“Dada is a virgin microbe / Dada is against life so dear / Dada / Corporation exploiting ideas / Dada has 391 different attitudes and colours, depending on the President’s sex / It transforms itself – asserts – says exactly the opposite at the same time – no importance – cries – goes fishing / Dada is the chameleon of rapid, self-interested change / Dada is against the future, Dada is dead, Dada is dumb / Long live Dada, Dada is not a literary school, screams Tristan Tzara” (My emphasis)
In Dadaphone, No. 7, March 1920; quoted in De L’Ecotais, E. The Dada Spirit, Assouline Paris 2004 p. 5
My apologies to the readers of Blak and Black for my long absence; I’ve been devoting my time to my passion – painting – which has kept me in its amorous embrace for the last few months. On returning to Sydney this week to pursue my other driving passion – exposing corruption in the Australian Federal Police and the Public ‘Self-Service’ – I came across an interesting article which was published in The Australian on 11 May 2013. The article headed: High Court to consider equality before the law penned by Natasha Robinson is about a repeat Aboriginal offender from the far West of New South Wales Mr William David Bugmy.
To be sure, Mr Bugmy has led a troubled existence and has spent most of his adult life in prison. Even the most cursory of Google searches will turn up article after article dealing with Mr Bugmy’s ongoing confrontations with authority. Mr Bugmy is without doubt a product of his environment and a ‘victim’ of officialdom’s indifference to the plight of Indigenous Australia. Indeed, so ludicrous has the ongoing confrontations between the Bugmy family and the police become that one member of the family, Franklin Jane Bugmy, was recently convicted of assaulting police with a quiche. Please …
It is worth comparing the conviction handed down to Ms Bugmy for the ‘quiching’ of one of New South Wales finest with the three month term of imprisonment handed down to another Indigenous women for gaining a financial advantage by deception for the princely amount of ONE dollar an issue I discussed in my post: Three months for a dollar.
With all this being said, there comes a time when we all must accept personal responsibility for our actions. Those of our brothers and sisters who commit serious crimes time and again must accept responsibility for those actions, while those on the other side of the great divide, the police, the judiciary, the media and the wider community must accept personal responsibility for the way they individually and collectively treat Indigenous Australians and those from other marginalised groups. At least theoretically, Indigenous Australians and members of other marginalised groups within the wider community have the same rights as everyone else, however, as any Indigenous Australians will tell you, what looks good in theory fails to be translated into reality by those tasked with ensuring if not equality, at least fairness within the system. I have addressed some of these issues in an earlier post, You can only have as much justice as you can afford.
The problem faced by Mr Bugmy and his extended family is that in Australia justice and fairness, like many other essentials that should not be for sale such as education and knowledge have become commodities, and in the process of becoming such, have become nothing more than further examples of what Marx termed commodity fetishism and alienation. Operating on a ‘user pay’ system, justice and fairness/equality have become unobtainable ‘flights of fancy’, if you happen to be at the bottom of the food chain and are kept there by a narrow minded and bigoted police, judiciary, and popular media.
Mr Bugmy is currently serving a lengthy prison sentence after pleading guilty to assaulting three prison guards at the Broken Hill Correctional Centre, seriously injuring one guard, who was hit in the eye with a pool ball. Mr Bugmy has been an alcoholic since his teens. Having grown up amid horrific family violence, he has been incarcerated almost continually since the age of 13. He has received limited schooling and cannot read or write.
After pleading guilty to three charges relating to the aforementioned incident at the Broken Hill Correctional Centre including intentionally causing grievous bodily harm, Mr Bugmy was sentenced in February 2012 by a District Court judge to a total of six years and three months in prison, the sentence later being increased by the New South Wales Court of Criminal Appeal to seven years and nine months. The appeal court ruled that factors of childhood social deprivation relevant to sentencing an indigenous offender, laid down in the 1992 judgment R v Fernando, diminish over time, “particularly when the passage of time has included substantial offending”. Whether the Court of Criminal Appeal erred in that reasoning is central to Bugmy’s High Court case which will clarify the weight judges should afford factors of social deprivation and historical disadvantage.
Between 1992, the year the decision in R v Fernando was handed down, and now the proportion of Indigenous to non-Indigenous offenders in custody in NSW increased from 9% to 22.2%, making this an overrepresentation by a factor of almost ten. In terms of Indigenous women, 29.4% of all women currently in custody in NSW are Indigenous. The proportion of (sentenced) Indigenous juveniles in custody in NSW increased from 45.1% in 2002-2003 to 56.3% in 2007-2008.
There has been a long history of taking the disadvantage experienced by Indigenous people into account in Australian courts. In Juli v R (1990), the Western Australian Court of Criminal Appeal cited cases on the issue going back to 1957. In Juli the court found that while drunkenness is not normally an excuse or mitigating factor, where the alcohol abuse reflects the offender’s socio-economic circumstances and environment, it may be relevant as a mitigating factor. In Rogers & Murray v R (1989), the same court referred to the grave social problems caused by the use of alcohol in Aboriginal communities. Justice Malcolm noted that the mitigating factor is not “the mere fact that the offenders concerned were aboriginals” but “the social, economic and other disadvantages which may be associated with … a particular offender’s membership of the Aboriginal race”
In Queensland, the Court of Criminal Appeal in both R v Friday (1984) and R v Bulmer (1986) referred to the court’s practice of imposing more lenient sentences on Aboriginal defendants, but noted that concern for the victim and deterrence must not be neglected. More recently, the courts have held that while the personal disadvantages experienced by an offender are relevant, the mere fact that an Aboriginal offender comes from a disadvantaged community does not lead to a lower sentence. [R v Daniel (1998), R v KU (2008)]
In R v Fernando (1992), Justice Wood of the New South Wales Supreme Court set out eight principles relevant to sentencing disadvantaged Indigenous offenders (1992: 62). He drew on precedent from R v Yougie (1987: 304) in which the Queensland Court of Criminal Appeal stated that “it would be wrong to fail to acknowledge the social difficulties faced by Aboriginals” that have “placed heavy stresses on them leading to alcohol abuse and consequential violence”.
In Fernando (1992), Justice Wood held that the equal treatment of Indigenous offenders required, where relevant, consideration of their subjective circumstances, including their Indigenous background where it threw “light on the particular offence and the circumstances of the offender” (1992: 62). He stated that where alcohol abuse reflected “the socio-economic circumstances and environment in which the offender has grown up” it should be taken into account as a mitigating factor (1992: 60). He accepted that problems of alcohol and violence “go hand-in-hand” in Indigenous communities (1992: 62). Justice Wood pointed to the need to consider rehabilitation orders, because recognition of the relationship between alcohol abuse and violence in Indigenous communities requires “more subtle remedies” than imprisonment (1992: 62, 63). These principles were later adopted by the New South Wales Court of Criminal Appeal in R v Stone (1995: 224).The Fernando principles continue to be applied by the contemporary New South Wales Supreme Court. [R v Bashford (2007); R v F.A.P. (2007); Waters v Regina (2007)]
A number of New South Wales decisions since the late 1990s have narrowed the application of the Fernando principles. A distinction has been made between “full” and “part” Indigenous people, and between people in remote and urban Indigenous communities, to exclude the latter categories from the benefit of Fernando. [R v Ceissman (2001); R v Morgan (2003); R v Newman, R v Simpson (2004)] Edney (2006a:8) argues that these cases attempt “to confine the reach of Fernando by fundamentally misapprehending the nature of Indigenous identity in a post-colonial society”. In R v Smith (2003), Justice Lander pointed to anthropological evidence that “urban Aboriginal” people face a “social predicament” in which there are “complex rules of kinship which determine, govern and influence an individual’s fundamental roles in their society”.
In R v Pitt (2001) and R v Walter & Thompson (2004), the New South Wales Supreme Court and Court of Criminal Appeal respectively held that the requisite disadvantage for an Indigenous person must be exceptional. For example, where offenders had achieved a reasonable level of schooling (such as completed Year 10), courts do not afford leniency. [Anderson v R (2008); Croaker v R (2008); R v Knight (2004)]
To be sure, Mr Bugmy meets all of the criteria set down by the courts in affording leniency to indigenous people. He has been an alcoholic since his teens; he grew up amid horrific family violence; he has been incarcerated almost continually since the age of thirteen; he received limited schooling and cannot read or write. But, what about the concept of accepting personal responsibility for your own actions? Surely there must come a point in time in everyone’s life when as responsible adults we have to stand up and take responsibility for our own actions.
Over the years Blak and Black has voiced its concerns about the way the system has treated, perhaps mistreated would be a better term, Mr Julian Moti QC, Captain Fred Martens, Ms Jill Courtney, Dr Muhamed Haneef, Mr Mamdouh Habib, former AFP officer Mr Gary Lee-Rogers, Miss Schapelle Corby and the former Commissioner for ACT Revenue, Pat, but Mr Bugmy presents me with a dilemma. His life has undoubtedly been lived in extreme poverty and disadvantage, but he was already in jail for unrelated offences when he assaulted three prison officers, an assault that included the serious charge of intentionally causing grievous bodily harm. I understand from speaking with others who have knowledge of this case that Mr Bugmy may have been subjected to racist taunts from prison officers while incarcerated and that he acted out in the only way he knew or indeed could under the circumstances – he resorted to violence. To my mind, there is never an excuse for violence.
That being said, the police, the judiciary, politicians and the popular media have to take some responsibility for the actions of people like Mr Bugmy. In fact, I would argue that our political and information leaders, together with the police and the judiciary must stand alongside Mr Bugmy and be judged for the destruction not only of his life, but vicariously for the destruction Mr Bugmy has subsequently wrought upon others.
I have given up counting how many times I personally have been racially abused in the workforce by so called public servants and by police, members of the judiciary and the popular media. ‘Bash an Abo’ seems to be acceptable in many quarters of Australian society. This negative stereotyping of Aborigines by those in positions of power has consequences. Mr Bugmy is one of those consequences. While I cannot condone violence, likewise I cannot sit idly by and watch our brothers and sisters become chaff to the mill of Australia’s subtle forms of semi-official racism and cultural genocide.
The answer is not simple, but racism and bigotry are clearly not part of any answer. The problem with Mr Bugmy’s plight is that there are victims, victims whose rights also need to be taken into account. Some decisions of the Northern Territory courts focused on the despair arising from cultural breakdown that leads to alcohol abuse. [R v Benny Lee (1974); R v Herbert & Ors (1983); Robertson v Flood (1992)] Part of the judicial rationale was that in these circumstances, imprisonment was unlikely to be an effective deterrent. [R v Davey (1980)] However more recently, courts have placed greater emphasis on the adverse impact that a disadvantaged community has on victims of crime; this has meant that disadvantage is no longer relied on as a significant mitigating factor. Courts seek to send a deterrent message to the community and focus on the seriousness of the offence, especially in terms of its harm on the victim. [Amagula v White (1998); Wurramara v R (1999)]. The Northern Territory Supreme Court has noted that “generally speaking, penalties for violent crimes have increased since Wurramara was decided in 1999”. [Massie v R (2006); R v Bara 92006)]
Dada is the chameleon of rapid, self-interested change
Just as Dada is the chameleon of rapid, self-interested change, so too is the plight of Indigenous Australians since the European invasion and colonization of our lands which began in earnest in 1788. As the invaders split hairs about how to deal with the ‘Aboriginal problem’ people like Mr Bugmy are having their lives destroyed and in the process are destroying the lives of others. The responsibility while immediately resting with offenders like Mr Bugmy, ultimately rests with Australia’s bigoted and self-interested political, business and educational ‘leaders’ who continually put self-interest ahead of genuine leadership.
In condemning Mr Bugmy, it’s opportune for all those poised to condemn him to further misery to take the time to study their own reflections, and in so doing accept their part in all the destruction that has been the defining feature of a life lost to alcohol, bigotry, racism and societal self-interest.