Trauma-informed sentencing in South Australian courts

Abstract

Recently the concepts of ‘compassionate courts’, ‘humane justice’, ‘kindness in court’, and trauma-informed practice have emerged in legal theory and practice in the US, England, Scotland and Australia. This article uses a trauma-informed practice framework to examine how South Australian superior court judges acknowledge defendant trauma in sentencing. Trauma-informed sentencing practice requires that judges realise the presence of trauma, recognise its relevance, respond in a way that is informed by trauma and act to resist re-traumatisation. By using this ‘4Rs’ framework to analyse sentencing remarks of 448 defendants published in 2019, the presence of trauma-informed practice was explored. Analysis indicated that judges realised trauma was present in the lives of many defendants, particularly women and Aboriginal peoples, but did not always overtly recognise a link between trauma and criminal behaviour and were unlikely to refer to a defendant’s trauma history or use trauma-informed principles of practice in their sentencing response. Research findings were presented to judicial officers at a Judicial Development Day in 2021. The article reflects on those discussions as well as the primary research, when making recommendations for future sentencing practice primary for the judiciary, but also for legislators and legal practitioners.

Researching Adverse Childhood Experiences in the Youth Justice System: Reflections on Methodology From a Members of a Non-Indigenous Research Team

“…As a state-wide project we were always mindful that any data we collected would relate to people from many different cultural communities and that even the apparently simple act of creating a variable such as "Aboriginal" would-in one stroke-mask the considerable diversity that exists between groups. A recent study of 42 sentencing remarks in the South Australian Magistrates courts, for example, revealed that judges recognized that defendants were specifically Kaurna, Narrunga, Ngarrindjeri, Anangu (Pitjantjatjara), Adnyamathanha, and Kokatha people (McLachlan, 2021) and stereotyping this level of cultural diversity under a single metric would most likely provide those who might ultimately use our research findings with fairly limited information about where to focus efforts to improve policy and practice (and who to partner with to do this). Or perhaps they might simply assume that similar processes and experiences apply across cultural groups (i.e., that universal or state-wide responses will prove effective)?…”