Cautious findings from Australia’s highest court this month have been lauded for taking into account disadvantage and deprivation in sentencing. The High Court brought down the decision in relation to the sentencing of Aboriginal man William Bugmy for intentionally injuring a prison officer. It’s the first time in decades the High Court has looked at the sentencing of Aboriginal offenders, but it played it very safe.

The High Court decision stipulates that “full weight” should be given to any offender’s deprived background (Aboriginal or not), in every sentencing decision. This is not the same as saying sentences should be mitigated if the offender has a deprived background. It is not a get-out-of-jail card. It is simply the country’s highest court saying that background needs to be considered in determining the length and weight of a person’s sentence once convicted. It’s a reminder of the principle of individual justice.

But the court did not provide answers to the issue of the disproportionate imprisonment of Aboriginal people.  The Court did not address how circumstances of socioeconomic deprivation may be contributing to the rate of Aboriginal over-representation in the criminal justice system in Australia for Aboriginal juveniles (more than 50%) and Aboriginal adults (more than 25%).

“A normal part of Aboriginal existence is imprisonment,” said Dr Thalia Anthony, a senior law lecturer at the University of Technology Sydney who wrote a paper on the case and its potential before it was decided at the High Court. “The High Court had the opportunity to say it’s not just about whether people are disadvantaged or deprived, but we really need to address as a court the over-representation [of Aboriginal Australians in jail] by realising that’s a fact of Aboriginal existence, and that alone warrants mitigation.”

Bugmy’s lawyer, Stephen Lawrence, says his client’s story is not unique. “It is in many ways the story of the crushing failure of the criminal justice system in responding to the effects of the profound social deprivation experienced by many remote Aboriginal communities,” he said.

Bugmy’s background is quite a story. At 12 he entered juvenile detention, and has a history of domestic violence, separation from family and placement in foster care. He started drinking alcohol and taking prohibited drugs when he was 13 years old and reports seeing his father stabbing his mother 15 times. He has a history of head injuries and reports “hearing voices”. All his siblings have records for violence. When he was 18 he was transferred to an adult prison. He has not spent one adult birthday in the community. He is 31 years old and from a community where the average life expectancy for a man is 37.

Bugmy pleaded guilty of causing grievous bodily harm to the prison officer and was sentenced to a lengthy jail term. The New South Wales Court of Criminal Appeal cranked up his sentence from six years, with a non-parole period of four years, to seven-and-a-half years, with an additional year of non-parole. One of the contentious parts of the case was the Court’s finding that because of his long criminal record, the relevance of Bugmy’s disadvantage was overstated.

In the hearing of the appeal, one of the appellate judges argued childhood disadvantage diminished over time. He said of Bugmy’s tragic life history: “One can’t help wondering how many times one can cash that cheque before it runs out.” But the High Court’s decision railed against that claim, and essentially concluded that disadvantage does not peter out as the years pass, especially if that person has a criminal record.

“Research has revealed that Aboriginal offenders are still being punished in a more harsh way than non Aboriginal offenders.”

Central to the NSW Aboriginal Legal Service’s arguments to the High Court was the contention that the effects of social deprivation can actually worsen over time, particularly for Aboriginal people from remote disadvantaged communities subject to frequent jailing.

Dr Anthony says that since the 1990s there has been a “really serious trend” in courts across the country to confine the significance of indigenous background. The High Court decision is a win for the Aboriginal Legal Service because the trend was going the other way.

“We know that, not just in terms of sentencing but in terms of policy across the country, that law and order prevails. There has been a trend towards longer prison sentences and nobody talks about rehabilitation any more,” Dr Anthony said.

“For decades the ALS has been facing lower courts that are happy to downplay personal circumstance and just focus on the seriousness of the offence or the interests of the victim,” she said. “So this decision is not a win because the High Court did something new but because the lower courts were going completely in the other direction. That was adding to imprisonment of aboriginal Australians. The High Court kind of went against that wave of law and order.”

The case could help reverse the trend of ignoring personal circumstance. “Just saying we’re going to have sentences tailored to the circumstances of the individual opens the gate for sentences that are better tuned towards rehabilitation,” said Dr Anthony. “This is probably what the lower courts should have been doing, and the High Court has given them a reminder that they need to be doing that.”

Felicity Graham, acting chief legal officer and instructing solicitor on the case from the NSW Aboriginal Legal Service, said “the actual increase of the number of indigenous people in prison is due mainly to changes in the criminal justice system’s response to offending rather than changes in offending itself”, according to NSW Bureau of Crime Statistics and Research figures.

“Research has revealed that Aboriginal offenders are still being punished in a more harsh way than non Aboriginal offenders,” Graham told Crikey. “The system is a human system and of course human systems are imperfect. The social reality in Australia is that the experience of disadvantage is often so intertwined with Aboriginality. What the High Court has said in this case is that social deprivation and crime are linked.

“It is a very complex set of factors, but the next battleground for sentencing law is to confront the role the system itself is playing in creating crime.”

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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