Meeting the Challenge of Bugmy: Using Gladue-style Reports to Link the Story of the People to the Story of the Person

The High Court decision in Bugmy (2013) was a disappointment for those hoping for an acknowledgement of the extent to which the criminal justice system has failed Indigenous Australians. It was a disappointment for those who had hoped the Court might highlight the importance of sentencing courts understanding Indigenous offenders in the context of the experience of their people, engaging with narratives of struggle and survival rather than simply disadvantage. Yet, the Court confirmed the foundational principle as stated by Brennan J in Neal (1982) that ‘in imposing sentences, courts are bound to take into account … all material facts including those facts which exist only be reason of an offender’s membership of an ethnic or other group’. The primary challenge presented by Bugmy is not therefore one of principle. Rather, it is the burden that it casts upon Indigenous offenders to place evidence before the Court of the link between their individual experience and that of their people before their group membership can be said to reveal material facts. This burden is a weighty one and thwarts a deeper engagement with Indigenous experience in sentencing. One way to lighten this burden would be to adopt the Canadian initiative of ‘Gladue Reports’: a form of Indigenous specific and authored pre-sentence report which explains an offender’s path to offending within the context of the experience of their people, and points out Indigenous specific pathways to healing and reform, where they exist.