Cait Storr, ‘High Court to Soon Decide on Treatment of Aboriginality in Sentencing Decisions: Bugmy v The Queen’ (28 August 2013).

The High Court has allowed the appeal against the decision of the NSW Court of Criminal Appeal in R v Bugmy and remitted the case to the NSWCCA.

The applicant was convicted of causing grievous bodily harm to a prison officer by striking him with a pool ball, causing the victim to lose sight in that eye, and attacking two other officers. The applicant pleaded guilty to all three charges, and the NSW District Court judge sentenced him to 6 years imprisonment. The Crown appealed the sentence as ‘manifestly inadequate’, and the NSWCCA held that the NSWDC had incorrectly considered Bugmy’s history of mental illness, and increased Bugmy’s sentence to 7 years 9 months. Counsel for the applicant contends that the NSWCCA erred in doing so. Among other grounds of appeal, the applicant contends that the NSWCCA re-sentenced the applicant based on its own weighting of the relevant factors without the required finding of a material error of principle in the District Court judge’s reasons, and that the NSWCCA erred in applying the Fernando considerations (the offender’s history of social deprivation in youth and his background; in this instance, as an Aboriginal) in constraining their relevance based on the passage of time since Bugmy’s youth, and his lengthy criminal record.

Thalia Anthony, ‘Indigenising Sentencing? Bugmy v The Queen’ (2013) 35 Sydney Law Review 451.