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Judgement to impact on Aboriginal sentencing

Thursday, 3rd October, 2013

By Kurtis J Eichler

In a landmark judgement that could impact on Aboriginal sentencing and imprisonment, the High Court has ruled Aboriginal disadvantage does not diminish over time.

The court yesterday allowed the appeal of Indigenous man William David Bugmy, who was initially sentenced to a nonparole period of four years in jail for assaulting a Broken Hill prison officer.

The prosecution appealed the sentence in the NSW Court of Criminal Appeal (CCA), with Bugmy subsequently re-sentenced to a non-parole period of five years.

Yesterday the High Court unanimously allowed Mr Bugmy's appeal and set aside the CCA order.

According to a statement from the High Court, Mr Bugmy's lawyers argued that the CCA "erred in holding that the extent to which his deprived background as an Aboriginal Australian could be taken into account in sentencing diminished with time and repeat offending".

In its judgment, the High Court found that "the effects upon an offender of profound deprivation do not diminish over time and should be given full weight when sentencing the offender".

The case will now be reheard in the CCA.

Mr Bugmy, 31, was charged after he threw billiard balls at three correctional officers at the Broken Hill jail in January 2011.

A senior officer was blinded in one eye and suffered severe fractures to his face after he was struck by one of the balls.

Bugmy, who has been a habitual offender since the age of 13, grew up in a culture of alcohol abuse and domestic violence. He reportedly witnessed his father stab his mother 15 times.

The High Court considered the so-called Fernando Principles which take into account an offender's Aboriginality as well as their social and cultural background.

Felicity Graham from the Aboriginal Legal Service (ALS) said the judgement could result in fewer Indigenous people being sentenced to jail.

"Growing up in an environment surrounded by alcohol abuse and violence may leave a mark on a person throughout their whole life," said Ms Graham, the ALS chief legal officer for Western NSW.

"This kind of background might prevent a person from maturing or learning from experiences.

"So this could have an impact on the trends of over representation of Aboriginal people in the criminal justice system and it could have an impact on Aboriginal mass imprisonment."

But Ms Graham pointed out Australia had "fallen behind" Canada in the way criminal law deals with over representation.

"The High Court has said sentencing courts cannot take into account the high rate of incarceration of Aboriginal people when sentencing an Aboriginal offender."


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