By Steven Garcia | 11 August 2023
Indigenous Australians experience stricter sentencing than non-Indigenous people in the 21st Century. However, this is not a new occurrence. Since European settlement in Australia, Aboriginal people have been subject to white law – despite it not being their own law.
This has resulted in the institutionalisation of Indigenous people, with many, such as Mr William Bugmy, beginning their prison lives at the age of just 12. Some have called the Indigenous jail rates ‘shameful’, with Aboriginal youth being ’25 times more likely to be imprisoned than their non-Indigenous counterparts.’[1] These kinds of statistics have led to the establishment of sentencing guidelines such as the Fernando Principles.[2] Prior to the establishment of these principles, however, tragedy had already struck in the form of Malcolm Charles Smith – an Aboriginal man who commit suicide whilst in custody, sparking the Royal Inquiry into Aboriginal Deaths in Custody.
However, despite all of this, the sentencing of Indigenous Australians is still disproportionately high – and on the rise.[3] One man who experienced the force of the stricter sentencing for Indigenous Australians was Mr William Bugmy. Beginning his criminal record at the young age of just 12. William was regularly convicted and detained in juvenile detention centres. Being transferred to an adult prison at the age of 18, Mr Bugmy had numerous charges – including violent offences. William Bugmy had a history of suicide attempts, after spending most of his adult life in prison. In his most recent offence, Bugmy was charged with two counts of assault against law enforcement officers (other than police officers), and one count of wounding or grievous bodily harm with intent, pursuant to s60A and s.33 of the Crimes Act 1900 (NSW) respectively.[4] The Bugmy case was a case of high importance that received media attention all over Australia, due to its discussion of Indigenous sentencing in the current day and age.[5] Stricter sentencing for Indigenous Australians has resulted in not only higher incarceration rates, but also the institutionalisation of Aboriginal and Torres Strait Islanders in Australia.
The rates of Indigenous incarceration in Australia are disproportionately high, and still on the rise with 2,330 prisoners per 100,000 Aboriginal and Torres Strait Islander adult population.[6] This could be because police are more likely to detain an Indigenous Australian who allegedly commits a minor offence, as opposed to their non-Indigenous counterparts.[7] It has been shown, however, that the higher levels of child abuse and neglect, as well a alcohol use, within Indigenous communities increase the likelihood that they will become perpetrators of both violent and non-violent crimes.[8] It is the recognition of these kinds of potentially mitigating factors that have led to the introduction of the Fernando Principles, a series of principles to be considered when sentencing Indigenous Australians.
1. The Fernando Principles
The Fernando Principles, first established in 1992, were a series of principles that outlined certain factors that frequently occur in Indigenous communities that have the potential to lower a person’s criminal responsibility and needed to be recognised.[9] Whilst the principles were not a decision on actually convicting Aboriginal people, they were used to recognise during sentencing that some social disadvantages occurred frequently within particular cultural groups (no matter the ethnicity) – and that often these social disadvantages preceded the commission of carious crimes.[10] The principles suggest that, while it is important to apply the same sentencing principles to every case, regardless of the ethnicity of the offender, facts that exist because of a person’s membership to an ethnic group should not be ignored.[11] Further, while Aboriginality in itself is not a mitigating factor, it can explain the particular offence and the circumstances under which the offence was committed.[12] The principles also point out that, often, lengthy prison sentences imposed on Indigenous people can be both harsh and even counterproductive when considering that they have little knowledge or understanding of the European laws and ways.[13]
However, despite Fernando Principles meaning well, it is important to ensure that they do not unintentionally devalue the impacts that crimes have on victims, including when the victims is also subject to the same social disadvantages that are tied in with belonging to a particular ethnic group.[14] The application of the Fernando Principles have ranged from being mentioned with no discussion,[15] to being found to be applied only within a certain period of time,[16] and every possible application in between. These kinds of sentencing principles have remained from their establishment in 1992 right up until the present day, due to their importance in recognising the potentially mitigating factors of belonging to a particular cultural or ethnic background. While these backgrounds themselves are not necessarily mitigating factors, the characteristics that come as a result of them can explain offences and the circumstances they are commit under, allowing for fairer sentencing of Indigenous Australians.
2. William Bugmy
The case of William Bugmy is one that reinforces the use of the Fernando Principles when sentencing Indigenous Australians. In early 2011, Mr Bugmy threw a pool ball at a Broken Hill Correctional Centre prison guard, ultimately leaving him blind in one eye. Bugmy plead guilty to two counts of assault against law enforcement officers (other than police officers)[17] and one count of wounding or grievous bodily harm with intent.[18] After being sentenced to a non-parole period of 4 years and 3 months with a balance period of 2 years, the Director of Public Prosecution appealed on the following grounds:
(1) His Honour failed to properly determine the
objective seriousness of the offence.
(2) His Honour failed to properly acknowledge the
category of the victim as a serving Prison Officer in the lawful performance of
his duties.
(3) The weight His Honour afforded the respondent’s
subjective case impermissibly ameliorated the appropriate sentence.
(4) The total sentence imposed was manifestly inadequate.[19]
After considering the grounds for appeal, Hoeben JA allowed the appeal, stating that ‘with the passage of time, the extent to which social deprivation in a person’s youth and background can be taken into account, must diminish.’[20] Hoeben JA increased Bugmy’s sentence to a non-parole period of 5 years with a balance period of 2 years and 6 months.[21] However, that ws not the end of the case. Following the increased sentence, Bugmy appealed, represented by the Aboriginal Legal Service (NSW/ACT) Ltd. The appellant submitted that ‘the effects of childhood deprivation do not diminish with time and with repeated incarceration.’[22] The High Court of Australia allowed the appeal, remitting the case back to the Court of Criminal Appeal for resentencing. This established that the profound effects of deprivation do not, in fact, diminish and must be taken dully into consideration when sentencing Indigenous Australians – reinforcing that which the Fernando Principles have been suggesting for so long.
While the incarceration rates of Indigenous people are increasing over time, many have seen the Bugmy case as a ‘win’ for Aboriginal people. Providing precedent that full weight must be given to a person’s Aboriginality during sentencing has been considered giving Indigenous Australians a ‘special advantage in the criminal justice system’.[23] Alternatively, some people see it not as a win for Indigenous people, but rather a ‘victory for a return to the status quo’.[24] Whether you consider the Bugmy case a win or not, there is no doubt that Indigenous people are more likely to become incarcerated, and experience stricter sentencing, in both New South Wales and Australia. While the Fernando principles have been established in an attempt to counter this, cases of stricter sentencing still occur amongst the Aboriginal and Torres Strait Islander peoples, as shown in the case of Mr William Bugmy.
Steven Garcia is a 4th year law student studying a Bachelor of Laws and a Bachelor of Commerce at Charles Sturt University (CSU).
FOOTNOTES
[1]. Dan
Oakes, ‘Indigenous jail rate “shameful”’, The Age, (online), 6 March 2012
<httP;//www.theage.com.au/national/indigenous-jail-rate-shameful-20120305-lueb4.html>.
[2]. R
v Fernando (1992) 76 A Crim R 58.
[3]. Janet
Manuell, The Fernando Principles: The sentencing of Indigenous offenders in NSW
(December 2009) New South Wales Sentencing Council
http://www.sentencingcouncil.lawlink.nsw.gov.au/.
[4]. Crimes
Act 1900 (NSW) s.60A, s.33.
[5]. Bugmy
v The Queen (2013) HCA 37.
[6]. Jacqueline
Fitzgerald, ‘Why are Indigenous imprisonment rates rising?’ (2009) 41 Crime and
Justice Statistics Bureau Brief 1.
[7]. David
Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and
Process in New South Wales (Federation Press, 2011).
[8]. Joy
Wundersitz, ‘Indigenous perpetrators of violence: Prevalence and risk factors
for offending’ (2010) 105 Research and Public Policy Series 11.
[9]. Above
n2.
[10]. Kennedy
v The Queen (2010) NSWCCA 260.
[11]. Above
n2.
[12]. Ibid.
[13]. Ibid.
[14]. R
v Kennedy (2000) NSWSC 109.
[15]. R
v Timothy Smith (2000) NSWCCA 148.
[16]. R
v Drew (2000) NSWCCA 334.
[17]. Crimes
Act 1900 (NSW) s.60A(1).
[18]. Ibid
at s.33(1)(b).
[19]. R
v Bugmy (2012) NSWCCA 223.
[20]. Ibid.
[21]. Ibid.
[22]. Above n5.
[23]. Sol Bellear, ‘Why I won’t celebrate the William
Bugmy decision’ Australian Broadcasting Corporation (online) 10 October 2013
<http://www.abc.net.au/news/2013-10/10/bellear-aboriginal-disadvantage-and
-the-law/5011950>.
[24]. Ibid.