February 2014 Māori Law Review
Criminal law – sentencing – The High Court of Australia in Bugmy v The Queen: A Mixed Bag on the Sentencing of Indigenous Offenders
Bugmy v The Queen
High Court of Australia  HCA 37
2 October 2013
Max Harris considers the judgment of the High Court of Australia in Bugmy v The Queen where the Court considered – amongst other things – the argument that Aboriginal Australian offenders should be entitled to a sentencing discount on the basis of their indigenous background.
Download Bugmy v The Queen  HCA 37 here.
Overview and Result
As noted in a recent case note on the New Zealand Court of Appeal decision in Mika v R  NZCA 648 (see (2014) February Māori LR), the last two years have seen much judicial activity in the area of the sentencing of indigenous offenders – in Canada, Australia, and in New Zealand. Recently Australia’s highest court offered its authoritative opinion on the matter in Bugmy v The Queen  HCA 37 (hereafter “Bugmy”).
The High Court of Australia allowed an appeal from a decision of the New South Wales Court of Criminal Appeal. The Court’s joint reasons were written by French CJ, Hayne, Crennan, Kiefel, Bell, and Keane JJ, with a concurring judgment written by Gageler J. The Court found that the Court of Criminal Appeal failed to consider whether the initial sentence imposed was manifestly inadequate; this was the “determinative issue” (). But the Court, at least in the joint reasons, also took the opportunity to explain the relevance of aboriginality and social deprivation to sentencing. The joint reasons found that while Aboriginal Australians may face particular social deprivation (especially relating to alcohol abuse and the impact of prison), generally a principle of “individualised justice” prevents any automatic discount in sentencing on account of an offender’s Aboriginal background. On the issue of social deprivation, however, the joint reasons upheld the submission that evidence of social deprivation does not become any less relevant over time. Gageler J seemed to express more hesitation on this latter point. The Court accordingly set aside certain paragraphs in the Court of Criminal Appeal’s decision, and remitted the case back to that Court for further consideration.
In the end, this is a case that plainly does not go as far as the Supreme Court of Canada has gone on the question of the relevance of indigenous background to the sentencing of offenders (see, for instance, Māori LR May 2013). In fact, the Court makes some comments that are perhaps insensitive to social context and overly individualistic in outlook. Nonetheless, on the positive front, the Court accepts some distinct challenges faced by Aboriginal Australians and their communities (in particular, the problem of alcohol abuse and difficulties around treatment in prison), and reaches a conclusion on the relevance of social deprivation evidence that may be useful for non-Aboriginal and Aboriginal offenders alike. The result of Bugmy is a mixed bag. We might expect better from the New Zealand Supreme Court when it comes to considering the same issues in the near future.
William David Bugmy (aged 29 at the time of the appeal) was raised in Wilcannia, New South Wales, in a household with a number of siblings where alcohol abuse and violence were rife. Mr Bugmy started drinking alcohol and taking prohibited drugs when he was 13. His juvenile offending record began at age 12, and he has a long record of convictions (as do his siblings). He has a long-term partner, and a daughter with that partner. Both he and his partner are alcoholics, and he also has a history of suicide attempts. As well, he has head injuries, hallucinations, psychosis, and a conduct disorder.
Mr Bugmy, while a remand prisoner, became upset at a correctional officer, Mr Gould, when it seemed that visitors would not arrive at a correctional centre before the centre closed. After Mr Bugmy threatened Mr Gould in violent terms, two other officers were sent. Mr Bugmy threw pool balls at these officers in anger, leading to a charge of assaulting a correctional officer while the officer is in execution of his or her duty. Then Mr Bugmy threw balls at Mr Gould, which struck him in the back and eye, causing serious injury. Mr Gould lost vision in his left eye and suffered profound psychological effects from the injury. For this conduct, Mr Bugmy was charged with causing grievous bodily harm to a person with intent to cause harm of that kind.
It is worth noting that in the statement of facts in the joint reasons, this discussion of Mr Bugmy’s conduct comes first, at –; Mr Bugmy’s background is then outlined at –. The ordering hints at the High Court’s view of the relative importance of background and conduct, a prioritisation elaborated later in the substance of the judgment.
Mr Bugmy was sentenced to a non-parole period of four years and three months, and a balance of term of two years. In the District Court Judge Lerve recommended release after the non-parole period was served, conditional on supervision of drug and alcohol treatment. The Director of Public Prosecutions appealed to the New South Wales Court of Criminal Appeal on the basis that the sentence was manifestly inadequate, and also on the basis that the District Court Judge failed to consider the objective seriousness of the offence and placed too much emphasis on the offender’s subjective case. The Court of Criminal Appeal upheld the grounds of appeal relating to subjectivity and objective seriousness in relation to the charge of causing grievous bodily harm, and said that such findings made it unnecessary to evaluate whether the sentence was manifestly inadequate. The Court resentenced Mr Bugmy to a non-parole period of five years, with a balance of term of two and a half years. Mr Bugmy appealed to the High Court of Australia, with leave being granted on 10 May 2013.
The joint reasons of French CJ, Hayne, Crennan, Kiefel, Bell, and Keane JJ
The joint reasons can be split into three parts: reasoning on the first point, which was largely a question of sentencing process; reasoning on indigenous background and sentencing; and reasoning on the relevance of social deprivation evidence.
The Court found, first, that the Court of Criminal Appeal erred in allowing the appeal of the Director of Public Prosecutions and resentencing the offender, without determining whether the sentence imposed by the primary judge in the New South Wales District Court had been manifestly inadequate. This point will be of less relevance to readers (as it relates more specifically to Australian appellate procedure in criminal law), but it may be useful to recap the Court’s discussion in brief. In essence, the Court of Criminal Appeal found that the District Court had been too lenient in its view of mitigating factors (it was wrong to moderate its consideration of general deterrence in light of evidence of mental illness, for example) and failed to discharge its duties in assessing aggravating factors (by, for instance, seemingly not considering how the victim’s status as a correctional officer ought to affect the sentence). But the major ground of challenge – that the sentence was manifestly inadequate – was not determined. The High Court joint reasons rejected the view that the Court of Criminal Appeal had implicitly decided this point. Had the Court not decided this point, the correct course of action was for the Court to consider whether it should exercise its residual discretion to dismiss the appeal, but it had not exercised this discretion, either. Thus, the High Court found that the Court of Criminal Appeal had fallen into error, with the High Court implying that the sentence may not have been manifestly inadequate (see ).
The High Court also considered, secondly, the relevance of Canadian jurisprudence on sentencing indigenous offenders – in particular, the decisions in R v Gladue  1 SCR 688 and Ipeelee v R  1 SCR 433. It was argued by Mr Bugmy that the unique circumstances of Aboriginal offenders should be relevant to their culpability in each case, and that the high rate of incarceration of Aboriginal offenders should be taken into account during sentencing of such offenders (). The Court’s joint reasons can be distilled into five propositions on this issue:
- There are important differences between the legislation in Canada and in Australia (). Australian legislation does not contain the powerful injunction in s 718(2)(e) of the Canadian Criminal Code, which says that “all available sanctions other than imprisonment should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders”. New South Wales and Canadian statutes also have different explanations of the purposes of punishment.
- A background of social deprivation for an Aboriginal Australian could be relevant, but only in the same way that such deprivation would be relevant for a non-Aboriginal offender (). The earlier case of Fernando  76 A Crim R 58 was best understood as making this point and not going any further, said the Court.
- To take into account incarceration of Aboriginal offenders, at least in the absence of a legislative warrant, would be to jeopardise “individualised justice” ().
- Endemic abuse of alcohol in Aboriginal communities, as well as the fact that Aboriginal Australians (including those in urban environments – see ) may find prison to be particularly burdensome, are relevant factors to sentencing: . The Court affirmed the views of Wood J in Fernando on this point. It also claimed that such views were consistent with the sentencing principle that a court must take into account material facts, including facts that only arise because of an offender’s membership of an ethnic group ().
- To take judicial notice of systemic background of deprivation amongst Aboriginal Australians is “antithetical to individual justice” (). Individual evidence must be given in each case to link social deprivation to offending.
Thirdly, the joint reasons of the Court considered comments by Hoeben JA in the Court of Criminal Appeal to the effect that with the passage of time, the relevance of an offender’s social deprivation must diminish in the context of sentencing, especially where substantial offending had occurred in the meantime (an argument expressly rejected by the Canadian Supreme Court in Ipeelee). The Director of Public Prosecutions did not seek to defend this comment in the High Court, accepting that the “effects of profound deprivation do not diminish over time” (at ), even where there substantial offending has occurred. The High Court acknowledged the validity of the Director’s submission, saying that a background of social deprivation often affects a person’s ability to mature and learn from experience. The Court noted that the effects of social deprivation must therefore be given “full weight” in sentencing: . The Court did observe, however, that a background of social deprivation may reduce culpability, but may also increase the need for community protection; social deprivation evidence does not point solely in the direction of a more lenient sentence (). In remitting the case to the Court of Criminal Appeal, the High Court encouraged the Court to focus in particular on how social deprivation and mental illness might have affected considerations of general deterrence.
Gageler J’s concurring judgment
Gageler J seemed to focus on why the issues of Aboriginal background and social deprivation were not properly the subject of appellate intervention, given that the alleged errors in reasoning involved only matters of weight (at ). His Honour agreed with the analysis of the joint reasons on the first issue discussed above. However, his Honour appeared to opt for a more cautious view on the relevance of social deprivation, holding that he did not agree with the lower court’s view that there must always be a diminution in relevance of this evidence when there time has passed – but also that he did not agree with the Director’s “categorical concession” that there must never be a diminution in the relevance of such evidence. The weight to be given to social deprivation is, said Gageler J – in a line that was an echo of much of the joint reasons – a matter of “individual assessment”: .
Given my lack of deep knowledge on Australian criminal law, I cannot speak authoritatively on certain issues arising in Bugmy: for example, whether the High Court of Australia has properly interpreted the Fernando case, or whether it has artificially narrowed the principle to be taken from that decision. Those are matters for other authors. What can be said are four things – four points of a more philosophical nature – relating broadly to the obvious outcome of the decision, the social role of courts across jurisdictions, the role of “context”, and the nature of “individualised justice.”
It should be acknowledged that the conclusion of the joint reasons of the High Court on the relevance of social deprivation evidence will be helpful to offenders seeking to construct nuanced arguments regarding their culpability. That Gageler J expressed a different view shows that this outcome was by no means inevitable. And indirectly, this conclusion should be useful to Aboriginal offenders, given that they will often be able to point to evidence of social deprivation arising out of colonisation. As well, there are statements in this judgment acknowledging the endemic problems of alcohol abuse in Aboriginal communities and the burdensome nature of prison for Aboriginal individuals that may prove valuable in future cases.
However, the Court’s reasoning on the relevance of indigenous background to offending is far from flawless. The High Court’s outright rejection of the possibility that it might consider Aboriginal over-representation in prison statistics when sentencing (at ) suggests that the Court has a cramped view of its social role, especially in comparison to the perspective of the Supreme Court of Canada. That is reinforced by the fact that the Bugmy judgment refers far less to academic literature and general publications than the Supreme Court of Canada in Ipeelee. It must be the case that the over-representation of Aboriginal offenders in Australian prisons is in the minds of the judges of the High Court of Australia (as is implied by the reference to a government review of indigenous disadvantage at footnote 64 – one of the only references to broader literature in the judgment). If this is so, then for the Court nevertheless to refuse to take judicial notice of Aboriginal Australians’ systemic social deprivation is blinkered and arguably irresponsible.
The differences between the Australian and Canadian approaches turn partly on legislative provisions – but they seem also to turn on different views about context in sentencing. All judges in common law jurisdictions would agree that context is of utmost significance in sentencing. But it appears that the Canadian Supreme Court has taken a wider view of what “context” means, and has felt bound by the need to consider context in sentencing to reflect on history and social facts. The High Court of Australia has accepted the importance of context, and yet has evidently understood relevant “context” to be limited in the main to personal circumstances of an offender.
This leads naturally on to analysis of the High Court’s emphasis on “individualised justice”. It is, of course, attractive to claim that sentencing must be tailored to individual circumstances in each case. However, the High Court elevates this attitude or orientation to an inviolable rule, and interprets “individualised justice” in a particular way to exclude consideration of the position of the Aboriginal population. It should be underscored that a court could be committed to “individualised justice” and could still recognise the need to take judicial notice of indigenous over-representation in prison. It could be said that colonial history and social deprivation affect individual culpability in a very real way – indeed, this is essentially the argument made by the Supreme Court of Canada in Ipeelee. But this is not the conclusion reached by the High Court in Bugmy. Nor does the Court attempt to square “individualised justice” with the conventional approach of sometimes allowing social patterns (such as the difficulty faced by young people or pregnant mothers in prison) to influence sentencing. Stepping back, it must be said that the Court’s “individualised justice” refrain is a little under-developed, and could in future years be regarded as overly Western, and ignorant of both Aboriginal collective norms and the contemporary realities of Australian society.
After the New Zealand Court of Appeal’s decision in Mika (see (2014) February Māori LR), it is clear that arguments similar to those mounted in Bugmy may very soon come before the New Zealand Supreme Court. The upshot of this article is that when that moment arrives, the New Zealand Supreme Court should treat the arguments made by the High Court of Australia in Bugmy with caution. Some of the points made in Bugmy may also be relevant in the New Zealand context: it is true, for example that New Zealand, like Australia, does not have legislative provisions as clear-cut as Canada’s in the sphere of indigenous sentencing (though it is arguable that New Zealand has analogous provisions in ss 8 and 27 of the Sentencing Act). But some aspects of the Bugmy approach, regarding in particular individualised justice and context, need not be followed in New Zealand. It is possible for New Zealand judges to adopt a more fine-grained and sensitive posture towards history and contemporary social facts. Some might say that posture is even required, if Aotearoa New Zealand is to be a society that lives up to the rhetoric of egalitarianism and fairness that we like to espouse.