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High Court to consider Aboriginality in Sentencing by Kate Finlayson 6 August 2013
T
oday the High Court will for the first time in 30 years consider the relevance of Aboriginality to sentencing. Aboriginal Legal Service (NSW/ACT) is representing Mr William Bugmy, an Aboriginal man from Wilcannia NSW, who has experienced a life radically different from members of mainstream Australia. Mr Bugmy entered juvenile detention age 12 and has a history of domestic violence and separation from family and placements in foster care. He has mental health and health issues and started using drugs and alcohol from age 12, self medicating for years to “block the voices out”. He has never been to residential rehabilitation, despite requesting it. He self-harms. He does not read or write. He has not had much education. He spent most of his teenage years ‘inside’ before transitioning into the adult system often because of altercations with the police. He has never had an adult birthday in the community. He is 31 years old and from a community where the average life expectancy for a man is 37. Many of his family members are already deceased Mr Bugmy’s lawyers are asking the full bench of the High Court to reconsider the application of the Fernando principles, named after a 1992 case in which the NSW Supreme Court said Aboriginality should be taken into account when sentencing. Solicitor Stephen Lawrence says Mr Bugmy’s story is not unique. “It is in many ways the story of
ALS Chairman, Phil Naden. Image Keith Saunders
the crushing failure of the criminal justice system in responding to the effects of the profound social deprivation experienced by many remote Aboriginal communities,” said Mr Lawrence. “First jailed at 12 years of age for a six week stint, Mr Bugmy’s life thereafter shows the destructive effect of prison on people, families and communities”. Aboriginal Legal Service is appealing from a decision which held that the extent to which Aboriginality and social deprivation “could be taken into account” “must diminish” over time particularly when a person has a criminal record. Central to the Aboriginal Legal Service arguments is the contention that the effects of social deprivation
can worsen over time, particularly for Aboriginal people from remote disadvantaged communities subject to frequent jailing. This poses the question as to whether the lack of weight being given to personal circumstances of socioeconomic deprivation may be contributing to the very high rates of Aboriginal over-representation in the criminal justice system in Australia for Aboriginal juveniles (more than 50%) and Aboriginal adults (more than 25%). The ALS welcomes the consideration of the High Court on this matter on behalf of Mr Bugmy. Mr Bugmy will not attend the hearing but members of his family will travel from Broken Hill to Canberra to show their support for the case.
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