Changing the law
Saturday, 11th May, 2013
By Andrew Robertson
Judges and magistrates may be forced to take aboriginality into consideration when sentencing if a local man’s High Court appeal is successful.
The Aboriginal Legal Service NSW/ACT (ALS) was yesterday granted special leave by the full bench of the High Court to have the relevance of aboriginality to sentencing clarified.
The application was lodged on behalf of Wilcannia man, William Bugmy, who was last year sentenced to four-and-a-half years’ jail for assaulting three prison officers in Broken Hill in 2011.
His sentence was increased by a further one-and-a-half years after the Crown appealed to the Court of Criminal Appeal.
The ALS said Mr Bugmy had spent most of his adolescence and adult life in prison.
The ALS application asked the High Court to clarify the application of the Fernando principles, named after a 1992 rape and murder case in which the Supreme Court of NSW said aboriginality should be taken into account in sentencing.
Principal Legal Officer with the Aboriginal Legal Service NSW/ACT Ltd (Western Zone) Stephen Lawrence said the Fernando line of case law - which is to be examined in the appeal - was regularly cited in courts across Australia.
“Any interpretation of the Fernando precedent is therefore capable of effecting many cases,” Mr Lawrence said.
The ALS said it welcomed the High Court’s recognition of “the potential significance of the matters” advanced on behalf of Mr Bugmy.
His legal team is now concentrating on preparation for the full hearing of the matter.
Mr Bugmy was serving time in the Broken Hill jail when he assaulted three prison officers in January 2011.
One of the officers suffered severe fractures after Mr Bugmy threw an 8-ball that struck the 42-year-old man in the face.