Judicial sentencing considerations in cases of violent offenders versus sexual offenders

Abstract

The overall aim of this study is to explore the judicial sentencing considerations in South Australian criminal cases of violent offenders versus sexual offenders in order to identify aggravating and mitigating factors. A total of 37 cases involving violent offenders (n D 25) and sexual offenders (n D 12) were downloaded from the Courts Administration Authority of South Australia website and subjected to a retrospective content analysis of the text contained in the published judicial sentencing remarks. The results reveal that offender-and offence-related aggravating factors are more salient judicial sentencing considerations in the cases of the violent offenders, whereas victim-related aggravating factors are more salient judicial considerations in the cases of the sexual offenders. Certain mitigating factors that were seen as salient considerations in the cases of the violent offenders-resulting in reduced culpability and a lighter sentence-appear to have had little impact in the cases of the sexual offenders. The implications of the findings for legal practice, social policy and future research are discussed.

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

“…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).…”

A ‘central paradox’: Judicial decision-making in cases of sexual offending by young people

“…Both sentencing remarks and judgments are a record of the delivery of a judicial decision-maker's decisions; sentencing remarks are a record of the sentence and judgments are typically a record of a legal decision, such as a determination about the admissibility of evidence. Judicial sentencing remarks and judgments provide an account of the offence, the background of the offender, the impact on the victim and, most pertinent to the current research, the sentencing rationales from the judicial decision-maker (Butrus, 2018, p. 6). The sentencing remarks and judgements ranged in length from four to 24 typed pages with a mean length of 11 pages.…”

“…As Rydberg et al (2018) point out, existing research in this area often combines sex offenders with other violent offenders. When sexual and other violent offenders are differentiated, sexual offenders receive harsher sentences in Australia (Butrus, 2018) and in the US (Rydberg et al, 2018; Thompson et al, 2019). A small number of studies have documented the factors (eg victim age) that predict harsher sentences for adult sex offenders (Butrus, 2018; Lewis et al, 2014).…”

“…When sexual and other violent offenders are differentiated, sexual offenders receive harsher sentences in Australia (Butrus, 2018) and in the US (Rydberg et al, 2018; Thompson et al, 2019). A small number of studies have documented the factors (eg victim age) that predict harsher sentences for adult sex offenders (Butrus, 2018; Lewis et al, 2014). Again, however, these predominantly provide an insight into sentencing outcomes rather than the process of judicial decision-making.…”

Themes in sentencing young adults charged with serious violent crime involving alcohol and other drugs

“…Furthermore, analysis of judge's remarks in the courtroom provides a unique opportunity to explore the real-world decisions of legal experts responding to violent crime and impart important insight into how young people are processed through the criminal justice system. Australian research has gained significant insight into judges' behaviour in sentencing intimate partner homicide (Whittle & Hall, 2018), sexual and violent offenders (Butrus, 2018) and Aboriginal and Torres Strait Islander people (Bartels, 2012;Jeffries & Bond, 2009). However, the content of these decisions has been largely underutilised as a resource for understanding how young adults are processed through the courts.…”