For the first time in 30 years the High Court is set to consider whether Aboriginality can be used as a defence in sentencing.The court has granted special leave to hear the case of William David Bugmy, a 31-year-old Indigenous man from Wilcannia who was convicted of assaulting a prison officer after throwing a pool ball at a guard in the Broken Hill prison in 2011.
He pleaded guilty to grievous bodily harm and 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 Bugmy's sentence.
However, Bugmy's lawyers at the Aboriginal Legal Service New South Wales and ACT say a person's Aboriginality does not diminish over time and are now appealing to the High Court.
Bugmy's difficult start to lifeBugmy has been in and out of jail since he was 13 and spent most of his adult life in jail.
His lawyer, Stephen Lawrence, says his client had a difficult childhood.
"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," he said.
"[He] 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."
Mr Lawrence says his client's early and prolonged exposure to the criminal system 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," he said.
"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."
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.William Bugmy's lawyer, Stephen Lawrence.
However, Mr Lawrence says consideration of the Fernando Principles is 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," he said.
"How do you achieve equality before the law for someone like Mr Bugmy? Part of our argument is that you certainly don't achieve it by ignoring these important background circumstances.
"You don't in my view achieve equality before the law ... through applying a one-size-fits-all approach. It's actually necessary to examine difference, to understand difference, in order to achieve real equality."
Bugmy decision could impact on Indigenous incarceration ratesBugmy's aunt, Julie Bugmy, is travelling to Canberra for the court case and says she is worried that if the High Court does not rule in favour of her nephew, he may never leave prison.
"William has been locked up since he was 13," she said.
"Who has played the parent role for this juvenile? The state? Who was a parent to this child?
"The statistics and the life expectancy of 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."
Bugmy's lawyers are also asking the High Court to consider the over-representation of Aboriginal people in jails.
University of Technology Sydney law lecturer Dr Thalia Anthony says Aboriginal people make up a quarter of the prison population, but only 2 per cent of the general population.
William has been locked up since he was 13. Who has played the parent role for this juvenile? The state? Who was a parent to this child?William Bugmy's aunt Julie Bugmy.
"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," she said.
"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."
Dr Anthony says the Bugmy case demonstrates that prison is not always an effective deterrent or punishment.
"He was someone with a very long criminal history but also issues surrounding mental health," she said.
"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 [Fernando] Principles."
Opposition to the Fernando PrinciplesVictims of crime groups say Aboriginal people should not be treated differently to the rest of the community.
Ken Marslew from Enough is Enough says one legal system should apply to everyone.
"One of the concerns that I have about our legal system - don't call it a justice system - is that we are making excuses not only for Aboriginality but for cultural differences and other areas," he said.
"We have one system that should be servicing us all.
"All we are doing is making excuses.
"Is this so defence lawyers can make more money, [rather] than turn [the legal system] into a justice system?"