Culture, Strengths, and Risk: The Language of Pre-Sentence Reports in Indigenous Sentencing Courts and Mainstream Courts

• Author: Darcy J. Coulter,Abdur Rahim Mohammad Forkan,Yong-Bin Kang,Justin S. Trounson,Thalia Anthony,Elena Marchetti,Stephane M. Shepherd
• DOI: http://doi.org/10.1177/00938548221131952
• Published date: 01 January 2023
• Date: 01 January 2023
• Subject Matter: Original Articles

CRIMINAL JUSTICE AND BEHAVIOR, 2023, Vol. 50, No. 1, January 2023, 76 –100.

DOI: https://doi.org/10.1177/00938548221131952

Article reuse guidelines: sagepub.com/journals-permissions

© 2022 International Association for Correctional and Forensic Psychology

76

CULTURE, STRENGTHS, AND RISK

The Language of Pre-Sentence Reports in Indigenous

Sentencing Courts and Mainstream Courts

DARCY J. COULTER

Centre for Forensic Behavioural Science, Swinburne University of Technology and Forensicare

ABDUR RAHIM MOHAMMAD FORKAN

Department of Computer Science and Software Engineering, Swinburne University of Technology

YONG-BIN KANG

Department of Media and Communication, Swinburne University of Technology

JUSTIN S. TROUNSON

Centre for Forensic Behavioural Science, Swinburne University of Technology and Forensicare

THALIA ANTHONY

Faculty of Law, University of Technology Sydney

ELENA MARCHETTI

Griffith Law School, Griffith University

STEPHANE M. SHEPHERD

Centre for Forensic Behavioural Science, Swinburne University of Technology and Forensicare

Pre-sentence reports (PSRs) provide important information about an individual’s background and circumstances to assist

judicial officers in the sentencing process. The present study analyzed PSRs for 63 Aboriginal and Torres Strait Islander

people sentenced by either an Indigenous sentencing court or a mainstream court in the Australian State of Victoria. Using

natural language processing techniques, our analyses revealed few differences between PSRs conducted for each court.

However, PSRs were found to predominantly feature key words that are risk-based, with mainstream court PSRs more nega-

tively worded than the Indigenous sentencing court’s PSRs. This may have been due to the inclusion of results from a risk

and need assessment tool. Pro-social factors did comprise more than one third of extracted keywords, although the number

of strength-based culture-related keywords, in particular, was low across PSRs in both courts. It is possible that courts may

not be receiving all the information needed to promote individualized justice.

Keywords: pre-sentence reports; Indigenous sentencing courts; Aboriginal and Torres Strait Islander; Gladue; natural

language processing

AUTHORS’ NOTE: The views expressed are those of the authors and not necessarily those of Corrections

Victoria. This research was supported by an Australian Institute of Criminology Research Grant (04/19-20).

Correspondence concerning this article should be addressed to Darcy J. Coulter, Melbourne Institute: Applied

Economic & Social Research, University of Melbourne, Level 5, 111 Barry Street, Carlton, Victoria 3010,

Australia; e-mail: darcy.coulter@unimelb.edu.au

1131952CJBXXX10.1177/00938548221131952Criminal Justice and BehaviorCoulter et al. / LANGUAGE OF PRE-SENTENCE REPORTS

research-article2022

Coulter et al. / LANGUAGE OF PRE-SENTENCE REPORTS 77

Courts use pre-sentence reports (PSRs) in various jurisdictions internationally to provide

important information about an individual’s background and current circumstances,

with the aim to assist judicial officers in the sentencing process. The content and processes

involved in producing these reports differ between jurisdictions but do contain similarities.

Often PSRs are completed by court or corrections staff (either as a matter of course or by

request of a judicial officer) and are intended to include information such as the individual’s

(social, medical, educational, and employment) history, their risk of re-offending, rehabili-

tative likelihood and needs, and sentencing options (see, for example, Criminal Code, RSC

1985, c. C-46, s 721(3); Sentencing Act, 1991 (Vic.), s 8B; Sentencing Act, 2002 (NZ), s

26(2)). In Australia, PSRs are often prepared by courts and/or community corrections staff

using similar processes for both Indigenous sentencing courts and mainstream courts.

Although the requirement for PSRs is enacted in legislation in countries such as Australia

(see, for example, Sentencing Act, 1991 (Vic.), s 8A), Canada (Criminal Code, RSC 1985,

c. C-46, s 721(1)), and New Zealand (Sentencing Act, 2002 (NZ), s 26(1)), often (with the

exception of Canada), these Acts do not prescribe their content. Neither PSRs, nor sentenc-

ing legislation in Victoria, require sentencing courts to specifically consider factors associ-

ated with an Indigenous individual’s cultural background and unique socio-historical

circumstances, including experience of colonization.

CONSIDERING CULTURAL FACTORS WHEN SENTENCING

INDIGENOUS PEOPLES

Sentencing legislation differs by jurisdiction but is often guided by principles such as

punishment, deterrence of further similar behavior, assisting rehabilitation, denunciation of

the past behavior, community protection, to provide reparations for harm done by the

offending, and to promote a sense of responsibility in the offending person for the harm

caused to the community or victims (see, for example, Criminal Code, RSC 1985, c. C-46,

s 718); Sentencing Act, 1991 (Vic.), s 5(1); Sentencing Act, 2002 (NZ), s 7(1)). Cunneen

(2018) argued that many circumstances unique to Aboriginal and Torres Strait Islander

Peoples may be relevant to these sentencing principles. The background and unique circum-

stances of the person may be relevant to the severity of punishment. For example, a remote

living situation may inform which rehabilitation services are readily accessible, adjustment

issues when moving from a remote traditional community to an urban environment may be

relevant to both punishment and community protection. Racism (including in policing),

social and economic disadvantage, and Indigenous laws that may explain the commission

of an offense (e.g., taking a totem from public property) could all be relevant considerations

during the sentencing process (Anthony, 2010; Anthony & Longman, 2017; Cunneen,

2018). Furthermore, the strengths and protective factors of culture and community and how

these factors relate to the rehabilitative prospects of the individual are also relevant (Anthony

et al., 2015).

CONSIDERATION OF CULTURE IN AUSTRALIAN SENTENCING PRACTICES

In 2013, the High Court of Australia identified that an individual’s Aboriginal and Torres

Strait Islander background was relevant to sentencing insofar as it related to an individual’s

belonging to a particular disadvantaged community and upbringing (Bugmy v. The Queen,

2013). The court stressed that if such information is to come to the court, (a) evidence