Criminology Research Council grant ; (42/90)
This research was a pilot project for an examination of the significance of the gender of the defendant on sentencing by Victorian Magistrates. An observation study of this type permits the gathering and organising of information about a part of the legal system which has most impact on the community as a whole. The operation and decision-making of the Magistrates' Courts have been difficult to study, as much is undocumented. A quantitative study therefore permits analysis of the large volume of information collected by observation for patterns and themes which may suggest directions for further research and for policy development. However, there are limitations in carrying out a quantitative study of sentencing, particularly to test the effect of so complex a concept as gender.
The study of 1,301 cases observed in three Victorian Magistrates' Courts provides an important gender profile of defendants and of criminal proceedings in our lower courts. It also reveals differences in the ways in which male and female defendants experienced the criminal justice process, and were dealt with by it. These findings have a number of implications for future research and policy.
Women defendants were generally poorer than men appearing in court. They were more likely to be financially dependent, either on another person or on the State, and to have child-care responsibilities. They were more likely to be a first offender, acting alone, and charged with an economic crime*against property or public order (usually prostitution)*or a traffic offence. They were very unlikely to be charged with an offence involving personal violence. They tended to be somewhat less involved in the court proceedings than did men; more women than men failed to appear at all, and fewer women actively participated in the hearing. The implications of these findings are discussed further below. Women's pleas in mitigation of sentence were more likely than men's to emphasise first offender status, personal factors and family responsibilities. Women on the whole were more likely to obtain a bond than a man, less likely to be fined, and if fined, tended to receive a lower fine.
Nonetheless, preliminary multivariate analysis suggests that gender per se has little influence on sentencing, except in relation to the size of fine. After controlling for measures of offence seriousness and prior record, gender ceased to have any relation to the likelihood of bonds and loss of licence (in traffic cases) and to bonds and custodial sentences (in traditional crime cases). But even after controlling for these factors, women received lighter fines for both traffic and traditional crime cases.
Further research on the relevance of gender to sentencing should include examining magistrates' understandings of their role, of the causes of crime in men and in women, and of their philosophies of punishment. Differences between magistrates need to be more fully examined, but it is also important to look at the impact on magistrates of the factors being recorded, and their opinions on the matters being presented to them. Research should also be directed to analysing the court processes, from the decision to charge and the choice of charge laid, to the presentation of the plea in mitigation as a form of 'packaging' the defendant.