A new look at Aboriginal sentencing?
An application to the High Court has a chance to reopen some serious questions about Aboriginal life and imprisonment in Australia.
An application to the High Court has a chance to reopen some serious questions about Aboriginal life and imprisonment in Australia.
It involves the case of a New South Wales man named William David Bugmy.
But it could end up affecting many more cases -- or, more specifically, sentences -- if the Court decides to hear it.
Ron Sutton has the story.
It is an age-old question: Just when do a person's childhood travails stop serving as a viable explanation for his or her actions as an adult?
Or do they ever?
Now, the Aboriginal Legal Service wants Australia's High Court to consider that question in light of the sentencing of an Aboriginal man who lived a deeply troubled youth.
William David Bugmy, from remote Wilcannia, New South Wales, faces seven-and-a-half years in prison for assaulting a prison guard by pelting him with pool balls.
The guard, hit in the eye, suffered serious injuries, including a loss of vision.
The state's Court of Criminal Appeal increased Mr Bugmy's original sentence of six years, ruling any reductions given for a socially deprived childhood must diminish over time.
But the Aboriginal Legal Service has applied for special leave to appeal to the High Court, saying it wants the High Court to issue sentencing principles for such cases.
The Legal Service is declining to comment, but a specialist in Indigenous people and the law, author and academic Thalia Anthony, argues the effects do not fade over time.
"It would seem that, over time, the appeal (of the argument to consider such things as social deprivation) would actually increase, because the significance of it is actually, I think, aggravated by the length (of time) that someone spends particularly in prison, but also confronted with various social factors. I mean, there is a strong argument to say that, for young people, there should be very serious mitigation because you would hope to break that kind of cycle. But after people have come in and out of jail -- and that's, obviously, especially common among Indigenous people -- the benefit of jail should be seen as being relatively small, and the benefits of rehabilitation and other forms of sentencing should be relatively great."
Ms Anthony, lecturer in law with the University of Technology in Sydney, is the author of Indigenous People: Crime and Punishment, a look at sentencing over the past half-century.
Melbourne law professor Mirko Bagaric, co-author of the book Australian Sentencing, also feels time should NOT diminish such mitigation.
"Conceptually, there's not a sound argument for that. If poor social background is a mitigating factor, that aspect of a person's life remains with them forever. And, therefore, logically, that should remain a mitigating factor always. The other converse and perverse aspect about that is that, if prior convictions, if they do mitigate the effect of poor social background, then prior convictions actually serve to compound the sentence in another way. Prior convictions, on their own, they have an escalating effect on sentence."
On paper, the courts began considering social deprivation in Aboriginal communities when setting sentences about 30 years ago.
In 1982, High Court Justice Gerard Brennan said courts were bound to consider those facts which exist only by reason of the offender's membership of an ethnic or other group.
Ten years later, in the so-called Fernando case, a New South Wales court set out eight particular principles to follow when sentencing disadvantaged Indigenous offenders.
Yet another decade on, in 2002, the High Court cautioned against assuming equal treatment meant ignoring differences in offenders' individual circumstances related to their race.
The Fernando case is the most-often cited, but that was two decades ago, and Thalia Anthony says it is time for a new ruling.
"Prison rates have got worse, so I think there really needs to be a restatement of those principles. Unfortunately, since 1992, there's been a very strong law-and-order climate, which has pushed lawmakers (politicians) -- and, consequently, judges who apply those laws -- in the direction of incarceration. And so I think there now needs to be some kind of tide against that, because we're seeing that incarceration doesn't work and there needs to be, you know, solutions about community justice or community reinvestment, as it's called."
Those principles could require judges to consider factors like social deprivation, overrepresentation in jails, and historical dispossession and colonisation for Aboriginal offenders.
At the same time, Ms Anthony says, there is a need to protect society in cases involving serious offences, and the 29-year-old Mr Bugmy's case is a serious one.
But so are his childhood issues, and therein lies the balancing act for the judiciary.
William David Bugmy grew up in a violent home and witnessed his father repeatedly stabbing his mother.
He never learned to read or write and was hooked on alcohol and drugs by age 13.
He already has suffered heart and lung problems and has asthma.
In foster care by age 12 and incarcerated at the same age for the first time, he has spent most of the intervening years in prison.
His mother died, his sister died, and his brother died, and he missed each funeral because he was in custody.
University of Tasmania law professor Kate Warner says there is social deprivation, and then there is Aboriginal social deprivation -- and they are worlds apart.
"It's important this case specifically addresses Aboriginality, because I don't think that, across the board, you've got the same kind of underlying issues (elsewhere) that you have (in Aboriginal lives). You haven't got dispossession and all of those kinds of issues. So I think it's a broader issue when it comes to Aboriginality."
Professor Warner, who has written on racial and social background as mitigating factors in sentencing, points to court rulings in Canada as a pertinent guide.
Canada has become an acknowledged world leader in addressing its aboriginal people's issues, and its Supreme Court has ordered that sentences allow for their background.
In Canada, 2009 statistics showed aboriginal people accounted for 3 per cent of its population but 22 per cent of admissions to custody.
But by comparison, in Australia that year, imprisonment rates were 14 times higher for Indigenous people than non-Indigenous.
In Melbourne, Professor Bagaric says that statistic is unchanged in the 20 years since the Fernando decision and the next step is needed.
"What would significantly reduce the incarceration rate of Indigenous Australians is if the court indicated that prior convictions should no longer have a profound aggravating impact on penalty. At the moment, on prior convictions, the fact that a person is a recidivist can fundamentally change the harshness of the penalty. If the court laid down a new principle, saying that each person, when (he or she) goes to court for a crime, should be sentenced commensurate with the severity of that particular crime, what you would find is that the imprisonment rate for all offenders would reduce significantly and, in particular, it would reduce for Aboriginal offenders, because, disproportionately, they commit more minor offences than other Australians."
Mirko Bagaric says, contrary to common perception, experience has shown recidivism rates do not change when heavier sentences are handed out.
And he says, contrary to many perceptions about the Fernando decision, it didn't change much either. ual Professor Bagaric says, where Fernando laid out principles, he hopes the High Court will look at the Bugmy case and will set specific guidelines -- for Aboriginal offenders, in particular.
"Even though the courts have said that they [Aboriginal offenders] should get a more lenient disposition, there's never been an indication about how much weight ought to be given to that as a mitigating factor -- ie (that is,) does it reduce penalties by 5 per cent, 10 per cent, 20 per cent or 30 per cent? -- given that the courts haven't been compelled to give a substantive reduction in the penalty. And so, whether or not (the effect of) Fernando has diminished over the past few decades, it's not clear, but the more important point is whether or not there's a principle in Fernando (that) has been observed in reality. And there's no evidence to suggest that that has been the case."