Judgments Library

• Sentence for offence of conspiracy to commit misuse of public office –
• 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’: [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]

• The offender has significant mental conditions that directly contributed to the offence: FASD; complex PTSD; and intermittent explosive disorder. Those diagnoses and the impact on the offender of his deprived background, activate considerations of reduced moral culpability and lessen reflection of general deterrence and retribution in his sentence, pursuant to the principles recognised in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 and Bugmy v The Queen (2013) 249 CLR 571: at [25], [98].
• Expert report regarding offender’s behavioural traits throughout childhood characteristic of FASD: at [64]-[65].

• Social disadvantage in early childhood years in war-torn Iraq and entry into Turkey and Australia as a refugee. The circumstances of experience were acute and “traumatic” although not causally connected to the offending: at [90]-[91]; Bugmy v The Queen (2013) 249 CLR 571; Perkins v R [2018] NSWCCA 62; R v Irwin [2019] NSWCCA 133 cited.
• These factors go to reduce moral culpability and, to some extent, weight that might be attached to general and specific deterrence. Nonetheless, the Crown is correct that the early social disadvantage must not be taken in isolation from the largely positive experiences and support in his foundational years in Australia, particularly with respect to his supportive, loving family and close-knit community: at [92].

[66] Other than the submissions identified, no other submissions were made and no material was placed before the Magistrate about the appellant’s personal circumstances, background, and any physical or mental health condition. An Aboriginal offender who can be shown to have suffered systemic disadvantage in a way that explains or contributes to an understanding of the offending is entitled to have that taken into account as a mitigating factor. Although the appellant was an Aboriginal man raised in Aurukun, no submissions were made to the learned Magistrate about early exposure to alcohol abuse or violence, deprived background, social disadvantage, or trauma.[20] This meant that there was no material for the learned Magistrate to act upon in that respect. It is incumbent on the advocate appearing on sentence to place relevant material in mitigation before the court. The court cannot act in a vacuum.

Footnote [20]: See Bugmy [2013] HCA 37; [2013] 249 CLR 571; Fernando (1992) 76 A Crim R 58. See also the resources available to assist practitioners appearing for Aboriginal offenders such as the New South Wales Public Defender’s Office Bugmy Bar Book at https://www.publicdefenders.nsw.gov.au/barbook

• Offender sentenced for robbery offences
• 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]

• Took into account psychologist’s opinion that offender’s mental health issues and conduct disorder had origins in childhood trauma – referred to Childhood Sexual Abuse chapter in Bugmy Bar Book in footnote: at [60]

• Offender of Aboriginal descent – grandmother, mother and uncle all removed as children

[42] The community research report points out, that it has been well documented, that the removal of Indigenous children from their families has devastating, life-long and intergenerational consequences. (citing ‘Bringing Them Home’ report of the National Enquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families in April 1997 and dissenting judgment of Eames J in Fuller-Cust [2002] VSCA 168 at [91])

…

[77] I take account of the fact that both your mother and grandmother could be described as having suffered the experience of the Stolen Generations, with the impacts of intergenerational trauma impacting the way you were brought up.

• Importance of evidence establishing history and impact of childhood deprivation

[84] Your case highlights importance of proper material being put before the Court before Bugmy principles can be properly enlivened. The Court was assisted by the detailed information provided in the community research report, and the information contained in the psychological reports about your life history and how it has affected you

Fn [56] There were many unanswered questions when counsel first filed their submissions, but by the end of the plea hearing, the Court had received more detailed information relevant to Bugmy principles in the present case

• Accepted evidence establishing offender’s childhood and adolescence marred by significant instability and deprivation – reduced moral culpability although remained moderately high: at [55], [81]

• The Court allowed the appeal on the ground that the judge failed to give ‘full weight’ to the mitigation arising from the applicant’s traumatic childhood (Bugmy v The Queen).
• The mitigation requiring ‘full weight’ included the appellant’s FASD deficits which decreased moral blameworthiness for the offending. The judge incorrectly regarded it as relevant only to prospects of rehabilitation: at [113]-[118].
• Discussion of FASD and LCM v State of WA [2016] WASCA 164; (2016) 262 A Crim R 1: at [66]-[71]; [86].

• Removed from care of parents by extended family when aged 3–4 years – at 9 years placed into foster care due to behaviour – multiple placements probably connected to behavioural difficulties – separation from family and feeling of being unwanted – impact on education – early substance abuse – low intelligence – supported himself through welfare and crime: at [35]–[46]
• Bugmy principles given due consideration and applied to reduce moral culpability: at [57], [61], [84]

• Sentencing judge accepted psychologist’s description of ongoing impact of offender’s exposure to violence at hands of father – anger management difficulties related to flight or fight response – inappropriate emotional regulation and interpersonal skills – normalisation of violence and drug use – difficulty trusting people – reckless behaviour including substance abuse: at [21], [61]
• Although not explicitly referred to by applicant’s counsel at sentence hearing Sentencing Judge erred in failing to apply Bugmy principles where uncontested evidence – ‘classic Bugmy case where the “sins of the father” have resulted in the applicant turning to violence when frustrated. His inability to control that impulse reduces his moral culpability’: at [68]

• Difficult childhood – both parents heroin addicts – exposure to drug abuse including driving with father to source drugs – parental incarceration – exposure to family violence – transient accommodation with father – early drug abuse and self-harm – diagnosis of PTSD: at [25]-[27]
• Accepted psychologist opinion as to impact of PTSD on offending – risky, reckless and self-destructive behaviour – inability to self-regulate – aggression, substance use and deficits in impulse control – developmental trauma: at [28]
• Applied Bugmy and Millwood [2012] NSWCCA 2 at [69]- justified sentence well below range: at [37]

• Difficult childhood – both parents heroin addicts – exposure to drug abuse including driving with father to source drugs – parental incarceration – exposure to family violence – transient accommodation with father – early drug abuse and self-harm – diagnosis of PTSD: at [25]-[27]
• Accepted psychologist opinion as to impact of PTSD on offending – risky, reckless and self-destructive behaviour – inability to self-regulate – aggression, substance use and deficits in impulse control – developmental trauma: at [28]
• Applied Bugmy and Millwood [2012] NSWCCA 2 at [69] – justified sentence well below range: at [37]

• Difficult childhood – both parents heroin addicts – exposure to drug abuse including driving with father to source drugs – parental incarceration – exposure to family violence – transient accommodation with father – early drug abuse and self-harm – diagnosis of PTSD: at [25]-[27]
• Accepted psychologist opinion as to impact of PTSD on offending – risky, reckless and self-destructive behaviour – inability to self-regulate – aggression, substance use and deficits in impulse control – developmental trauma: at [28]
• Applied Bugmy and Millwood [2012] NSWCCA 2 at [69]- justified sentence well below range: at [37]

• Offender struck and killed pedestrian with car – no culpability for accident but failed to stop
• Childhood history of exposure to drug and alcohol abuse, physical abuse, domestic violence and multiple care givers – possible PTSD: at [49]-[59]
• Accepted on appeal psychologist’s suggestion that failure to stop linked to impaired judgment and poor decision making in context of emotional distress and panicked state: at [71]-[74]
• Concluded disadvantaged and dysfunctional background operated to provide some explanation for offence – while self-interest and self-preservation still key factors, moral culpability reduced in view of childhood trauma: at [78]

• Offender struck and killed pedestrian with car – no culpability for accident but failed to stop
• Childhood history of exposure to drug and alcohol abuse, physical abuse, domestic violence and multiple care givers – possible PTSD: at [49]-[59]
• Accepted on appeal psychologist’s suggestion that failure to stop linked to impaired judgment and poor decision making in context of emotional distress and panicked state: at [71]-[74]
• Concluded disadvantaged and dysfunctional background operated to provide some explanation for offence – while self-interest and self-preservation still key factors moral culpability reduced in view of childhood trauma: at [78]

[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

[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.

• 14-year-old female offender committed offences on 5-year-old brother – dysfunctional background including sexual and physical abuse – complex metal health issues with ASD, anxiety and PTSD – limited cognitive ability – inability of mother to provide appropriate support

[60] As Fullerton J said in Perkins v R [2018] NSWCCA 62 at 99:

The insidious effects of exposure to family and domestic violence on children in their formative years, and the potential for that exposure to play out in unforeseen ways as a young child develops from adolescence into adulthood, are well researched and documented.

[61] Indeed, the Bar Book Project, found on the Public Defenders website: https://www.publicdefenders.nsw.gov.au/barbook, provides an invaluable resource of evidence relating to disadvantage. For example, as to childhood sexual abuse, it cites research that sexual abuse is a ‘substantial risk factor for the development of subsequent mental health problems’. As to childhood exposure to domestic and family violence, the Bar Book cites research that “there is mounting empirical evidence of the effects of exposure to domestic and family violence on children’s development, and a growing recognition of the ways these harms can manifest in intergenerational cycles of trauma, violence and disadvantage.” See also 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.

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

• Offender subjected to sexual abuse as a child – link to subsequent alcohol abuse, mental health and offending: at [24]-[31]
• [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: [40]-[44]

• Offender described as having ‘a wretched start to life’ with the ‘full constellation of Bugmy type features: [1]
• Refers to extracts from new Bugmy Bar Book Project being helpfully included in defence counsel submissions: [16]