Sentencing in light of Indigenous Group Experiences (original) (raw)

In 2013, the High Court of Australia handed down its judgment in Bugmy v R. The decision was handed down in the context of ever-worsening Indigenous over-representation in the criminal justice system. The Court refused to follow the approach of the Canadian Supreme Court in R v Gladue and R v Ipeelee which operates to facilitate understanding of the experience of individual Indigenous offenders before the courts by taking judicial notice of “systemic factors” that are known to bring Indigenous offenders to the court. The High Court insisted that for the group experience to be relevant in sentencing individual Indigenous Australians, material which links the two must be before the court. This approach has been criticised as a step backwards in the sentencing of Indigenous Australians, because Indigenous group and individual experiences are fundamentally intertwined. Bugmy represents the first consideration by the High Court of the principles relevant to sentencing Indigenous offenders since 1982. Until the High Court revisits the issue, every sentencing court in Australia is bound by the reasoning in that case. But, by the same token, each judicial officer applying Bugmy can develop law under it. With reference to three approaches in NSW, I argue that socially conscious judicial officers have found scope under Bugmy to make positive steps in considering the background of Indigenous offenders in light of group experience. I argue the approaches of these judicial officers highlight limitations both practical and imposed by the High Court, and the corresponding need for legislative change to facilitate, rather than simply permit, consideration of the group experience in background.