William Bugmy's win in the High Court in 2013 is significant, but it also highlights everything that's wrong with the way Aboriginal people are treated under the law, writes Sol Bellear.
Sol Bellear ABC - The Drum 10 October 2013
A sense of hopelessness kills many Aboriginal people and leads many more - like William Bugmy - to live short, miserable lives behind bars. (ABC: Lateline)
The story of William Bugmy highlights everything that's wrong with justice for Aboriginal people The High Court decision in the case of William Bugmy handed down last week is a significant win for Mr Bugmy, his family and the NSW Aboriginal Legal Service.
They should all be congratulated for their efforts.
If you want to know why the Abbott government is considering ripping $42 million out of Aboriginal legal aide, the ALS's determination to challenge our racist institutions might provide some clue.
But despite the broad perception, the Bugmy decision is not a win for my people.
The decision has been widely misreported by mainstream media as giving Aboriginal people some sort of special advantage in the criminal justice system.
The High Court decision does no such thing, and in fact completely rejected that notion. It simply reinforces a long-standing legal principle that the circumstances of someone’s background - regardless of their race - must be given proper weight by sentencing judges.
By way of background, Mr Bugmy was an inmate in the Broken Hill Correctional Centre on an eight-month stretch for assaulting police. In early 2011, he threw a pool ball at a prison guard, striking him in the eye socket and, ultimately, leaving him blind in one eye. Mr Bugmy was charged with a serious assault, convicted and given additional jail time, a non-parole period of four years and three months.
In sentencing, the judge took account of the fact that Mr Bugmy comes from a profoundly disadvantaged background - he was fostered at the age of 12 and in jail by the age of 13, where he has spent most of his adult life. Mr Bugmy has never celebrated an adult birthday outside prison walls. His mental health is fragile, and multiple requests to have him properly treated have fallen on deaf ears.
Despite this, the NSW Government appealed against the 'leniency' of the sentence.
The NSW Criminal Court of Appeal (CCA) agreed, and Mr Bugmy's non-parole period was increased by a year.
It would have been an otherwise uncontroversial ruling, except that the CCA judge, Justice Hoeben, remarked in his decision that "… with the passage of time, the extent to which social deprivation in a person's youth and background can be taken into account, must diminish".
Justice Hoeben, aged 66, grew up in Sydney and attended Riverview College (one of the nation's most prestigious schools) followed by Sydney University (one of the world's most prestigious universities).
Mr Bugmy's schooling, by contrast, was at Wilcannia, one of the poorest towns in NSW. It was interrupted, permanently, in Year 7 when Mr Bugmy was shipped off to jail. He's now aged 31, and his life expectancy is reportedly less than 37 years, according to a study by the Indigenous Law Bulletin.
My point being, Justice Hoeben is not well-qualified to sit in judgment on the affects of grinding poverty and disadvantage.
His outrageous comments left the door open for a High Court challenge by the Aboriginal Legal Service. And that belief - that somehow someone's disadvantage diminishes over time - is what the High Court struck down.
However, it did not agree with the ALS that Aboriginality - and all the entrenched disadvantage that goes with it - should also be a consideration in sentencing.
In short, black, white or brindle, if you cross the law and are sentenced, the courts must take into account your whole background, and they cannot given you a heavier sentence on the grounds that you're older and should know better.
So nothing has changed.
This is not a victory for Aboriginal people, it is a victory for a return to the status quo.
I would have thought that the courts would understand that the disadvantage suffered by an Aboriginal man or woman - or child - does not magically reduce the more times you sentence them to jail. In fact, I would have thought people with legal minds would understand that the more an Aboriginal person is sentenced to jail time, the more their disadvantage increases.
The arrogance of a criminal justice system that believes otherwise is staggering. I can only imagine the thinking that went into Justice Hoeben's comments: "Mr Bugmy, we've sentenced you to jail numerous times. Indeed you've spent most of your life behind bars. And yet you continue to offend. I am at a loss to understand why extended jail time has not set you straight. You clearly have not learned your lesson, nor, despite our repeated intervention, found a way to overcome your tragic background".
The logic is perverse and offensive.
Someone's past is their past - it can never change. All we can hope for is a better future. Yes, many, many Aboriginal people have risen above the crushing affects of the invasion, dispossession and brutality that is the truth of this nation's past and present. But in the case of Mr Bugmy - and many, many others - that has never come to pass.
His disadvantage has not shifted, and no amount of prison time is going to alter that reality.
In fact, he is more disadvantaged today than he was at the age of 12. He's more institutionalised, he has a greater sense of hopelessness, and he's more disconnected from his people and his culture. And as he serves more and more time in prison, he's less able to be re-integrated back into his community, and his family.
In the case of Aboriginal people more broadly, our past is also overwhelmingly one of tragedy. It's marked by dispossession and brutality, racism and mainstream indifference to our suffering.
This is our reality. We live with the affects of this every day, and we don't need a judge on a very high salary with a world class education to tell us that the reality of our disadvantage should "diminish over time".
This is also our reality – we are the most jailed people on earth.
Western Australia holds the distinction of having the highest Indigenous jailing rate on earth. It is so bad that Aboriginal people in WA are jailed at a rate eight times greater than the jailing rate for black males in Apartheid South Africa.
Nationally, that rate is five times greater, and no jurisdiction in Australia - not even the ACT - jails black males at a rate less than the days of Apartheid South Africa. Either Aboriginal people are the biggest criminals on earth, genetically pre-disposed to crime, or there's something seriously wrong with our criminal justice system.
Australians seem to think Aboriginal people should be able to forget the past, dust themselves off, accept defeat and get on with it. Except, of course, the past is ever present, both in the rate at which my people are jailed, and in the lingering effects of colonisation.
This view of the world is shared by many Australians, including those at the very top, and I'm not just referring to Supreme Court judges.
It was Tony Abbott, as Opposition leader, who sparked outrage at the 40th anniversary commemorations of the Aboriginal Tent Embassy in Canberra in 2012 after he suggested that it was time for activists to 'move on'.
The irony that embassy activists were there protesting for land rights and sovereignty - precisely the things being protested in 1972 - seemed to be lost on Mr Abbott, and most of the mainstream media.
The fact is, very little has changed for my people, and almost nothing has changed for Mr Bugmy, unless you count the number of years he's notched up inside.
So I won't be celebrating the Bugmy decision.
The High Court ruling I'll embrace is the one which finds that no Australian court has the right to sit in judgment of my people. And that's fundamentally what this should be all about - sovereignty. The right of Aboriginal people to control Aboriginal lives.
That's the only way we will ever make progress in closing the gaps in the core issues that affect us - justice, land rights, compensation and the appalling jailing rate of our people.
And it's Aboriginal control of Aboriginal lives that will ever reduce the world record rates of self-harm and suicide which lay siege to our communities.
This enduring sense of hopelessness is what kills many of my people, and leads many more like Mr Bugmy to live short, miserable lives behind bars.
Sol Bellear is the Chairman of the Aboriginal Medical Service, Redfern and a long-time Aboriginal activist.