The High Court of Australia has handed down a judgment today that the disadvantage of being Indigenous does not diminish over time. What does that actually mean in real people speak?

Well, Mr William Bugmy, an Aboriginal man who grew up in Wilcannia and has been in and out of prison since he was 13 was convicted of intentionally causing grievous bodily harm to a corrections officer. That wasn’t in question. I assume, however I have not read the previous judgments, but I assume Mr Bugmy did not deny his guilt. Either way, if he had he had been found guilty by the District Court of New South Wales. He was sentenced to a non parole period of four years with a balance of term for two years.

The Director of Public Prosecutions didn’t think that period was enough for whatever reason so she or he appealed for the sentence to be increased. Ok, so far, so good. On appeal at the Court of Criminal Appeal in New South Wales the judge agreed with the Director of Public Prosecutions and gave Mr Bugmy a non-parole period of five years with a balance of term of two years and six months.

Sentenced increased so the Director of Public Prosecutions is happy. However in the Court of Criminal Appeal Mr Bugmy just got his sentence increased, the Court of Criminal Appeal didn’t actually rule that the previous sentence was not adequate. It just gave him a new one. That Court also didn’t take into consideration Mr Bugmy’s serious social disadvantage. Yes- this is a ‘thing’ and courts can consider this. When you think about it. It makes a lot of sense that the courts can consider someone’s disadvantage when imposing a sentence.

Now- back to the case. An appeal was taken to the High Court of Australia. Mr Bugmy’s lawyers argued that the Court of Criminal Appeal made a mistake. The High Court agreed for two reasons. First the Court of Criminal Appeal didn’t actually say that Mr Bugmy’s sentence was inadequate, it just gave him a new one. The High Court says no.

The Court of Criminal Appeal didn’t take into account Mr Bugmy’s serious disadvantage in a real way, the Court of Criminal Appeal made remarks that someone’s disadvantage (or the level that that disadvantage impacts someone) diminishes over time . The High Court said no to that too.

Obviously Mr Bugmy hadn’t had the white picket fence sorta life, not only had he been in and out of jail since he was in his early teens he had grown up in a community with very low prospects of employment, education and social mobility. Which is all well and good for a youngster, but what about an adult like Mr Bugmy?

The High Court said that his disadvantage doesn’t actually leave him when he becomes an adult, like shedding a skin or taking off a coat. The disadvantaged life Mr Bugmy had will have serious consequences for him and don’t diminishes as time passes. Essentially that he is influenced by his circumstances and that courts should consider an Indigenous person’s possible disadvantage throughout their whole life.

Before you jump on your TOUGH ON CRIME soap box. Sit down and take a chill pill. Courts in this, as well as similar cases consider Indigenous disadvantage when imposing sentences together with a whole host of factors.

It’s good social policy for the courts to understand that a person can be impacted by their circumstances and background. Our judiciary need to be given the discretion to consider as many factors as they need to when imposing a sentence. We’re talking about someone’s freedom here. Why should they consider everything? Well- let’s use criminal law as an example. People don’t usually commit a crime in isolation. There’s a whole host of factors, situations and contexts that lead a person to commit a crime. Some external and some internal. It makes sense that our courts at least recognise this and consider it when imposing a sentence.

Mr Bugmy may have made a grave mistake in his life. He may indeed be punished by his worst moment so far. He hasn’t “gone free”. The High Court has just decided that people can be products of their upbringing and they shouldn’t always be punished harshly for having been born on the wrong side of the tracks.

If you want to read more check out the release from the High Court of Australia: http://www.hcourt.gov.au/assets/publications/judgment-summaries/2013/hca37-2013-10-02.pdf

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