Fortunately all was quiet - because that was not what the High Court said in its cautious findings. Bugmy is an Aboriginal from Wilcannia, whose life has been determined by juvenile detention, prison, domestic violence, alcohol and drug abuse, illiteracy, self-harm and mental health problems. We know about the shocking incidence of Aboriginal imprisonment and the history of deaths in custody. In NSW, Aboriginals are about 2.5 per cent of the population, yet account for more than 22 per cent of the daily prison population. We can see it too from court statistics: In 2011, of the 6809 people jailed by the Local Court, more than 38 per cent were Aboriginal. In the higher courts for that year, the proportion was 20.5 per cent; in the Children's Court, it was 59 per cent. It hardly needs repeating that Aboriginal people are massively over-represented in prisons. Sarah Krasnostein, a lawyer completing a PhD in sentencing, wrote on NewMatilda.com that government funding priorities had effectively ''criminalised the consequences of marginalisation.''

One of Bugmy's arguments to the High Court was that his social deprivation and disadvantage should be taken into account in his sentence. The Court of Criminal Appeal had cranked up his sentence from six years (with a non-parole period of four years) to 7½ years (with an extra year of non-parole). One of the contentious elements of his case was the finding by the Court of Criminal Appeal that because of his long criminal record, the relevance of Bugmy's indigenous disadvantage was overstated. Justice Cliff Hoeben, one of the appeals judges, believed childhood disadvantage and deprivation diminished over time. Or as he put it so fetchingly: ''When you've got a list of offences and a history such as the current respondent has, one can't help wondering how many times one can cash that cheque before it runs out.'' The High Court didn't like that characterisation, nor did the Crown, because it stopped defending the line that disadvantage diminished over time. The judges in Canberra said ''full weight'' should be given to an offender's (any offender) deprived background in every sentencing decision. This is not the same as saying that sentences should be mitigated because the offender has a deprived background.

That would open the door too wide because it would be statistically certain that a majority of repeat offenders have a background that can be linked to some, if not all, of the following: social disadvantage, poor education, alcohol and drug abuse, domestic violence and mental illness. This is the constituency that is hooked into a long-running loop of crime and time. Massive resources of policing, courts, lawyers and ''correctional'' institutions are ploughed into support for the industry. Relative little is allocated to ''justice reinvestment''. It is education and jobs that will keep socially deprived people out of jail, but that needs something more than processing people based on set rules. The courts struggle to keep in place the templates of deterrence, community protection, criminal history and retribution against the reality of a conspicuous minority that over-contributes to the supply of prisoners. They are loath to surrender the patch to the apostles of prevention. The fear is that to do otherwise opens the special circumstances argument to a much wider constituency. So the High Court stuck with the principle of ''individual justice'' instead of carving out a special recognition of ''the unique, historical, systemic or background factors which have played a role in bringing Aboriginal offenders before the court''. Bugmy's lawyers were hoping for something bigger - that the reasons behind a whole community of embedded criminal history should be reflected in sentencing policy.

The Canadian courts have given recognition to the background circumstances of the country's indigenous people, but the High Court said that's Canada, this is here. Bugmy is to be sentenced again largely because the Court of Criminal Appeal slipped on a technical banana peel, not specially because of his history and his circumstances. Loading Let's hope it's not another 30 years before Aboriginality in sentencing is weighed again by the High Court. Twitter: @JustinianNews