Bugmy v The Queen [2013] HCA 37

HIGH COURT OF AUSTRALIA

FRENCH CJ, HAYNE, CRENNAN, KIEFEL, BELL, GAGELER AND KEANE JJ

WILLIAM DAVID BUGMY APPELLANT

AND

THE QUEEN RESPONDENT

Bugmy v The Queen [2013] HCA 37 2 October 2013 S99/2013

ORDER

1. Appeal allowed.

2. Set aside paragraphs 1, 3 and 4 of the order of the Court of Criminal Appeal of the Supreme Court of New South Wales made on 18 October 2012.

3. Remit the matter to the Court of Criminal Appeal.

On appeal from the Supreme Court of New South Wales

Representation

D Yehia SC with G A Bashir for the appellant (instructed by Aboriginal Legal Service (NSW/ACT) Ltd)

L A Babb SC with K H Alder for the respondent (instructed by Director of Public Prosecutions (NSW))

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Bugmy v The Queen

Criminal law – Appeal – Prosecution appeal against sentence – Where sole ground of appeal manifest inadequacy – Where appellate court increased offender's sentence – Whether finding of manifest inadequacy required before discretion to vary sentence enlivened.

Criminal law – Sentence – Principles – Relevance of deprived background of Aboriginal offender – Application of Fernando (1992) 76 A Crim R 58 – Whether effect of social deprivation diminishes with time and repeat offending – Whether social deprivation has same mitigatory effect for all purposes of punishment – Whether courts should take into account unique circumstances of Aboriginal offenders and high rate of incarceration of Aboriginal Australians when sentencing Aboriginal offender – Whether approach to sentencing Aboriginal offenders in R v Gladue [1999] 1 SCR 688 and R v Ipeelee [2012] 1 SCR 433 should be followed.

Words and phrases – "deprived background", "Fernando considerations", "manifestly inadequate", "residual discretion".