(Lonergan J, Beech- Jones CJ at CL and Price J agreeing)

Aggravated armed robbery – reference made to chapter of Bugmy Bar Book by Sentencing Judge – judicial notice taken of research

Quoted extensively from judgment of Sentencing Judge including section headed ‘Background of Disadvantage’ – Sentencing Judge had ‘reference to the Public Defender’s Bugmy Bar Book chapter on early exposure to alcohol and other drugs’ and took ‘judicial note that research shows that children in families with parental or carer substance abuse, are at greater risk of a range of adverse developmental outcomes.’: at [23]

“The placement of children into the care of other care givers or the placement with informal kinship care arrangements, or being placed in out of home care, protection and authorities can result Parental incarceration and/or experiences of out of home care, are themselves factors which may increase the likelihood of a person coming into contact with tile criminal justice system.

“The relevant references to those studies can be found on the website just cited. The potential relevance of evidence of early exposure to alcohol and/or other drug abuse in sentencing proceedings includes an assessment of moral culpability, moderation of the weight to be given to general deterrence and determining the weight to be given to specific deterrence and protection of the community.

“It is also relevant to a finding of special circumstances and the shaping of conditions to enhance prospects of rehabilitation. I accept that matters personal to the offender that are causally connected with or materially contributed to the commission of the offences, are relevant to the assessment of the objective criminality of the offending.”

SF [2022] NSWCCA 216

(Ierace J, Simpson AJA and Hamill J agreeing)

Drug and criminal group offences – re-sentence after finding of error on appeal – use of extract from Bugmy Bar Book “COVID-19: Risks and Impacts for Prisoners and Communities” chapter

Finding made of special circumstances based on need for treatment for mental health issues and continuing impact of Covid-19 pandemic on conditions of incarceration – aggregate non-parole period reduced on re-sentence: at [129]

(Dhanji J, Macfarlan JA and Adamson J agreeing)

[27] The defence … also relied on two chapters of the Bugmy Bar Book prepared by the Bugmy Bar Book Committee, titled “Childhood Sexual Abuse” and “Early Exposure to Alcohol and Other Drug Abuse”, which outline the effects of these experiences in the context of the criminal justice system.

The Bugmy principles were found to apply to both accused. The appeal was allowed on the basis of parity.

(Ierace J, Simpson AJA and Rothman J agreeing)

Recklessly inflict GBH – chapter from Bugmy Bar Book marked for identification on sentence – relevance of childhood exposure to violence and abuse to offences

Chapter of Bugmy Bar Book titled “Childhood Exposure to Domestic and Family Violence” tendered on sentence in the proceedings below and marked for identification: at [32]

Sentencing Judge erred in rejecting Bugmy submissions on basis applicant’s prior good character and demonstrated ability to ‘rise above’ disadvantage – ignored evidence of psychologist report identifying link between applicant’s childhood exposure to violence, abuse and other childhood stresses and the offences: at [84]-[90]

[88] Ms Edwige found a nexus between the applicant’s childhood trauma and his current mental health; his high anxiety level, emotional detachment, immaturity, his difficulties in interpersonal relating and his poor self-esteem.

[90] I accept the expert opinion of Ms Edwige as to manner in which the applicant’s childhood trauma has affected his development, behaviour and capacity to relate interpersonally, which in turn informed his decision-making and reactions in his commission of the offences and his ingestion of drugs and alcohol beforehand. For those reasons, the applicant’s moral culpability is reduced, warranting a reduction to be made to the application of general deterrence.

(Dhanji J, Simpson AJA and Ierace J agreeing)

GW [2023] NSWSC 664

(Yehia J)

Application for bail – juvenile offender – importance of comprehensive bail support plan to address multiple and complex needs in community – policy of Youth Justice where no guilty plea – reference to research and reports including Wellbeing, Healing and Rehabilitation Report from Bugmy Bar Book

Consideration of Youth Justice policy to provide voluntary bail support not mandatory bail supervision where no guilty plea – policy designed to reduce criminalisation of non-compliance with supervision – importance of ensuring bail support still comprehensive and co-ordinated: at [30]-[42]

Emphasis on importance of providing children who have multiplicity of complex needs with support, supervision, and guidance in the community as opposed to detaining them in custody – referred to supporting research material

[43] Ensuring that the community is protected against antisocial and criminal behaviour requires more than simply locking up an 11-year-old. What is required is an intensive and coordinated approach. In the case of an Indigenous child, it requires referral to culturally appropriate programs, ideally managed and staffed by Indigenous caseworkers. The significance of culture to well-being, healing and rehabilitation, has been recognised and there is little doubt that “conceptualisations of wellbeing, and therefore efforts for healing and rehabilitation, are intrinsically tied to culture, with Indigenous perspectives of well-being and healing reflecting holistic worldviews that consider connections between physical, social and emotional well-being, individual and collective wellbeing, and the impact of social political and historical factors”. [1]

[44] The findings of the Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory [2] indicted that incarcerated children and young people are more likely to have experienced poor physical and mental health and disproportionately higher levels of disadvantage than the general population. Accordingly, their health needs may be greater than those of children and young people in noncustodial settings. The report also noted that children and young people in detention are a particularly vulnerable group. They have varying and complex needs and behaviours. Many have come from crisis situations or a background of disadvantage, have experienced trauma or have a range of health issues. Detention itself may give rise to trauma, which may compound already highly complex behaviours and needs. To address the needs of these children and young people effectively, underlying issues need to be recognised and properly addressed and treated. Research shows that threatening and punitive interactions, incarceration, and punishment escalate the aggressive behaviour of troubled youth. [3]

[1] Vanessa Edwidge and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (June 2021) at 5.

[2] Final Report of the Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (17 November 2017).

[3] A Safer Northern Territory through Correctional Interventions: Summary Report of the Review of the Northern Territory Department of Correctional Services (31 July 2016).

In this case satisfied “bail support” plan sufficiently comprehensive and ameliorates risks – release application granted: at [46], [54]

Knight [2023] NSWSC 321

(Yehia J)

Murder – sentencing for single stabbing of female partner – reference to Bugmy Bar Book chapter and Wellbeing, Healing and Rehabilitation Report

Although no requirement for causal connection, unchallenged evidence established offender’s background of disadvantage and deprivation directly contributed to offence: at [84]

Reference to 2021 Report, ‘Significance of Culture to Rehabilitation and Wellbeing’ by Ms Edwige and Dr Gray on importance of culturally appropriate rehabilitation programs for indigenous offenders: at [82]-[83] – also reference to executive summary of Bugmy Bar Book Chapter on ‘Impacts of Imprisonment on Remand in Custody’: at [104]

Finding of special circumstances based on real risk offender will become institutionalised, first time he will serve term of full-time imprisonment, risk at some point during imprisonment he may develop major depression and requirement of lengthy period on parole to assist with readjusting to life in community and accessing culturally appropriate rehabilitation programs: at [103]-[107]

(Lonergan J)

Manslaughter – Adoption of remarks in Tsingolas on value of research on impact of childhood deprivation and exposure to violence

(Yehia J)

Bail application – Reference to Bugmy Bar Book Chapter dealing with Impact of Incarceration

Reliance placed on research from Bugmy Bar Book Chapter: ‘Impacts of Imprisonment and Remand in Custody‘ to show negative impacts on the physical and mental health of incarcerated individuals which persist after release: at [16]
Negative impacts include loss of housing, barriers to employment, significant negative impacts on families and communities, loss of culture and disconnection from Country and community, increased risk of subsequent contact with the criminal justice system and increased risk of self harm and depression: at [16]-[21]
Research further shows impacts more pronounced for Aboriginal and/or Torres Strait Islander Peoples, particularly women: at [17]

[22] The Bugmy Bar Book research is a useful resource which has assisted the Court in understanding the impact of remand in custody, even for short periods. The research lends context to the material that has been tendered on behalf of the applicant which relates directly to her individual circumstances and background. The impact of incarceration on First Nations Peoples, and, in particular, First Nations women should never be under-estimated.

(Walton J)

Sentence for specially aggravated kidnapping – reference to extracts from Bugmy Bar Book – childhood relevant to moral culpability and importance of rehabilitation

Court provided with summaries of research into impacts of childhood exposure to domestic and family violence; early exposure to alcohol and other drug use and interrupted school attendance derived from Bugmy Bar Book: [261]

Referred to cases where deprived background found to reduce moral culpability, or at least to significantly mitigate sentence, for offences involving planning: [264]

Offender’s childhood a crucial feature of his case and relevant to both assessment of moral culpability and need for rehabilitation: [265]-[267]

(Fagan J)

Sentence for murder of underworld figure – reliance on extracts from Bugmy Bar Book misconceived and irrelevant to legal process – rejected any link between disadvantaged background and offending

Evidence tendered of disadvantaged childhood of offender Baines – indigenous offender – exposed to violence and substance abuse – low socio-economic status – incarceration of both parents

Rejected relevance of material from Bugmy Bar Book: [172]-[174]

[174] Viewed in the light of those statements of principle, the tender of the extracts from The Bar Book Project and The Bugmy Bar Book is misconceived. In order to sentence Baines justly according to law I will take into account his individual subjective circumstances, including the adversity of his upbringing, as recounted in his psychologist’s report and in the affidavits of his relatives. My conclusions about Baines’ individual adversities and disadvantage, relative to his culpability and otherwise to be taken into account in sentencing him, are not assisted by generalised historical or sociological information, important as that may be to the other branches of government, the legislature and the executive, in carrying out their responsibility to formulate and implement policies to promote the welfare of disadvantaged groups in society.

Considered and rejected link between disadvantaged and violent background and involvement in commission of pre-mediated murder: at [178]-[181]

Note: The rejection of the Bugmy Bar Book in this case is not consistent with the approach taken in a number of first instance judgments of the NSW Supreme Court, ACT Supreme Court and NSW District Court: see AN; LM; WD [2022] NSWSC 1272; BS-X [2021] ACTSC 160; Bennett [2022] NSWDC 321; Tomlinson [2022] NSWDC 220; Edwards [2022] NSWDC 110; Tsingolas [2022] NSWDC 34; Levvell [2021] NSWDC 518; Saunders [2021] NSWDC 508; Lin [2021] NSWDC 523; Sequera [2021] NSWDC 573; Jones [2021] NSWDC 713; Kirk [2021] NSWDC 389; Maher; Maher [2021] NSWDC 80; Dixon [2020] NSWDC 751; Pout [2020] NSWDC 751; KL [2020] NSWDC 409; GAM [2020] NSWDC 304; Sebbens [2020] NSWDC 213.

The Court of Criminal Appeal appears to have accepted reliance on Bugmy Bar Book material: see Donovan [2021] NSWCCA 323; Wood [2022] NSWCCA 84; Harris [2021] NSWCCA 322.

(Wilson J)

Application for bail pending appeal against conviction for conspiracy to commit misuse of public office – reliance upon Kirby Institute Report and chapter from Bugmy Bar Book on effect of Covid-19 on custodial conditions

[60] A report from the Kirby Institute at the University of New South Wales dated 16 April 2020 discussed issues connected with the management of the condition in prisons, whilst an extract from the Bugmy Bar Book of 20 September 2021 considered the incidence of COVID-19 infection in the prison system, and the wider impact of the virus on prisoners.

(Fullerton J)

Reliance upon Kirby Institute Report on COVID-19 and the Impact on New South Wales Prisoners (April 2020) and Bugmy Bar Book chapter titled ‘COVID-19: Risks and Impacts for Prisoners and Communities’: at [116]-[121]

Further considered evidence from NSW Corrective Services as to current practices in relation to Covid-19 in correctional centres: at [122]-[132]

Concluded increased risk in view of offenders’ age and premorbid chronic health conditions relevant to finding of special circumstances: at [149]-[150]

Motor vehicle and burglary offences – juvenile Aboriginal offender with severe childhood trauma – individual report supported by references to Bugmy Bar Book chapters and Significance of Culture to Wellbeing, Healing and Rehabilitation Report – application of Bugmy principles

Sentencing for burglary and robbery – helpful excerpts from Bugmy Bar Book

Counsel provided “very helpful excerpts from “The Bar Book Project” (Bugmy Bar Book Committee, ‘Early Exposure to Alcohol and Other Drug Abuse’ in The Bar Book Project (Sydney, NSW; The Public Defenders, 2019)) on the effects of early exposure to alcohol and other drug abuse and on the effects of childhood exposure to domestic and family violence, which have been helpful and taken into account”: at [73], [87]

In description of difficult conditions at time of alleged assault referred to inquiry cited in chapter of Bugmy Bar Book:

[8] There was evidence that one of the prisoners kept in the overflow area had severe mental health issues and was at times at significant risk of selfharm, while another had refused to return to his cell in the overflow area earlier that day. Custodial isolation and overcrowding risks exacerbating mental illness, as noted in the Inquiry into Victoria’s Criminal Justice System (2022) at pg 594 (cited in the Bugmy Bar Book chapter on “Impacts of Imprisonment and Remand in Custody”):

Practices such as use of isolation, restricting visits from family and friends, overcrowding, poor access to health services and programs, and negative interactions with correctional officers have a significant impact upon mental health. The psychiatric impacts of prison are particularly acute for Aboriginal and Torres Strait Islander people. For example, Aboriginal women in prison are hospitalised for mental illness at triple the rate of Aboriginal women in the community

In considering whether exceptional circumstances justified bail took into account impact of incarceration of applicant on her children – referred to two chapters from Bugmy Bar Book: ‘Impacts of Imprisonment and Remand in Custody’ and ‘Incarceration of a Parent or Caregiver’.

[45] What is equally clear is that incarceration has a lasting impact on the families and children of the offender. The incarceration of a parent may impact negatively on the physical and mental health of the children of an offender, their development, education and employment outcomes. I reject the submission that Ms Males’ children are doing fine while their mother is on remand. The children of incarcerated persons are the ‘invisible victims’ of the criminal justice system. The parenting duties and the objective of keeping families together is a significant factor in any application. When I consider the historic separation of Aboriginal families, along with Ms Males’ own difficult family upbringing, I see no good reason to contribute to her continued incarceration at this stage. I therefore consider that there are exceptional circumstances justifying the grant of bail.

Referred to carefully researched materials in Bugmy Bar Book:

[43] The consideration of these factors is necessarily an involved process. It requires the decision maker to contemplate what the historic and ongoing overrepresentation of Aboriginal and Torres Strait Islander people in custody means for the individual before them. It also requires the decision maker to contemplate the specific circumstances of the individual within the broader context of their cultural identity and to view their circumstances through that lens. The Bugmy Bar Book provides carefully researched materials that speak to the significance of this cultural identity on every aspect of the individual and their application.

Referred specifically to chapters ‘Impacts of Imprisonment and Remand in Custody’ and ‘Aboriginal and Torres Strait Islander Stolen Generations and Descendants’: at [49]

Referred to material in Bugmy Bar Book Committee, ‘Refugee Background’ in Bugmy Bar Book (online, July 2021): at [36]

[37] … The literature makes it very clear that violence is endemic within the experience of refugee families as they make their way to Australia (and beyond). For that reason, despite the absence of more recent material to demonstrate the specific impact of your upbringing on your offending, I consider that your moral culpability is modestly reduced by your childhood experiences.

In dismissing appeal Court found even if error no substantial miscarriage: at [172]

Cited “Impacts of Imprisonment and Remand in Custody” (2022) The Bugmy Bar Book Project in comment on negative impact of imprisonment:

[33] Prison environments are extreme in many respects. They are physically and psychologically taxing. They impose rigid routines on offenders. They remove any capacity for individual decision making about
aspects of the person’s ordinary life. Often, long terms of imprisonment lead to institutionalisation. This means that the longer a person spends in custody the less their ability to live independently and exercise personal
responsibility. If a person has never lived a normal life in the community, it is very hard for them to learn how to lead a normal life on release. Prisoners existing and living in inherently violent environment learn to use aggression and violence, they lose self-worth, and they tend to blame others, and take out on others, their own failings.

[53] Gaol itself causes trauma. The community should understand that the longer people are locked in gaol the worse that they can become

[55] Sentencing Judges face a dilemma; community safety requires a person to be removed from the community. At the same time, by removing a person and keeping them in gaol can make them worse. This is particularly so for someone like Gowans who has underlying psychological, and trauma induced symptoms, as they have impaired judgment and are not rational decision makers.

[108] Whilst it is conceded that evidence from the Bugmy Bar Book is general in nature, it is relied upon by the offender to understand the opinions expressed by Ms Grujoska as to the offender’s childhood
disadvantage and better explain the connection between the offender’s background and the offending.

[109] The Bugmy Bar Book has found that childhood sexual abuse which I find the offender was subjected to, is a ‘substantial risk factor for the development of subsequent mental health problems’, which can include
major depression, increased risk of alcohol and drug dependence, often as a means of coping with the psychological trauma of having been abused, aggressive behaviours and social anxiety (The Bugmy Bar Book
Project, ‘Childhood Sexual Abuse, ‘Executive Summary’ (November 2019).

[57] Some of the general consequences of childhood deprivation were outlined in the material tendered on behalf of the offender (Exhibits 4 to 9 being extracts of the Bugmy Bar Book), they include the following:

(1) That the effects of exposure to domestic violence on children’s development can include impacts upon the child’s behaviour, schooling, cognitive development and physical and mental wellbeing. Further, children who in early years are affected by exposure to domestic violence are vulnerable to developing long term mental health issues.

(2) Early exposure to drug and alcohol misuse may increase the likelihood of children being substance users themselves and being involved in the juvenile justice system.

(3) Interrupted schooling attendance can lead to lower educational outcomes which are a predictor of future contact with the criminal justice system. Low educational engagement has also been linked to poor health and wellbeing
outcomes.

(4) Hearing impairment can also impact upon an individual’s language or behavioural development, leading to complex outcomes such as low education and attainment, social disruptions, and increased levels of dislocation, and increased levels of unemployment.

(5) Criminal behaviour is closely associated with low socio-economic status.

Referred to report prepared by the Kirby Institute, University of New South Wales, dated 16 April 2020, and extract from the Bugmy Bar Book in relation to the COVID-19 risks and impacts – took into account onerous custodial conditions on sentence: at [64]-[66]

(Beckett DCJ)

Sentencing for property offences – consideration of Wellbeing Report on importance of indigenous controlled organisations for rehabilitation – referenced chapter from Bugmy Bar Book on hearing impairment

Referred to Significance of Culture to Wellbeing, Healing and Rehabilitation Report and importance of culturally appropriate services in rehabilitation of indigenous offenders:

[34] What is of particular significance is that the offender has apparently only recently had the dual support of two indigenous controlled organisations, apparently working closely in cooperation with Community Corrections. He has clear motivation to not reoffend or return to drugs for the purposes of maintaining a positive relationship with his daughter, with the assistance of Kari Corporation. Recently, The Significance of Culture to Wellbeing, Healing and Rehabilitation report, commissioned by the Bugmy Bar Book, has established the important role to be played by culturally appropriate services in the exercise of rehabilitating Indigenous offenders. The Report presents expert opinions, collates the findings of major reports, and draws from leading Indigenous scholarship to demonstrate the significance of culture for Aboriginal and Torres Strait Islander people in promoting healing and rehabilitation. With respect to sentencing proceedings in criminal matters, the Report outlines the significant benefits of culturally appropriate treatment and care that provides for a connection to culture, family and community, in achieving those outcomes. The report relevantly states as follows [emphasis added]:

[E]xisting data regarding the ongoing over-incarceration of Aboriginal and Torres Strait children and adults clearly demonstrates that … current approaches are not adequate … There are long-standing community concerns regarding … [the] disproportionate impact on Aboriginal and Torres Strait Islander peoples and communities, including deaths in custody. The current evidence demonstrates that the ‘status quo’ approach is not effective or sustainable. … this report highlights the significance of culture to Aboriginal and Torres Strait Islander peoples, and the importance of connecting to culture and culturally appropriate treatments to facilitate healing, including in a criminal justice setting. It highlights the importance of the social and emotional wellbeing framework for Aboriginal and Torres Strait Islander people, the need to understand this holistic world view and the need to take into account both individual and social factors in how healing is promoted. Finally, the report identifies culture as a strength that builds capacity in Aboriginal and Torres Strait Islander people, which is seen as a protective factor.

[35] The Report recognises that approaches to rehabilitation which address systemic issues and disadvantage have far better outcomes for Aboriginal and Torres Strait Islander people and communities and keep communities together. This includes discussion of intersections affecting people with disability, and families involved with child protection systems. In practical terms, rehabilitation for Aboriginal and Torres Strait Islander people is enhanced by services that support individuals to build core capabilities within a culturally safe environment, including learning to recognise destructive behaviours, building coping skills, and forming supportive and pro-social relationships. These are all recognised as protective factors against re-offending. In R v BS-X, Justice Loukas-Karlsson made extensive reference to this report, noting its relevance to the evidence in that case in the application of principles of Bugmy v The Queen. (citations removed)

Found offender’s prospects of rehabilitation not unfavourable in light of significant and culturally appropriate supports available on his release: at [36]

Referred to material in Hearing Impairment chapter of Bugmy Bar Book: at [39]-[42]
Concluded deprived childhood relevant to reduction of moral culpability – hearing impairment will make custodial conditions more difficult:

[44] As a result of this finding, the role to be played by general deterrence on sentence is diminished to a degree, as is the weight to be given to other purposes of sentencing, particularly as to denunciation. With his repeat offending, specific deterrence continues to have a role to play, but conversely, rehabilitation must be given substantial weight, particularly at this critical time when he is motivated to change and has all of the appropriate supports in place. As observed above, his chances of rehabilitation at present are perhaps better than they have ever been, particularly if Tharawal, can assist the offender to seek treatment for his hearing impairment, or at least provide him with access to hearing aids.

(Sutherland SC DCJ)

[101] The Defence Tender Bundle also included a number of summaries from the Bugmy Bar Book Project covering the topics of Exposure to Family Violence, Interrupted School Attendance and Multiple Suspensions, Unemployment, Homelessness, Social Exclusion, and COVID-19 Risks and Impacts for Prisoners and Communities. I should note, without detailing them that I have had regard to those summaries

…

[104] … I do find that Bugmy principles have some role to play in the instinctive synthesis which leads to a consideration of an overall sentence, and the fixing of an appropriate non‑parole period.

(Weinstein SC DCJ)

Sentencing for aggravated carjacking – consideration of relevant Bugmy Bar Book chapters – an ‘invaluable resource’

Accepted tender of four chapters from Bugmy Bar Bookand referred to additional two chapters – described as ‘invaluable resource’.

[77] The Bar Book Project, known as the Bugmy Bar Book, contains research chapters freely available to practitioners derived from respected experts. It is found on the Public Defenders website: https://www.publicdefenders.nsw.gov.au/barbook, and provides an invaluable resource of evidence relating to sixteen (soon to be eighteen) indicia of disadvantage: see N Cowdery AO QC, J Hunter and R McMahon, “Sentencing and disadvantage: The Use of Research to Inform the Court” (2020) 32(5) JOB 43.

[78] Indeed each chapter of the Bar Book has a subtitle as follows:-

The purpose of this document is to collate published research, the findings of government reports and inquiries, and academic commentary in relation to [name of relevant chapter] and the effects this may have on a person’s behaviour; development and social well-being; and links to contact with the criminal justice system.

[79] The Bar Book provides additional expert material based on international research which may be used when sentencing an offender: see R v Tsingolas [2022] NSWDC 34 per Yehia SC DCJ. …

Consideration and summary of research and findings of each relevant chapter from Bugmy Bar Book and application to this offender and the assessment of his moral culpability: at [76]-[105]

(Yehia SC DCJ)

Reckless wounding – causal connection between childhood sexual abuse and offending – relevance of studies and research including Bugmy Bar Book Project

Causal link established between childhood abuse and offence – offender’s PTSD triggered by perceived threat of victim and response was unreasonable and excessive self-defence: at [76]-[80]
Studies and research on potential impact of childhood sexual abuse referred to by both Crown and defence counsel – included material contained in Bugmy Bar Book chapter on Childhood Sexual Abuse – should be seen as extension of subjective material in individual case: at [81]-[92]

[87] This material should be seen as an extension of the subjective material provided in the individual case – here, the expert reports and the evidence of the offender. To an extent greater than ever before, sentencing Judges are now assisted by a body of research into the impact of various forms of childhood disadvantage, deprivation and trauma that may have an ongoing and profound impact upon the individual.

[88] Sentencing Judges in the 21st Century have the benefit of that assistance. The material provided is expert research and study that allows for a better understanding of the potentially profound impact of an individual’s childhood experiences upon, amongst other things, their capacity to mature, control impulse and self-regulate. The research complements the psychological, psychiatric and other evidence relied upon in the individual case, and can be of substantial assistance in explaining the offending conduct, assessing moral culpability and/or informing the appropriate penalty.

[89] This approach has been recognised and utilised in a number of cases in the Court of Criminal Appeal.

[The Court went on to discuss Kentwell V R (No 2) [2015] NSWCCA; Perkins v R  [2018] NSWCCA 62 (Fullerton J); Bugmy v The Queen [2013] HCA 37;  [2013] 249 CLR 571]

[92] I am required to determine whether the offender’s adversities and disadvantage (primarily amongst them his childhood experience of sexual abuse) reduces his moral culpability. The material filed on his behalf is complemented by the expert opinions expressed in the body of research to which I have been referred. That research not only contextualises the material directly relevant to this offender’s subjective case, but also assists me in having a broader understanding (based on expert material rather than my own inexpert understanding of human affairs) of the ongoing and profound impact of childhood sexual abuse.

(Haesler SC DCJ)

Detain for advantage – no causal connection required in most cases – reference to Significance of Culture to Wellbeing, Healing and Rehabilitation Report in considering impact of incarceration of offender on impending birth of child

[68] … In most case a causal connection between the crime and factors that reduce moral culpability is not required. That principle stems from the recognition that in sentencing decisions; immaturity, social disadvantage, a childhood deprivation (such as exposure to violence and alcohol abuse), trauma (including as a victim of crime) and mental or intellectual incapacity (often in combination) frequently precedes the commission of crime: Kennedy [2010] NSWCCA 260 at [53]; Millwood [2012] NSWCCA 2 at [69]; Muldrock(2011) 244 CLR 120; [2011] HCA 39 at [54] & [58]; Bugmy(2013) 249 CLR 571: [2013] HCA 37at [40] and [45]; AWF(2000) 2 VR 1; [2000] VSCA 172; Nasrallah [2021] NSWCCA 207 at [12]; KT; Clarke-Jeffries.

Relied upon Significance of Culture to Wellbeing, Healing and Rehabilitation Report in considering impact of incarceration of offender in view of impending birth of child – ICO imposed

[71] If Levvell is returned to gaol he will miss the birth of his child and not be there to support his partner and care for the bany in its first years. There is nothing so exceptional in this simple fact that of itself requires a non-custodial option: Edwards (1996) 90 A Crim R 510 at 515: Hoskins [2016] NSWCCA 157 at [63]. That said, any impact of a custodial sentence must be synthesised along with all other factors.

[72] When a parent is gaoled, there is often a significant disruption in the family and an increased risk to any children. Disruption to a family at a critical time can cause lasting trauma and impact on a child’s future emotional and cognitive processes. Positive experiences as a child can enrich lives. Adverse childhood experiences can have lifelong negative impacts: Significance of Culture to Wellbeing, Healing and Rehabilitation; V Edwidge and P Gray, Bugmy Bar Book Project, 2021 at [50]. Levvell was negatively impacted by his removal from his mother as a baby; any prolonged separation from his soon to be born child risks continuing that cycle.

(Mahoney SC DCJ)

(Mahoney SC DCJ)

(Mahoney SC DCJ)

(M L Williams SC DCJ)

Sentence for offence of use carriage service to procure child for sexual activity – reference to Bugmy Bar Book on effect of Covid-19 on custodial conditions

[28] I take into account those conditions both in custody and on bail as well as the significant evidence presented by Mr Bickford, without challenge and the summaries in the extract from the Bugmy Bar Book dealing with COVID-19 and the risks and impacts for prisoners and communities which are becoming well known to judges of this Court in light of the evidence that we hear on an almost daily basis as to the restrictions upon prisoners during the period of the COVID pandemic. These restrictions include a lack of visits, restrictions on phone calls and the ever-present anxiety as to the possibility of contacting the COVID virus while in a custodial environment.

[29] I accept that his term in custody, along with other prisoners at that time, was more arduous than would be for the case for prisoners who had served sentences outside of the COVID pandemic and it is an important factor to be synthesised, along with the other sentencing principles in this case.

(Beckett DCJ)

(Yehia SC DCJ)

Inflict GBH – causal link between disadvantaged background and offending – reference to Bugmy Bar Book chapters on stolen generations and exposure to family and domestic violence

[61] …compared with Aboriginal and Torres Strait Islander people who were not removed or who did not have family members removed, descendants of members of Stolen Generations have been found to experience higher rates of incarceration, interaction with police and arrest; poorer physical and mental health outcomes; higher rates of violence; and have a lower level of trust in the general community.

(Norrish QC DCJ)

Robbery offence – sentencing judge familiar with Bar Book project and read through relevant chapters

[67] I have material from the Bar Book project. Chapters from that source of information with which I am familiar, dealing with the effect upon individuals of childhood sexual abuse and early exposure to alcohol and other drug abuse. I have again read through those chapters. I have been to some presentations on the Bar Book project.

(Lerve DCJ)

Sexual offences – extracts from Bugmy Bar Book Project annexed to submissions

[71] Mr King on behalf of the offender annexed to his written submissions (MFI 3 on sentence) extracts from the New South Wales Public Defenders Bugmy Bar Book Project. Clearly, given the material from Professor Greenberg, the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 are enlivened reducing the offender’s moral culpability

(Weinstein SC DCJ)

Child sexual offences – Bugmy Bar Book Project an invaluable resource of evidence relating to disadvantage

Full weight given to Bugmy principles and moral culpability substantially diminished: at [62]-[65]

(Priestly SC DCJ)

Child sexual offences – history of sexual abuse as a child – helpfully referred to Bugmy Bar Book Project

[41] I was helpfully referred to the “Bugmy Bar Book“, a resource found on the Public Defenders website and linked to the Judicial Commission website. Reference is there made to research showing that survivors of childhood sexual abuse maybe at greater risk of engaging in risky sexual behaviours, a comment based on the Australian Institute of Family Studies report “The long-term effects of Child Sexual Abuse”, CFCA paper no. 11 2013, at 8.

Background justified reduction of moral culpability: at [40]-[44]

(M L Williams SC DCJ)

Robbery offences – reference to extracts from Bugmy Bar Book Project

DPP v Ceu [2021] VCC 1726

(Judge Tiwana)

Robbery offences – refugee from Myanmar – reference to Bugmy Bar Book chapter

Traumatic childhood as member of persecuted ethnic minority in Myanmar – family came to Australia when offender 8 years old as refugees – continued exposure to difficulty and violence – reference to matters impacting refugee students as set out in Bugmy Bar Book: at [33] – receiving specialised counselling

Moral culpability and general deterrence reduced in view of traumatic background: at [67]

Police v Tracey [2022] ACTMC 26

(Special Magistrate Hopkins)

Assault offences – decision of Galambany Circle sentencing Court – reference to chapters and Report from Bugmy Bar Book Project – finding of special circumstances

Reference to the Significance of Culture to Wellbeing, Healing and Rehabilitation Report commissioned by the Bugmy Bar Book Committee and R v BS-X [81]-[82] – importance of offender’s growing connection to family and culture for long-term healing and rehabilitation: at [6]

Accepted significant impact of abuse suffered while offender detained in two notorious institutions as a child and young person:

[54] Your experiences as a child and young person within these state run institutions caused you enormous and ongoing harm. They were institutions of fear, not safety; of isolation, not connection. Your criminal history demonstrates that your experiences in these institutions did not support you to live a healthy life in the community. Indeed, there is little doubt that the harm done to you in these institutions is inextricably linked to your offending and ongoing incarceration.

[55] As is recognised by the Australian Law Reform Commission in its Pathways to Justice – An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples, Final Report (2017) ‘child removal into out-of-home care and juvenile detention could be considered as key drivers of adult incarceration’ (p 485). See also, Bugmy Bar Book, Out of Home Care (September 2021) pp 10-12; Bugmy Bar Book, Impacts of Imprisonment and Remand in Custody (November 2022).

Impact of childhood trauma moderated moral culpability and established special circumstances permitting sentence to be imposed concurrent to existing sentence with period of parole – importance of supervision in community after release from custody: at [19]-[21]; [84]

(Special Magistrate Hopkins)

Sentencing for property damage – Galambany Court – reference to incarceration of caregivers chapter of Bugmy Bar Book and Significance of Culture to Wellbeing, Healing and Rehabilitation Report

Referenced Incarceration of a Parent or Caregiverchapter from Bugmy Bar Book – research establishes negative and intergenerational impact of incarceration of parent on child’s emotional, behavioural and psychological development: at [21]-[22]

Referenced Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation Report – importance of strengthening connection to community and culture as central to long-term healing and rehabilitation of offender: at [39]

Suspended sentence imposed as recommended by elders – reference to Yeddung Mura: Aboriginal corporation delivering services to First Nations People in ACT: at [63]

Moral culpability substantially reduced – diagnosis and adverse childhood experiences have resulted in substantial deficits in reasoning, problem solving, planning, abstract thinking, judgement, academic learning and experiential learning – not appropriate vehicle for general deterrence – multiple disabilities reduced impact of specific deterrence – Youth remains relevant factor – retribution and punishment a reduced role in sentencing exercise: at [68]

Referred to Bugmy Bar Book as comprising ’expertly reviewed research’ and quoted from Executive Summary of select chapters: at [42]-[43]

Referred to Bugmy Bar Book as setting out in detail some of the experiences relevant to many Aboriginal people – listed 16 chapters – noted juvenile in this case ‘has been exposed to many of those experiences, or his personal history is relevant to them’: at [60]-[61]

Referred to Bugmy Bar Book as setting out in detail some of the experiences relevant to many Aboriginal people – listed 16 chapters – noted juvenile in this case ‘has been exposed to many of those experiences, or his personal history is relevant to them’: at [103]-[104]