'Considering Aboriginal disadvantage ' in sentencing decisions

In October last year, the High Court handed down a unanimous decision on a sentencing appeal from the New South Wales Court of Criminal Appeal (NSWCCA). Bugmy v R was decided on the very narrow ground that the NSWCCA had wrongly allowed a prosecution appeal as to the inadequacy of Mr Bugmy's sentence, without actually deciding that his sentence was manifestly inadequate. For that reason his appeal was allowed. The High Court also held that the CCA had erred in holding that the degree to which his deprived background as an Aboriginal person could be taken into account in sentencing, diminished with time and repeat offending. In allowing the appeal, the High Court said much on the topic of sentencing Aboriginal people and reaffirmed existing precedents. The 1982 High Court decision of Neal v R and the NSW decision of Fernando were reaffirmed and consideration was given to various Canadian decisions on sentencing Aboriginal people. They raised the question of the degree to which grossly disproportionate incarceration rates can or cannot be considered in sentencing discretions.