Bugmy v The Queen: Exploring the Significance of Indigenous Background in Sentencing

Thalia Anthony 19th September 2013

Bugmy v The Queen provides the High Court of Australia with its first opportunity in thirty years to rule on the significance of Indigenous background in sentencing. The overrepresentation of Indigenous offenders in Australian prisons has doubled in the last twenty years: in the early 1990s indigenous offenders represented 14 per cent of the prison population, today they represent 28 per cent.  In this case the High Court will  consider the role of criminal sentencing in the dramatic over-representation of Indigenous Australians in prisons, and how sentencing can be structured to promote deterrence outside of prisons.

In 2011, the Bugmy pleaded guilty to two counts of assaulting a Corrective Services Officer, which attracts a maximum penalty of five years’ imprisonment, and one count of causing grievous bodily harm with intent which attracts up to 25 years’ imprisonment. The appeal before the High Court focused upon an argument that the court below, the New South Wales Court of Criminal Appeal, erred in holding that the weight attributed to the Fernando principles lessen by virtue of the offender’s lengthy criminal history, the objective seriousness of his offences and the need for deterrence.

At the time of the 2011 offence, Bugmy, a 29-year-old Indigenous man from Wilcannia in north-western New South Wales, was on remand for assaulting police, resisting arrest, escaping from police custody, intimidating police and causing malicious damage by fire. He was exposed to violence and alcohol abuse as a child and by the age of 12 had started using cannabis and alcohol. Bugmy only attended formal education up to year Year 7 (13 years old) and therefore had poor literacy and numeracy skills. He has a history of head injuries and suffered from auditory hallucinations and psychotic symptoms of a schizophrenic type. Since the age of 13 Bugmy has committed numerous offences of break, enter and steal; assault; resist police and damage to property; and has served long terms of imprisonment for these offences. He has never attended a detoxification or rehabilitation facility. Bugmy sought assistance to treat his alcohol abuse on numerous occasions, without success. He has negative attitudes towards authority figures, particularly the police.  These attitudes were described in court by an expert witness as attributable to family ‘cultural issues’. Expert evidence also pointed to Bugmy’s need to undergo extended counselling for his issues with drug and alcohol abuse and regular psychiatric review in view of his reported ‘voices’.

In the application for special leave to the High Court, Bugmy’s counsel submitted that the New South Wales Court of Criminal Appeal erred by concluding that the seriousness of Bugmy’s offence minimised the the weight that could be put on his history of social deprivation and Indigenous background when sentencing. It was also argued that this error was compounded by comments that a defendant’s substantial offending history diminished the significance of Indigenous factors — a finding that could not be supported in law. Bugmy’s counsel emphasised that these grounds of appeal are ‘a matter of significant and indeed profound importance for the administration of criminal justice and for the sentencing, in particular, of indigenous offenders not only in New South Wales but nationally’.

The High Court decision whether the seriousness of the offence should overshadow mitigating circumstances relating to the offender’s background is of crucial importance in addressing increased Indigenous imprisonment. Indeed, if courts are to hand down sentences that will restore and rehabilitate Indigenous offenders, greater emphasis needs to be placed on exploring community circumstances; how the offender may be better reintegrated; and Indigenous communities strengthened. Bugmy is an example of an offender who was calling on the system to provide rehabilitation services, but only found institutional sanctuary in the prison. By failing to give substantial weight to Indigenous circumstances, the courts will continue to fall back on an imprisonment response when deterrence and community protection could be better served through non-custodial sentencing options and more appropriate community-based remedial services.

Rather than circumstances of Indigenous disadvantage becoming less relevant as the defendant’s criminal history is extended, it becomes more incumbent on courts to consider the effect of imprisonment on Indigenous defendants and whether alternative sentences may be better suited to breaking their cycle of crime. This would fulfil the sentencing objectives of deterrence and community protection while accounting for the offender’s culpability.

Dr. Thalia Anthony is a Senior Lecturer at the Faculty of Law, University of Technology Sydney.  This post draws upon a comment published in the Sydney Law Review in June 2013.

A copy of the hearing transcript can be found here.

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