginal and/or Torres Strait Islander
Evidence type	Description	Example from JSR	Explanation
Tier 1 evidence
Direct identity statement	A statement that the offender is non-Aboriginal and/or Torres Strait Islander	“The probation officer records that you are a 40-year-old Caucasian male”.	Using the same approach employed for Aboriginal offenders; if an offender is clearly identified as non-Aboriginal and Torres Strait Islander by the Judge they are coded as such.
Non-Indigenous cultural background	A statement that the offender belongs to a non-Aboriginal and/or Torres Strait Islander cultural background	“By all accounts, you have been a devoted father and family man, as well as being a respected member of the Indonesian community in Darwin”.	Many people, including Aboriginal and Torres Strait Islander peoples, have diverse cultural backgrounds. The offender in the example could be both Aboriginal and Indonesian. However, considering the criminal justice system and focus on the overrepresentation of Aboriginal people, it seems unlikely that an offender would be described as from another cultural background if they were also Aboriginal.
Migration of family or individual	A statement about the migration of the offender and/or their parents	“You were born … in Western Australia. Your parents had come out from Scotland in the 50s”.	Similarly, if there is reference made to the migration of the individual or their family to Australia they were coded as non-Aboriginal and/or Torres Strait Islander. As above, an offender could have both international and Aboriginal heritage, but we apply the same logic and consider it extremely unlikely Aboriginal heritage would not be mentioned if the international heritage was.
Visa	A statement that the offender is or previously was on an Australian visa	“In June 2017, you came to Australia on a working visa”. “Because of his visa situation, he will be held in custody in any event”.	If the offenders were on Australian visa it was considered extremely unlikely they were Aboriginal and/or Torres Strait Islander.
Tier 2 evidence
Family overseas	A statement that the offender's family lives overseas	“… while she remained in Australia awaiting the trial, her father passed away and she was unable to be with her family”. “Your 9-year-old daughter lives with your mother in New Zealand and has apparently done so for some time”.	References to elements of international cultures were considered Tier 2 evidence, as was having a family overseas and being born/raised overseas.
Born and raised overseas	A statement that the offender was born and raised overseas	“You grew up in rural China, in a town called [redacted] in the South-Eastern part of China”.	References to being born and raised overseas were considered Tier 2.

Is the victim non-Aboriginal and/or Torres Strait Islander?

The below table provides the algorithm used to ascertain if a victim was non-Aboriginal and/or Torres Strait Islander. Below the table, we have summarised the evidence which informed the algorithm (Table 6).

Table 6.

Is the victim non-Indigenous?

If Tier 1 evidence present	=	Code as non-Aboriginal and/or Torres Strait Islander
If Tier 2 evidence present	=	Do not code as non-Aboriginal and/or Torres Strait Islander
If at least two Tier 2 examples present	=	Code as non-Aboriginal and/or Torres Strait Islander
Evidence type	Description	Example from JSR	Explanation
Tier 1 Evidence
Othering statement about Aboriginal offender	A statement from the victim's perspective that positions their offender as racially “other” to them	“She now feels scared and uncomfortable being around Aboriginal males, whereas, previously, she did not experience those feelings”. “I feel cautious when I see Aboriginal people now. I feel very scared when I see Aboriginal men, because it reminds me of what happened. I did not feel like this about Aboriginal people before this happened. I feel that it is wrong to feel like this about Aboriginal people, but I can't help it”.	Many victims provide the court with a victim impact statement. In some of these statements there are clear examples of Othering, that is, the process by which a dominant group who consider themselves “the norm” distinguish themselves as separate from the “non-dominant non-whites” who sit outside the norm (Dhamoon, 2019).
Migration	A statement about the migration of the victim and/or their parents	“As a result of this attack, he has returned to England and he is reduced to living in his mother's house”.	As was done for the non-Aboriginal and/or Torres Strait Islander offenders, references to migration and visas were considered Tier 1 evidence.
Visa	A statement that the victim is or previously was on an Australian visa	“[The victim] was a 24-year-old Irish national who was on a working visa in Australia”.	See above.
Tier 2 evidence
Family overseas	A statement that the victim's family lives overseas	“…while she remained in Australia awaiting the trial, her father passed away and she was unable to be with her family”.	As was done for the non-Aboriginal and/or Torres Strait Islander, having a family overseas and being born/raised overseas were considered Tier 2.
Born/raised overseas	A statement that the victim was born and raised overseas	As above.	See above.

Applying the algorithm

Within the 146 JSRs there were 155 offenders; 56% (n = 87) of these were identified as “Aboriginal and Torres Strait Islander”³ and 11% (n = 17) were identified as “non-Aboriginal and/or Torres Strait Islander”. For one-third (33%; n = 51) of offenders, there was insufficient evidence to be identified as either “Aboriginal and Torres Strait Islander” or “non-Aboriginal and/or Torres Strait Islander”, so they were considered “Unknown”. In 2020, 83% of the NT's adult prison population were Aboriginal and Torres Strait Islander, so it is likely this algorithm undercounted the number of “Aboriginal and/or Torres Strait Islander” offenders within the sample (Australian Bureau of Statistics, 2020). There were 133 victims across 146 cases. Several cases had no specific identified victim(s) (e.g., drug charges, possession of child abuse material) and some had an unclear number of victims (e.g., arson of multiple properties over an extended period of time). Of the 133 identified victims 44% (n = 59) were identified as “Aboriginal and/or Torres Strait Islander” and 7% (n = 10) were identified as non-Aboriginal and/or Torres Strait Islander. Many victims were unable to be identified as either “Aboriginal and Torres Strait Islander” or “non-Aboriginal and/or Torres Strait Islander” and so were considered “Unknown” (48%: n = 64). As we noted above, previous analyses of JSRs have highlighted that ascertaining detail regarding victims is more challenging because the focus of the sentencing process is on the offender (Whittle & Hall, 2018). As demonstrated by these findings, a key limitation is the lack of self-identification in JSRs, which restricts the extent to which the Commonwealth Definition can be applied to these sorts of analyses.

Conclusion

JSRs have previously been used by other researchers to explore themes relating to youth sex offenders (Bouhours & Daly, 2007), young adults charged with violent crimes involving alcohol and other drug use (Lawler et al., 2020), female and male child sex offenders (Deering & Mellor, 2009), and the involvement of gender dynamics (Hall et al., 2016) and Alcohol or Other Drugs (AOD) use (Whittle & Hall, 2018) in intimate partner homicide. JSRs were used by Tutton (2017) to explore the use of therapeutic jurisprudence, by Jeffries & Bond (2010) to explore narratives of mitigation for Aboriginal offenders, and by Butrus (2018) to examine mitigating and aggravating factors for violent offenders compared to sexual offenders. We recognise the hypervisibility of Aboriginal and Torres Strait Islander people in criminal justice data and the associated concerns, particularly as it provides a “virtuous veil to draw over the use and misuse of the power of the nation-state in its ongoing interactions with Australian Indigenous peoples” (Walter, 2016, p. 84). However, in the case of JSRS, the topics often explored are inextricably impacted by race. For example, in their recent study exploring trauma using JSRs, Jackson et al. (2021) did not attempt to identify if an offender was Aboriginal and/or Torres Strait Islander. The trauma Aboriginal and Torres Strait Islander peoples experience, particularly within the justice system, is different from that of offenders from other cultural backgrounds (Day et al., 2008; Griffiths et al. 2016). Jackson et al. (2021) did acknowledge this gap, specifying that “examination of the impact of intergenerational trauma on sentencing is particularly relevant, given … the proportion of Aboriginal Australians in the criminal justice system”, but are unable to examine this within their analysis. JSRs are a data source born of the criminal justice system, created by the system, for use in the system. To exclude Aboriginal and/or Torres Strait Islander status, or to be unclear regarding the identification of offenders as Aboriginal and/or Torres Strait Islander, excludes an essential part of understanding the data production and construction. This then provides subsequent challenges for use of any analysis to develop appropriate responses. We present the above example of an identification algorithm as a starting point.

We do not consider our algorithm to be perfect, indeed, we were unable to confidently identify 33% of offenders and 48% of victims. However, we do believe it goes some way towards improving our ability to use JSRs in a way that accounts for Aboriginal and Torres Strait Islander status. The inclusion of separate algorithms to ascertain whether an offender or victim was non-Aboriginal and/or Torres Strait Islander ensures that we did not assume that if someone was unable to be identified as Aboriginal and/or Torres Strait Islander, they must therefore be non-Aboriginal and/or Torres Strait Islander. Instead, the inclusion of an Unknown category actively challenges the assumption that non-Aboriginal and/or Torres Strait Islander is the norm or default. Additionally, we did not assume that these “Unknowns” were Aboriginal and Torres Strait Islanders. Although we recognise that 83% of NT's prison population is Aboriginal and/or Torres Strait Islander to assume that an offender is Aboriginal and/or Torres Strait Islander without sufficient evidence perpetuates a damaging narrative.

Aboriginal and Torres Strait Islander peoples are not one homogeneous group, they include many diverse language groups with unique experiences and histories (Dudgeon et al., 2014). This algorithm was developed for the NT, and therefore it is likely that some elements will not be applicable in other Australian jurisdictions. The researcher's contextual knowledge will also influence the elements which can reasonably be included. For example, one of the types of evidence (Offender's last name is in an Aboriginal language) was able to be included because Griffiths was raised in the Top End and has a robust knowledge of local family names and languages. For researchers wishing to use Australian JSRs moving forward, we encourage a similar methodological approach adapted from what is provided here, but that also reflects unique and specific contexts within the jurisdictions studied. This work should be prioritised by Aboriginal and Torres Strait Islander communities and ideally led and/or guided by Aboriginal and Torres Strait Islander researchers with appropriate contextual knowledge. Transparency regarding approaches to identification is essential and identification is paramount to adequately understanding any element of offenders’ and victims’ experience of the justice system. Rigour and respect in the identification of Indigeneity must be a priority in any criminological research which uses JSRs moving forward. Furthermore, the identification of Aboriginal and Torres Strait Islander peoples is critical to enable the delivery of a culturally competent justice system.

Footnotes

Acknowledgements

The Judicial Sentencing Remarks analysed in this paper were delivered on Larrakia and Arrernte land. We would like to thank the members of the LEarning from Alcohol Policy (Reform) in the Northern Territory (LEARNT) Steering Committee who provided feedback on the manuscript prior to submission.

Declaration of conflicting interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) disclosed receipt of the following financial support for the research, authorship, and/or publication of this article. SC is supported by an Australia Government Research Training Program (RTP) scholarship and a Menzies School of Health Research top-up scholarship. KG is supported by the Scientia Program at UNSW.

ORCID iD

Sarah Clifford

Notes

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