Bugmy v R [2013] HCA 37: Aboriginality as a factor for Sentencing

Today, the High Court of Australia has handed down the judgment of Bugmy v R [2013] HCA 37 which discusses the issue of Aboriginality as a factor in sentencing.

In a similar set of circumstances as described in Munda v The State of Western Australia [2013] HCA 38 and as previously described by TimeBase, Mr Bugmy, an Aboriginal Australian who grew up in circumstances of social deprivation, had been sentenced for the offence in the District Court of New South Wales to a term of imprisonment comprising a non-parole period of four years with a balance of term of two years.  The Director of Public Prosecutions appealed to the Court of Criminal Appeal on the ground that the sentence was manifestly inadequate.

The High Court Appeal

In the High Court, Mr Bugmy argued that the Court of Criminal Appeal erred in allowing the Director's appeal without having held that the original sentence was manifestly inadequate and that the Court of Criminal Appeal erred in holding that the extent to which his deprived background as an Aboriginal Australian could be taken into account in sentencing diminished with time and repeat offending.

The High Court Judgment

The High Court held that since the Court of Criminal Appeal had not addressed the question of whether the original sentence was manifestly inadequate, which was in truth the sole ground of the Director's challenge, its authority to re-sentence the appellant had not been enlivened. The High Court therefore set aside the order of the Court of Criminal Appeal relating to the offence.

More importantly, the High Court also held that the same sentencing principles apply irrespective of the identity of a particular offender or his or her membership of an ethnic or other group. Additionally, the joint reasons held that the effects upon an offender of profound deprivation do not diminish over time and should be given full weight when sentencing the offender. However, those effects do not necessarily serve to mitigate an offender's sentence given the conflicting purposes of punishment, such as rehabilitation and personal and general deterrence, which must be balanced in each individual case.

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