Bugmy v The Queen  HCA 27 (2 October 2013)
After considering the impact of Aboriginality on sentencing for the first time in 30 years, the High Court found that the fact that Aboriginal Australians “as a group are subject to social and economic disadvantage measured across a range of indices” says “nothing about a particular Aboriginal offender” but held that a background of social deprivation remains a relevant consideration for repeat offenders.
William Bugmy pleaded guilty to assaulting two prison officers and intentionally causing grievous bodily harm to another while he was a remand prisoner. Mr Bugmy is a 31 year old Aboriginal man, and comes from a town in far western NSW where life expectancy for men in 36.7 years. His childhood was characterized by domestic violence and substance abuse. He was first jailed at 13 years old. He is illiterate, has a history of mental illness and has spent more time in prison than outside it.
He was sentenced to 6 years and 3 months, with a non-parole period of four years and three months, by a court that applied the principles in Fernando (1992) 76 A Crim R to moderate his culpability by taking into account his background of social disadvantage, mental illness and need for rehabilitation to address substance abuse issues. That sentence was increased on appeal by the NSW Court of Criminal Appeal (NSWCCA) on the grounds that too much weight was given to his subjective case in light of the objective seriousness of the offences.
Special leave was granted (by Hayne, Bell and Gageler JJ) to clarify three issues. First, the “determinative issue” of whether the NSWCCA’s authority to intervene in the original sentence was properly exercised. Second, the correctness of statements made by Hoeben JA in the NSWCCA regarding the relevance of Mr Bugmy’s deprived background. Third, the relevance of Mr Bugmy’s mental illness to his sentencing.
A majority of the High Court (Chief Justice French, Justices Hayne, Crennan, Kiefel, Bell and Keane) allowed the appeal. Justice Gageler agreed with the majority, with similar reasoning.
The basis of the NSWCCA intervention
Applying the error principle in House v The King  HCA 40 that provides the threshold for appellate review of sentence, the Court found that the power of the NSWCCA to intervene in the original sentence “was not enlivened by its view that it would have given greater weight to deterrence and less weight to the appellant's subjective case”. That power could only be engaged if the Court was satisfied that the discretion miscarried due to specific (legal) error or manifest error, the latter implied by a sentence unjustifiably outside the relevant range. Another basis for intervention would be through the exercise of the residual discretion conferred by Criminal Appeal Act 1912 (NSW), s5D allowing dismissal of a Director’s appeal regardless of demonstrated error. Because the NSWCCA did not find that the sentence manifestly inadequate, and it did not consider the exercise of the residual discretion, intervention in the sentence was in error. On that basis, the Court allowed the appeal and remitted the case back to the NSWCCA to decide the Director’s appeal in accordance with the reasons.
Effect of deprived background
By the time the case had reached the High Court, Mr Bugmy’s argument that “the effects of childhood deprivation do not diminish with time and with repeated incarceration” was no longer in issue. However, it was subsumed into the appellant’s broader contention that due to the social causes and consequences of Aboriginal overrepresentation in prison, the “unique circumstances of all Aboriginal offenders” were a relevant consideration in the culpability of individual Aboriginal offenders and the choice and length of imprisonment. The Crown submitted that such arguments approximated a “race discount”.
Responding to the appellant’s use of the decisions of the Supreme Court of Canada in R v Gladue  1 SCR 688 and R v Ipeelee  1 SCR 433 as persuasive authority about the impact of the specific systemic factors on the sentencing of socially disadvantaged, over-incarcerated Aboriginal offenders, the High Court limited their relevance by emphasizing the provisions of the Canadian Criminal Code where section 718.2(e) provides the legislative direction that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders”.
The lack of a similarly specific direction in the Crimes (Sentencing Procedure) Act 1999 (NSW), s5(1), as well as differing statements regarding the purposes of punishment, formed the basis for distinction meaning that
“[t]here is no warrant, in sentencing an Aboriginal offender in New South Wales, to apply a method of analysis different from that which applies in sentencing a non-Aboriginal offender. Nor is there a warrant to take into account the high rate of incarceration of Aboriginal people when sentencing an Aboriginal offender. Were this a consideration, the sentencing of Aboriginal offenders would cease to involve individualized justice”.
Instead, the deprived background of an Aboriginal offender may mitigate sentence “in the same way” as the deprived background of a non-Aboriginal offender.
Effect of mental illness
The appellant argued that the NSWCCA erred in concluding that mental illness or disorder will moderate a sentence only where causally connected to the commission of the offence. The Court did not engage with the substance of this argument, finding that while the prosecution was not bound by its original concession that the appellant's mental illness meant that general deterrence was less relevant, to the extent that this concession contributed a sentence that was argued to be inadequate, its changed position was material to the exercise of the residual discretion. The remitter of the Director's appeal made it “unnecessary to consider the consequences of the Court's failure to give consideration to the residual discretion before it allowed the appeal”.
For many, the significance of this case, and the grant of special leave (rare for a sentence appeal) lay in the broader issue about how repeatedly-seen circumstances of Aboriginal disadvantage should be balanced with considerations like deterrence and community protection which pull in different directions, especially for repeat and violent offenders. However, unlike the High Court in Neal  HCA 55 or Mabo  HCA 23, this Court did not recognize a need for appellate guidance in order to promote substantive equality.
While on its face, the affirmation that the impact of profound deprivation does not diminish over time appears to be a positive step in that direction, the fact that the Director ‘acknowledge[d] that the effects of profound deprivation do not diminish over time and he submit[ed] that they are to be given full weight in the determination of the appropriate sentence in every case’ is a strong hint otherwise. As the Court held, “An offender's childhood exposure to extreme violence and alcohol abuse may explain the …recourse to violence when frustrated such that…moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response…may increase the importance of protecting the community from the offender”. Therefore, while this consideration may reduce culpability, it can equally support a lengthy imprisonment term on the basis of community protection. It could lead to the same place, therefore, as if the Court had decided that the impact of disadvantage does diminish over time.
The full decision is available at: http://www.austlii.edu.au/au/cases/cth/HCA/2013/37.html
Sarah Krasnostein is completing a PhD in sentencing law and policy at Monash University.