Paul Gregoire and Ugur Nedim
Aboriginal and Torres Strait Islander people are significantly over-represented in the Australian prison system, with incarceration rates that are 14 times higher than non-Indigenous people. The Indigenous imprisonment rate in Australia is the highest in the world.
First Nations peoples made up 27 percent of the nation’s adult prison population as of June last year, while they only account for just 2 percent of the country’s population. Aboriginal deaths in custody continue to be a significant problem, despite the recommendations of the Royal Commission.
Professor Mirko Bagaric, director of the Evidence-Based Sentencing and Criminal Justice Project at Swinburne University, argues that in recognition of their social disadvantage, Indigenous offenders should be given an automatic 25 percent reduction on their prison sentences.
Bugmy versus the Queen
The Director of Public Prosecutions (DPP) appealed the decision to the NSW Court of Criminal Appeal (NSWCCA) on the ground that the sentence was “manifestly inadequate.” The NSWCCA upheld the appeal and resentenced Mr Bugmy to seven years and nine months.
NSWCCA judge Justice Hoeben ruled in his decision that “with the passage of time, the extent to which social deprivation in a person’s youth and background can be taken into account, must diminish.”
Mr Bugmy’s lawyers appealed that decision to the High Court, arguing that time and repeat offending should not diminish the extent to which a deprived background can be taken into account.
In October 2013, the High Court upheld the appeal, finding that social disadvantage does not diminish over time, regardless of how much a person reoffends. It further found that Indigenous disadvantage is not different to other forms of disadvantage and should not receive special treatment in the courts.
Ingrey vs the Queen
Clifford Ingrey appealed the sentenced handed down to him by District Court judge King SC, to the NSWCCA on 17 February 2016.
His legal team argued that the trial judge did not “take into account or give appropriate weight to the social disadvantage” Ingrey experienced whilst growing up in his La Perouse community.
On 7 August 2012, Mr Ingrey entered the beer garden of the Sir Joseph Banks Hotel in Botany, accompanied by his accomplice, Mr Trindall, who was carrying a shotgun. The pair ordered the patrons to get down on the ground, announcing that it was “a stick up.”
However, the patrons were “not prepared to have their drinking session interrupted.” They confronted the thieves and the shotgun discharged in the struggle. Fortunately, no one was injured. Trindall was detained by the patrons, but Ingrey fled the scene.
In May 2013, police recorded Mr Ingrey and another inmate on a listening device, whilst he was being held in custody in Wellington prison on another charge. During the course of the conversation, Ingrey indicated he was involved in the attempted robbery.
The District Court trial
Mr Ingrey appeared before the District Court of NSW in a judge-only trial. On 23 October 2014, Judge King found him guilty of one count of attempted robbery armed with a dangerous weapon under section 97(2) of the NSW Crimes Act 1900.
The offence carries a maximum penalty of 25 years imprisonment.
During the course of the proceedings, the court heard that Mr Ingrey was 19 years old at the time of the robbery. Whilst growing up, he had a good relationship with his parents, who were law-abiding people. However, when it came to his brothers and extended family, “crime and substance abuse was common.”
Ingrey, an Aboriginal man, had left school when he was 13 and could not read or write. He started drinking when he was 10 years old and smoking cannabis at 13. At the time of the offence, he had been using methamphetamine.
Clinical and forensic psychologist Miriam Wyzenbeek outlined in her report that Ingrey had been exposed to “social disadvantage and anti-sociality” during his childhood. His self-identity was “entwined with his engagement in crime” and he did not “report experiencing any remorse.”
The Judge’s findings
His Honour noted that Mr Ingrey had committed multiple offences, beginning in his early teens. He had continued to offend after the date of his current offence. Two of these offences were for wound with intent to cause grievous bodily harm, for which he was serving six years in prison time.
The judge found little “prospect of rehabilitation” for Ingrey, and a high risk that of reoffending. His Honour noted that it was at his discretion to impose concurrent or partially-concurrent sentences in conjunction with the sentence he was already serving.
The judge sentenced Ingrey to 10 years in prison, with a 6 year non-parole period. He decided to make the sentence partially-concurrent, so it began a year before he was due for release on the sentence he was already serving.
On appeal in the NSWCCA, Mr Ingrey’s lawyers argued that the sentencing judge had not given proper consideration “to the notion of reduced moral culpability where an offender has suffered social disadvantage when young.” They relied upon the High Court decision in the Bugmy case.
It was accepted that Ingrey’s “particular disadvantage” was due to “his association with peers and extended family who were engaged in criminal activities,” and not his parents.
The lawyers further submitted that while the sentencing judge had detailed his disadvantage background, he had not considered it as a mitigating factor, “but rather as a factor which counted against him in that it was not conducive to rehabilitation.”
According to the lawyers, this was made clear when the trial judge stated, “I note that apart from the offender’s young age there is nothing else that assists him on the material before the court.”
The judge that presided over Mr Ingrey’s appeal was the same Justice Hoeben, who had ruled that, over time, social deprivation “must diminish” in Mr Bugmy’s NSWCCA case.
His Honour agreed that the trial judge appeared to have disregarded Ingrey’s background in the sentencing process. The proof of was that when the judge remarked of the “defendant’s young age”, he said this was the only matter of mitigation to consider.
The Bugmy decision outlined that social deprivation is a factor that should be considered, and the sentencing judge should have done this, Justice Hoeben found. However, there may be “countervailing factors… which might reduce or eliminate its effect,” such as the protection of the community.
Ingrey was exposed to the criminal world whilst growing up amongst his extended family. However, he was raised “with a supportive background” and, for this reason, Justice Hoeben remarked that Ingrey’s “background was considerably better than” Mr Bugmy’s.
His Honour found that, “[b]y way of mitigation,” he had considered Ingrey’s age, his exposure to crime at a young age and “the crushing nature” of the consecutive sentences he was serving. On the other hand, he noted that “all the assessments of his prospects for rehabilitation” were negative.
Justice Hoeben granted Mr Ingrey’s appeal and quashed the sentence imposed by the District Court judge. He resentenced Ingrey to 9 years imprisonment, with a non-parole period of 5 years, and increased the period of concurrency to 2 years.