By Cait Storr
The case of Bugmy v The Queen provides a rare opportunity for the High Court to offer guidance on how an offender’s Aboriginality should be incorporated into the set of considerations a judge must balance when passing sentence. Principled justifications for considering Aboriginality as a potential mitigating factor are not new to Australian case law, however the High Court — as is often the case with substantive issues of criminal law — has not had the opportunity to clarify the principles that should pertain to any such consideration. The 1992 decision in Fernando v The Queen (1992) 76 A Crim R 58 by the New South Wales Court of Criminal Appeal (NSWCCA) has provided the clearest guidance to judges seeking to uphold the common law notion of ‘individualised justice’ for criminal offenders. The Fernando principles are in effect an elucidation of an existing common law requirement to consider the subjective circumstances of the offender. They do not, however, shed much light on how this mindfulness for an offender’s Aboriginality should interact with other basic goals of sentencing, such as consideration of the objective seriousness of the offence, and the need for deterrence. This is the key issue in Bugmy v The Queen.