SENTENCING — CROWN APPEAL JURISDICTION — RELEVANCE OF DEPRIVED BACKGROUND OF AN ABORIGINAL OFFENDER
Bugmy v The Queen  HCA 37
Munda v Western Australia  HCA 38
In the decisions of Bugmy v The Queen  HCA 37 and Munda v Western Australia  HCA 38 (delivered on the same day), the High Court considered the issue of sentencing Aboriginal offenders. Bugmy v The Queen also raised the issue of the power of the Court of Criminal Appeal (CCA) to substitute a sentence in a Crown appeal.
In R v Bugmy  NSWCCA 223, the DPP (NSW) appealed to the CCA against a sentence for an offence of causing grievous bodily harm to a person with intent to cause harm of that kind (s 33(1)(b) Crimes Act 1900), asserting that it was manifestly inadequate. The DPP (NSW) later filed three further grounds (set out in Bugmy v The Queen  HCA 37 at ) which asserted that the judge had erred in determining the objective seriousness of the offence, attributing insufficient weight to the fact the offence was committed against a correctional officer and by giving excessive weight to Mr Bugmy’s subjective case to reduce the sentence. The High Court observed that none of the additional grounds engaged any of the bases of intervention in House v The King (1936) 55 CLR 499 at 505 and were “particulars of the ground that the sentence was manifestly inadequate”: at , .
The CCA held that the additional grounds filed were established, allowed the appeal and increased the challenged sentence. The CCA did not make an express finding that the sentence imposed at first instance was manifestly inadequate. The High Court held that the CCA’s power to substitute the sentence was not enlivened by a finding that it would have attributed less weight to some factors and more to others. The CCA had to be satisfied that the discretion miscarried, resulting in the judge imposing a sentence which was “below the range of sentences that could be justly imposed for the offence consistently with sentencing standards”: at , . If that was the case the CCA had to then consider whether the Crown appeal “should nonetheless be dismissed in the exercise of the residual discretion”: at . It did neither of those things. The appellant’s appeal was allowed and the matter was remitted to the CCA.
In the course of disposing of the Crown appeal, the CCA made observations concerning the principles that apply where a court sentences an Aboriginal offender from a deprived background. The appellant grew up in Wilcannia in a family environment where alcohol abuse and violence was common. He witnessed his father repeatedly stab his mother. From the age of 12, he was in juvenile detention centres and had spent much of his adult life in prison: at .
The appellant took issue with an observation by the CCA (extracted at ) that the extent to which social deprivation in a person’s youth and background can be taken into account diminishes with the passage of time particularly where there has been substantial offending. The appellant referred to two Canadian Supreme Court decisions about how courts in that jurisdiction should apply s 718.2(e) Criminal Code [Canada]. His counsel argued that courts in NSW should take into account the “unique circumstances of all Aboriginal offenders” as relevant to the moral culpability of an individual Aboriginal offender and the high rate of incarceration of Aboriginal Australians: at .
The High Court rejected these latter submissions on the basis that such an approach is contrary to the notion of individualised justice: at . “In any case in which it is sought to rely on an offender’s background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background”: at . The Canadian approach to sentencing Aboriginal offenders should not be followed in NSW: at . Unlike the Canadian Criminal Code, s 5(1) Crimes (Sentencing Procedure) Act 1999 makes no express reference to Aboriginal offenders and the respective statutory statements of the purposes of punishment differ. A court should not apply a different method of analysis for Aboriginal offenders in NSW than non-Aboriginal offenders: at .
The High Court said: “An Aboriginal offender’s deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender’s sentence”: at .
The court then turned its discussion to R v Fernando (1992) 76 A Crim R 58. That case gives recognition to social disadvantage at sentence and is not about sentencing Aboriginals: at . Many of the propositions in Fernando address the significance of intoxication at the time of the offence which is not usually a matter in mitigation. It recognises that where an offender’s abuse of alcohol is a reflection of the environment in which he or she was raised it should be taken into account as a mitigating factor. This acknowledges the endemic presence of alcohol in some Aboriginal communities and the specific difficulties faced which reinforce their resort to alcohol: at . Fernando also holds a lengthy term of imprisonment might be particularly burdensome for an Aboriginal offender because of his or her background or “lack of experience of European ways”. These observations reflect the statement by Brennan J in Neal v The Queen (1982) 149 CLR 305 at 326 that the same sentencing principles are to be applied irrespective of the offender’s ethnic or other group but a court can take into account facts which exist only by reason of the offender’s membership of such a group.
Not all Aboriginal offenders come from backgrounds characterised by the abuse of alcohol and alcohol-fuelled violence: at . Wood J was right to recognise both that those problems are endemic in some Aboriginal communities and the reasons which tend to perpetuate them: at . 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”: at .
The statement of the CCA that the above factor diminishes with the passage of time should be rejected: at –. The DPP (NSW) submission (in the High Court) that the effects of profound deprivation do not diminish over time and should be given “full weight” in determining the sentence in every case should be accepted: at –; Gageler J dissented at  on this point. A background of that kind may leave a mark on a person throughout life and compromise the person’s capacity to mature and learn from experience. It remains relevant even where there has been a long history of offending: at .
Attributing full weight to an offender’s deprived background in every sentencing decision is not to suggest that it has the same (mitigatory) relevance for all the purposes of punishment. As was observed in Veen v The Queen (No 2) (1988) 164 CLR 465 at 476, giving weight to the conflicting purposes of punishment is what makes sentencing so difficult: at . The court explained, at –, how social deprivation may impact on those purposes:
… An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
The point was made by Gleeson CJ in [R v] Engert [(1995) 84 A Crim R 67 at ] in the context of explaining the significance of an offender’s mental condition in sentencing …
An issue in the remitter is whether the appellant’s background permitted the weight that would usually be given to personal and general deterrence for offences committed by prisoners against prison officers to be moderated in favour of rehabilitation to the extent that it was by the judge: at .
The court, at –, under a heading “Circumstances of social disadvantage” returned to the issue of offending by Aboriginal people and said at :
… It would be contrary to the principle stated by Brennan J in Neal to accept that Aboriginal offending is to be viewed systemically as less serious than offending by persons of other ethnicities. To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity. It would be quite inconsistent with the statement of principle in Neal to act upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour. Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is somehow less in need, or deserving, of such protection and vindication as the criminal law can provide. [Footnotes omitted.]
Appropriate amendments will be made to the Sentencing Bench Book in a forthcoming update.