Jennifer Macey Updated
The High Court, for the first time in 30 years, will
consider whether aboriginality can be used as a defence in sentencing.
William David Bugmy, who's spent most of his adult life in jail, was
convicted of assaulting a prison officer at the Broken Hill prison in
2011. The sentencing appeal judge ruled that special consideration for
Aboriginal background can't be applied to repeat offenders.
MARK COLVIN: For the first time in 30 years the High Court is
to consider whether Aboriginality can be used as a defence in
sentencing.
The court has granted special leave tomorrow to hear the case of William David Bugmy of Dubbo.
Mr Bugmy's spent most of his adult life in jail. He was convicted of assaulting a prison officer at the Broken Hill prison in 2011.
But at the sentencing appeal the judge ruled that special consideration for Aboriginal background could not be applied to repeat offenders.
His lawyers say a person's Aboriginality doesn't diminish over time.
Jennifer Macey reports.
JENNIFER MACEY: Thirty-one-year-old William David Bugmy from Wilcannia in western New South Wales has been in an out of jail since he was 13.
His lawyer, Stephen Lawrence, says he had a difficult childhood.
STEPHEN LAWRENCE: There was issues of domestic violence, alcohol abuse in the family, and Mr Bugmy came into contact with the law from an early age, from about 12 or so started to serve short juvenile prison terms and has spent a very large percentage of his life since that very early age in juvenile justice or now in prison.
The early and prolonged exposure to the law as a youth meant that his schooling was disrupted. The evidence in the case showed that his reading and writing was not good, that he was basically illiterate.
So many difficulties in his early life.
JENNIFER MACEY: Two years ago William Bugmy pleaded guilty to grievous bodily harm after throwing a pool ball at a guard in Broken Hill prison.
He was given a six year sentence.
In his hearing, the court recognised the so-called Fernando Principles, which take into account an offender's Aboriginal, cultural and social background.
But the Crown appealed.
The judge of the New South Wales Criminal Appeals Court ruled that the Fernando Principles diminish over time, particularly for repeat offenders.
Another year and a half was added to his sentence.
Now, his lawyers at the Aboriginal Legal Service New South Wales and ACT are appealing to the High Court of Australia.
STEPHEN LAWRENCE: Our argument is that particular attention must be paid to the circumstance of Aboriginal offenders, and that that principle does not, in our view, expire.
And even in the case of somebody with a significant record, it is still of the utmost importance in the sentencing exercise to look closely at the circumstances of the offence, which may well be informed by the circumstances of their life, but also to look closely at those background and systemic factors that generally will have played a role in bringing them before the court.
JENNIFER MACEY: Because a lot of people would argue that this could be just used as an excuse for lighter sentencing?
STEPHEN LAWRENCE: Look, these arguments are not about advocating for a race-based discount, in fact completely to the contrary, the arguments are about ensuring equality before the law through paying close attention to the background circumstances of people.
And how do you achieve equality before the law for someone like Mr Bugmy? And look, part of our argument is that you certainly don't achieve it by ignoring these important background circumstances.
JENNIFER MACEY: William Bugmy's lawyers are also asking the High Court to consider the over-representation of Aboriginal people in jails.
Dr Thalia Anthony is a senior law lecturer at the University of Technology Sydney. She says Aboriginal people make up a quarter of the prison population but only 2 per cent of the general population.
THALIA ANTHONY: The High Court in the Bugmy decision needs to think very carefully about what impact its decision is going to have on the overall levels of incarceration because since, you know, the Royal Commission into Aboriginal Deaths in Custody the number of Indigenous people in custody has increased every year ever since. And I think every step of the criminal justice system needs to be held to account, but including sentencing courts. I don't think they can be immune from it.
JENNIFER MACEY: Dr Anthony says the Bugmy case demonstrates that prison isn't always an effective deterrent or punishment.
THALIA ANTHONY: He was someone with a very long criminal history but also issues surrounding mental health. Simply putting someone like that back in prison again doesn't really seem to be having an effect on their reoffending. So it's incumbent on the courts, I would think, to look at alternatives.
The High Court's got an opportunity to either reopen them, reconsider them, reapply them, or it can actually take us back more than 20 years and really narrow the principles.
JENNIFER MACEY: William Bugmy's aunt, Julie Bugmy, is travelling to Canberra for the court case. She says it will be emotional for her but she's worried that if the High Court does not rule in favour of her nephew he may never leave prison.
JULIE BUGMY: The statistics and the life expectancy on Aboriginal males in jail is like 36 or something like that. It's a worry because will William get out? And he should be eligible for rehabilitation.
JENNIFER MACEY: Your seriously worried that if he's not released, if he stays in the system that he could die there?
JULIE BUGMY: At the end of the day, yes, that's my concerns.
MARK COLVIN: Julie Bugmy is the aunt of William Bugmy, who is appearing before the High Court of Australia in Canberra tomorrow. That report was by Jennifer Macey.
http://www.abc.net.au/news/2013-08-05/case-over-aboriginality-in-sentencing-to-begin/4866486
The court has granted special leave tomorrow to hear the case of William David Bugmy of Dubbo.
Mr Bugmy's spent most of his adult life in jail. He was convicted of assaulting a prison officer at the Broken Hill prison in 2011.
But at the sentencing appeal the judge ruled that special consideration for Aboriginal background could not be applied to repeat offenders.
His lawyers say a person's Aboriginality doesn't diminish over time.
Jennifer Macey reports.
JENNIFER MACEY: Thirty-one-year-old William David Bugmy from Wilcannia in western New South Wales has been in an out of jail since he was 13.
His lawyer, Stephen Lawrence, says he had a difficult childhood.
STEPHEN LAWRENCE: There was issues of domestic violence, alcohol abuse in the family, and Mr Bugmy came into contact with the law from an early age, from about 12 or so started to serve short juvenile prison terms and has spent a very large percentage of his life since that very early age in juvenile justice or now in prison.
The early and prolonged exposure to the law as a youth meant that his schooling was disrupted. The evidence in the case showed that his reading and writing was not good, that he was basically illiterate.
So many difficulties in his early life.
JENNIFER MACEY: Two years ago William Bugmy pleaded guilty to grievous bodily harm after throwing a pool ball at a guard in Broken Hill prison.
He was given a six year sentence.
In his hearing, the court recognised the so-called Fernando Principles, which take into account an offender's Aboriginal, cultural and social background.
But the Crown appealed.
The judge of the New South Wales Criminal Appeals Court ruled that the Fernando Principles diminish over time, particularly for repeat offenders.
Another year and a half was added to his sentence.
Now, his lawyers at the Aboriginal Legal Service New South Wales and ACT are appealing to the High Court of Australia.
STEPHEN LAWRENCE: Our argument is that particular attention must be paid to the circumstance of Aboriginal offenders, and that that principle does not, in our view, expire.
And even in the case of somebody with a significant record, it is still of the utmost importance in the sentencing exercise to look closely at the circumstances of the offence, which may well be informed by the circumstances of their life, but also to look closely at those background and systemic factors that generally will have played a role in bringing them before the court.
JENNIFER MACEY: Because a lot of people would argue that this could be just used as an excuse for lighter sentencing?
STEPHEN LAWRENCE: Look, these arguments are not about advocating for a race-based discount, in fact completely to the contrary, the arguments are about ensuring equality before the law through paying close attention to the background circumstances of people.
And how do you achieve equality before the law for someone like Mr Bugmy? And look, part of our argument is that you certainly don't achieve it by ignoring these important background circumstances.
JENNIFER MACEY: William Bugmy's lawyers are also asking the High Court to consider the over-representation of Aboriginal people in jails.
Dr Thalia Anthony is a senior law lecturer at the University of Technology Sydney. She says Aboriginal people make up a quarter of the prison population but only 2 per cent of the general population.
THALIA ANTHONY: The High Court in the Bugmy decision needs to think very carefully about what impact its decision is going to have on the overall levels of incarceration because since, you know, the Royal Commission into Aboriginal Deaths in Custody the number of Indigenous people in custody has increased every year ever since. And I think every step of the criminal justice system needs to be held to account, but including sentencing courts. I don't think they can be immune from it.
JENNIFER MACEY: Dr Anthony says the Bugmy case demonstrates that prison isn't always an effective deterrent or punishment.
THALIA ANTHONY: He was someone with a very long criminal history but also issues surrounding mental health. Simply putting someone like that back in prison again doesn't really seem to be having an effect on their reoffending. So it's incumbent on the courts, I would think, to look at alternatives.
The High Court's got an opportunity to either reopen them, reconsider them, reapply them, or it can actually take us back more than 20 years and really narrow the principles.
JENNIFER MACEY: William Bugmy's aunt, Julie Bugmy, is travelling to Canberra for the court case. She says it will be emotional for her but she's worried that if the High Court does not rule in favour of her nephew he may never leave prison.
JULIE BUGMY: The statistics and the life expectancy on Aboriginal males in jail is like 36 or something like that. It's a worry because will William get out? And he should be eligible for rehabilitation.
JENNIFER MACEY: Your seriously worried that if he's not released, if he stays in the system that he could die there?
JULIE BUGMY: At the end of the day, yes, that's my concerns.
MARK COLVIN: Julie Bugmy is the aunt of William Bugmy, who is appearing before the High Court of Australia in Canberra tomorrow. That report was by Jennifer Macey.
http://www.abc.net.au/news/2013-08-05/case-over-aboriginality-in-sentencing-to-begin/4866486
This case has been run and a High Court judgement handed down
ReplyDeletehttp://www.austlii.edu.au/au/cases/cth/HCA/2013/37.html