Bugmy is an Indigenous man who pleaded guilty to causing grievous bodily harm after throwing a pool ball at a guard at the Broken Hill Prison in 2011.
In the initial hearing, the court recognised the Fernando Principles which take into account a person’s Aboriginal, cultural and social background. The Crown appealed and the New South Wales Criminal Appeals Court decided that the Fernando Principles diminish with time, especially for repeat offenders. Taking this into account, a further 18 months was added to Bugmy’s six-year sentence.
The Aboriginal Legal Service NSW/ACT appealed to the High Court. They argued that a person’s Aboriginality does not diminish over time. Bugmy experienced a difficult childhood played by domestic violence and alcohol abuse in his family. Bugmy is now 31 and has been in and out of jail since he was 13. His lawyer, Stephen Lawrence, has said that Bugmy’s prolonged exposure to the criminal justice system disrupted his education. He argued that particular attention must be paid to the circumstance of Aboriginal offenders and that such a principle does not expire. Lawrence has said the background and systemic factors that have played a role in bringing the offender before the court are very important. He argued that the Fernando Principles serve to ensure equality by paying attention to background circumstances and that a ‘one-size-fits-all’ approach does not achieve such equality.
Bugmy’s legal team have asked the High Court to take into account the high Indigenous incarceration rates. Aboriginal people are significantly over-represented in Australian prisons, constituting a quarter of the prison population but only two per cent of the Australian population.
The decision may not be reached for weeks or months.
http://www.abc.net.au/news/2013-08-06/high-court-aboriginal-crime-justice-bugmy/4866966
Article in Sydney Law Review http://sydney.edu.au/law/slr/slr_35/slr35_2/451_Anthony.pdf
