Indigenous over-incarceration and individualised justice in light of Bugmy v The Queen

Abstract

Over incarceration of Indigenous Offenders has been a long standing problem across many states. This over-incarceration had had significant adverse effects on indigenous communities. This article argues that the High Court analysis of Indigenous sentencing in <b>Bugmy v The Queen</b> unnecessarily and unconvincingly establishes a set of systemic and individualised factors that seek to address indigeneity in sentencing. It argues that the systemic factors dismissed by the Court court as part of an individualised sentencing process have already been used by in state and Commonwealth policy as well as the common law. As such, the failure to embrace a Canadian <b>Gladue</b>-type approach or the approach of the New Zealand Courts in <b>Bugmy</b> due to individualised justice and formal equality concerns not only misconstrues the extent to which aboriginality as a background consideration is already a factor in Aboriginal sentencing in Australia but also undercuts the development of the common law in sentencing.