Before the High Court Indigenising Sentencing? Bugmy v The Queen

Lawbook Co.
Publication Type:
Journal Article
Sydney Law Review, 2013, 35 (2), pp. 451 - 466
Issue Date:
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The grant of special leave in Bugmy v The Queen 1 has provided an occasion for the High Court to rule on the significance of Indigenous background in sentencing in relation to other sentencing considerations. In particular, the Court must reconcile the sentencing considerations of detmence, community protection, offence seriousness and criminal history with the principles of individualised justice and the recognition of factors specific to the Indigenous defendant. These sentencing objectives may appear to be in conflict, but they' can be reconciled if the Court accepts that the aim of community protection and deterrence is furthered through accounting for Indigenous context and providing sentences that address Indigenous disadvantage. The emphasis placed by the New South Wales Court of Criminal Appeal and other state and territory higher courts on the seriousness of the offence has diminished the significance of the disadvantaged circumstances of Indigenous offenders in sentencing, and has contributed to increased levels of Indigenous imprisonment. Bugmy v The Queen will be important in providing clearer direction on the common law's interpretation of sentencing principles for Indigenous offenders. These have undergone substantial revision over the past 20 years. This case provides an opportunity for the High Court to consider the role of criminal sentencing in the dramatic over-representation of Indigenous Australians in prisons, and how sentencing can be structured to promote deterrence outside of prisons.
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