Disadvantaged Aboriginal Background Now a Factor in Court Rulings

Jane Lee, The Age, October 3, 2013

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

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 a number of 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 an Aboriginal Australian 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 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 appealed the sentence, arguing it was ”manifestly inadequate”.

While not all Aboriginal offenders had similarly disadvantaged backgrounds, 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.”

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

”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 [people of] Aboriginal background.”

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

According to the National Aboriginal and Torres Strait Islander Legal Services, indigenous people are now 15 times more likely to be incarcerated than non-indigenous 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 not expecting indigenous people to get really light sentences but I’m expecting that that trajectory of sentences getting harsher will be brought back a bit,” Dr Anthony said.

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