Australia’s legal joke: The Bugmy Bar Book

Popular culture, novels, plays and films continue to perpetuate what is, in fact, a myth-one that ironically discriminates against the victim privileging the criminal. The 1972 play by Peter Shaffer deals with thus very premise.

Equus is a 1973 play by Peter Schafer about a child psychiatrist who attempts to treat a young man who has a pathological religious fascination with horses.

Shaffer was inspired to write Equus when he heard of a crime involving a 17-year-old boy who blinded 26 horses in a small town in northern England with a spike. The cruelty of this act beggars the imagination.

He set out to construct a fictional account of what might have caused the incident, without knowing any of the details of the crime, and to evoke the same "air of mystery" and "numinous" qualities as his 1964 play.

The child psychiatrist, Martin Dysart, who attempts to treat the young man imagines he is so captivated by his strange beliefs and so traumatised from his early experiences that he cannot help himself even though he is clearly not mentally ill.

Throughout this play we are continually informed that the boy, John Strang, has been “traumatised in some way” For example the female magistrate charged with handling his case repeatedly informs Dysart that “the boy (John Strang) is in pain”, pain which she begs him to relieve.

The play reinforces the notion that an offender is a victim of “trauma” and this provides a motive for his actions. This goes along with the pop psychology idea (disproved by many studies) that a bully will inflict pain on his victim because either he himself has been bullied or has experienced past trauma.

When the play became famously popular all records and mention of the real offender disappeared even though knowledge of the cruel mistreatment of horses caused a sensation.

To illustrate this further and to make what has happened more palatable, if that is possible, the number of horses in the play were reduced to six from twenty six. Yet still, blinding six horses with a spike seems hard, to justify regardless of whatever trauma the criminal suffered. Now we have a book, promulgated in Australian law that argues that all criminals should be treated more leniently, if it can be shown that they suffered trauma in earlier life.

The Bugmy Bar Book arose as the culmination of an impulse from an Australian High Court Judge by the name of Dina Yehia. This lawyer, originally from Egypt, practiced for many years in the regional bar of New South Wales representing indigenous people in the Criminal Justice system.

She eventually represented William Bugmy before the High Court, and it his name that provides the title of the book. His case is detailed below.

The book was produced by the bar council of NSW who wrote it in conjunction with Justice Yehia. She believes that all Judges who try cases should be “trauma aware’.

She believes that all serious offenders, no matter how serious their offence, should have reduced sentences because of the “trauma”, psychological and physical they have suffered in their youth and early adulthood.

I will detail how this book is both confusing and ill-conceived and the notion that all courts throughout the country should take account of this book when giving sentences is disturbing.

It is disturbing because it is predicated on the notion that if a person has committed a serious offence and has trauma in their life previous to the offence, they should have their sentence discounted.

The Bugmy Bar Book takes its name from the High Court of Australia case of Bugmy v The Queen (2013) 249 CLR 571 (‘Bugmy ‘) The book, first launched in 2019, contains eight chapters and  hosted on the website of the NSW Public Defenders.

The book states, “Each chapter is comprised of extracts from major reports and leading academic research. Prior to publication, each chapter is subjected to a rigorous process of reviewed by “experts” in the relevant field, the members of the Project Committee, and members of the Independent Advisory Panel.”

While statements like this sound good, they seldom survive careful scrutiny.

Chapters which relate to experiences specific to Aboriginal and Torres Strait Islander peoples are researched and reviewed by Aboriginal and Torres Strait Islander researchers, supervisors, Committee members and experts.

This is misleading because although these “experts” have reviewed this book and approved it, it is in no way the product of rigorous academic research nor does the book make clear why these authors are experts.  It is the product of opinion rather than research. Few opinions are dispassionate.

In essence< it is a political document created by a group of lawyers who have selectively chosen research papers to support a particular point of view, ergo, that having experienced trauma, psychological or physical in early life predisposes a subject to criminal offending in later life or, put in another way, if you have suffered in your youth you are more likely than not to turn out to be a criminal. 

The absurdity of this proposition is immediately evident.  William Bugmy, because he has had such a terrible childhood and early life needs to be “given a pass” in later life because he cannot help who he is.

Accordingly, goes the argument, his sentence needs to be modified because his early life is a factor in mitigation, or for reduction in sentence.

In 2019 the Courts of Australia by embracing this book,  did something extraordinary which, as far as I can determine, no other national jurisdiction has ever contemplated at least in the western world. By western world I mean the British system of justice which has become the most common in the world.

An accused is taken before a judge. He or she pleads guilt, or its absence, and a trial is held often before a jury of the accused peers and presided over by a judge who then, once guilt is determined, weighs up various factors and determines the sentence.

Judges are highly trained and experienced legal officers and we trust them judge fairly and without favour. The idea that judges weigh up all the important issues in the life of the accused is a notion that comes from ancient times.

The extraordinary thing referred to was the compiling of a book called the Bugmy Bar book which was designed to provide “guidance” to judges in the courts of Australia as to what sentence they would determine for a guilty person based on their life experiences or back ground.

In most ancient Egyptian tombs the judge god Anubis is seen weighing the heart of the dead one, before the eternal reconning, against a feather.

If the heart was heavy with malice the dead one was denied eternal life and for hundreds of years thereafter judicial officers have been sentencing offenders based up their own experience, their knowledge of the law and their understanding of human nature.

Each case is unique as are the circumstances surrounding each offence so the idea that judges need a “guide book” to tell them how to pass judgment and impose sentence is appalling and will greatly complicate the appeals process. Appellate lawyers will now ask “How much as the judge informed by the “principles’ as outlined in the Bugmy Bar book?”

Now the term “guidance” has to be understood in a legal context. In law things like Bugmy Bar make it seem as though a judge, who is scratching his judicial head to work out how he is going sentence an offender, now has this “helpful” book he can turn to  provide guidance.

What really happens in the law is that if the judge goes his or her own way and ignores the book then he or she opens up an avenue of appeal in which defending counsel declares that this “rogue justice” has gone off on a frolic ignoring the “very sound principles outlined in Bugmy Bar”.

The invisible hand of prospective appeal takes him by his elbow and puts very real pressure on him to “do the right thing” and reduce an offender’s sentence accordingly.

William Bugmy was, by any standards, an appalling person.  The nature of his offences which were many and severe, but, according to the Bugmy Bar Book, need to be  seen in the light of his background.

An Aboriginal man from the far-west New South Wales town of Wilcannia, he had little education and was unable to read or write. He grew up in a family with a history of violence and alcohol abuse, and started abusing drugs and alcohol himself at the age of 13.

He witnessed his father stabbing his mother multiple times, or so he stated, but confusingly his mother did not die from these attacks.

His future history will make this significant. Both he and his partner were alcoholics.

After first offending at 12 years old, William Bugmy was regularly detained in juvenile detention until he was transferred to an adult prison at age 18.

Much of his life he was in and out of prison. There was drug abuse, head injuries and associated hallucinations. This history was advanced by his lawyers in the appeal.

I have often seen lawyers present such details supported by a report by a “mental health specialist”. The problem with this is that when you take the time to clarify details with a family member they are seldom accurate and always exaggerated.

The case which brought him to the attention of the high court occurred in the Broken Hill Correctional centre where he was detained in his thirties after malicious damage by fire.

On one particular day he was fighting with the prison officers over the fact that his partner was late for a prison visit so he was not allowed to see her. After fighting the prison officers he obtained a billiard ball from a snooker table and threw it at one of the guards damaging his face and injuring his eye so that he lost the use of it and became blind in one eye.  Bugby expressed satisfaction after the assault that the prison guard was blind.

He went to trial for this offence and the court determined that he have a custodial sentence of five years but the crown appealed the sentence on the basis that it was manifestly inadequate for the nature of the offence. The Appeals Court upheld the appeal and lengthened the sentence by two years.

Mr. Bugby’s lawyers appealed against the decision and took the matter to the high court of Australia who agreed that the judge should not have given so severe a sentence but should have considered his back ground in mitigation. In other words, given his history, he deserves a lighter sentence.  His lawyer in this High Court Case was Dina Yehia, the person behind the Bubmy Bar Book.

The Bugmy Bar book was born out of this High Court decision and written in 2019 in the New South Wales jurisdiction by a committee of lawyers who consulted indigenous people and persons who do research in criminal psychology.  The authors expected that hence forth when courts make decisions about persons from a deprived background the book should be consulted.

Several confusing issues present.  Firstly it is clear that the impetus that led to the appeal to the high court was “political”. Throughout the process and the information that surrounds the appeal to the high court it is not clear who or what organisation funded the appeal which involved a number of senior lawyers and would have cost many thousands of dollars.

In my experience with many indigenous offenders, who are charged with breaking the law, the advice from the Aboriginal legal service to the client is to plead guilty in the hope of being showed lenience by the court because the legal service seldom has the money to contest the matter. How and why was the Bugmy Case funded?

As before noted Dina Yehia had practiced for years in regional NSW defending indigenous offenders. Her attachment to these offenders and her sympathy for them drove her to eventually take up the case of Bugmy and she represented him before the High Court.

In an interview on ABC radio Justice Yehia outlined the motive for writing the book and her involvement with the Bugmy Bar Case. Justice Yehia disclosed that the people responsible for the book are lawyers and this becomes clear when she outlines why Judges need to consult the book because Indigenous People are over-represented in the legal and prison system.

It should be noted that the lawyers representing Bugmy argued that he get a lesser sentence because of his terrible background and the fact that the was an indigenous person and that indigenous persons are over-represented in the legal and prison system.

Curiously the high court did “not play ball” on the question of his aboriginality saying that legislation did not permit indigenous offenders from being treated differently to those of European origin.

They did allow the appeal on the basis of the fact that Bugmy came from a traumatic background and had a record of episodes of mental illness, alcoholism, drug abuse and physical trauma.

Despite the decision of the High Court, it is clear that the Bugmy Bar book advises that Indigenous offenders should be shown leniency on the basis of race.

So was born the Bugmy Bar book which listed some twenty categories of disadvantage in an offender’s past that might allow him or her to have a lesser sentence.  In the twenty categories are examples that range from Homelessness to Foetal Alcohol exposure and child hood sexual abuse.

There seems little logic behind the categories. Many things one thought would have been included are not and others like deafness are. Anyone like myself, who has extensive history of assessing all types of offenders male and female, will be struck by the fact that it is hard to imagine any offender who does not qualify for at least one or two of these categories.

So do the authors of the book imagine that there exists a large cohort of serious offenders whose background is entirely seamless and atraumatic. If this is so I am yet to encounter such criminals. Indeed, every criminal I have interviewed produces a litany of horrible events that characterised his or her early life. Does every serious criminal qualify to have the benefit of Bugmy Bar? So it would seem.

The absurdity of this proposition becomes more apparent when we drill down into these twenty categories. One of the most serious of childhood stressors, being raised by a parent with chronic depression is left out.

The authors blithely state that their book and the assertions contained within are supported by a wealth of research and studies drawn from the field of psychology.  It should be remembered that the authors of the book are lawyers so it can be assumed that their reference to sociological and scientific material will be selective.

One is reminded of a heated debate with psychologists who, when challenged about some fiercely held contention about behaviour and motivation, will reply “but studies show” or “research proves” whatever it is they contend. What studies? What proof?

Theories about human behaviour and particularly research into mental illness and psychopathology abound in what is a hotly contested field where “studies” seldom “prove” anything.

A good example of this in the Bugmy Bar Book is the issue of childhood sexual abuse. The authors make uncontested claims that fully one third of all male school children are sexually abused, an absurd figure in any reckoning and certainly not supported by rigorous research, “plucked from the air” in other words.

Among the categories, the list of which seems arbitrary, are included several which relate to indigenous offenders and the term “sorry business” is used. This vague term seems to subsume anything to do with ritual celebration of a deceased person and the experience of grief. It is a catch all for all the ritual processes to do with burying the dead including taking leave from work and other obligations.

For example, when I worked in the prison system prisoners would seek leave from the jail to attend “sorry business” and when asked in detail about it, the offender would cite the obligations he had to the deceased person including attending the funeral but he was not expected to be precise or to describe in detail his movements or the part he played in the rituals of the funeral.

The authors of the Bugby Bar book suggest that a sentence should be reduced or mitigated if an offender had to attend a funeral. Implicit in this is the idea that the grief suffered by indigenous people is qualitatively different and more severe than that experienced by the rest of the population.

The high court was right to exclude aboriginality from the issue of mitigation. Its presence in the Bugmy Bar book is therefore lamentable.

Indigenous people are not over-represented in the prison system because they are indigenous or because courts give them harsher penalties because they are black.

Indigenous people are good law-abiding citizens. The reason they are over-represented in the judicial and prison system is because a greater number of indigenous people come from backgrounds of severe social disadvantage with poor educational opportunities and dysfunctional parenting.

The simple fact remains white Australians who derive from exactly the same types of background have the same rates of offending as indigenous people.  Bugmy Bar Book seems to deny this fact.

The Bugmy Bar Book does not list any number of mental illnesses which should be grounds for reducing sentence. It avoids it this particular thorny issue simply because in cases where it is supposed that criminal offenders have some mental illness the question has to be asked, “Was the offender so disturbed in his mental function that he has no idea what he was doing?”

Having said that, William Bugmy was nevertheless “traumatised” because had a history of head injury and because he was abusing drugs and mentally disturbed, as a consequence.

It is most important to address the notion, implicit in Bugmy Bar that traumatised people are more predisposed to commit criminal offences and that the more severe the trauma in early life the more likely the person is to break the law or commit serious offences.

This is an absurd notion and proposes that there is a causative connection between trauma in early life and criminal offending or worse, the more severe the trauma the more likely serious criminal offences with occur. The most severely traumatised among us almost never offend.

William Bugmy suffered abuse at the hands of his violent drug taking father and it was contended that he saw his father stab his mother. She does not appear to have died from this assault and in the light of what happened to William Bugmy this outcome is curious.

For those of us with experience with the criminal justice system and with criminal offenders like William Bugmy, what is much more important than the experience of trauma is the neglect his life entailed and the awful role model, his father, charged with his care.

And what of William Bugmy himself? The authors of the book will not mention his present circumstances. He currently resides in yet another jail awaiting trial for the fatal stabbing of a much older man to death. Mitigating his sentence has taught him nothing.