When 'Individualised Justice' Is A Pipe Dream

In Australia, life expectancy for men is 79 years. Unless you are from Wilcannia in far western NSW, like William Bugmy, where life expectancy for men is 36.7 years. At 31 years old, he is already an old man. Bugmy’s short life will show how the place where a child grows up exerts a powerful impact on the shape of their life.

As a child, he witnessed (pdf) his father stab his mother 15 times. From 12 years old, he lived in foster care and began abusing alcohol and drugs. He was first jailed at 13 years old, disrupting his education. He is illiterate.

He has repeatedly attempted suicide and been diagnosed with a likely psychotic illness. Despite drug and alcohol rehabilitation previously being recommended by correctional services, he has never been sent – last time, because there was no room. He has spent more time in prison than he has not.

Bugmy personifies government funding priorities across Australia that have effectively criminalised the consequences of marginalisation and failed to address the causes of offending. This is why our prisons presently warehouse Aboriginal men, women and children as well as the mentally ill.

Between 1998-2007, the number of Aboriginal women in prison in WA increased by 142 per cent. Aboriginal young people constitute 50 per cent of the NSW juvenile prison population. Though 2.5 per cent of the total population, Aboriginal people constitute over 25 per cent of the adult prison population.

Bugmy pleaded guilty to assaulting two prison officers and intentionally causing grievous bodily harm after throwing a pool ball at another.

He was sentenced by a court that took into account his social disadvantage, mental illness and need for rehabilitation to address his substance abuse. That sentence was increased on appeal on the grounds that the regard for the impact of background factors diminishes over time. The High Court granted leave to hear his case (rare for a sentence appeal) to clarify the impact of Aboriginality on sentence: how it should be balanced with considerations like deterrence, community protection, rehabilitation and retribution which pull in different directions, especially for repeat offenders.

A crime’s seriousness is measured by the harm caused and the offender’s blameworthiness for it. The life circumstances of every offender are assessed this way in our individualised sentencing system. The significance of this case lay in two issues.

First, the argument of Bugmy’s counsel that the unique circumstances of the majority of Aboriginal offenders, reflected in their backgrounds of social deprivation and the egregiously disproportionate Aboriginal imprisonment rate, required courts to have regard to “the context of [their]life informed by the history of [their]ethnic group” in order to understand reasons for offending, blameworthiness, and effective punishment.

The High Court did not agree, stating that the fact that Aboriginal Australians “as a group are subject to social and economic disadvantage measured across a range of indices” says “nothing about a particular Aboriginal offender”. It found no warrant to consider prison over-representation when sentencing because this would mean that “the sentencing of Aboriginal offenders would cease to involve individualised justice”.

This favours the Crown’s arguments that attention to the unique circumstances of Aboriginal offenders constituted a race discount, “preferential treatment”.

Such arguments are unpersuasive given that Aboriginal Australians are among the world’s most incarcerated people. Imprisonment is exacerbating their disadvantage — and it is possible to maintain individualised sentencing while promoting general principles to act as guides where relevant for the sake of consistency and fairness. This is how individualised justice achieves equal justice. Instead, judges are now left to their own conclusions about the impact of Aboriginal social deprivation, opening the door to disparity in the treatment of offenders when some judges promote deterrence through imprisonment and others through rehabilitation, some have different definitions of “disadvantage”, different definitions of “Aboriginal”.

The second issue in this case was whether the impact of a background of profound disadvantage diminished over time for repeat offenders. The High Court held that it did not. However, while this consideration may reduce blameworthiness, it can equally support a lengthy term of imprisonment on the grounds of community protection from such offenders. It may lead to the same place, therefore, as if the Court had held that the impact of background does diminish over time.

Bugmy’s lawyers had argued for something different; that criminal history is evidence of the need to fashion a more effective sentence than reliance on lengthy terms of imprisonment can provide. This case should have been about the notion that the inter-generational impacts of social exclusion and mass incarceration mean that justifying imprisonment based on traditional understandings of deterrence, retribution and community safety are neither effective nor fair. When a government cannot guarantee education or health but it can guarantee policing and punishment, it will create the systemic conditions that promote crime.

This link was recognised in the 1992 case of Fernando, where the NSW Court of Criminal Appeal set out that an offender’s Aboriginal background could provide the circumstances explaining — not excusing — the offending. It could also indicate that imprisonment was insufficient to reduce re-offending.

This distinction between explanation and justification may be subtle but it is moral and not semantic. And its consequences are not absolution from punishment — but the tailoring of punishment to addresses the causes of the offending in Aboriginal communities. The ethical demand for context to moderate culpability conforms with the principle, asserted elsewhere by the High Court in Leeth (1992), that “theoretical equality under the law sustains rather than alleviates the practical reality of social and economic inequality”.

Thirty years ago, just after Mr Bugmy was born, Justice Murphy of the High Court noted that our Aboriginal imprisonment rate could “reasonably be speculated to be ‘the highest rate of imprisonment in the world’.”

Twenty years ago, the Royal Commission into Aboriginal Deaths in Custody reported that: "The single significant contributing factor to incarceration is the disadvantaged and unequal position of Aboriginal people in Australian society in every way".

In 2011, the Federal Parliamentary Committee inquiry into Indigenous youth involvement in the criminal justice system found it “a national disgrace” that the ‘core underlying factors that the Royal Commission identified as explaining the disproportionate number of Indigenous people in custody, including poor relations with police, alcohol and substance abuse, poor education, unemployment, inadequate housing and entrenched poverty’ were unchanged and ‘all governments’ have failed to adequately address the problem. Over the last 20 years, Aboriginal imprisonment rates have increased.

While sentencing research is scant, a few empirical studies have asked whether overrepresentation results from direct racial discrimination in sentencing. In certain lower courts, Aboriginal offenders were more likely to receive a prison term than similarly situated non-Aboriginal offenders once legally relevant factors were controlled for. In the higher courts, similar studies did not find direct racial discrimination. There is evidence in that higher court judges give equal or less severe sentences for Aboriginal offenders. The problem is more complex than overt racism.

Unequal imprisonment rates can result from the application of seemingly “neutral” considerations. For example, the existence of a stable work history or home environment or available rehabilitation programs may counterbalance other indications that imprisonment is appropriate. Criminal history, the seriousness and number of the offences, and breaches of previous orders will tend towards a decision to imprison. Such considerations more often favour non-Aboriginal offenders.

This is compounded by the unequal impact of “neutral” decisions earlier in the criminal justice process which mean that more Aboriginal people appear before the courts: police discretion in use of  arrest, prosecution policies, availability of prison diversion programs in rural areas, level of investment in best practice for such programs, legal aid funding, baseline sentences.

And these problems are further compounded by the direct relationship between social disadvantage, emotional stress, substance abuse and crime. Imprisonment itself promotes further offending by separating offenders from positive influences and impacting on work and education opportunities. The male children of prisoners are more likely to commit crime. And the cycle continues.

With an imprisonment rate that equates to effective segregation, the Government apology to Indigenous Australians has not translated into practice.

Governments continue to lavish resources on incarceration despite empirical research that re-offending is better addressed by rehabilitation programs, education and vocational training, stable housing, and employment.  In 2011, the Parliamentary inquiry into Aboriginal incarceration rates described the “intergenerational dysfunction in some Indigenous communities which presents a significant challenge to break the cycle of offending, recidivism and incarceration”.

“Intergenerational dysfunction” also describes successive governments’ neurotic reliance on the criminal justice system to address a multifactorial social problem which it is inherently incapable of solving and which it is exacerbating.

The current sentencing solutions grate as sharply as the problem. The High Court found that “an Aboriginal offender's deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender”.

However, if specific recognition of Aboriginal background would be “antithetical to individualised justice”, then ignoring the unique history and communal consequences of that background is antithetical to equal justice. If the State cannot guarantee an equal playing field, it loses the legitimate power to punish the foreseeable consequences of marginalisation through use of the law’s harshest sanction. And yet, the fairer recognition that communal exposure to extreme deprivation can explain the use of violence in order to reduce moral culpability has the implication of associating Aboriginality with reduced capacity. And even if this sat well, it still supports arguments for further reliance on imprisonment to incapacitate such “hopeless” offenders.

If these are the most equitable solutions that our sentencing law can offer, than this is not a problem that our current sentencing law can solve.  To pretend that the case of Bugmy does otherwise is to absolve governments from reinvesting resources into communities and individuals, the only way to achieve equal justice, deter crime and increase safety.