Does adjusting for legal factors make the racial gap in imprisonment risks disappear?

Aboriginal Australians are almost twice as likely as non-Aboriginal Australians to receive a prison sentence. Past research has shown that this difference usually disappears when controls are introduced for relevant legal factors, such as offence seriousness, number of concurrent offences and prior criminal record. It is possible, however, that courts place more weight on certain legal factors when sentencing Aboriginal defendants than when sentencing non-Aboriginal defendants. This study employs an Oaxaca-Blinder decomposition to explore this possibility in relation to assault and theft offences in New South Wales between 2019 and 2023. We find that about 17% of the gap for assault offences and 23% of the gap for property offences is not explicable in terms of sentence-relevant factors. If the weight assigned by courts to legal factors, such as prior criminal record and prior imprisonment, were the same for Aboriginal and non-Aboriginal defendants, around 150 fewer adult Aboriginal defendants would receive a prison sentence for the offences of assault and theft over the period of this study.