ABSTRACT
Bugmy v The Queen [2013] HCA 37 is an appeal against sentence. Mr Bugmy pleaded guilty to assaulting an officer in the execution of his duty, in this case, a prison officer, and causing him grievous bodily harm by throwing pool table balls at him. He was sentenced to six years and three months’ imprisonment with a non-parole period of four years and three months, conditional on Mr Bugmy’s attendance at a full-time residential rehabilitation facility upon release on parole. The Crown appealed this sentence on the basis of manifest inadequacy—it was upheld and Mr Bugmy was resentenced to seven years and nine months’ imprisonment with a non-parole period of five years and three months (with no conditions upon his release on parole). Mr Bugmy appealed this sentence to the High Court, which succeeded. The High Court’s decision raised issues about the way in which judges make sense of colonisation and Indigenous peoples’ experience of colonialism, and how colonialism affects judicial officers’ application of sentencing principles, decisions about what material is relevant to sentencing, and how they interpret that material. The judgment perpetuates the injuries of ‘race’ that pollute Australian—and indeed global—contemporary perceptions of identity and our real relationships with each other. While the Court dealt with some of these issues in ways that align with contemporary values (such as substantive equality and anti-discrimination), it failed to recognise the impact of colonisation on everyone in Australian society (including judicial officers and state law), the reality of systemic discrimination against Indigenous peoples in Australia, and the nexus of these to the criminalisation of Aboriginal people. The judgment has not been rewritten. Rather, a further judgment has been written that, while it comes to the same conclusion as the majority, presents different reasoning for the conclusion. The new judgment imagines the implications for sentencing law of disrupting the colonial construction of ‘Aboriginality’ as race and endeavours to ‘turn the gaze’ onto the corollary of race, that is, onto colonialism and coloniser–settler social systems.
