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October 2, 2013

Australia's top court rules on the importance of disadvantaged background at sentencing

This article from down under, headlined "Indigenous disadvantage does not diminish over time, High Court rules," reports on an interesting sentencing ruling from the other side of the globe. Here are the details:

Disadvantage caused by a person's Indigenous heritage does not diminish over time and should be taken into account in sentencing of criminal offences, the High Court has found.

Lawyers for William Bugmy, a 31-year-old from Wilcannia convicted of assaulting a guard inside Broken Hill prison in 2011, had asked the court to consider principles for recognising Indigenous disadvantage in sentencing.

Bugmy, who has been been in and out of jail since he was 13, was initially handed a reduced sentence for his offence because of the severe disadvantage he had suffered as an Indigenous man over a prolonged period.

The New South Wales Criminal Appeals Court recognised the so-called Fernando Principles, which take into account an offender's Aboriginal, cultural and social background, but the Crown appealed against the decision. The judge of the court ruled the Fernando Principles diminish over time, particularly for repeat offenders, and added another year and a half to his sentence.

But today the High Court overturned that decision, finding that a long criminal record does not diminish the extent to which Aboriginal disadvantage can be taken into account -- a key element of the case.

The High Court heard Bugmy had grown up in a home where alcohol abuse was common. He had seen his father stab his mother 15 times.  Felicity Graham from the New South Wales Aboriginal Legal Service says Bugmy has suffered from a series of disadvantages throughout his life....

Ms Graham says the court's decision was being watched closely by Indigenous Australians and lawyers around the country.  Ms Graham says the court's ruling could bring down the number of Indigenous Australians in prison.

"The High Court has directed sentencing courts to give full weight to the background factors relating to Aboriginality and social disadvantage and so this certainly could have an impact on the trends of over-representation of Aboriginal people in the criminal justice system," she said.

Bugmy's aunt Julie travelled to Canberra for the hearing and told the ABC she hoped any reduction in her nephew's sentence would set a precedent.  "The outcome I'm hoping will be for all Aboriginal people," Ms Bugmy said.   "It's not just about William and growing up in Wilcannia. You've got the Aboriginal disadvantage: it's there for health, work, employment -- there's no employment."

October 2, 2013 at 07:42 AM | Permalink


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Aussie court: Indigenous victims can rot. Victimize them, get a sentencing discount.

All bio facts are aggravating, making the defendant foresseeably dangerous, with the certainty of planetary orbits.

Tort liability of the court is huge, since the duty is huge. I suugest "negligent mitigation" as a massive tort. Given the foreseeability, exemplary damages are justified, for malice.

Posted by: Supremacy Claus | Oct 2, 2013 11:25:52 AM

I don't thins the Excuse Factory should be expanded by removing the diminishing of the Fernando Principles.

Bugmy's aunt Julie travelled to Canberra for the hearing and told the ABC she hoped any reduction in her nephew's sentence would set a precedent.

The only means this ruling will set a precedent is by confirming the idea the Aborigine community is radically apart from the mainstream Australian sociiety and, thus, under separate rules, laws and regulations, as seen here, here and here.

Posted by: visitor | Oct 2, 2013 1:28:43 PM

Do you realise how hard it is for me to cope, mate?
With Greek & Jewish ancestry .. where on earth can I find
kosher Moussaka? This deprivation alone is unbearable ..

So conflicted .. half the time I feel like it's all Greek to me!?!

Posted by: Adamakis | Oct 4, 2013 1:08:52 PM

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