Bugmy, the high court and fernando

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the latest high court decision, to me, is a complete puzzlement. two media reports try to explain it, the high court decision, but fail miserably. the facts of the william bugmy appeal are that in a fit of anger, whether provoked, legitimately or otherwise, he threw a billiard ball at a gaol officer that blinded him in one eye. bugmy was taken to court on a charge of assault and received a sentence that displeased greatly the officer injured, his union and the dpp so an appeal was lodged and the sentence was increased. in his turn, represented by the nsw/act aboriginal legal service, bugmy appealed the longer sentence. in the bad old days and not so long ago, bugmy would have been charged with attempted murder, found guilty and spent the rest of his life in solitary confinement. but thankfully things change.

in my 20 odd years of working in the nsw gaol system i met william several times over those 20 years. i also met others of the bugmy extended family and each could easily claim the disadvantage decision from the high court. the sentencing matter is back in the nsw courts for further argument and consideration.

i am firstly puzzled at the high court decision as this is no new panacea to fix the over-policing, over-sentencing or the over-incarceration. secondly, that whilst i do understand that some, like thalia anthony who is quoted in one article,and has produced a paper on the subject, and the als solicitor, felicity graham, who is also quoted, are really into believing, wanting, please sir make it happen enthusiasms that this high court decision will allow for legal and custodial changes to occur.

i have no wish to rain on their parades but we have positive proof that changes for the better just will not occur and what is that proof? in 1982, in Neal v The Queen, the High Court acknowledged that in sentencing a person, it was ‘essential to the administration of justice’ to take into account all the material facts of a case, which here included the defendant’s Aboriginal background and his experience of disadvantage. the royal commission into black deaths in custody adopted, with the custodial associations assisting, the same principles when dealing with the 99 (+1) cases from 1980 to may 1989. A decade later, in R v Fernando Wood J surveyed the available authorities, concluding that, in certain cases, consideration of this background could assist a court in explaining the commission of a particular offence and the circumstances relating to the offender – facts which existed ‘only by reason of’ their Aboriginality. justice wood in 1992, due to the seriousness of the case he was presiding over, then came up with 8 principles that he put must, or rather should, be considered in any sentencing event. the case involved a brutal assault by stanley edward fernando on his partner after a joint alcohol binge.

so in one form or another the principles have been around for over 30 years. during that time the judiciary, for there own reasons, watered them down to a point, i believe, whereby they were non-operable. the bugmy case has revitalised them in the oft professed hope that the over-representation of aborigines in gaols and juvenile justice centres will begin to decrease. i hold no such hope.

i would prefer, and recommend, the royal commission recommendations such as 87a that all police services should adopt and apply the principle of arrest being the sanction of last resort in dealing with offenders. this is ignored by every police officer nationally 24/7 and our people continue to pay the price for their failure. the second recommendation is 92 that governments which have not already done so should legislate to enforce the principle that imprisonment should be utilised only as a sanction of last resort.

and the custodial umbrella recommendation 122a that police services, corrective (sic) services and authorities in charge of juvenile centres recognise that they owe a legal duty of care to persons in their custody.

myself and other activists argue that had just these three recommendations been properly implemented by governments and their custodial departments then over 100 aboriginal and torres strait islander deaths in custody would not have happened. the number of non-atsi deaths would have greatly reduced also.

considering that the high court decision uses terms like ‘may be considered’ leaves the whole scenario still wide open for abuse. from circa 1982 to the present one only needs to consider that aboriginal males are now roughly 25% of the australian gaol system. aboriginal women now rank at over 30% whilst our youth have skyrocketed to a social disaster of some 70% of the youth incarcerated in this country. this is social engineering at its worst. from massacre they moved to the taking of the children, (still in practice but now under another welfare guise) then the blind gaoling of our people. i am not for one minute condoning the criminal acts done by our people but it is not necessary to gaol every perpetrator.

a recent article by hugh de kretser, executive director of the human rights law centre, clearly shows that unless the fernando principles, or what ever other title they wish to give them, are actually legislated by state and territory governments and not left to the indifferent whim of the judiciary at all levels, then nothing of much use will happen. hugh, perhaps on holiday, popped down to the local court to judge first hand queensland justice. or what passes as justice. there is no doubt that the two murri defendants hugh highlights will both finish up in a queensland gaol. the only principles observed here are the ‘gaol the bastards’ principle.

victoria is a much better state to observe positive changes, as hugh suggests, by arranging for the courts to access neighbourhood justice centres that do the hard social work of keeping people out of gaol. hence the low rates. he highlights the nsw drug court as another positive to keeping people out of the gaol systems. some may be aware that isja was part of the nsw drug court pilot for 4 years when the government handed it all over to the salvation army to operate. queensland and the nt on the other hand have shut down several positive programmes merely to be able to appear tough on crime. and they are tough on crime in the nt. the alice springs gaol was built in 1996 to hold 400 inmates in two sections, a maximum/medium and a minimum sectixon known as the ‘deluxe gaol.’ i doubt there is too much of the deluxe these days as the gaol administration struggles to house some 600 inmates! over 95% aboriginal.

hugh goes on to praise justice re-investment as another saviour to lowering numbers but we have no australian example to work on so whilst the theory may, and i stress may, have some benefit, the practical is still quite unknown. here in nsw we still await in silent wonder as the o’farrell government continues to wrestle how to introduce a jr programme that has a tough on law basis. wonder! wonder! wonder!Aboriginal dancers Rembargna clan from central Arnhem Land dancing at an initiation ceremony at Nangalala

hugh’s article does let slip the big blue elephant in all of this process and that is, no surprise or prize, our national constabulary, from which all our troubles spring! i have posted isja’s views many times on the workings and the problems of the australian police forces but it seems it has to be put once more.

in the custodial system there are four distinct levels. first you have the police with all their inherent power, then the court system at all levels and the gaols at the end of that process. the fourth level are the investigative and overseeing bodies of the first three. with perhaps the singular exception of the gaol system, even though they do have some sway there, that sway becomes all-powerful when the police deal with themselves, the courts and let us not forget, the governments. there is also a strong necessary link or control with the dpp in each state and territory.

the first police in this country came with the invasion. they were not called police at that time, they were called troopers and these troopers became very, very involved in aboriginal issues as some historical reports inform us. the white-blindfold-view of history and its outcomes. the troopers morphed into the police in the 1800 but their task remained the same. to quieten and/or eradicate our ancestors. sadly, they made a damned success of it. more sadly, they’re still at it.

why is there such large numbers of our people in the custodial system? are we ‘born’ criminals? why does our social status match, to varying degrees, other invaded peoples? of course the answer must include an investigation not only of the current society we are forced to live in but also how their power over us is continued. due to massacres, poison blankets and other colonial actions our numbers are small, about 600 odd thousand scattered over large distances. suffering continuous invasion over 200+ years we are really behind the eight ball and we struggle to survive but that does not stop us from making some small gains.

the ‘bully-man’ has been with us all the way, always letting us know in no uncertain terms of our place in their society. it is they, mainly, who criminalise us as they have always done. the massacres have stopped but only because of the building of the gaols took place. whether guilty or otherwise was of little concern; we just had to be locked up in their hope that our families and communities would
crumble and make us even easier to control and destroy.

police interaction begins early with our youth as they are groomed to be in the criminal system from an early age with more or less daily harassment until an act is done that they, the police, see as criminal and thus begins the building of the court record, petty charge by petty charge. police rarely express their concern to a magistrate or judge that a non-custodial sentence should be applied. the normal is to argue to the court that the aboriginal person must, for their own betterment or for society’s benefit, be locked up. play that game with an uncaring police and a more than compliant court for about 150+ years and you can see what is happening. i think the first magistrate to question corrupt police evidence was our own pat o’shane. it is thankfully more common now for the judiciary to question police evidence, to their horror and chagrin. still their tactics remain the same as i presume it is difficult to be honest in a corrupt force.

there is change afoot but at a glacial rate. there is a way to speed up those positive changes, however, and that is to reduce police powers. especially the government-protected right to investigate themselves when
they do wrong and then the culture comes into play. protection of fellow officers at all costs. and every copper in nsw from the police minister down still play the game in a most active fashion.

i know this is a long post with much to read and absorb but these points need to be brought together and hopefully discussed by the readers of these posts and others.

two points.

1 if you do not want to be on this list then just indicate that to me and i will remove you from the list.

2 from 11/10 to 20/10 there will be no posts as i will be in alice springs involving myself with death in custody families, including the families, among others, of peter clarke and mr briscoe.


ray jackson
indigenous social justice association

(m) 0450 651 063
(p) 02 9318 0947
address 1303/200 pitt street waterloo 2017


we live and work on the stolen lands of the gadigal people.

sovereignty treaty social justice

Australia High Court says Aboriginal disadvantages can be factor in sentencing

Australia’s highest court has ruled that the chronic disadvantages of being Aboriginal can be a factor in sentencing criminals and the impact does not diminish during the criminal’s lifetime.

The decision could lead to a reduction in the imprisonment rate for Aborigines, which is fifteen times higher than the rate for non-Aboriginal Australians Photo: ALAMY

By Jonathan Pearlman, Sydney
9:51AM BST 02 Oct 2013

The decision could lead to a reduction in the imprisonment rate for Aborigines, which is fifteen times higher than the rate for non-Aboriginal Australians. The court noted that social disadvantage was not limited to Aborigines or any specific ethnic groups.

The High Court was reviewing the sentence of a 31-year-old, William Bugmy, who has been in and out of prison since he was 12 and suffered “profound childhood deprivation”. He was an alcoholic and drug user at age 13, cannot read or write, and grew up in a remote town where he saw his father frequently stab his mother. He was appealing a sentence for throwing a billiard ball at a prison guard and blinding the man in one eye.

The court ruled that the passage of time and a long criminal record do not reduce the impact of a criminal’s Aboriginal disadvantage. However, sentencing judges will also need to consider other factors such as the need for deterrence or rehabilitation which could outweigh the criminal’s disadvantage.

“The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life,” the court ruled.

“A background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.”

A legal group which supports Aborigines, the New South Wales Aboriginal legal service, said the decision could help to lower Aboriginal imprisonment rates.

“This certainly could have an impact on the trends of over-representation of Aboriginal people in the criminal justice system,” Felicity Graham, a lawyer from the service, told ABC News.

Tony Abbott, Australia’s new leader, has pledged to be the first “prime minister for Aboriginal affairs” and has promised a new depth of engagement with Aborigines. He plans to spend a week a year governing from a remote Aboriginal community and has set up an advisory council to help address high rates of unemployment, drug and alcohol abuse, poverty, poor health and imprisonment.

The Sydney Morning Herald
Judges told to consider history when sentencing

October 3, 2013
Jane Lee
Legal Affairs Reporter for The Age

Judges will need to consider the Aboriginal background of an offender when sentencing them, after a High Court decision ruled that the effects of profound disadvantage do not diminish over

The High Court ruled for the first time on Wednesday that a person’s Aboriginal background may reduce their sentence if they come from a deprived or disadvantaged background. It also ruled that this was one of several factors that judges had to consider, including the seriousness of an
offence and the extent to which the victim has been harmed.

The judges unanimously allowed Aboriginal man William Bugmy to appeal the Court of Criminal Appeal’s decision to re-sentence him to five years’ imprisonment without parole.

Bugmy grew up in Wilcannia, in far-west NSW, in a home where alcohol abuse and violence were common. He was initially sentenced to four years in jail in the District Court of NSW for intentionally causing grievous bodily harm to a correctional services officer. The Director of Public Prosecutions then appealed the sentence, arguing that it was ”manifestly inadequate”.

Not all Aboriginal offenders had disadvantaged backgrounds, but the court said ”the circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of
an offender whose formative years have not been marred in that way”.

A senior law lecturer at the University of Technology, Sydney, Thalia Anthony, said the ruling paved the way for more offenders, including indigenous offenders, to appeal their sentences in cases where judges had not given enough weight to their background in making their decisions.

”If [lower courts] continued to maintain that pattern of reasoning, then there will be appeals, but you would hope that the courts will look at this High Court decision seriously and start to apply that and accordingly start to reduce sentences where it’s appropriate for Aboriginal background,”
Dr Anthony said.

From the late 1990s, prison sentences had lengthened disproportionately for indigenous offenders. NSW and Northern Territory courts in particular had justified long sentences for indigenous people convicted of serious offences by giving greater weight to the seriousness of the offence than all other considerations.

The National Aboriginal and Torres Strait Islander Legal Services says indigenous peoples are 15 times more likely to be incarcerated than other Australians, with imprisonment rates rising 50 per
cent in the past decade compared with 5 per cent for the rest of the population.

”I’m expecting that that trajectory of sentences getting harsher will be brought back a bit,” Dr Anthony said.

R. v. Fernando

(1992) 76 Australian Criminal Reports 58, at pages 62 & 63.
Mr. Justice Wood, Supreme Court of New South Wales.

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