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.
The case was heard by the High Court on 6 August 2013 (see here), and the matter was adjourned with the Court reserving its keenly awaited decision.
An Aboriginal man with a history of crime and mental illness assaults three prison officers
Mr William Bugmy, 29, was convicted of inflicting grievous bodily harm on a prison officer and assaulting two others officers at Broken Hill Correctional Centre, having thrown pool balls at all three following a dispute related to visitation rights. Mr Bugmy had been exposed to violence and alcohol abuse as a child, had poor literacy and numeracy, a history of head injuries, and a high degree of drug dependency. At first instance, the Dubbo Local Court handed down a sentence of four years and three months non-parole, with a balance of term of two years. The Director of Public Prosecutions (DPP) appealed this sentence on grounds of manifest inadequacy, claiming that Lerve ADCJ had failed to properly consider the objective serious of the offence, and that the weight afforded Bugmy’s subjective circumstances impermissibly ameliorated the appropriate sentence. The NSWCCA decided on appeal that Lerve ADCJ had misapprehended the parties’ submissions on seriousness, had not properly considered the need for deterrence of assaults within corrective institutions, and had given too much weight to Bugmy’s Aboriginality and mental illness at the expense of accounting for his extensive criminal history. The court quashed the original sentence, and substituted a non-parole period of five years, with a balance of term of two years and six months.
How should Bugmy’s Aboriginality and mental illness be balanced against his criminal history and the need for deterrence of assaults on prison officers?
Bugmy’s team at the NSW Aboriginal Legal Service was granted special leave to the High Court to appeal the NSWCCA’s decision and seek clarification on the complex question of whether regard for an offender’s Aboriginality should diminish over time, in sentencing subsequent offences. Mr Bugmy had a long and almost unbroken criminal history which began in 1994 at the age of 13, and had been in and out of correctional facilities since that time. At the time of the offence in question, Bugmy was on remand in the Broken Hill Correctional Centre with respect to numerous charges of assaulting police officers, escaping custody and causing malicious damage by fire. Although the court at first instance did take this criminal record into account as an aggravating factor at sentencing, the Fernando principles were cited as the primary basis for taking Bugmy’s case as one of special circumstances requiring an emphasis on rehabilitation rather than deterrence. The DPP’s appeal argued that although the Fernando principles clearly apply to sentences passed on young and new offenders, the relevance of Fernando diminishes over time with each subsequent offence, a condition with which the NSWCCA agreed.
The High Court is also being asked to clarify whether mental illness should be taken into account in sentencing even if there is no medical evidence that illness directly contributed to the offence in question. Mr Bugmy had previously been treated for psychotic symptoms in the form of auditory hallucinations, which two psychiatrists’ reports confirmed to the court in first instance, without asserting a link between this psychiatric behaviour and the offences in question. The NSWCCA disagreed with Lerve ADCJ’s implicit assessment that a pre-existing psychiatric condition automatically renders an offender an inappropriate vehicle for general deterrence.
A national issue with a thorny history
The issues of whether and how an offender’s Aboriginality should be relevant to sentencing have been a subject of national debate at least since the Royal Commission into Aboriginal Deaths in Custody (RCIADC) reported in 1991. The RCIADC provided clear evidence that Aboriginal offenders were over-represented in the Australian prison population by a factor of 15, and recommended that, as part of a far broader policy of self-determination, diversionary strategies be employed to reduce custodial sentencing of Aboriginal offenders. In the 1992 case of Fernando, the New South Wales Supreme Court of Criminal Appeal drew on a range of sentencing decisions from across the country to distil a set of principles that stipulate how Aboriginal background, poverty and alcohol abuse should be accounted for in sentencing.
The Fernando principles have since become a key touchstone in the legal justification for differential sentencing for Aboriginal offenders as a means of achieving consistency in sentencing. Over the same period, many of the comprehensive policy recommendations of the RCIADC have been implemented. From 1999, specific sentencing courts for Aboriginal offenders were introduced in most jurisdictions, beginning with the Nunga Court in South Australia, and including the Koori Court in Victoria. These courts grant access for Aboriginal offenders who plead guilty to a set of alternative sentencing options, such as home detention and community service orders.
Yet increased public awareness of Aboriginal over-representation in the prison system has not, however, reduced the proportion of Aboriginal people in prison, even as the general prison population is decreasing. The over-representation of Aboriginal children is alarmingly high, comprising almost half the juvenile prison population. Nor has public awareness of the issue resulted in a unidirectional movement toward acceptance of differential sentencing. Instead, many have since raised arguments for precisely the opposite response — non-differentiated sentencing — in response to this lack of change. In 1997, the Northern Territory introduced the so-called ‘three strikes’ mandatory sentencing regime as a response to a perceived weakening of traditional sentencing principles, and specifically the need for deterrence. In 2012, the Queensland government closed the Murri Court, ostensibly as a budget saving measure. Public and political opinion ranges between two polarised perspectives on the issue of Aboriginal over-representation in our prisons — on the one hand, that it is a symptom of systemic racism in Australia; and on the other, a symptom of the dysfunction of our Aboriginal peoples.
The Fernando decision took place in 1992, a watershed year for national indigenous policy. The Mason High Court handed down its decision in Mabo v Queensland (No 2)  HCA 23, and then-Prime Minister Paul Keating delivered his now eponymous Redfern speech. 31 years later, the same set of interrelated issues highlighted that year — including over-representation of Aboriginal people in prison, mechanisms of recognising Aboriginal land rights, and alleviating chronic poor health, alcohol abuse and violence in Aboriginal communities — remain no less vexed; but public attitudes to racial inequality are arguably far more fatalistic. The case of Bugmy v The Queen places the High Court in the invidious position of having to decide not only on how, according to law, the judiciary might best account for an offender’s Aboriginality in passing sentence, but also on what informed public opinion might now demand of the state in responding to the historical roots of Aboriginal dysfunction in Australia.
AGLC3 Citation: Cait Storr, ‘High Court to Soon Decide on Treatment of Aboriginality in Sentencing Decisions: Bugmy v The Queen’ on Opinions on High (28 August 2013) <https://blogs.unimelb.edu.au/opinionsonhigh/2013/08/28/storr-bugmy>.
Cait Storr is a Sessional Academic and PhD candidate at Melbourne Law School.
The HCA’s decision to hear Bugmy has been considered the NSW Law Reform Commission in its Sentencing report, released yesterday: http://www.lawreform.lawlink.nsw.gov.au/agdbasev7wr/_assets/lrc/m731654l10/report%20139.pdf (chapter 17).
The Commission largely stuck to its previous stance that the Fernando principles do not require legislative codification or modification, despite submissions to the contrary. However, the Commission’s stance contained a rider noting that the High Court has granted leave in Bugmy. It then said:
The recommendation specifically says that the government should only consider this possible reform ‘[a]fter the High Court has delivered the decision in Bugmy‘.