The Bugmy Bar Book Project and Sentencing Principles
The article The Bugmy Bar Book Project and Sentencing Principles is written by Sophie Parsons, Partner, In House Counsel, Accredited Criminal Law Specialist, Doogue + George Defence Lawyers.
Sophie is based in the Melbourne office and is one of the firm's in-house counsels and trial specialists. She is an experienced criminal lawyer who has appeared in a broad range of legal matters in Victoria and the Northern Territory.
Sophie appears in bail applications, contested hearings, committals, trials, appeals and pleas of guilty, in both the adult and youth jurisdictions. She has also appeared before investigative bodies such as Royal Commissions.
In sentencing hearings, criminal defence lawyers routinely represent vulnerable people who have committed crimes in the broader context of significant personal hardship.
The case of Bugmy v The Queen1 (‘Bugmy’) established sentencing principles with respect to how evidence of an offender’s background and childhood deprivation and disadvantage, early exposure to family violence and substance abuse, apply to and inform sentencing of individuals who have pleaded guilty to criminal offences.
Sentencing Principles
It is the role of criminal defence lawyers to provide information about an individual’s personal history and experiences in sentencing hearings, in addition to addressing relevant sentencing principles. This is to ensure that the sentencing Magistrate or Judge has all the pertinent information required to impose a fair and just sentence in all the circumstances.
Rather than a mechanical or mathematical process, sentencing requires balance and the exercise of discretion.2
Notions of equal and individual justice are relevant to sentencing proceedings. Judicial officers are required to treat all parties fairly. However, individualised justice necessitates that ‘courts impose sentences which are just and appropriate in all of the circumstance of the particular case’.3 Practically, individualisation ensures that sentences are appropriately tailored to the particulars of the offence, the offender, and facts of the case; requiring proportionality of both the harm suffered or caused by the offending and circumstances personal to the offender.4
Sentencing is a complex task and has been particularly troubled in respect of the sentencing of Australian First Nations people and the weight to be given to profound backgrounds of social deprivation and disadvantage.5 It is therefore of critical importance that criminal defence lawyers know and understand the application and scope of the Bugmy principles when representing any clients with a history of childhood disadvantage and deprivation, and rely on the Bugmy Bar Book resource when preparing sentencing submissions.
The Case of Bugmy v The Queen [2013] HCA 37
The case of Bugmy concerned an Aboriginal man from far-west New South Wales. Mr Bugmy was raised in an environment of alcohol abuse and drug use and significant family violence, including witnessing his father stabbing his mother multiple times. He received little education and started abusing drugs and alcohol by the age of 13. He first started offending at age 12, and from this point was regularly detained in juvenile detention until he was transferred to an adult prison at age 18. He had a history of head injuries and auditory hallucinations; and throughout his lengthy periods of incarceration, leading to being institutionalised, Mr Bugmy had repeatedly attempted suicide.6
Mr Bugmy came before the courts following the assault and grievous bodily harm of a Corrections Officer on 8 January 2011.7 His sentence was appealed by the NSW Director of Public Prosecution on the basis that the sentence was manifestly inadequate. The Court of Criminal Appeal (NSWCCA) resentenced Mr Bugmy to a higher non-parole period than at first instance, in doing so assessing the seriousness of the offending to be higher and his prior criminal history to be of more relevance than what was given by the initial sentencing Judge.8
The decision of the NSWCCA was subsequently appealed by defence for Mr Bugmy with the Appellant raising several issues for the High Court’s consideration. Most relevantly however was the issue as to the relevance, weight, and application of evidence of an offender’s deprived background to sentencing factors and principles.
The majority of the High Court in Bugmy held:
- Whether a background of social deprivation mitigates moral culpability, must be determined on a case-by-case basis depending on the personal history and circumstances of the individual, regardless of race.
- Circumstances of an offender’s early background of disadvantage, exposure to substance abuse and violence, indigenous or not, may mitigate sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.9
- An individual’s background of social deprivation is a relevant consideration in determining an appropriate sentence and does not diminish with the passage of time or commission of further offending and should be given its full weight as a factor in sentencing.10 This principle applies regardless of the individual.
- An offender’s background of social deprivation may be relied upon to mitigate moral culpability, as growing up in such an environment may leave a mark on a person throughout their life, so compromising an individual’s capacity to mature and learn from experience.11
- Similarly, an offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.12
- It is necessary for criminal defence lawyers to point to evidence and materials that establish a background of social deprivation to rely on this principle in mitigation of sentence.13
- Although acknowledging that Aboriginal Australians are often subject to grave social and economic disadvantage, systemic deprivation and higher levels of incarceration, this general fact alone cannot apply in mitigation when sentencing Aboriginal offenders. Evidence of social disadvantage and deprivation must be particular to the offender to apply in mitigation.14
The Bugmy Bar Book Project
The Bugmy Bar Book has been created as a resource and guide to refer to and use when seeking to establish the impact of a background of social deprivation in mitigation of sentence.
It is an integral resource for all criminal defence practitioners. Indeed, all practitioners and judicial officers involved in the practice of criminal law and sentencing hearings would benefit from being familiar with the resource. It is hosted on the website of The Public Defenders (NSW) (https://www.publicdefenders.nsw.gov.au/barbook).
The Project is expanding over time, providing practitioners with summarised key research about the impacts of specific disadvantage, across 20 discrete chapters including:
- Foetal Alcohol Spectrum Disorders (FASD)
- Exposure to Domestic and Family Violence
- Incarceration of a Parent or Caregiver
- Interrupted School Attendance and Suspension
- Out-of-Home Care
- Childhood Sexual Abuse
- Early Exposure to Alcohol and Other Drug Abuse
- Stolen Generations and Descendants
- Acquired Brain Injury
- Hearing Impairment
- Homelessness
- Unemployment
- Cultural Dispossession
- Social Exclusion
- Low Socio-Economic Status
- Refugee Background
- COVID-19 Risks and Impacts for Prisoners
- Impacts of Imprisonment and Remand in Custody
- Child Abuse and Neglect (forthcoming)
- Significance of Sorry Business and Funeral Attendance (forthcoming)
The research extracted in the chapters has been drawn from major reports and leading research. Each chapter has been reviewed by a committee of senior lawyers and academics and has also been reviewed by experts in the field to ensure the research is reliable, credible and reflects the general body of research available for the topic.
The overarching aim of the Project is to educate and assist legal practitioners in social deprivation and its impacts upon clients, which they may not be familiar with, or which clients may not have the words to properly articulate.
This understanding is aimed at enhancing the preparation and presentation of evidence to establish the application of the sentencing principles in Bugmy in sentencing hearings, and increasing the overall quality of representation of clients with a background of social deprivation and disadvantage by criminal defence lawyers.
“Mitigation of sentence to recognise profound deprivation… allow[s] for the truth about offenders and their communities to be spoken and acknowledged; it’s a small but important step on a very long road”,15 and one that increases the prospect of a fair and just sentence being imposed.
Here is another article co-authored by Sophie Parsons and published by the Law Institute Journal: Bugmy 10 Years On: Principles and Practice.
[1] [2013] HCA 37 (‘Bugmy’).
[2] Barbaro v The Queen [2014] HCA 2 at [34].
[3] Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) [5.21].
[4] See Chief Justice Murray Gleeson, ‘Individualised Justice–The Holy Grail’ (1995) 69 Australian Law Journal 421, 424.
[5] Ian Freckelton SC, ‘Imprisonment of Australia’s Indigenous Offenders’ (2013) 20 Psychiatry, Psychology and Law 799, 799.
[6] Bugmy [12-13].
[7] Unreported Judgement of District Court Dubbo Acting District Judge Lerve: R v William David Bugmy (16 February 2012).
[8] R v Bugmy [2012] NSWCCA 223.
[9] Bugmy [40].
[10] Ibid [42].
[11] Ibid [43].
[12] Ibid [44].
[13] Ibid [41].
[14] Ibid [28], [36], [41].
[15] Andrew Haesler SC, 31 July 2018, “Applying Bugmy” https://www.publicdefenders.nsw.gov.au/Documents/Haesler_ApplyingBugmy_2018-subs_annexed.pdf
Date Published: 28 April 2023