Indigenous disadvantage does not diminish over time, High Court rules

Gordon Taylor ABC News 2 October 2013

William David Bugmy, whose case prompted a High Court ruling on the role of Aboriginality in sentencing

Disadvantage caused by a person's Indigenous heritage does not diminish over time and should be taken into account in sentencing of criminal offences, the High Court has found.

Lawyers for William Bugmy, a 31-year-old from Wilcannia convicted of assaulting a guard inside Broken Hill prison in 2011, had asked the court to consider principles for recognising Indigenous disadvantage in sentencing.

Bugmy, who has been been in and out of jail since he was 13, was initially handed a reduced sentence for his offence because of the severe disadvantage he had suffered as an Indigenous man over a prolonged period.

The New South Wales Criminal Appeals Court recognised the so-called Fernando Principles, which take into account an offender's Aboriginal, cultural and social background, but the Crown appealed against the decision.

The judge of the court ruled the Fernando Principles diminish over time, particularly for repeat offenders, and added another year and a half to his sentence.

But today the High Court overturned that decision, finding that a long criminal record does not diminish the extent to which Aboriginal disadvantage can be taken into account - a key element of the case.

ABC Report - 2 Oct 2013

Post Judgement

ABC Report - Before Judgement

The High Court heard Bugmy had grown up in a home where alcohol abuse was common. He had seen his father stab his mother 15 times.

Felicity Graham from the New South Wales Aboriginal Legal Service says Bugmy has suffered from a series of disadvantages throughout his life.

"He's a man who is only 31 years of age, but has spent most of his adult life and even since he was only 12 years old being locked up either in juvenile detention or adult correctional centres," she said.

"He hasn't spent an adult birthday in the community. He has problems with his mental health. He is a man who has suffered from the socio-economic disadvantage that exists in Wilcannia - limited education, he can't read and write."

Decision could mean less Indigenous in prison

Ms Graham says the court's decision was being watched closely by Indigenous Australians and lawyers around the country.

Ms Graham says the court's ruling could bring down the number of Indigenous Australians in prison.

"The High Court has directed sentencing courts to give full weight to the background factors relating to Aboriginality and social disadvantage and so this certainly could have an impact on the trends of over-representation of Aboriginal people in the criminal justice system," she said.

Bugmy's aunt Julie travelled to Canberra for the hearing and told the ABC she hoped any reduction in her nephew's sentence would set a precedent.

"The outcome I'm hoping will be for all Aboriginal people," Ms Bugmy said.

"It's not just about William and growing up in Wilcannia.

"You've got the Aboriginal disadvantage: it's there for health, work, employment - there's no employment."

In another ruling today, a separate case brought by West Australian man Ernest Munda was not successful because the High Court found his original sentence, of just over five years' jail for manslaughter, was manifestly inadequate.

Munda, who was convicted of bashing his wife to death at Fitzroy Crossing in Western Australia in 2010, had his sentence increased to almost eight years.

Source: High Court of Australia

Lower Court Judgment

18/10/2012 Supreme Court of New South Wales (Court of Criminal Appeal) (Hoeben JA, Johnson and Schmidt JJ)

[2012] NSWCCA 223


Criminal law – Sentencing – Fernando considerations – Whether court of appeal erred by failing to consider the question of manifest inadequacy and the exercise of residual discretion when increasing sentence – Whether court of appeal erred by holding that the weight to be given to the Fernando considerations is diminished over the passage of time – Whether mental illness relevant in sentencing – Whether discretion of sentencing judge had miscarried by virtue of his assessment of the objective seriousness of the offence.


10/05/2013 Hearing (SLA, Sydney)

24/05/2013 Notice of appeal

14/06/2013 Written submissions (Appellant)

14/06/2013 Chronology (Appellant)

05/07/2013 Written submissions (Respondent)

18/07/2013 Reply

06/08/2013 Hearing (Full Court, Canberra)

02/10/2013 Judgment

Push to recognise social disadvantage in sentencing
Criminal lawyers in NSW and WA will attempt to convince the high court that social disadvantage should be taken into account in the sentencing.