(Transcript from World News Australia Radio)
The case of William Bugmy had been heralded as the first chance in decades to firmly establish that the tribulations of Aboriginality in Australia should be a factor in setting prison terms.
Now, William Bugmy -- well, the Aboriginal Legal Service -- has had its day in court.
And it's walked away happy.
Ron Sutton reports.
The Aboriginal Legal Service is celebrating what it sees as a breakthrough after the High Court sided with it over the sentencing of a long-troubled New South Wales man.
The High Court has ruled the state's Court of Criminal Appeal must reconsider the sentence of William David Bugmy, an Aboriginal man from Wilcannia in the state's west.
The appeal court had extended his sentence after ruling any reductions given for a socially-deprived childhood must diminish over the years.
The Aboriginal Legal Service argued that was not logical, and appealed to the High Court.
The Service's Western Regional Principal Legal Officer, Felicity Graham, says the High Court, in making its ruling, has rejected the concept of diminishing reductions.
"What the Court of Criminal Appeal said was that those things must diminish over time, particularly when someone re-offends. And the High Court today has rejected that idea. The idea that social deprivation or background factors relating to Aboriginality, the idea that they must diminish over time or lose their relevance or significance, has been rejected."
29-year-old Bugmy faced seven-and-a-half years in prison for assaulting a prison guard by pelting him with pool balls.
The guard, hit in the eye, suffered serious injuries, including a loss of vision.
The Court of Criminal Appeal had increased Bugmy's original sentence of six years.
Specifically, the High Court has ruled the Court of Criminal Appeal failed to address whether Bugmy's original sentence was manifestly inadequate.
The Aboriginal Legal Service had applied for special leave to appeal to the High Court, in the hope that it would issue sentencing principles for such cases.
The Service's lawyer in the case, Michael Lalor, says it is a matter of gauging to what degree a given person is morally responsible for his or her crime.
"As a matter of law, it goes to the culpability, the moral culpability, for an offence. In assessing an offender's moral culpability, Mr Bugmy's argument was that his disadvantaged upbringing, which is in the nature of systemic disadvantage, is relevant to the moral culpability that has to be assessed in the sentencing exercise."
On paper, the courts began considering social deprivation in Aboriginal communities when setting sentences about 30 years ago.
In 1982, High Court Judge Gerard Brennan said courts were bound to consider "those facts which exist only by reason of the offender's membership of an ethnic or other group."
Ten years later, in the so-called Fernando case, a New South Wales court set out eight particular principles to follow when sentencing disadvantaged Indigenous offenders.
Yet another decade on, in 2002, the High Court cautioned against assuming equal treatment meant ignoring differences in offenders' individual circumstances related to their race.
After the latest ruling, Felicity Graham from the Aboriginal Legal Service says the reality is those differences matter.
"It's really important to understand that dealing with these deep, complex issues of how race and deprivation play a role in the criminal-justice system is coming back to the fundamental principle of equality before the law and the real importance of not having a one-size-fits-all approach. Sentencing is complex, and there are a number of different factors that courts have to take into account. But to really achieve a fair and equal outcome for offenders, then there needs to be attention to difference. There needs to be an understanding of difference and how that plays a role."
William David Bugmy grew up in a violent home and witnessed his father repeatedly stabbing his mother.
He never learned to read or write and was hooked on alcohol and drugs by age 13.
He already has suffered heart and lung problems and has asthma.
In foster care by age 12, and incarcerated at the same age for the first time, he has spent most of the intervening years in prison.
His mother, sister and brother have died, and he missed all of their funerals because he was in custody.
Felicity Graham points to figures showing one in two children locked up are Aboriginal and more than one in four adults, yet only 2.5 per cent of the population is Aboriginal.
She says the downside of the High Court judgment is that over-representation of Aboriginal people in detention will not be allowed to affect sentencing.
"What is also clear from the judgment is that Australia has fallen behind Canada in the way that the criminal law deals with issues of over-representation. The High Court has said that sentencing courts cannot take into account the high rate of incarceration of Aboriginal people when sentencing an Aboriginal offender. And so Australia has really fallen behind Canada in this regard. In the Canadian approach, that requires sentencing courts to pay particular attention to the circumstances of indigenous offenders before imposing a term of imprisonment on them. It seems, in Australia, it's now over to Parliament to address this issue."
