title: Straight-talking, but from the heart : exploring judicial court-craft in sentencing offenders for intimate partner violence
Creators: name: Hudson, CE
Publisher: name: University of Tasmania
Year: 2022

description: The criminalisation of family violence (‘FV’) has coincided with significant change over the past 40 years in societal and legal recognition and understanding of FV as a phenomenon. Despite this, FV (broadly defined), continues to plague communities, in Australia and across the world, in its pervasiveness and harm. Courts face unrelenting demands to prevent, reduce, and respond to FV. Conventional paradigms for understanding FV sentencing, underpinned by adversarial and traditional ideals of the ‘justice model’, have tended to prioritise the sentence itself as the most important mechanism for bringing about offender behaviour change. However, research has identified problematic approaches in practices under the justice model, which has dominated the sentencing landscape for criminalised acts of FV. These approaches have cast doubt on the wisdom and effectiveness of strictly traditional approaches to sentencing, given its significance as a tool for communicating with the offender. Further, research has highlighted a disjuncture between traditional conceptualisations of FV in sentencing law and practice, and contemporary conceptualisations that recognise the complex nature and dynamics of FV. Therapeutic jurisprudence (‘TJ’) offers an innovative lens for viewing sentencing practices for FV under the justice model. It draws on the social and behavioural sciences and aims to understand the law’s potential to be a therapeutic agent and promote positive behaviour change in its participants. Improved legal responses and harm reduction are high priorities of Australian FV policies, yet little research has focused on the potential of TJ to be harnessed in the moment of judicial communication of sentence to FV offenders. This thesis explores findings from an empirical study of magistrates’ and judges’ practices in communicating sentencing decisions to offenders convicted of intimate partner violence (‘IPV’) in two Australian jurisdictions, Tasmania, and Victoria. The study employs quantitative and qualitative research methods to analyse data on sentencing comments collected via in-court observation of magistrates’ sentencing decisions and judges’ sentencing decisions published online (n=135). The thesis uses an originally developed framework as a TJ lens to conceptualise such practices as ‘communicative court-craft’. The framework articulates three ‘dimensions’ of communicative courtcraft. These dimensions comprise substantive and procedural components aligned with potential effects of judicial practice on offender psychology and emotional wellbeing, as theorised drawing from the relevant TJ literature. First, the procedural dimension explores practices that have the potential to influence offender perceptions of legitimacy and fairness of the sentencing process. The second dimension—expressing substantive law—explores practices that have a bearing on violence supporting attitudes and narratives of IPV offenders. Finally, the engagement dimension explores practices that may operate on IPV offenders’ beliefs about their accountability and responsibility for behaviour change. The application of the framework is contextualised by legal and statistical profiles of the court levels and jurisdictions, and the parameters and features of the data used to derive the study’s findings. The original empirical research is conducted to explore the manifestation (or otherwise) of these three dimensions. The findings identify six categories of communication practice, which are explored through quantitative and qualitative analysis. Further, the thesis applies the TJ lens framework, to critically reflect on qualities of the explored judicial practices—as communicative court-craft in sentencing IPV offenders—regarding literature on the pitfalls of the justice model and potential hallmarks of TJ. Finally, the thesis identifies and discusses the theoretical, policy and practice implications of the findings, particularly their potential to inform future judicial practice, as recognition grows of the importance of informed and appropriate court-craft in the complex area of IPV and FV, more broadly.