Editors --- "Aboriginal Over-representation and Discretionary Decisions in the NSW Juvenile Justice System - Digest" [1996] AUIndigLawRpr 4; (1996) 1(1) Australian Indigenous Law Reporter 95

Aboriginal Over-representation and Discretionary Decisions in the NSW Juvenile Justice System

Garth Luke and Chris Cunneen

NSW: Juvenile Justice Advisory Council, January 1995

With the support of a grant from the Criminology Research Council, Garth Luke and Chris Cunneen undertook a study of the over-representation of Aboriginal people in the criminal justice system in Australia. The results of their research have been published in the report entitled Aboriginal Over-representation and Discretionary Decisions in the NSW Juvenile Justice System. The "Executive Summary" is reproduced below.

Background

It is widely recognised that young Aboriginal people are significantly over-represented in the juvenile justice system; Aboriginal youth usually comprise around 25% of those held in NSW detention centres, although Aboriginal people comprise around 1.9% of the general youth population.

Research on this issue has been hampered by limited and inconsistent data collection practices which often do not record whether a young person is Aboriginal. This study uses a combination of police, welfare and Aboriginal Legal Service data, allowing a comprehensive analysis of the treatment of young Aboriginal people at all stages of the criminal justice system in New South Wales, during 1990. A comparison is also made with more recent data, to assess whether the findings remain applicable to date.

This study seeks to identify factors which may contribute to the over-representation of young Aboriginal people. In particular, it examines the extent to which discretionary decision making by criminal justice agencies such as the police and courts affects Aboriginal young people. It also aims to provide a basis for the development of strategies to reduce the level of over-representation of young Aboriginal people in the juvenile justice system.

The combined data sources enabled the use of a large number of variables, based on:

(a) socio-demographic data -- including Aboriginality, sex, age, date of birth and Local Government area of

residence of the offender;

(b) police processing data -- use of cautions, charges, summonses and bail;

(c) Children's Court data -- court location, specialist or non-specialist Children's Court, date of final court

appearance, court outcome and the severity of the penalty;

(d) offender data -- type of offence, number of previous court appearances and police cautions, and previous court

outcomes.

The sample size is 18,265, comprising 2,165 police cautions and 16,100 finalised court appearances during 1990. This represents all police cautions and finalised court appearances in the New South Wales children's jurisdiction during the 1990 calendar year.

Findings

Discretionary decisions are made at a number of points, including police decisions to caution, arrest and charge, proceed by way of summons, or grant bail, and court decisions concerning the granting of bail and the type of sentence imposed. The data indicates that the over-representation of young Aboriginal people progressively increases with each successive point of discretion, with higher levels of over-representation with the most severe outcomes, such as detention orders. Aboriginal young people comprised 7.1% of police cautions, 15.6% of court appearances and 26.6% of detention orders during 1990.

These findings support previous research which suggests that Aboriginal young people are least over-represented in the less punitive interventions, and most over-represented in more severe interventions, with a detention order being the most severe response.

It is acknowledged that the over-representation of young Aboriginal people may be the result of the complex interaction of a range of factors such as higher levels of offending; high police staffing levels in areas in which larger Aboriginal populations reside; discrimination by the police and courts, and the use of minor good order and street offences to arrest Aboriginal young people.

This study does not examine such factors in detail but instead analyses the use of discretion at key points of intervention, to determine whether Aboriginal young people are disadvantaged relative to their non-Aboriginal counterparts.

Comparisons between the young Aboriginal people in the sample and the non-Aboriginal group indicate that:

(a) the population of Aboriginal offenders is much younger and they tend to have their first formal contact with

juvenile justice agencies at an earlier age than the non-Aboriginal offenders. Consequently, young Aboriginal

people are more likely to accumulate a more extensive prior record, which will influence subsequent

discretionary decisions by police and courts;

(b) there is a higher proportion of females amongst the Aboriginal group, at 20.1%, compared to 15.3% of the non-

Aboriginal group;

(c) the Aboriginal population is more rural, and is more likely to appear before non-specialist Children's

Courts;

(d) Aboriginal young people had much longer criminal records and a higher rate of previous institutionalisation;

(e) the pattern of offences is similar for the two groups, although the types of theft offences vary considerably, and

the proportion of good order and street offences is slightly higher for young Aboriginal people.

The study indicates that Aboriginal young people are more likely to receive harsher outcomes from police decisions to apprehend and prosecute, even when offence and criminal history differences are controlled for. It seems that young Aboriginal people have a 10-15% greater chance of going to court rather than receiving a formal police caution. While this difference is not large, the compounding effect over time may be very significant, particularly in relation to decisions concerning first offenders where the acquisition of a criminal record is likely to influence later discretionary decisions.

Aboriginal young people also appear to have a greater chance of being prosecuted by way of arrest and refused bail by the police. These differences, particularly in relation to bail, are not great and are no longer statistically significant when the number of previous court appearances are taken into account. Since prior criminal record, in itself is not relevant to such decisions, the implications of these differences are unclear.

It appears that Aboriginal young people and non-Aboriginal young people with equivalent criminal histories are treated equally by the courts. However, due to the longer average histories, a much higher proportion of Aboriginal court appearances result in detention. In addition, the average age of first detention order is lower for young Aboriginal people.

It is concluded that while Aboriginal and non-Aboriginal young people are treated equitably by the courts and by the police at the bail decision stage, there appears to be some bias against young Aboriginal people in police decisions to arrest and prosecute. This means that a greater proportion of Aboriginal children are affected by these decisions, contributing to two important compounding effects operating against them:

(i) the accumulation of a criminal record is accelerated, which increases the likelihood of a harsher outcome each

time a young Aboriginal person comes into contact with the police; and

(ii) the lower diversion rate following apprehension ensures that a higher proportion of Aboriginal young people

receive more serious outcomes, even when the final decisions themselves are not biased.

Further analysis compared the data for each Local Government area in N.S.W., to examine regional variations. It was noted that the Aboriginal population has a rural focus, with 68% of Aboriginal young people living outside the Sydney metropolitan area, compared to just 39% of the non-Aboriginal group. At the same time, it was acknowledged that Aboriginal young people have a higher overall intervention rate in rural areas, and it was concluded that while this was a contributory factor, it did not entirely explain the higher levels of Aboriginal participation in the juvenile justice system.

Analysis of the data in terms of Local Government areas also revealed that a large proportion of the Aboriginal interventions came from a small proportion of Local Government areas. This allowed the identification of those areas where any bias against young Aboriginal people appears to be more pronounced, and where the introduction of strategies designed to reduce the over-representation of young Aboriginal people in the juvenile justice system is likely to have the greatest impact.

A comparison of the 1990 data with 1994 data suggests that the findings have maintained their relevance. The number and proportion of Aboriginal young people in custody is still very similar, and there is considerable consistency in terms of the Local Government areas from which these young people came.

Further analysis compares the outcomes for Aboriginal and non-Aboriginal young women. It is concluded that there is a greater proportional over-representation of Aboriginal young women in the female offender population than there is amongst their male counterparts. This has important implications for the development of policies and intervention strategies. The report examines significant differences in relation to cautioning practices, prosecutions by way of arrest, court appearances, type of offences and total interventions.

Conclusions

The report suggests three main reasons for the very high levels of Aboriginal over-representation in the N.S.W. juvenile justice system:

• extremely high apprehension rates;
• a relatively small but compounding bias against Aboriginal children in key police decisions;
• a court sentencing structure which, while apparently equitable, reinforces previous systemic effects.

Consequently, it is suggested that there should be a strong emphasis on improving equity at the level of police decision making. Three strategies are proposed:

(i) reduce the scope of the discretion afforded to police in the use of formal cautions and court attendance

notices;

(ii) monitor police decisions more closely, and utilise this information to improve the implementation of anti-

discrimination measures;

(iii) provide more appropriate diversionary and support services to assist police and to encourage the use of less punitive options for young Aboriginal offenders.

A small number of local areas are the source of the majority of Aboriginal interventions. Services targeted in these areas would have a significant state-wide impact on the level of over-representation of young Aboriginal people in the juvenile justice system.

Although court decisions themselves appear to be unbiased, it is concluded that the significantly longer criminal records of young Aboriginal people increase the likelihood that they will receive a harsher penalty such as a detention order. As these longer criminal records are partly generated by the compounding effect of differential treatment by police at an earlier stage, it is suggested that court sentencing should place more emphasis on the severity of the current offence and less emphasis on prior criminal record.

In view of the higher levels of Aboriginal over-representation in detention, it is recommended that greater emphasis be placed on the use of community service orders for young Aboriginal people. Community service orders operate as an alternative to detention orders. They cost less than detention orders, and considering the very high recidivism rates for many young Aboriginal young people who have been sentenced to detention, they may well be equally as effective. It is emphasised that the potential effect of such diversionary services is greater for Aboriginal children, as a higher proportion of these children facing the Children's Court already have criminal records, making it more likely that they will receive a detention order.

Although the over-representation of Aboriginal people is one of the most significant issues in the criminal

justice system, it is not possible to comprehensively monitor the effects of the system on Aboriginal people as Aboriginality is not regularly recorded in criminal justice data collection systems. The most relevant point of collection would be at the time of court proceedings, based on a person's own assessment of their cultural identification. While this information is not available, the capacity to create a fairer criminal justice system is seriously restricted.

A copy of the report can be obtained for a cost of five dollars from the Juvenile Justice Advisory Council of NSW: PO Box K399, Sydney, NSW 2001, Australia, Attn: Julie Ross.