Judgments Library

• 19 year old Aboriginal offender 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]
• On appeal found 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

• The Court below received a Bugmy Bar Book chapter included in the defence tender bundle on sentence – referred to at [20]

• Indigenous offender raised by aunt in stable environment until returned to biological mother’s care at 13y – unaware aunt was not real mother and no understanding why not raised by biological parents – struggled with feelings of abandonment – life became destabilised and chaotic in permissive environment under mother – biological family relationships characterised by violence, exposure to alcohol and criminal conduct normalised
• Not necessary to characterise an offender’s childhood as one of “profound deprivation” before Bugmy principles apply: at [57]
• Causative link not required citing Dungay [2020] NSWCCA 209: at [57]-[58]
• Bugmy principles apply here especially in view of exposure to criminal milieu during formative adolescence period – exacerbated by momentous discovery in relation to his biological parents and subsequent identity issues and introduction to use of alcohol – sentencing judge erred in finding no evidence supporting application of Bugmy considerations : at [61]-[64]

Per Basten JA, agreeing

[1] I agree with Brereton JA that the sentencing judge, in an otherwise thorough and careful judgment, failed to apply the principles articulated by the High Court in Bugmy v The Queen. Although those principles can apply generally to offenders brought up in circumstances of social disadvantage, they have particular application and are commonly invoked in relation to members of Indigenous communities. That is because, as has been documented by numerous inquiries and research studies, those communities continue to exhibit the dislocation resulting from foreign invasion, disruption of culture and minority racial status.[2] However, they are also the principal victims of alcohol driven violence of the kind exhibited by the applicant, Douglas Hoskins. To downplay the principle of protection of the community, identified as a purpose of sentencing in s 3A(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW), is to diminish both the appearance and perhaps the fact of equal protection of those Indigenous communities. On the other hand, it must be recognised that incarceration has not proved an effective deterrent of anti-social behaviour in these circumstances; its deterrent effect being compromised by lack of insight which is itself a common feature of the circumstances which lessen moral culpability.

[2] These conflicting considerations place a sentencing judge in a difficult position; their acknowledgement provides little practical assistance in determining an appropriate sentence. The solution to the social problems does not lie in the criminal courts, whose best course may be to err on the side of leniency.

[2] See, eg, Kentwell v R (No 2) [2015] NSWCCA 96 at [89]-[92] (Rothman J; McCallum J agreeing) referring to R v Lewis [2014] NSWSC 1127 at [37]-[38] (Rothman J); Royal Commission into Aboriginal Deaths in Custody, National Report Volume 1 (AGPS, 1991) at Chs 1.4-1.5

• Indigenous offender raised by aunt in stable environment until returned to biological mother’s care at 13y – unaware aunt was not real mother and no understanding why not raised by biological parents – struggled with feelings of abandonment – life became destabilised and chaotic in permissive environment under mother – biological family relationships characterised by violence, exposure to alcohol and criminal conduct normalised
• Not necessary to characterise an offender’s childhood as one of “profound deprivation” before Bugmy principles apply: at [57]
• Causative link not required citing Dungay [2020] NSWCCA 209: at [57]–[58]
• Bugmy principles apply here especially in view of exposure to criminal milieu during formative adolescence period – exacerbated by momentous discovery in relation to his biological parents and subsequent identity issues and introduction to use of alcohol – sentencing judge erred in finding no evidence supporting application of Bugmy considerations: at [61]–[64]
• Per Basten JA, agreeing:

[1] I agree with Brereton JA that the sentencing judge, in an otherwise thorough and careful judgment, failed to apply the principles articulated by the High Court in Bugmy v The Queen. Although those principles can apply generally to offenders brought up in circumstances of social disadvantage, they have particular application and are commonly invoked in relation to members of Indigenous communities. That is because, as has been documented by numerous inquiries and research studies, those communities continue to exhibit the dislocation resulting from foreign invasion, disruption of culture and minority racial status.2 However, they are also the principal victims of alcohol driven violence of the kind exhibited by the applicant, Douglas Hoskins. To downplay the principle of protection of the community, identified as a purpose of sentencing in s 3A(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW), is to diminish both the appearance and perhaps the fact of equal protection of those Indigenous communities. On the other hand, it must be recognised that incarceration has not proved an effective deterrent of anti-social behaviour in these circumstances; its deterrent effect being compromised by lack of insight which is itself a common feature of the circumstances which lessen moral culpability.

[2] These conflicting considerations place a sentencing judge in a difficult position; their acknowledgement provides little practical assistance in determining an appropriate sentence. The solution to the social problems does not lie in the criminal courts, whose best course may be to err on the side of leniency.

• ______________________________

2 See, eg, Kentwell v R (No 2) [2015] NSWCCA 96 at [89]–[92] (Rothman J; McCallum J agreeing) referring to R v Lewis [2014] NSWSC 1127 at [37]–[38] (Rothman J); Royal Commission into Aboriginal Deaths in Custody, National Report Volume 1 (AGPS, 1991) at Chs 1.4–1.5

• Indigenous offender raised by aunt in stable environment until returned to biological mother’s care at 13y – unaware aunt was not real mother and no understanding why not raised by biological parents – struggled with feelings of abandonment – life became destabilised and chaotic in permissive environment under mother – biological family relationships characterised by violence, exposure to alcohol and criminal conduct normalised
• Not necessary to characterise an offender’s childhood as one of “profound deprivation” before Bugmy principles apply: at [57]
• Causative link not required citing Dungay [2020] NSWCCA 209: at [57]-[58]
• Bugmy principles apply here especially in view of exposure to criminal milieu during formative adolescence period – exacerbated by momentous discovery in relation to his biological parents and subsequent identity issues and introduction to use of alcohol – sentencing judge erred in finding no evidence supporting application of Bugmy considerations : at [61]-[64]

Per Basten JA, agreeing

[1] I agree with Brereton JA that the sentencing judge, in an otherwise thorough and careful judgment, failed to apply the principles articulated by the High Court in Bugmy v The Queen. Although those principles can apply generally to offenders brought up in circumstances of social disadvantage, they have particular application and are commonly invoked in relation to members of Indigenous communities. That is because, as has been documented by numerous inquiries and research studies, those communities continue to exhibit the dislocation resulting from foreign invasion, disruption of culture and minority racial status.[2] However, they are also the principal victims of alcohol driven violence of the kind exhibited by the applicant, Douglas Hoskins. To downplay the principle of protection of the community, identified as a purpose of sentencing in s 3A(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW), is to diminish both the appearance and perhaps the fact of equal protection of those Indigenous communities. On the other hand, it must be recognised that incarceration has not proved an effective deterrent of anti-social behaviour in these circumstances; its deterrent effect being compromised by lack of insight which is itself a common feature of the circumstances which lessen moral culpability.

[2] These conflicting considerations place a sentencing judge in a difficult position; their acknowledgement provides little practical assistance in determining an appropriate sentence. The solution to the social problems does not lie in the criminal courts, whose best course may be to err on the side of leniency.

[2] See, eg, Kentwell v R (No 2) [2015] NSWCCA 96 at [89]-[92] (Rothman J; McCallum J agreeing) referring to R v Lewis [2014] NSWSC 1127 at [37]-[38] (Rothman J); Royal Commission into Aboriginal Deaths in Custody, National Report Volume 1 (AGPS, 1991) at Chs 1.4-1.5

• CSA aged 11 by family “friend”. Expert reports noted that CSA is strongly correlated with mental disorders, such as depression, anxiety, substance abuse, low self-esteem and personality disorders: at [6]-[7].
• Moral culpability is reduced by reason of tumultuous upbringing and formative years. The judge’s failure to assess moral culpability may have led to failing to appreciate moral culpability and may explain the manifestly excessive sentence: at [18], [22]; Bugmy v The Queen (2013) 249 CLR 571.
• On re-sentence, Court accepted experts’ opinions as to connection between offending and childhood trauma, which included CSA, and that the applicant’s upbringing disposed him to substance abuse: at [24]-[28].

• Referred to Child Sexual Abuse chapter in Bugmy Bar Book in consideration of relevance of offender’s history of being sexually abused as a child:
• [129] Detailed reference may be found in the Bugmy Bar Book chapter on ‘Child Sexual Abuse’. That chapter collates research, commentary and findings in relation to child sexual abuse and the effect that it has on a person’s behaviour, development, mental, physical and social wellbeing and subsequent involvement in the criminal justice system.
• [130] The involvement of the present offender in childhood sexual abuse as a victim is corroborated by the account in her mother’s affidavit and I accept that childhood sexual abuse as described did occur. Research linking such abuse to disorders including personality disorders, together with the psychiatric and psychological material in the present matter, make it likely that such abuse against the offender had an impact on her involvement in the criminal conduct against her own children. I accept that this is relevant in an assessment of moral culpability; see Bugmy [2013] HCA 37; (2013) 249 CLR 571.

[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.

• Relevant entries from the Bugmy Bar Book referred to in submissions, acknowledged at [79]

• Bugmy Bar Book executive summaries for chapters on child sexual abuse, childhood exposure to domestic and family violence and low socioeconomic status provided, with relevant principles and paragraphs referred to at [24]

• Aboriginal offender removed from mother’s care at 11 months – Bugmy principles applied to reduce moral culpability – no causal connection required

[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 bay 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.

• Aboriginal offender removed from mother’s care at 11 months – Bugmy principles applied to reduce moral culpability – no causal connection required: at [68]-[70]
• Referred to Significance of Culture to Wellbeing, Healing and Rehabilitation report in considering impact of incarceration of offender in view of impending birth of child:

[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 bay 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. • One of several factors taken into account in imposing Intensive Correction Order: at [82]

• One of several factors taken into account in imposing Intensive Correction Order: at [82]

• Aboriginal offender removed from mother’s care at 11 months – Bugmy principles applied to reduce moral culpability – no causal connection required

[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 bay 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.

• Bugmy Bar Book chapters provided with relevant principles and paragraphs referred to in written submissions – Exposure to Domestic and Family Violence, Interrupted School Attendance and Early Exposure to Alcohol and Other Drug Abuse: [48]-[50]

• Referred to Bugmy Bar Book Project chapters on Childhood Sexual Abuse and Childhood Exposure to Domestic and Family Violence, considering the impact of these factors and relevance to assessment of offender’s moral culpability: [54]-[55]
• Referred to research into the importance of indigenous and culturally appropriate rehabilitation programs

[49] … I accept that recent research and expert opinion indicates that rehabilitation services provided by Indigenous and culturally appropriate organisations, who understand and acknowledge the trauma suffered by Indigenous communities as a result of general removal, segregation and discrimination, together with the support of her close family and community, provide the offender with the best chance of being rehabilitated. These facilities, with oversight by Community Corrections offer a protective measure both for the individual but also the community.

• Offences committed five and seven days after release to parole for armed robbery offence – offender gave account of being released to parole with little support or resources

[32] He was released from custody at the Lithgow Correctional Centre on 2 September 2020 and when released there was no one there to meet him. He had $100 from his gaol account. This was the extent of the funds available to the offender. A taxi was called but never arrived but he was given a lift to the Lithgow Railway Station where he purchased a ticket and travelled to Sydney. He did not have a mobile phone and for that reason had not spoken to his Nan, with whom he intended to stay the first night. He knew where she lived and stayed with her that night. The following day he travelled by train to Wagga Wagga, arriving in the early hours of the morning of 4 September 2020.

[33] The offender’s evidence continued that he went to his brother’s home and his brother answered the door. His brother told him he could not stay there because he and his partner had just had a baby. The offender was therefore homeless. His father was not an option as his life with his father when younger was “pretty awful”. I will deal with that after summarising the offender’s evidence.

[34] The offender went on to say that he went to Community Corrections. He confirmed the contents of the affidavit that they offered emergency accommodation but it was a motel some 5 km from central Wagga Wagga. The offender thought he would end up back in gaol and “gave up then and there”. It seems that the system failed this offender. While giving evidence the offender was asked by his counsel whether he wanted to go back to gaol and he replied, “a little bit”.

• Sentencing Judge concluded that after spending considerable time in juvenile and adult custody offender will need ‘intensive and extensive supervision upon his eventual release from custody’ and ‘support to develop a pro-social network of peers in the community in order to gain a sense of belonging…’: at [38]-[42]

• Evidence established offenders Aboriginal brothers with deprived and disadvantaged childhood – intergeneration trauma resulting from mother’s removal from family as a child – exposure to family and domestic violence and alcohol abuse – introduction to substance abuse at early age – unstable educational history resulting in learning and behavioural difficulties: at [54]-[67]
• Mother removed from family as a child and suffered abuse in out of home care – alcoholic by nineteen with ongoing alcohol addiction problems – impact of trauma of this removal on childhood of offenders – described Aboriginal and Torres Strait Islander Stolen Generations and Descendants chapter in Bugmy Bar Book as research summary that ‘helpfully collates recent findings from numerous sources documenting the adverse consequences experienced by both members of Stolen Generations and their descendants’:

[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.

• Background of disadvantage and deprivation reduced moral culpability but balanced with protection of the community: at [74]

• Evidence established offenders were Aboriginal brothers with deprived and disadvantaged childhood – intergeneration trauma resulting from mother’s removal from family as a child – exposure to family and domestic violence and alcohol abuse – introduction to substance abuse at early age – unstable educational history resulting in learning and behavioural difficulties: [54]-[67]
• Mother removed from family as a child and suffered abuse in out of home care – alcoholic by nineteen with ongoing alcohol addiction problems – impact of trauma of this removal on childhood of offenders – described Aboriginal and Torres Strait Islander Stolen Generations and Descendants chapter in Bugmy Bar Book as research summary that ‘helpfully collates recent findings from numerous sources documenting the adverse consequences experienced by both members of Stolen Generations and their descendants’:

[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.

• Both offenders exposed to violence and alcoholism throughout childhood – reference made to Childhood Exposure to Domestic and Family Violence chapter of Bugmy Bar Book:

[70] Irrespective of the age of a child, it is ongoing exposure to violence which has been associated with the highest likelihood of behavioural difficulties. Indeed, research shows that prolonged exposure to violence may cause children to experience trauma and post-traumatic stress disorders which have lasting effects on the child’s development, behaviour and well-being. These symptoms include low self-esteem, poor coping mechanisms and substance abuse, as well as complex disturbances such as an inability to regulate emotion, and cognitive and behavioural developmental delays.

[71] The offenders’ history of deprivation and disadvantage is relevant to reducing their moral culpability. Growing up experiencing or witnessing anger and/or violence and being exposed to such violence in families and communities can lead to individuals responding with anger and violence ‘almost automatically’ in response to other people’s behaviour of perceived provocation, and a reduced capacity to access other ways of dealing with these triggers.

[72] This history of deprivation, and the research material tendered in the proceedings relating to the potential impact of such a background upon individuals exposed to such disadvantage in their childhood, is directly relevant to the way in which the offenders (in particular, Trevor) reacted on this occasion. His capacity to self-regulate and contain his anger was impaired. This is not to excuse his conduct in any way. The victim suffered serious injury that has resulted in ongoing impairment. Although the victim was the initial aggressor, he did not deserve the beating he received at the hands of the offenders (either directly or by way of joint criminal enterprise). That history is, however, relevant to an assessment of moral culpability and the weight to be given to some of the purposes of sentencing.

• Background of disadvantage and deprivation reduced moral culpability but balanced with protection of the community: [74]

• Evidence established offenders Aboriginal brothers with deprived and disadvantaged childhood – intergeneration trauma resulting from mother’s removal from family as a child – exposure to family and domestic violence and alcohol abuse – introduction to substance abuse at early age – unstable educational history resulting in learning and behavioural difficulties: at [54]-[67]
• Both offenders exposed to violence and alcoholism throughout childhood – reference made to Childhood Exposure to Domestic and Family Violence chapter of Bugmy Bar Book:

[70] Irrespective of the age of a child, it is ongoing exposure to violence which has been associated with the highest likelihood of behavioural difficulties. Indeed, research shows that prolonged exposure to violence may cause children to experience trauma and post-traumatic stress disorders which have lasting effects on the child’s development, behaviour and well-being. These symptoms include low self-esteem, poor coping mechanisms and substance abuse, as well as complex disturbances such as an inability to regulate emotion, and cognitive and behavioural developmental delays.

[71] The offenders’ history of deprivation and disadvantage is relevant to reducing their moral culpability. Growing up experiencing or witnessing anger and/or violence and being exposed to such violence in families and communities can lead to individuals responding with anger and violence ‘almost automatically’ in response to other people’s behaviour of perceived provocation, and a reduced capacity to access other ways of dealing with these triggers.

[72] This history of deprivation, and the research material tendered in the proceedings relating to the potential impact of such a background upon individuals exposed to such disadvantage in their childhood, is directly relevant to the way in which the offenders (in particular, Trevor) reacted on this occasion. His capacity to self-regulate and contain his anger was impaired. This is not to excuse his conduct in any way. The victim suffered serious injury that has resulted in ongoing impairment. Although the victim was the initial aggressor, he did not deserve the beating he received at the hands of the offenders (either directly or by way of joint criminal enterprise). That history is, however, relevant to an assessment of moral culpability and the weight to be given to some of the purposes of sentencing.

• Background of disadvantage and deprivation reduced moral culpability but balanced with protection of the community: at [74]

Note: Baker J quoted [71] with approval in DPP v Parker [2024] ACTSC 125 at [60]

• Kirby Institute Report and chapter from Bugmy Bar Book relied upon in documentary evidence: [60]
• [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 theBugmy 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.
• Kirby Institute report ‘largely unhelpful, dating as it does from April 2020. The COVID-19 situation is fluid and much has changed since that time, including the availability of vaccines to both the general and prison population.’: [127]