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.
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 where “politics 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.