What is the Bugmy Evidence Project?
Aboriginal peoples across the country face troubling disadvantage.
Courts have recognised this deprivation may have profound and long-lasting effects on the lives of Aboriginal people and communities. However, evidence of disadvantage in communities is opaque, diffuse and time consuming to gather.
In partnership with Norton Rose Fulbright, the Aboriginal Legal Service has established a project to gather and provide evidence of Aboriginal community disadvantage - making evidence accessible and available online through the 'Bugmy Evidence Library'.
The goals
The Bugmy Evidence Project is creating community documentation of social disadvantage.
The library will be built over time, initially profiling a number of communities in the years 2011, 2001 and 1991. It will provide historical information to demonstrate the disadvantage existing at the time individuals were growing up in those communities.
Community reports will provide evidence from Aboriginal communities in NSW, spanning generations. These reports are created to satisfy an evidentiary need: that of proving disadvantage.
Statistical information will also be drawn from Census and Census-derived data, reports and indices as well as from data collected separately by NSW government departments, in areas such as education, health and crime.
Historical, anthropological and other textual material is drawn from various available sources, including monographs, council documents, local historical documents, submissions to government inquiries, and news reports.
The Impact
The library will be available for use by lawyers and individuals facing Court proceedings. It will provide concrete community evidence for sentencing proceedings. It will allow access to relevant, targeted material – including historical and anthropological texts, statistical data from government, and secondary indices about disadvantage.
The library will aid courts in sentence proceedings by directly connecting the individual’s experience to a social context. The Bugmy Evidence Library will provide a concrete evidentiary foundation for an individual’s background of deprivation. This evidence will lead to:
● Shorter jail terms
● Shorter non-parole periods
● More opportunities for rehabilitation through bonds and other alternatives
● A better understanding of recidivism in the context of community and of inter-generational trauma
Bugmy VS The Queen
Background
The ALS represented William Bugmy in an important High Court decision on Aboriginality, disadvantage and sentencing. This was the first time that the impact of Aboriginality on sentencing had been considered in 30 years.
Bugmy had pleaded guilty to assaulting police officers and intentionally causing grievous bodily harm. He was a 29-year-old man who had experienced significant domestic violence, substance abuse, head injury and mental health issues including suicide attempts. He was illiterate and had spent most of his life in prison.
The Evidence and Findings
The ALS argued an appeal in the High Court of Australia on sentencing. In Bugmy v The Queen [2013], the High Court held that in sentencing an Aboriginal offender, “full weight” [be given] to the offender’s deprived background”, since the moral culpability of an offender “raised in a community surrounded by alcohol abuse and violence… is likely to be less than the culpability of an offender whose formative years have not been marred in that way”.
The Court further held that, “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”.
The High Court was clear that evidence of social disadvantage and deprivation is not tied to an offender’s Aboriginality, but is an aspect of individualised justice.
The Sentence and Appeal
Bugmy was sentenced to six years and three months with a non-parole period of over four years. The sentencing court had taken into account his social disadvantage, mental illness and need for substance abuse rehabilitation. The sentence was increased by the NSW Criminal Court of Appeal on the basis that too much emphasis had been placed on these factors given the serious nature of the offences.
The majority of the High Court allowed the appeal. While the High Court did not find that the appellant’s Aboriginality was relevant, nor the high rates of Indigenous incarceration, the court found that the disadvantaged background of an Aboriginal offender is relevant, in the same way that a non-Indigenous offender’s background is relevant. In other words, social and economic disadvantage is not particular to Aboriginal people, but it is relevant to a person’s experience and culpability. The High Court upheld that the “effects of profound deprivation do not diminish over time” and that they are to be given “full weight” in sentencing.
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person's capacity to mature and to learn from experience. It is a feature of the person's make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
The Precedent
While the High Court did not accept ALS’ arguments on the need to consider the systemic disadvantage of Aboriginal people, including in the justice system, this remains an important precedent and has generated much debate and law reform consideration. Most recently, Bugmy was considered in the Australian Law Reform Commission’s (ALRC) Pathway to Justice Report (2017).
The ALRC recommended that sentencing legislation should provide that, when sentencing Aboriginal and Torres Strait Islander offenders, courts take into account unique systemic and background factors affecting Aboriginal and Torres Strait Islander peoples. This recommendation reflects the National Aboriginal and Torres Strait Islander Legal Services' (NATSILS) submission to that inquiry.
