The Impact of Offender–Victim Cultural Backgrounds on the Likelihood of Receiving Diversion

Published date01 April 2022
Date01 April 2022
Subject MatterArticles
Criminal Justice Policy Review
2022, Vol. 33(3) 298 –316
© The Author(s) 2021
Article reuse guidelines:
DOI: 10.1177/08874034211046313
The Impact of Offender–
Victim Cultural Backgrounds
on the Likelihood of
Receiving Diversion
Bella Warner1, Ben Spivak2, Linda Ashford2,
Rebecca Fix3, James Ogloff2,
and Stephane Shepherd2
The extent to which both an alleged offender and victim’s cultural background
influences how one is processed through the Australian criminal justice system
is largely unknown. Such information would provide some insight into the extent
of discrimination within the system. To address this question, this study aimed to
ascertain whether offender/victim pairings across Indigenous and non-Indigenous
cultural backgrounds predicted the likelihood of receiving diversion for first-time
offenders. The sample comprised 5,616 young people aged between 10 and 17 years,
from the state of New South Wales, charged with (a) an offense eligible for diversion,
and (b) a crime against a person. Chi-square analyses and binary logistic regression
were employed to determine proportions of inter- and intra-cultural offending and the
likelihood of receiving diversion dependant on cultural grouping. Results demonstrated
that charges for intra-cultural crime (within cultural group) were more likely to occur
than charges for intercultural crime (between cultural groups). Indigenous subjects
were more likely to receive a court summons. An Indigenous subject charged with
an offense against an Indigenous victim was more than 2 times more likely to receive
a court summons compared with a non-Indigenous offense against a non-Indigenous
victim. An Indigenous subject charged with an offense against a non-Indigenous victim
was also more likely to receive a court summons compared with a non-Indigenous/
1Swinburne University of Technology, Hawthorn, Victoria, Australia
2Swinburne University of Technology & Victorian Institute of Forensic Mental Health, Alphington,
3078 Victoria, Australia
3Johns Hopkins University, Baltimore, MD, USA
Corresponding Author:
Stephane Shepherd, Centre for Forensic Behavioural Science, Swinburne University of Technology &
Victorian Institute of Forensic Mental Health, 1/582 Heidelberg Rd., Alphington, Victoria 3078, Australia.
1046313CJPXXX10.1177/08874034211046313Criminal Justice Policy ReviewWarner et al.
Warner et al. 299
Indigenous offender/victim dyad. Findings indicate that Indigenous status is clearly
impacting decisions to divert regardless of the victim’s cultural background. Further
research is recommended to explore the situational reasons that underpin decisions
to divert on the ground.
Indigenous, young offenders, diversion, inter- and intra-racial offending
Aboriginal and Torres Strait Islanders (hereon referred to as Indigenous Australians)
account for approximately 28% of the adult prison population (Australian Bureau of
Statistics [ABS], 2018) and approximately 50% of the youth prison population
(Australian Institute of Health and Welfare [AIHW], 2020) despite comprising 3.3%
(ABS, 2018) and 6% (AIHW, 2020) of the general and youth population, respectively.
This level of justice-involvement continues to be an issue of national concern and has
engendered several public policy agreements and strategies over the past 30 years (i.e.,
Australian Government, 2020; Australian Law Reform Commission, 2017; Johnston,
1991) to reduce the number of Indigenous Australians in custody.
Prior literature notes that historical injustice, characterized by land dispossession,
cultural disruption, government-sanctioned child removal, social exclusion, and
discrimination are distal contributing factors for Indigenous overrepresentation
(Cunneen, 2006; Lockwood et al., 2018; Shepherd et al., 2014; Weatherburn, 2014).
This has underpinned proximal factors for justice-involvement, including socioeco-
nomic disadvantage, unresolved grief, mental illness, substance abuse, unemployment,
low levels of education, violence, family dysfunction, and other behavioral issues
(Malvaso et al., 2017; Pfeifer et al., 2018; White, 2015).
Indigenous overrepresentation has been linked to the notion of differential selection
where, on average, the group experiences structural discrimination within the criminal
justice system—meaning they receive more severe criminal justice outcomes as a
result of conscious or unconscious bias expressed by justice authorities. Much of the
Australian research on differential selection focuses on youth diversion. Youth diver-
sion is a series of programs and mechanisms that can be employed by police and the
courts to address the underlying drivers of a young person’s offending—if deemed
eligible and programs are completed successfully (i.e., engage with support services,
write a letter of apology), a young person may not be proceeded against and can be
directed out of the system. Several studies across different states have found that
Indigenous young people are more likely to be processed rather than diverted through
the criminal justice system compared with non-Indigenous young people (Allard et al.,
2010; Luke & Cunneen, 1995; Snowball, 2008). This effect has remained despite con-
trolling for relevant factors and/or solely considering individuals charged with their
first ever offense. A body of scholarship has contended that high rates of Indigenous
Australian justice-involvement in the criminal justice system can be partly explained
by racism within the criminal justice system, in particular unfavorable treatment by
law enforcement (Anthony, 2018; Blagg et al., 2005; Cunneen, 2006).

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