Judgments Library

• Offender experienced a traumatic childhood including sexual and physical abuse in a boys home resulting in mental health issues including PTSD
• 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: [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.

• Evidence of WD’s deprived and disadvantaged childhood accepted by Crown – included parental neglect, disrupted schooling, exposure to domestic violence, exposure to parental substance abuse, early introduction to substance abuse and serious parental and family mental illness: [256]-[259]
• 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]

• Evidence of WD’s deprived and disadvantaged childhood accepted by Crown – included parental neglect, disrupted schooling, exposure to domestic violence, exposure to parental substance abuse, early introduction to substance abuse and serious parental and family mental illness: [256]-[259]
• Found offender’s childhood relevant to both assessment of moral culpability and need for rehabilitation: [265]-[267]

[266] I agree with the submission of WD’s counsel that WD’s history of childhood abuse and neglect are crucial features of his case on sentence and that it was appropriate he receive a sentence well below the range that would ordinarily be expected for a case of this kind. In my view, these considerations concern WD’s moral responsibility of the offence, namely, that he does not bear equal responsibility for one that has a normal or advantaged upbringing.

• Juvenile defendant pleaded guilty to child sexual offences and awaiting sentence
• Defendant relied on pending funeral of grandfather as exceptional circumstances under s 22B Bail Act
• Defendant lived with grandparents – evidence suggests day leave would not be available for funeral and alternative of audio-visual link a very poor substitute to personal attendance

[45] I certainly do not need persuasion that the marking of a death of a beloved person is an important aspect of all human cultures, and it really has been since the dawn of time. And I also take judicial notice – quite apart from the material that has been placed before me – that with regard to the cultures of First Nations people of this country, funerals and “sorry business” are exceptionally important.

• Refused detention application on basis full-time imprisonment not inevitable – if necessary would find funeral constituted exceptional circumstances: at [50]

• Born to 15y mother unable to care for offender due to youth and substance addictions – not enough food in the home and offender not sent to preschool – Grandmother took over long-term care but offender exposed to cannabis use from early age – struggled with ongoing grief at death of Grandmother when offender 19 years old: at [40]-[50]

[50] I am satisfied on the strength of all of that evidence that Mr Burns experienced a childhood of profound deprivation. It is now well understood that the period of infancy is a significant formative period. It was during that period that Mr Burns suffered the most neglect. Although his experience living with his grandmother was obviously significantly better for him, it was during that period that he was introduced, too early, to the addictive behaviours for which he already had a biological propensity. Those challenges were compounded by the guilt and grief he experienced as a result of his grandmother’s death in his presence. It is clear in my view that those factors contributed to his excessive consumption of drugs and alcohol and also impaired his capacity for calm, rational decision-making. I consider that his moral culpability for both offences is significantly reduced for those reasons.

• Sentencing of offender for child sexual offences
• Accepted history of childhood trauma, family violence, sexual abuse, exposure to substance abuse, out of home care and interrupted schooling: at [31]-[32]
• Summary of impact of childhood trauma by reference to Bugmy Bar Book chapters on family violence, early exposure to alcohol and drug use, childhood sexual abuse and interrupted schooling – slight reduction in moral culpability: at [55]-[63]

• At sentence proceedings for indigenous offender relied on Aboriginal Community Justice Report to ‘authoritatively analyse an Aboriginal person’s circumstances of deprivation and place this into a broader community, cultural and historical context’: at [49]

[51] The history of your background of deprivation begins with a review of Barkindji history, to provide an understanding of the enduring and inherited trauma in Barkindji descendants today.

…

[55] The result is a detailed account of how your personal history, and the systemic racism imposed upon Barkindji people over the last five generations, merge. Just one example is how your whole life has been framed by housing insecurity and homelessness. While you have often had places to sleep, your presence in other people’s homes often causes conflict, and has left you feeling unwelcome and unwanted. The report writers observe that displacement is a recurring theme in your life and a distressing parallel to your Barkindji ancestors, who were subjected to direct and indirect dispersal due to colonial policies and violence.

[56] There is a rigour and solidity to this report; it gives me the evidentiary basis to accept that intergenerational trauma is relevant to both your circumstances and to the content of your offending now before me, and I take it into account in moderating my assessment of your moral culpability for your offending, and in applying more generally the Bugmy principles. I also take into account your willing and courageous participation in the report’s construction.

[57] Having regard to the content of the report, I have a much more informed appreciation of the matters personal to you, and I also have evidence of the profound and structural disadvantages you have endured, and which inform your responses to the world around you. I give these matters full weight in my sentencing decision.

• At sentence proceedings for indigenous offender sentencing judge accepted Aboriginal Communities Justice Report – part of pilot scheme in Victoria to provide ‘holistic account of individual circumstances, including as they relate to a person’s community, culture and strengths, as well as making recommendations regarding community-based options’: at [30]-[38]
• Accepted from Report evidence of impact of Stolen Generation and Intergenerational Trauma on offender’s personal circumstances.

[44] I accept the fact that inherited traumas endure amongst the Gunditjmara descendants today due to the history. Not just the early history but the continuing history which spans early contact, dispossession, massacres, the Eumerella wars, the legacy of trauma stemming from places such as Lake Condah Mission, Framlingham Mission and the instruments that underpinned those missions and subjugated Aboriginal people. The tragedy which was a daily tragedy for those affected and their families decade after decade of the Stolen Generations is also a matter that sits in that history and has continuing repercussions up to the present.

…

[47] I just raise that as one example, amongst the many, of the continuing impacts of dispossession, segregation, subjugation, assimilation policies, systemic racism and discrimination that Aboriginal communities have suffered and that have led to disadvantage and further trauma. Alongside that history, of course, sits the amazing resilience, leadership and strength shown by many of your community and family and that your Elders have set as examples and urge you to look towards for inspiration in the future.

[48] Other examples or reference points of that history that I have spoken about and are touched on in the ACJR is the personal story to you in relation to your great grandmother and hiding young Peter Rotumah. …

[50] It is significant that the prosecution make the following concessions based upon the report. The prosecution accepts that intergenerational trauma impacted your childhood with specific reference to the report’s commentary on children being raised by Stolen Generation members. The prosecution submission also states and I quote.

The prosecution acknowledges the contents of the ACJR and accepts that structural and systemic racism and colonisation influenced Mr Rotumah’s personal circumstances and outcomes in life thus far.

…

[52] I too accept that structural and systemic racism and the continuing impacts of colonisation have shaped you and your life circumstances thus far. The ACJR helps demonstrate how your life circumstances sits in that continuum and trauma that I have touched upon and is connected to it.

See also:

DPP v Tirris [2022] VCC 1575 (Judge Johns)

DPP v Poole (a pseudonym) [2020] VCC 340 (Judge Johns)

• Bail application for Aboriginal woman charged with serious offences including aggravated burglary and intentionally causing serious injury
• Evidence of impoverished, chaotic and dysfunctional childhood including violence and sexual abuse
• Mother died while applicant on remand and unable to participate in Sorry Business – daughter has unexpectedly died and applicant named senior next of kin – funeral arrangements stalled without presence of applicant – applicant has cultural obligation to participate in Sorry Business – participation crucial – impact of daughter’s death on poor health profound: at [32]
• Requirement of compelling reasons established through combination of circumstances: length of time and restrictive circumstances on remand – profound grief, sorrow and guilt associated with not being able to participate in Sorry Business for her mother and obligations as senior next of kin for daughter – unfortunate personal background – strong family support – availability of wraparound bail support services – applicant’s seemingly genuine commitment to abide by restrictions: at [40]

[48] The application of s 3A of the Act is centrally relevant to my consideration on the question of unacceptable risk in this case. The bereavement experienced by the applicant whilst on remand in respect of her mother and daughter, and the need for the applicant to finalise funeral arrangements for her daughter, should serve as an incentive to avoid doing anything that would return her to custody where she would be unable to participate in these important cultural obligations.

• As pointed out repeatedly, sending young people to adult gaol is almost inevitably counterproductive: at [6]; See, eg, DPP v Tokava [2006] VSCA 156 [22]–[24]; Azzopardi v The Queen [2011] VSCA 372; (2011) 35 VR 43, 46–7 [4] (Redlich JA); C Cunneen, B Goldson and S Russell, ‘Juvenile Justice, Young People and Human Rights in Australia’ (2016) 28 Current Issues in Criminal Justice 173, 176–7.
• Harms of adult imprisonment: loss of personal autonomy, privacy, and control over choice of activities and associates; strict discipline, restriction of movement; forced association, and risks of violence, bullying, and intimidation; very limited opportunities for rehabilitation; institutional setting induces habits of dependency leading to institutionalisation; criminal activity upon release: at [11]; Boulton v The Queen (2014) 46 VR 248; [2014] VSCA 342.

• Counsel handed up Bugmy Bar Book Early Exposure to Alcohol and Other Drugs chapter ‘in support of the proposition that children of parents who misuse alcohol and drugs are at greater risk of subsequently developing alcohol and other drug problems themselves’: at [57]

• Psychological report described 15y old Wiradjuri man with complex developmental trauma – born to drug addicted 15y mother and removed into non-indigenous foster care at 12 months – exposed to mother’s drug use throughout life – experienced younger brother’s removal from mother’s care and placement with different carer due to mother’s drug use – early substance abuse – difficult schooling period – disconnection with cultural identity – multiple significant losses and grief – externalised grief, loss and anger through maladaptive techniques – profound trauma resulting in mental health and behavioural issues
• Psychological report supported by references to multiple Bugmy Bar Book chapters: at [56], [58], [62], [63]
• Further reference to Significance of Culture to Wellbeing, Healing and Rehabilitation Report with emphasis on importance of culturally appropriate treatment to facilitate rehabilitation – importance of individual rehabilitation to both individual and community protection: [81]-[85]
• Reference to comment in Hoskins [2021] NSWCCA 165 that childhood deprivation does not need to be profound [81]-[85]
• Application of Bugmy principles

• Psychological report described 15y old Wiradjuri man with complex developmental trauma – born to drug addicted 15y mother and removed into non-indigenous foster care at 12 months – exposed to mother’s drug use throughout life – experienced younger brother’s removal from mother’s care and placement with different carer due to mother’s drug use – early substance abuse – difficult schooling period – disconnection with cultural identity – multiple significant losses and grief – externalised grief, loss and anger through maladaptive techniques – profound trauma resulting in mental health and behavioural issues
• Psychological report supported by references to multiple Bugmy Bar Book chapters: at [56], [58], [62], [63]
• Further reference to Significance of Culture to Wellbeing, Healing and Rehabilitation Report with emphasis on importance of culturally appropriate treatment to facilitate rehabilitation – importance of individual rehabilitation to both individual and community protection: at [81]-[85]
• Reference to comment in Hoskins [2021] NSWCCA 165 that childhood deprivation does not need to be profound at [81]-[85]
• Application of Bugmy principles

• Psychological report described 15y old Wiradjuri man with complex developmental trauma – born to drug addicted 15y mother and removed into non-indigenous foster care at 12 months – exposed to mother’s drug use throughout life – experienced younger brother’s removal from mother’s care and placement with different carer due to mother’s drug use – early substance abuse – difficult schooling period – disconnection with cultural identity – multiple significant losses and grief – externalised grief, loss and anger through maladaptive techniques – profound trauma resulting in mental health and behavioural issues
• Psychological report supported by references to multiple Bugmy Bar Book chapters: at [56], [58], [62], [63]
• Further reference to Significance of Culture to Wellbeing, Healing and Rehabilitation Report with emphasis on importance of culturally appropriate treatment to facilitate rehabilitation – importance of individual rehabilitation to both individual and community protection: at [81]-[85]
• Reference to comment in Hoskins [2021] NSWCCA 169 that childhood deprivation does not need to be profound at [81]-[85]
• Application of Bugmy principles

• Psychological report described 15y old Wiradjuri man with complex developmental trauma – born to drug addicted 15y mother and removed into non-indigenous foster care at 12 months – exposed to mother’s drug use throughout life – experienced younger brother’s removal from mother’s care and placement with different carer due to mother’s drug use – early substance abuse – difficult schooling period – disconnection with cultural identity – multiple significant losses and grief – externalised grief, loss and anger through maladaptive techniques – profound trauma resulting in mental health and behavioural issues
• Psychological report supported by references to multiple Bugmy Bar Book chapters: at [56], [58], [62], [63]
• Further reference to Significance of Culture to Wellbeing, Healing and Rehabilitation Report with emphasis on importance of culturally appropriate treatment to facilitate rehabilitation – importance of individual rehabilitation to both individual and community protection: at [81]–[85]
• Reference to comment in Hoskins [2021] NSWCCA 165 that childhood deprivation does not need to be profound: at [81]–[85]
• Application of Bugmy principles

• Psychological report described 15y old Wiradjuri man with complex developmental trauma – born to drug addicted 15y mother and removed into non-indigenous foster care at 12 months – exposed to mother’s drug use throughout life – experienced younger brother’s removal from mother’s care and placement with different carer due to mother’s drug use – early substance abuse – difficult schooling period – disconnection with cultural identity – multiple significant losses and grief – externalised grief, loss and anger through maladaptive techniques – profound trauma resulting in mental health and behavioural issues
• Psychological report supported by references to multiple Bugmy Bar Book chapters: at [56], [58], [62], [63]
• Further reference to Significance of Culture to Wellbeing, Healing and Rehabilitation Report with emphasis on importance of culturally appropriate treatment to facilitate rehabilitation – importance of individual rehabilitation to both individual and community protection: at [81]-[85]
• Reference to comment in Hoskins [2021] NSWCCA 165 that childhood deprivation does not need to be profound: at [91]
• Application of Bugmy principles

• Psychological report described 15y old Wiradjuri man with complex developmental trauma – born to drug addicted 15y mother and removed into non-indigenous foster care at 12 months – exposed to mother’s drug use throughout life – experienced younger brother’s removal from mother’s care and placement with different carer due to mother’s drug use – early substance abuse – difficult schooling period – disconnection with cultural identity – multiple significant losses and grief – externalised grief, loss and anger through maladaptive techniques – profound trauma resulting in mental health and behavioural issues
• Psychological report supported by references to multiple Bugmy Bar Book chapters: at [56], [58], [62], [63]
• Further reference to Significance of Culture to Wellbeing, Healing and Rehabilitation Report with emphasis on importance of culturally appropriate treatment to facilitate rehabilitation – importance of individual rehabilitation to both individual and community protection: [81]-[85]
• Reference to comment in Hoskins [2021] NSWCCA 165 that childhood deprivation does not need to be profound [81]-[85]
• Application of Bugmy principles

• Psychological report described 15y old Wiradjuri man with complex developmental trauma – born to drug addicted 15y mother and removed into non-indigenous foster care at 12 months – exposed to mother’s drug use throughout life – experienced younger brother’s removal from mother’s care and placement with different carer due to mother’s drug use – early substance abuse – difficult schooling period – disconnection with cultural identity – multiple significant losses and grief – externalised grief, loss and anger through maladaptive techniques – profound trauma resulting in mental health and behavioural issues
• Psychological report supported by references to multiple Bugmy Bar Book chapters: at [56], [58], [62], [63]
• Further reference to Significance of Culture to Wellbeing, Healing and Rehabilitation Report with emphasis on importance of culturally appropriate treatment to facilitate rehabilitation – importance of individual rehabilitation to both individual and community protection: at [81]-[85]
• Reference to comment in Hoskins [2021] NSWCCA 165 that childhood deprivation does not need to be profound at [81]-[85]
• Application of Bugmy principles

• Aboriginal offender aged 19 years involved in sustained assault on two males in car park – detail of childhood trauma set out in psychologist report including violence, exposure to substance abuse and parental incarceration, homelessness and poor educational engagement – aggravated by mother’s mental health and sister’s serious illness – resulted in unresolved complex developmental trauma: at [33]-[42]
• 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]
• The 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.

• Aboriginal offender aged 19 years involved in sustained assault on two males in car park – detail of childhood trauma set out in psychologist report including violence, exposure to substance abuse and parental incarceration, homelessness and poor educational engagement – aggravated by mother’s mental health and sister’s serious illness – resulted in unresolved complex developmental trauma: at [33]-[42]
• The 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]

[86] As noted at [41] above, Ms Edwige did identify a link between the applicant’s childhood exposure to abuse and the offences, namely, that his poor decision-making and reaction to the situation in the McDonald’s car park resulted from learned behaviours from his childhood and adolescence.

[87] Ms Edwige explained how the violence that the applicant witnessed and experienced in his childhood home, the consequent emotional shutting-down of his mother and her post-traumatic stress disorder (“PTSD”) and his fears for her safety impacted on his development through his primary and high school years to the present and continuing, in spite of his current prosocial family support. As noted in the passages extracted at [34] above, she referred to the applicant’s father’s alcohol abuse and the applicant having witnessed him injecting methylamphetamine and using a gun to obtain drugs, and the applicant’s own his drug and significant alcohol abuse since the age of 15.

[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.