News: Initial reactions to Bugmy

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The High Court today released its highly-anticipated judgment in Bugmy v The Queen,[2013] HCA 37, previewed here, examining the so-called Fernando principles concerning the sentencing of indigenous Australians. The defendant, William David Bugmy, succeeded in his appeal. However, as is often the case with High Court judgments, the true significance of the case is harder to parse.The Court didn’t restore Bugmy’s original (lower) sentence, but rather told the NSW Court of Criminal Appeal to reconsider the Crown’s criticism of that sentence afresh. More importantly, the Court rejected both the Court of Criminal Appeal’s interpretation of the Fernando principles and a number of suggested refinements of those principles proposed by Bugmy.

The case has generated interest online, captured in discussions on social media. Immediate reactions on Twitter fell into two camps. On the ‘glass half full’ side, many highlighted the majority’s ruling that ‘the effects of profound childhood deprivation do not diminish over time‘, with the Human Rights Law Centre tweeting ‘a significant victory in the High Court today‘. On the ‘glass half empty’ side,the NSW Aboriginal Legal Service itself observed that the ‘High Court declined to accept Mr Bugmy’s arguments that Aboriginal over-representation be considered by courts’, while Monash doctoral student Sarah Krasnostein, observing that the majority rejected the view that ‘Aboriginal disadvantage is unique in its antecedents and communal consequences’, labelled it a ‘bare minimum. Its implications will mean individual ‘justice’ at the cost of equal justice’.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

3 thoughts on “News: Initial reactions to Bugmy”

  1. While the Twitterati had different takes on the significance of Bugmy, no tweet that I saw got the ruling totally wrong. Unfortunately, the same isn’t true of The Age. An article this morning has the headline ‘Aboriginality now a factor in court rulings’, reflecting its opening sentence: “Judges will need to consider the Aboriginal background of an offender when sentencing them after a landmark High Court decision ruled that the effects of profound disadvantage do not diminish over time.” [EDIT: The Age has since changed its headline. The original article can be seen here: http://web.archive.org/web/20131002152755/http://www.theage.com.au/national/aboriginality-now-a-factor-in-court-rulings-20131002-2uswz.html].

    However, the High Court expressly ruled that

    “There is no warrant, in sentencing an Aboriginal offender in New South Wales, to apply a method of analysis different from that which applies in sentencing a non-Aboriginal offender. Were this a consideration, the sentencing of Aboriginal offenders would cease to involve individualised justice. An Aboriginal offender’s deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender’s sentence.”

    The Australian gets it right in its headline ‘Social disadvantage ‘counts in sentencing’‘ and its intro: “THE High Court has found an individual’s social disadvantage must remain key in determining the severity of jail terms…” However, unlike an online report yesterday, this morning’s article does not quote or describe the Court’s holding that race is not a distinguishing factor in sentencing. The ABC’s PM programme ran the accurate but ambiguous line that “the Court’s ruling means judges should take into account in their sentencing decisions the disadvantage that many Aboriginal people experience”, quoting Bugmy’s lawyer.

    All lawyers know that the media often gets the details of cases wrong or distorted, especially complex ones. However, The Age‘s error is especially unfortunate because the idea that Aboriginality itself may lead to sentencing discounts is a controversial one. The Court itself may have been aware of this, as it carefully noted in its official summaries of both Bugmy and Munda that “The High Court also held that the same sentencing principles apply irrespective of the identity of a particular offender or his or her membership of an ethnic or other group.”

    • Belated kudos to the Guardian for its accurate coverage here: http://www.theguardian.com/world/2013/oct/02/high-court-sentencing-aboriginal-disadvantage.

      Well, almost: “In a joint judgement Chief Justice French and justices Hayne, Crennan, Kiefel and Keanu wrote: “An Aboriginal offender’s deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender’s sentence.”.

      • The media has missed the true significance of the Bugmy decision. For offenders, it’s a “glass half empty” outcome. As evidenced by the below extract from the decision, the High Court has clarified that the sentencing court needs to balance conflicting purposes, including the need to protect the community from offenders who have reduced moral culpability but are unable to control their recourse to violence:

        “44. Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult[66]. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.

        45. The point was made by Gleeson CJ in Engert in the context of explaining the significance of an offender’s mental condition in sentencing[67]:

        “A moment’s consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That was the particular problem being examined by the court in the case of Veen (No 2). Again, in a particular case, a feature which lessens what might otherwise be the importance of general deterrence, might, at the same time increase the importance of deterrence of the offender.”

        ’

        The Munda decision also raises an interesting question. Should the prospect of an Aboriginal offender receiving traditional punishment be a consideration in sentencing? Although the High Court did not expressly answer that question, it strongly hinted that the answer is likely to be “no”:

        “61. There is something to be said for the view that the circumstance that the appellant is willing to submit to traditional punishment, and is anxious that this should happen, is not a consideration material to the fixing of a proper sentence. Punishment for crime is meted out by the state: offenders do not have a choice as to the mode of their punishment.

        62. The possibility that the appellant may, at some time in the future, face corporal punishment by way of payback was taken into account in his favour by the sentencing judge[57]. The respondent accepted that that possibility is a factor relevant to sentencing. The Court of Appeal did not take a different view; and the respondent did not argue that this Court should take a different view.

        63. In these circumstances, this case does not afford an occasion to express a concluded view on the question whether the prospect of such punishment is a consideration relevant to the imposition of a proper sentence, given that the courts should not condone the commission of an offence or the pursuit of vendettas, which are an affront and a challenge to the due administration of justice. It is sufficient to say that the appellant did not suffer any injustice by reason of the circumstance that the prospect of payback was given only limited weight in his favour by the courts below.”

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