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’.