Sentencing to Create Just Outcomes: UNSW Centre for Crime, Law and Justice to undertake research on the impact of the ‘Bugmy Bar Book’

Professors Jill Hunter & Luke McNamara

Criminal courts are faced with the task of sentencing many people who have backgrounds of disadvantage and deprivation. They may have suffered homelessness, or while they were young, one  or both parents may have been imprisoned. They may have been placed in out-of-home care or they may suffer from medical conditions such as a Foetal Alcohol Spectrum Disorder (FASD) or acquired brain injury. They may have been traumatised by the direct and indirect impacts of racism, or from being a member of the Stolen Generation. These disadvantaged backgrounds – which are disproportionately experienced by First Nations people – may affect a person’s development and may underpin a broad range of issues later in life, including drug and alcohol dependence and poor mental health.

These daily realities in the criminal court system were the catalyst for the Bugmy Bar Book Project. The project was initiated in 2018 following an inspirational guest speaker in a specialist UNSW Law & Justice course, The Criminal Trial. By the end of 2021 a coalition of criminal justice academics and students from UNSW Law & Justice (with support from the Centre for Crime, Law Justice and the Director of Indigenous Legal Education), the NSW Public Defenders, Legal Aid NSW, Aboriginal Legal Service NSW/ACT, the NSW Office of the Director of Public Prosecutions, and private criminal law practitioners, as well as academics and students from other law schools, had produced the unique online resource called the Bugmy Bar Book. It consists of 17 chapters of interdisciplinary research that provide culturally appropriate, multi-disciplinary information to assist lawyers to prepare and present evidence in support of people whose lives have been impacted by disadvantage. It continues to expand.

The Bugmy Bar Book takes its names from the High Court of Australia’s decision in Bugmy v The Queen (2013), where the Court explained the principles that govern how personal deprivation and disadvantage can be taken into account in sentencing.

One of the challenges faced by lawyers in sentencing proceedings is that it is notoriously difficult to harness high quality culturally appropriate research from psychologists, social workers and psychiatrists for everyday sentencing determinations. Yet, as Justice Fullerton noted in Perkins v The Queen (2018):  

[T]he insidious effects of exposure to family and domestic violence on children in their formative years, and the potential for that exposure to play out in unforeseen ways as a young child develops from adolescence into adulthood, are well researched and documented. (Emphasis added)

The Bugmy Bar Books aims to address this disconnect, by putting the latest academic research into the hands of criminal law practitioners to hand from the bar table to the sentencing judge during sentencing submissions in criminal courts. Importantly, the Bugmy resources are structured to comply with the rules of evidence.

The Bugmy Bar Book’s chapters are reviewed and edited by specialists in their field and by First Nations leaders in criminology, psychology, psychiatry and social work. Strength of culture is a strong binding dimension guiding the Bugmy Bar Book Project. A hallmark of the Project has been its collective and inclusive framework, ensuring that there is bipartisan support from both sides of the Bar table. It has also benefited from the regular guidance of judicial officers. Through the Bugmy Bar Book’s  resources it is hoped that the legal profession’s Indigenous cultural competency will be increased while also supporting culturally appropriate advocacy and representation, and more just outcomes for Aboriginal and Torres Strait Islander people in sentencing courts.

Four years after providing the setting for the emergence of the original idea behind the Bugmy Bar Book, UNSW Law & Justice will again play an important role in the development of the Project, after researchers at the Faculty’s Centre for Crime, Law and Justice (CCLJ), were awarded a grant under the Australian Institute of Criminology’s 2022 Indigenous Justice Research Program. Professors Jill Hunter and Luke McNamara will coordinate a review of the first three years of the operation of the Bugmy Bar Book. An Evaluation Task Force, based at CCLJ, will see members from Legal Aid NSW (Aboriginal Services Branch), the Ngara Yura Committee of the Judicial Commission of NSW, and First Nations HDR, JD and LLB  students, combining with First Nations specialist researchers to conduct focus groups and interviews with Aboriginal field officers and judicial officers from the Koori Youth, Local Court and District Court (Walama List). Interviews are expected to produce valuable insights into how the Bugmy Bar Book is operating, and how its resources and associated training might be improved and extended.

This collaborative research partnership aligns strongly with CCLJ’s commitment to supporting research that assists in reducing the incarceration of Aboriginal and Torre Strait Islander people.