HCA to Consider Aboriginality as a Factor in Sentencing

Thursday 15 August 2013 @ 11.33 a.m. | Crime | Judiciary, Legal Profession & Procedure

In the case of Bugmy v R, currently before the High Court of Australia in hearing, the High Court were asked to address the issue of Aboriginality as a factor in sentencing.

The Facts

The applicant was convicted of causing grievous bodily harm to a prison officer by striking him with a pool ball, causing the victim to lose sight in that eye, and attacking two other officers. The applicant pleaded guilty to all three charges, and the NSW District Court judge sentenced him to 6 years imprisonment.

The Crown appealed the sentence as ‘manifestly inadequate’, and the NSWCCA held that the NSWDC had incorrectly considered Bugmy’s history of mental illness, and increased Bugmy’s sentence to 7 years 9 months. Counsel for the applicant contends that the NSWCCA erred in doing so.

Among other grounds of appeal, the applicant contends that the NSWCCA re-sentenced the applicant based on its own weighting of the relevant factors without the required finding of a material error of principle in the District Court judge’s reasons, and that the NSWCCA erred in applying the considerations of the offender’s history of social deprivation in youth and his background; in this instance, as an Aboriginal, in constraining their relevance based on the passage of time since Bugmy’s youth.

The High Court Appeal

In Bugmy's hearing, the New South Wales Criminal Appeal Court recognised the Fernando Principles, which take into account an offender's Aboriginal, cultural and social background.

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

Bugmy's lawyers at the Aboriginal Legal Service New South Wales and ACT dispute that a person's Aboriginality diminishes over time.

The court will be urged to look at the Canadian example where such issues are required to be considered.

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