02 October 2013

Sentencing, Individualised Justice and Identity

Two HCA judgments today regarding sentencing and identity, emphasising individualised justice.

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 hallucinations 
Bugmy 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].