In Bugmy v The Queen [2013] HCA 37 the High Court has unanimously allowed an appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales, which had increased the sentence imposed on William David Bugmy.
Bugmy is an Indigenous person who "grew up in circumstances of social deprivation".
He grew up in a household in which alcohol abuse and violence were commonplace. He has had little formal education and is unable to read or write. He started drinking alcohol and taking prohibited drugs when he was 13 years old. He reports having witnessed his father stabbing his mother 15 times. He and his siblings all have records for violence. The appellant's record of juvenile offending commenced when he was 12 years old. From that age he was regularly detained in juvenile detention centres. When he turned 18 he was transferred to an adult prison. He has a long record of convictions including for offences of violence. He was 29 years old at the date of the present offences. He has spent much of his adult life in prison. He gives a history of repeated suicide attempts. He has maintained a long-term relationship with a woman by whom he has a daughter. He and his partner are both alcoholics. The child has been placed in the care of her maternal grandmother. The appellant also has a history of head injury and of auditory hallucinationsBugmy had been convicted in the District Court of New South Wales for intentionally causing grievous bodily harm to a correctional services officer while incarcerated at Broken Hill. Bugmy was sentenced to a term of imprisonment comprising a non-parole period of four years with a balance of term of two years. The DPP appealed to the Court of Criminal Appeal on the ground that the sentence was manifestly inadequate.
The Supreme Court in R v Bugmy [2012] NSWCCA 223 allowed that appeal, re-sentencing Bugmy to a non-parole period of five years with a balance of term of two years and six months.
Bugmy argued in the High Court that the Court of Criminal Appeal erred in allowing the DPP appeal without having held that the original sentence was manifestly inadequate and without having considered the exercise of its residual discretion to dismiss an appeal by the DPP. Bugmy also argued that it erred in holding that the extent to which his deprived background as an Indigenous person could be taken into account in sentencing diminished with time and repeat offending.
The High Court unanimously allowed his appeal, holding that as the Court of Criminal Appeal had not addressed the question of whether the original sentence was manifestly inadequate and had not considered its residual discretion to dismiss the DPP appeal, its authority to re-sentence Bugmy had not been enlivened. The High Court accordingly set aside the Court of Criminal Appeal order relating to the offence and remitted the DPP appeal.
The High Court held that the same sentencing principles apply irrespective of the identity of a particular offender or that person's membership of an ethnic or other group, something that's likely to be missed in coming mass media coverage.
The majority commented that
... the propositions stated in [R v Fernando (1992) 76 A Crim R 58] are particularly directed to the circumstances of offenders living in Aboriginal communities. Aboriginal Australians who live in an urban environment do not lose their Aboriginal identity and they, too, may be subject to the grave social difficulties discussed in Fernando. Nonetheless, the appellant's submission that courts should take judicial notice of the systemic background of deprivation of Aboriginal offenders cannot be accepted. It, too, is antithetical to individualised justice. Aboriginal Australians as a group are subject to social and economic disadvantage measured across a range of indices, but to recognise this is to say nothing about a particular Aboriginal offender. 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.
It will be recalled that in the Court of Criminal Appeal the prosecution submitted that the evidence of the appellant's deprived background lost much of its force when viewed against the background of his previous offences. On the hearing of the appeal in this Court the Director did not maintain that submission. The Director acknowledges that the effects of profound deprivation do not diminish over time and he submits that they are to be given full weight in the determination of the appropriate sentence in every case.
The Director's submission should be accepted. 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.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision. However, this is not to suggest, as the appellant's submissions were apt to do, that an offender's deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult[66]. 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 Court held that the effects upon an offender of profound deprivation do not diminish over time and should be given full weight when sentencing the offender. Importantly, those effects do not necessarily serve to mitigate an offender's sentence given the conflicting purposes of imprisonment (such as rehabilitation and personal and general deterrence) that must be balanced in each specific case.
That is consistent with Munda v The State of Western Australia [2013] HCA 38, with the High Court, by majority, dismissed an appeal from State of Western Australia v Ernest Munda [2012] WASCA 164, a decision of the Court of Appeal of the Supreme Court of Western Australia. The latter had allowed an appeal against the original sentence imposed on Munda (for the manslaughter of his de facto partner) on the basis that it was manifestly inadequate.
Munda had pleaded guilty to manslaughter, being sentenced in the WA Supreme Court to a term of imprisonment of five years and three months, with a non-parole period of three years and three months. The sentencing judge took Munda's personal circumstances into consideration as a mitigating factor, noting that he was a "traditional Aboriginal man" who had been exposed to the negative influences of alcohol and family violence from a young age.
The Court of Appeal allowed the State's appeal against the sentence, resentencing Munda to seven years and nine months imprisonment (with Munda remaining eligible for parole).
Munda by special leave appealed to the High Court on the grounds that the Court of Appeal failed to correctly apply the principles concerning State appeals against sentence and that it failed to give proper regard to his antecedents and personal circumstances. A majority of the High Court upheld the Court of Appeal's decision that the original sentence was manifestly inadequate, holding that the same sentencing principles must be applied in every case, irrespective of an offender's identity or membership of an ethnic or other group. The Court indicated that it was relevant to take into consideration an offender's circumstances of severe social disadvantage.
It also held that the Court of Appeal did not err in not exercising residual discretion to refuse to allow the State's appeal.
A perspective on Bugmy is provided by 'Indigenising Sentencing? Bugmy v The Queen' by Thalia Anthony in (2013) 35(2) Sydney Law Review 451, with the Fernando Principles being discussed in the NSW Sentencing Council's 2009 'Fernando principles: the sentencing of Indigenous offenders in NSW' [PDF].
A very different perspective on justice and identity is provided in Re Magistrate M M Flynn; Ex Parte McJannett [2013] WASC 372 , with McKechnie J stating
3 On 7 March 2013 the applicant was in court, having been arrested for a breach of bail. This occurred because he declined to acknowledge that he was Robert Paul McJannett. The magistrate took the view that he therefore had no jurisdiction to hear from a person who was not identified as the person named in the warrant.
4 Eventually, I assume, the applicant obtained a grant of bail, although it is hard to be certain.
5 The matter came back to court before the same magistrate on 26 July 2013 and the following occurred:
HIS HONOUR: Is your name Robert Paul McJannet?
ACCUSED: No, it's not. I'm here to assist the court though. Your Honour, there has to be some duration given, because I'm just getting over five hours in your torture chamber downstairs. The refrigeration cell.
HIS HONOUR: It doesn't belong to me; it belongs to the state (ts 2).
6 There followed an account by the applicant as to what had happened to him. The magistrate said that he proposed to read the charges and see whether the applicant should be released to bail. This occurred:
ACCUSED: Excuse me.
HIS HONOUR: Allow me to finish, then you will get a chance.
ACCUSED: Well, I'm - who is you? Who are you? I'm not Robert McJannet.
HIS HONOUR: Sergeant, he says he is not the person referred to in the prosecution notice.
ACCUSED: Well, I'm here to assist and I can be represent.
HIS HONOUR: Well, it was nice of you to come to court today, but you were escorted by the police.
ACCUSED: Well, I didn't have any choice in the matter.
PROSECUTOR: Sir, if it was an accused person not under a warrant and standing before you on the bench, I would ask for a bench warrant. But he is custody at the moment, arrested on a warrant. (indistinct) he is the person nominated on the complaint (ts 2 - 3).
7 Eventually bail was granted and the magistrate said: [So] if you don't appear on 16 October, you will face another warrant for your arrest (ts 7). ...
8 The application to this court is vexatious and an abuse of process and must be dismissed.
9 The applicant appears to be one of a group of individuals without legal training who continue to espouse theories of constitutional law that have no basis. Courts in this State and throughout Australia, indeed the common law world, have steadfastly so ruled.
10 As a result of his continuing preoccupation with discredited legal theory the applicant has sworn in his affidavit such nonsense as:
I am a Man, a flesh and blood living soul created under God also known as a 'Human Being'. I am not a corporate entity and I do not consent to my body being transferred to a corporate entity for the purposes of commerce including commercial transactions in any court. My name is Man or Robert Paul as per the 'Birth Certificate' extracted from my live birth record on 6 June 1961 annexed to this affidavit and marked RP 01 and of which Birth Certificate signifies the Cestui Que trust created by the State of Queensland without my consent. ...
I have always answered to the callings of Robert, Rob, and Dad and I do not consent to the change and capitalization of my name such as MCJANNETT, Robert Paul in any derivation, for the purposes of carrying on commercial transactions or carrying on any other matters in the public and or private sectors inside the Commonwealth or anywhere else. ... During the approximate two hours of unlawful detention following the event described at paragraph 9 above, I was not asked to produce my identification nor was I carrying any at the time however the two alleged police officers repeatedly ignored my assertions and accused me of being a 'Person' named MCJANNETT, Robert Paul.
Despite my advice to those two men that I am not the corporate fiction MCJANNETT, Robert Paul, the two men continued to fabricate documents in the corporatized name and insist that I sign the documents. This was a violation of my human rights and tantamount to the offence of uttering and other offences. During the detention at Perth police station and despite my repeated objections the two men created identification material being records of fingerprints, DNA samples, and photographs in the corporate name of MCJANNETT, Robert Paul which is not my name but the name of a dead entity and the actions of these two men is tantamount to fabricating evidence and or perverting the course of justice which are crimes listed in the Criminal Code Act 1995 (Cth) and Crimes Act 1914 (Cth). ...
On 7 March 2013 I attended Armadale court under duress and threat of imprisonment in the capacity of the Person's Personal Representative and in the role of Administrator and Beneficiary of the Cestui Que trust in order to assist the court and in the company of a witness Paul Joseph of the family Harrod. When I arrived at the court I noticed that there was no indication of MCJANNETT, Robert Paul anywhere in the court lists and subsequently telephoned Cameron Jolly to advise him of this. I understand Cameron Jolly then telephoned the court and arranged to have the matter listed. This was an abuse of process and also it is not my duty to administer the court lists. This event was extremely stressful.
11 It is not necessary to comment on these assertions. Mere quotation of these paragraphs is sufficient to explain why this action is vexatious and is dismissed. ...
13 The applicant has attached his birth certificate to his affidavit which clearly shows his identity.
14 If he wishes to play games about his identity while engaged in the serious business of court hearings involving criminal charges, he should expect magistrates to respond as did this magistrate. There is no room in a crowded Magistrates Court for time wasting by idiosyncratic litigants who believe in legal theories that are without merit.
15 Finally, judges administer justice according to law. They are not required to expend judicial time, a scarce public resource, on applications that have no legal foundation and involve a deluded understanding of the law.
