The High Court today released its highly-anticipated judgment in Bugmy v The Queen, 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’.
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
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:
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”: