Bugmy v The Queen
“It is a wise man who said that there is no greater inequality than the equal treatment of unequals.”
Felix Frankfurter1
A. Introduction
The touchstone of criminal sentencing is the notion of individualised justice.2 Consequently, the Australian judiciary is required to exercise its sentencing discretion while having regard to all the circumstances relevant to the offence and the offender.3 Hence in the context of sentencing indigenous offenders, where it is related to the offence, the indigenous circumstances will provide a relevant context for mitigating the sentence.4 The seminal case of R v Fernando5 (“Fernando”) adumbrated the oft-cited Fernando principles6 which comprehensively set out the considerations when sentencing indigenous offenders. Key amongst these considerations is the relevance of indigenous background, poverty and alcoholism to mitigation. Subsequently, the Fernando principles have had varying degrees of influence in the sentencing jurisprudence across the other states,7 the general trend being a reduction in length of imprisonment terms as compared to non-indigenous offenders in statistically similar circumstances.8
The recent High Court decision of Bugmy v The Queen (“Bugmy”)9 is a landmark decision in indigenous sentencing jurisprudence as it clarifies the scope of the Fernando principles and the significance of indigenous sentencing principles vis-à-vis other sentencing principles. However, the controversial decision has been met with both fanfare10 and opprobrium.11 In light of the significance of Bugmy, this paper will attempt to take an evaluative approach to determine if this decision is justified.
This author contends that the decision in Bugmy renders indigenous sentencing principles effectively nugatory. This paper will provide an overview of the decision in Bugmy, explore the justifications and criticisms of indigenous sentencing principles, and subsequently evaluate Bugmy against the backdrop of these justifications
Felix Frankfurter1
A. Introduction
The touchstone of criminal sentencing is the notion of individualised justice.2 Consequently, the Australian judiciary is required to exercise its sentencing discretion while having regard to all the circumstances relevant to the offence and the offender.3 Hence in the context of sentencing indigenous offenders, where it is related to the offence, the indigenous circumstances will provide a relevant context for mitigating the sentence.4 The seminal case of R v Fernando5 (“Fernando”) adumbrated the oft-cited Fernando principles6 which comprehensively set out the considerations when sentencing indigenous offenders. Key amongst these considerations is the relevance of indigenous background, poverty and alcoholism to mitigation. Subsequently, the Fernando principles have had varying degrees of influence in the sentencing jurisprudence across the other states,7 the general trend being a reduction in length of imprisonment terms as compared to non-indigenous offenders in statistically similar circumstances.8
The recent High Court decision of Bugmy v The Queen (“Bugmy”)9 is a landmark decision in indigenous sentencing jurisprudence as it clarifies the scope of the Fernando principles and the significance of indigenous sentencing principles vis-à-vis other sentencing principles. However, the controversial decision has been met with both fanfare10 and opprobrium.11 In light of the significance of Bugmy, this paper will attempt to take an evaluative approach to determine if this decision is justified.
This author contends that the decision in Bugmy renders indigenous sentencing principles effectively nugatory. This paper will provide an overview of the decision in Bugmy, explore the justifications and criticisms of indigenous sentencing principles, and subsequently evaluate Bugmy against the backdrop of these justifications