05 | 24
2013

The blind juggler: Aboriginal offending and sentencing

Categories: Australian Aborigines, Discrimination, Discrimination/Racism, Education, Equality of opportunity, Genocide, Human Rights, Indigenous People, Justice, Law, Primary/Secondary, Racism, Respect, Rule of Law, Shared humanity

by: Bakchos
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Jim Jim
where is our party?
where all members’re held equal an’vow t’infiltrate that thought among the people it hopes t’serve
an’sets a respected road
for all those like me.

These words were written by Bod Dylan in response to the speech given by John Lewis on behalf of the Student Nonviolent Coordinating Committee on the afternoon of August 28, 1963 in Washington D.C. during the 200,000 strong march for Jobs and Freedom. Dylan’s lines were addressed to James Forman in “11 Outlined Epitaphs,” written in September 1963, within weeks of the march, and published as liner notes on his third album, The Times they Are A-Changin’.

Lewis’ words which still have resonance today both in the United States where they were first uttered and in many of the world’s other so called Democracies. On the day Lewis gave his speech Dylan sang “Only a Pawn in Their Game” resonating with lyrics such as The deputy sheriffs, the soldiers, the governors get paid/And the marshals and cops get the same.” Lewis spelt out what Dylan was hinting at:

My friends let us not forget that we are involved in a serious social revolution. By and large, American politics is dominated by politicians who hold their careers on immoral compromises and ally themselves with open forms of political, economic and social exploitation…Where is our party? Where is the political party that will make it unnecessary to march on Washington? Where is the political party that will make it unnecessary to march on the streets of Birmingham?

In Washington on that fateful day, Lewis’ speech was well received, but by all accounts it was Mahalia Jackson’s singing “I Been Bucked and I Been Scorned” that really roused the crowd, and it was King’s climactic peroration that sent them home filled with hope and purpose. Sadly for Australia’s marginalised, especially our Indigenous people, our refugees and our otherwise disadvantaged, we have no Dylan, no Jackson and no King to fan the flames of justice and freedom, instead, what we do have is a political system that is increasingly becoming dominated by immoral compromises and politicians who ally themselves with open forms of political, economic and social exploitation; indeed, where is our party?

The blind juggler

Every honest man is a prophet. He utters his opinions on private and public matters.

William Blake

The title of this post suggests that’s it’s not about Dylan and indeed, it’s not. It’s about the juggling act that must be performed by any fair minded court when faced with truly disadvantaged Aboriginal defender who stands before the court convicted of serious crimes. The juggling act becomes one where the rights of the victims and their families must be weighed against the undeniable social and educational disadvantage suffered by most Aboriginal Australians. The difficulties confronted by the juggler have come to the fore recently in two potentially high-profile matters. On the one hand we have Bess Price, Member for Stuart in the Northern Territory Legislative Assembly, and a full blood Warlpiri woman calling for tougher sentencing of Aboriginal offenders. Earlier this month Ms Price, in an impassioned speech given the Northern Territory Legislative Assembly, called on the courts to hand down tougher sentences to Aboriginal offenders. Her entire speech has been published in the Alice Springs News online. In short, Ms Price’s concerns seem to revolve around “black on black” crimes that she has personal knowledge of:

I now take this opportunity to talk about an issue that has always been close to my heart. Within the last four months, two more young mothers related to me were killed in Alice Springs Town Camp[s]. One was injured mortally in the public, in front of several families. Nobody acted to protect her. Dozens of my female relatives have been killed this way. Convictions usually lead to light sentences. I was told by a senior lawyer that no jury in Alice Springs will convict an Aboriginal person for murder if the victim is also Aboriginal and he or she is only stabbed once.

We all have done nothing effective to stop this from happening. It has been going on for decades. This week we heard outrage from the Stolen Generation Association because this government wants to put the safety and wellbeing of our children first before their (inaudible) culture. I am not talking about the children of the Stolen Generation. It is our children.

Why hasn’t there been the same outrage over the continuing killing of our women and abuse and neglect of our kids? If these women victims were white, we would hear very loud outrage from feminists. If their killers had been white, we would hear outrage from the Indigenous activists. Why is there such a deafening silence when both victim and perpetrator are black? I believe that we can blame the politics of the progressive left and its comfortably middle class urban Indigenous supporters.

While many people, including many Aboriginal people take what Ms Price says with a ‘grain of salt’, perhaps a spoonful of salt would be a better analogy in Ms Price’s case; her views on this issue do seem to have some support. Western Australian victims’ advocate Dr Hannah McGlade speaking about Mr William David Bugmy’s upcoming High Court Appeal argued that if Bugmy’s appeal was successful, violent offenders may use Aboriginality to mitigate their crimes. Dr McGlade went on to say that:

“Everyone’s background is relevant to sentencing, but we want appropriate sentences for those who commit violent crimes against Aboriginal women and children.”

I discussed the Bugmy appeal at some length in my recent post The Bugmy family, Dada and a Quiche in the face. Mr Bugmy was sentenced to 7 1/2 years in prison for grievous bodily harm, with a non-parole period of five years, in October 2012, when the NSW Court of Criminal Appeal increased his original sentence of six-year’s imprisonment handed down by the NSW District Court.

Mr Bugmy, who was 29 at the time the incidents for which he was sentenced occurred, assaulted a prison guard by pelting him with pool balls. The guard was hit in the left eye, suffering retinal detachment, eye socket fractures and permanent loss of vision.

Mr Bugmy grew up in a violent home; as a child he had witnessed his father repeatedly stabbed his mother. He had been in foster care since the age of 12 but from the age of 13 was rarely out of prison. He did not attend school past Year 7 and cannot read and write.

The District Court sentence had taken into account NSW case law – most notably laid down in the 1992 judgment R v Fernando – that ruled that sentencing decisions should recognize social disadvantage that precedes the commission of a crime.

The Fernando judgment has provided definitive guidance for appeals courts around the country in sentencing Aboriginal offenders, but its relevance has diminished in recent years with several NSW Court of Criminal Appeal judgments that have eroded the Fernando principles, particularly in relation to how courts deal with chronic offenders.

Appeal court judges in the Bugmy case followed suit, ruling that Bugmy’s long criminal history diminished any mitigating effect of Aboriginality. The NSW Court of Criminal Appeal in handing down its judgment in the Bugmy case said:

“With the passage of time, the extent to which social deprivation in a person’s youth and background can be taken into account, must diminish.”

In Australia, Indigenous Australians are imprisoned at much higher rates than non- Indigenous Australians. In Australia, the Indigenous Imprisonment rate is thirteen times higher than the non- Indigenous imprisonment rate. The Indigenous imprisonment rate rose 37% between 2001 and 2008 while the non-Indigenous imprisonment rate rose by only 8%. There is considerable discussion as to whether these imprisonment rates are due to different offending rates or direct and indirect discrimination within the criminal justice system, or a combination of the two.

A number of Australian studies have compared Indigenous and non- Indigenous sentencing outcomes. The North Australian Aboriginal Legal Aid Service (NAALAS) and the Territory’s Office of Aboriginal Development (OAD) commissioned a study on sentencing issues and Aboriginal and Torres Strait Islander people. This report was prepared by Luke & Cunneen and published in their 1998 paper, Sentencing Aboriginal people in the Northern Territory: a statistical analysis. [Sydney: Institute of Criminology, Sydney University Law School.] Luke & Cunneen found that taking into account the seriousness of the offence and the offender’s criminal history in the Northern Territory, imprisonment was used as a sentencing option twice as much for Indigenous offenders as for non- Indigenous offenders. Indigenous offenders were also sentenced to prison at an earlier stage of their offending history. On sentencing Indigenous offenders in New South Wales, which is the relevant jurisdiction for Mr Bugmy, Luke and Cunneen found that there was “some residual effect of race on sentencing”, which meant that “racial bias may influence the sentencing process even if its effects are only small”. This being said, the NSW Bureau of Crime Statistics and Research 2009 report on New South Wales Indigenous offenders revealed that between 2001 and 2008 its Indigenous prison population increased by 56.4%.

Jacqueline Fitzgerald in her 2009 paper “Why are Indigenous imprisonment rates rising?” Crime and justice statistics bureau brief no. 41, attributed the growth to an increase in the proportion of Indigenous offenders given a prison sentence and the length of the prison terms imposed, rather than an increase in the conviction rates, therefore, the results suggested “that the substantial increase in the number of Indigenous people in prison is due mainly to changes in the criminal justice system’s response to offending”, with a greater impact on the Indigenous prison population than on the non-Indigenous prison population. Furthermore, sentence lengths have increased for the same types of offences.

The issue of offender versus victims’ rights in terms of aboriginality is of significant importance for the Aboriginal community. It’s clear that repeat violent offenders need to be given sentences that reflect the gravity of the crimes they have committed. Likewise, the historical and ongoing racism and economic disadvantage, we as a people endure, is relevant to why so many Aboriginal people find themselves before the invaders’ courts.

It’s one thing to argue that the Canadian decision in R v Ipeelee, which ruled that real equality under the law cannot be achieved unless courts accept that historical, social and economic deprivation can affect moral culpability, be followed in Australia, but this is surely not the real answer to the problem. Real equality can only be achieved when those in authority stand up and be counted for what is morally correct rather than for what is politically expedient at the time. One might ask, where is the political party that will make it unnecessary for people like Mr Bugmy to spend most of their adult lives in prison, where is the political party that will make it unnecessary for so many Aboriginal people to turn to crime as the best avail option out of a host of increasingly bad ones?

While the answers to the lives of despair lived by people like Mr Bugmy might be blowin’ in the wind, the times they sure aren’t are a-changin’, and they won’t change until we have a society where all members’re held equal. For this to occur, there will have to be a seismic shift in Australia’s political mindset to a point wherepolitics is [not] dominated by politicians who hold their careers on immoral compromises and ally themselves with open forms of political, economic and social exploitation”. Until this occurs, people like Mr Bugmy will continue to be victims of racism and social and economic deprivation, and we will all pay the price.

40 Comments

  1. Great post Bakchos Glass, good to see you back at it. The issue discussed in this post is difficult, Though I personally believe that Aboriginality should be taken into account as you yourself know, Aboriginality brings nothing but social deprivation in its wake. Keep the posts flowing!!!

  2. Interesting take on the issues. I agree that this time Bess Price does seem to have an issue, but the Bugmy camp also has a valid point. I will be following his appeal with interest.

  3. A thought provoking post as usual. I’m not sure where I sit on this issue. The rights of women and children who become victims of domestic violence or as you say black on black violence must be put ahead of those who commit the violence. The problem is that Mr Bugmy is himself a victim of violence and he the is the aftermath of that violence. Where to draw the line is the question.

  4. Thought provoking post, like others commenting here, I’m not sure where to draw the line in the competing interests of the various classes of victims. Can only say that the courts are not the appropriate venue for these issues to be addressed. They are political, and need to be addressed in the political arena. That said, the immediate issues must be addressed in accordance with the law, as it stands.

  5. Mahmud Ahsan via Facebook says:

    Racism is at the root of all the issues you discussed in this post. While wrong doers need to be punished, the punishment needs to be proportionate to a persons understanding of wrong. Do you really think that Mr Bugmy fully comprehends the gravity of his actions in a legal sense?

  6. Mahmud Ahsan I think that you have the issue brought down to its root cause – racism – when this has been addressed properly, with integrity, many of the other issues, including Aboriginal criminality will diminish if not disappear.

  7. Mahmud Ahsan via Facebook says:

    Nicola Beasley without question, racism is at the root of many of the issues currently confronting indigenous Australia.

  8. Another one of our brothers about to be sacrificed to white greed, ain’t no justice in Oz if ya black, just ask me!!!

  9. Mahmud, yes racism is the root cause of many of the issues confronting indigenous communities. If we end racism, we’ll simultaneously end many of the other problems inherent in being Aboriginal.

  10. Mahmud Ahsan via Facebook says:

    Totally agree, if we end racism, we’ll simultaneously end many of the other problems inherent in being Aboriginal.

  11. Dylan is a great artist who has certainly made a stand for human rights and freedom over the years, mind you he still has not come out publically and said what he really thinks about American involvement in Vietnam. The core issue of this post Mr Bugmy is a difficult issue, as just about everyone else commenting has noted. Mr Bugmy is a violent offender who has damaged a number of people’s lives. It’s sad what has happened to him, but its also sad what he has done to others. Even those possessing the wisdom of Solomon would find the answer to this one difficult.

  12. Bugmy is in the position he’s in because of the fucken’ shit we have to put up with from white c@#$s, he may have committed some crimes according to whitie law, but he is just acting out of frustration. Frustration from all the BS we put up with and have had to put up with for the lase 225 years.

  13. Mahmud Ahsan via Facebook says:

    Paul my brother, I can’t disagree with what you’re saying! You don’t stand alone in your fight for justice and recognition.

  14. Fucking white cunts, brothers and sisters time to make a stand against 225 years of oppression. Time to burn the joint down, sick of all this whitie crap we are forced to put up with. Bugmy nothing more that a pawn in this game of whitie greed and manipulation.

  15. Reg I can sympathise with what you’re saying, but Mr Bugmy has committed crimes against black and white. What about the rights of the Aboriginal people he has committed crimes against? The answer can’t be more violence, it must be about empowering the Aboriginal people.

  16. Paula Duval whitie has had 225 years to talk, now is not the time for talking, now is the time for action.

  17. Uncle Reg Glass violence or even the threat of violence s never an answer, think about the options and the potential consequences. Lets see if Bakchos Glass gets anywhere in the UN!!!

  18. Paulo I agree with you there is never room for violence in the political debate. But, the 225 hundred years of disadvantage suffered by Indigenous Australia has to be addressed, somehow, somewhere. If the legislature wont do it, then the courts must.

  19. I’m with Uncle Reg on this issue, the pigs, the courts, the DPP are all racist, justice in this case may only be available to those willing to stand up and snatch it from those who are holding it back. Bats and pipes is my catch cry on this – bats and pipes!!!

  20. Estelle, thanks for yr support. Whitie has no justice in his heart for Indigenous Oz, the time for talking has passed, its time for, as you say, bats and pipes.

  21. The problem with blind justice in Oz is that it is not colour blind. Indigenous incarceration rates prove the point. Foe there to be any progress on the unacceptably high percentage of Indigenous incarceration rates in Oz the system (police, courts and media) have to become truly colour blind. Until this happens we will not see any progress towards reconciliation and justice.

  22. he juggler might be blind, but it appears that the justice system is not, or at least it isn’t colour blind. Blak and Black has shown time and again that white people get away with some very serious crimes against Aboriginal people, while Aboriginal people are jailed for the least of offences. How is this just? The system needs to hold itself accountable for all the injury it causes to Aboriginal people in the name of white greed and oppression.

  23. Reg Glass and Estelle Dunlop there is never justification for violence. I see the end result of violence every day of the week at my work, perhaps you two should spend a day in casualty and see for yourselves. What I do agree with is, are those views being expressed that argue for justice being colour blind and the ‘system’ what ever that is, being accountable in the same way that it makes people like Mr Bugmy accountable. It really is time Australia started to accept moral responsibility for its official actions.

  24. Melissa Ogrady sometimes there is justification for violent action. If the powers that be put their personal interests above morality, as happens in Oz, then there is justification for a violent response. Mr Bugmy is merely a microcosm of what could happen unless the valid concerns of Indigenous Australia are meet with integrity and justice.

  25. Anne Shiny via Facebook says:

    Melissa Ogrady, casualty can be a very confronting place, I agree. My bet is that whilst you and I lament the life changing injuries incurred through violence, Hyppolite and others lament the violence themselves, because they see it first hand, both from the police and among their own community members. I don’t want to be treating the casualties either, dealing with the traumatised patients and families and staff who have to clean up the resultant mess, but I can appreciate the frustration of the indigenous community. I’m not sure what the answer is after so many years of racism.

  26. Release all Aboriginal political prisoners from whitie jails NOW – Bugmy would be a good place to start!!!

  27. Bugmy is NOT a political prisoner, he is nothing but a common criminal – get real!

  28. All Bugmy has done is to lash out at the system that’s been oppressing him, in the only way he knows how, with his fists. That makes him a political prisoner and that needs to be recognised by the fuckwits in Canberra people call the government!

  29. Uncle Mick et al, Mr Bugmy is a violent offender, that’s all there is to it. There is no politics to his offending, he wants instant gratification, and the price he must pay for that is jail. I feel sorry for his plight, but each of us must accept responsibility for our own actions.

  30. The trouble with Indigenous offending, and its the same problem around the globe, it creates a stereotype that becomes its own reality. The issue needs to be addressed at the cradle not the grade school, by then its to late. Australia time for your government to step up to the plate on this issue.

  31. Mr Bugmy is a criminal and a violent criminal at that, race is no excuse for crime. All those commenting here who claim he is a political prisoner need to grow up. His crimes extend far beyond the white community to his own. I bet that most of his victims are actually aborigines. Colour is not an excuse for criminality.

  32. Yes Mr Bugmy is a criminal and he deserves to be punished by society, as he has offended against society, white and black society alike. Should his Aboriginality and all that follows from that be taken into account by a fair and just society in punishing him? Yes it should. How much is fair, well that’s for the courts to decide.

  33. Guys Mr Bugmy is a criminal not a political prisoner and that’s all there is to it.

  34. I have commented previously on this post that racism is the root cause of Mr Bugmy’s current plight, that however is not an excuse to criminality. Mr Bugmy is NOT a political prisoner, rather he is a common criminal, and a violent one at that.

  35. Bugmy is a crook, through and through. He isn’t a political prisoner, what nonsense, just a plain old crook who deserves to be in jail.

  36. Mr Bugmy is not a political prisoner, he is a violent offender who deserves to be incarcerated!

  37. There does need to be recognition of Aboriginality in sentencing. Leaving aside for a minute the issue of the separation of powers, is Mr Bugmy the appropriate test case – he is a violent offender and a danger to his own community as well as to others. Can’t the ALS find a better test case?

  38. Instead of heaping rubbish on Mr Bugmy, lets stop for a minute and consider his life, he is a victim also. If the legislature wont act on the issue of Aboriginal overrepresentation in the criminal justice system, then the courts must.

  39. In August 1966 Vincent Lingiari led a walk-off of 200 Gurindji, Ngarinman, Bilinara, Warlpiri and Mudbara stockmen from a cattle station at Wave Hill in the Northern Territory in protest at their pay and living conditions.

    The walk-off generated support within many sectors of the Australian population. The Gurindji walk-off was about equal pay, but also became a symbol of the struggle for equal citizenship rights and recognition of distinct rights relating to culture, land and self-determination.

    On 1 March 1967 Prime Minister Harold Holt introduced the Constitution Alteration (Aboriginals) Bill, which proposed the deletion of words ‘other than the Aboriginal race in any State’ from Section 51(xxvi), as well as the deletion of Section 127. The amendment would give Parliament power to make special laws for Aboriginal people which, with cooperation with the States, would ‘secure the widest measure of agreement with respect to Aboriginal advancement’. The Leader of the Opposition, Gough Whitlam, supported the Bill, and it passed both Houses of Parliament without a single dissenting voice. The Leader of the Opposition in the Senate, Senator Murphy, said: “The simple fact is that they are different from other persons and that they do need special laws. They themselves believe that they need special laws. In this proposed law there is no suggestion of any intended discrimination in respect of Aboriginals except a discrimination in their favour.” The referendum was put on 27 May 1967. In addition to gaining majority support in every State, the proposal received 90.8 per cent of valid votes nationally. This remains the largest majority for any referendum ever held in Australia, more than 10 per cent higher than for any other referendum before or since.

    The referendum brought minimal improvements. On one hand, the repeal of the overtly discriminatory provision in Section 127 meant the removal of the prohibition on counting Aboriginal people in the population statistics.

    On the other, the specific exclusion in Section 51(xxvi) of power to make laws with respect to the ‘people of the aboriginal race in any State’ was removed. Aboriginal and Torres Strait Islander peoples ceased to be mentioned at all in the Constitution. Of particular significance among the post-1967 legislation enacted by the Commonwealth Parliament is the Aboriginal Land Rights (Northern Territory) Act 1976.

    Mr Bugmy is a continuation of the struggle stsrted in 1966 by Vincent Lingiari. Mr Bugmy might be a violent offender, but society in a way has forced that on him.

  40. Mr Bugmy should serve his sentence for his crimes, then he should be offered genuine support to reform, but he must serve his time!

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