Judgments Library

• Mother jailed when offender 4 years old resulting in placement in foster care until 15 years – separated from siblings – physical and sexual abuse – multiple placements – compromised education – limited employment: at [44]
• Diagnosed with schizophrenia at 15 years – in opinion of psychologist offender predisposed to developing schizophrenia due to genetic vulnerabilities and early environmental stressors including domestic violence and sexual abuse – exacerbated by substance abuse, isolation and incarceration: at [48]
• Mental health and socially impoverished, disadvantaged and deprived background impacted assessment of moral culpability: at [49]

• Mother jailed when offender 4 years old resulting in being placed in foster care until 15 years – separated from siblings – physical and sexual abused – multiple placements – compromised education – limited employment: at [44]
• Diagnosed with schizophrenia at 15 years – opinion of psychologist that offender predisposed to developing schizophrenia due to genetic vulnerabilities and early environmental stressors including domestic violence and sexual abuse – exacerbated by substance abuse, isolation and incarceration: at [48]
• Mental health and socially impoverished, disadvantaged and deprived background impacted assessment of moral culpability: at [49]

• Accepted evidence established link between homelessness caused by brother’s mental health, consequent exposure to violence while on the streets and anxiety and moral culpability: at [14]-[20]

[19] I have borne in mind the difficult circumstances of the Offender’s upbringing outlined in the evidence including the Offender’s abandonment by his father, the conflict which arose at home as a consequence of his brother’s mental health issues, his leaving home at an early age and subsequent experiences of homelessness and isolation which led him to be associated with a criminal milieu. I accept that these factors compromised the Offender’s capacity to mature and learn from experience and amounted to social disadvantage my view do engage the principles in R v Bugmy.

• In view of subjective mitigating factors, including youth, deprived upbringing, emotional immaturity, remorse, plea and remarkable rehabilitation imposed Intensive Correction Order: at [55], [58]

• ‘History of trauma, dispossession, abandonment and deprivation explains how it is that Ms Turnbull comes to be where she is today’: at [27] – no father figure and little parental support throughout life – mother drank heavily and often left children to fend for themselves – exposed to violence and sexual abuse – homelessness and early drug abuse – first child at 14 years – significant impact of loss of second child during pregnancy at 24 weeks – adult life marred by domestic violence – post traumatic stress disorder: at [27]–[45]
• Extraordinary history of abuse and trauma taken into account as causally connected to drug abuse and offending: at [38]
• Referred to failure of system:
• [45] … There appears to have been a failure in the system to intervene at critical stages of Ms Turnbull’s life. Ms Turnbull is an abandoned and vulnerable Aboriginal offender who has appeared in the lower courts on many occasions. It is difficult to escape the conclusion that intensive and culturally appropriate intervention and supervision, of the kind that a focussed and dedicated court would have provided, may have assisted the offender during her most difficult times and broken the cycle of violence, abuse and offending.

• ‘History of trauma, dispossession, abandonment and deprivation explains how it is that Ms Turnbull comes to be where she is today’: at [27] – no father figure and little parental support throughout life – mother drank heavily and often left children to fend for themselves – exposed to violence and sexual abuse – homelessness and early drug abuse – first child at 14 years – significant impact of loss of second child during pregnancy at 24 weeks – adult life marred by domestic violence – post traumatic stress disorder: at [27]-[45]
• Extraordinary history of abuse and trauma taken into account as causally connected to drug abuse and offending: at [38]
• Referred to failure of system:

[45] … There appears to have been a failure in the system to intervene at critical stages of Ms Turnbull’s life. Ms Turnbull is an abandoned and vulnerable Aboriginal offender who has appeared in the lower courts on many occasions. It is difficult to escape the conclusion that intensive and culturally appropriate intervention and supervision, of the kind that a focussed and dedicated court would have provided, may have assisted the offender during her most difficult times and broken the cycle of violence, abuse and offending.

• Disadvantaged upbringing – born to mother while in custody – adopted by aunt but reacted poorly to revelation of adoption at 12 years – developed belief abandoned by mother who was still in prison at time – contributed to poor behaviour, early drug use and disrupted education: at [19]-[23]
• Taken into account under Bugmy principles – principles of general and specific deterrence attenuated – balanced with community protection and importance of rehabilitation: at [32], [38]

[31] I am of the view that s 21A(5AA) must be taken to apply for all purposes so that the exception to the common law rule that intoxication was not a mitigating circumstances in respect of persons who acquired their addiction in their youth has been abrogated. At the same time, I am of the view that Mr Wilson’s alternative argument ought to be accepted and to the extent to which Bugmy considerations ameliorate and reduce what might otherwise be the moral culpability associated with this offending, it is relevant to bear in mind that Mr Coats’s substance abuse disorder commenced between the ages of 13 and 15. However, accepting that by his mid-thirties he was no doubt in the grip of it, it was not until then that he started using ice.

[32] None of this means that intoxication is a justification for Mr Coats’s offending. But the matters I have referred to in relation to his upbringing, his disadvantage and the dysfunctionality of his youth do reduce to some extent his moral culpability for this offending including the consideration that it was committed while he was under the effect of intoxicating illicit drugs which addiction he acquired as an aspect of his childhood deprivation.

• Bail application for Aboriginal man during COVID restrictions
• Requirement to establish exceptional circumstances include issues arising from applicant’s Aboriginality

[6] … (a) As I have already mentioned, the applicant and his family are grieving the loss of his sister, and his period of remand prevents him being with family and community during the period of grief. Part of the grieving process for the applicant’s community involves being in the company of family for extended periods after the loss. In that context, the prohibition on visits by family members and others to prison would render the applicant’s period of remand even more onerous.

(b) As an Aboriginal man, the applicant belongs to a particularly vulnerable section of the community, who are over-represented in the criminal justice system, and who also have poorer health outcomes than non-Aboriginal persons. In that connection, while he is in custody, the applicant may be at greater risk of serious infection from the COVID-19 virus than otherwise.

• Difficult childhood included history of drug and alcohol abuse and serious sexual and violent abuse while in custody resulting in serious mental health issues: at [54]
• At conclusion of current sentence will have spent all but 22 months of 25 years in custody: at [88]

[93] It was in the interests of the community that the sentences imposed on the respondent be such as to enhance, rather than undermine, his rehabilitation prospects. In view of the respondent’s history of repeated incarcerations, there was, in any event, a significant prospect that, by the completion of the further term of imprisonment imposed by the judge, he would have become institutionalised, so that his prospects of rehabilitation would thereby be compromised. Nevertheless, in the particular facts of this case, it was material that the total effective sentence, to be imposed on the respondent, not be such as to crush those prospects, with the consequence that, on release, the respondent readily return to his offending conduct.(DPP v Stone [2003] VSCA 208 at [20])

• Appeal by DPP dismissed in view of subjective mitigating factors including ‘need to ensure that, in the end, the sentences allow some scope for the rehabilitation of the respondent on the completion of his sentence of imprisonment’: at [97]

• Offender suffered dysfunctional childhood combined with sadistic and sustained sexual and physical abuse while in several youth detention centres: at [34]-[42]
• No challenge to findings of psychiatrist linking childhood abuse to offending, substance abuse and criminal record:
• [80] …
• (1) The respondent had developed moderately severe PTSD with panic attacks and dissociative symptoms as a consequence of the abuse and circumstances he had experienced while in custody during his period of ward ship.
• (2) The dysfunctional family environment, in which the respondent had grown up, had rendered him very vulnerable to the development of that disorder.
• (3) The respondent’s conduct was attributable to his reactions to the innumerable sadistic sexual and physical assaults on him while in custody in the vulnerable teenage phase of his development. His substance abuse was consistent with his reaction to the trauma of that abuse, the respondent having resorted to illicit substances for symptomatic relief. As a consequence, he had become enmeshed in the drug sub-culture and a life of crime, characterised by lack of control and the need to fund the procurement of substances.
• These matters constituted significant mitigating factors on sentence under Bugmy principles – justified reduction in moral culpability – Crown appeal dismissed: [79]-[86], [96]

• At age 13, suffered CSA by a friend’s mother. At age 15, in youth custody, suffered substantial physical and sexual abuse by correctional officers which had a profound and lasting effect: at [35]-[38]. Developed moderately severe post-traumatic stress disorder (‘PTSD’) with panic attacks and dissociative symptoms; and substance abuse: at [44]-[45].
• The CSA, humiliation and degradation, had a demonstrated causal relationship with the offending and drug addiction, which he sought to feed by resorting to offending. Those circumstances constituted substantial mitigating factors: at [80], [96].
• “In recent decades, courts have become all too familiar with the appallingly harmful and destructive effects of sexual and physical abuse perpetrated on minors and young people by persons who are in authority or in a position of power over them. The long-standing and detrimental effects of that abuse have been demonstrated to be profound and, in many cases, permanent”: at [81].
• The principles in Bugmy v The Queen at [43]-[44] apply. Subjective culpability could not be equated with a person who committed the same offences, but with the advantage of a normal, stable home environment, and who had not been subjected to sexual and physical abuse experienced by the respondent while in custody. Background constituted an important mitigating circumstance: at [83]; DPP v Drake [2019] VSCA 293 at [32].
• The CSA and expert’s conclusions were relevant to an evaluation of the weight to be given to the respondent’s lengthy criminal history – explaining, at least in part, the repeat offending over two decades: at [84]-[87].

• Appeal against sentence allowed – Sentencing Judge erred in application of statutory aggravating factors – evidence of applicant’s institutionalisation accepted on re-sentence

[137] … The issue of the Applicant’s institutionalisation is also relevant to the special circumstances issue. The Court should take into account the need for a sufficient period of conditional and supervised liberty to assist the protection of the community, by maximising the prospect that the Applicant will not reoffend when the time comes for him to be released into the community. This approach does not involve the somewhat unrealistic suggestion that institutionalisation can be avoided in the Applicant’s case. Rather, it acknowledges the fact of institutionalisation and seeks to reduce the adverse consequences of that state of affairs: Jinnette v R [2012] NSWCCA 217 at [103].

• Description of childhood included exposure to parents’ substance abuse and violence at hands of father – sexually assaulted by male friend of family – commenced substance abuse at early age: at [32]-[39]
• Found Sentencing Judge erred in declining to apply Bugmy principles – accepted causal link between background, drug addiction and offending: at [110]-[123]

[39] Dr Furst concluded his pathway into addiction and drug related offences was connected to his exposure to parental alcoholism, domestic violence and physical abuse victimisation

• Despite error, and although background represented ‘reasonably significant subjective feature relevant to the sentencing of the respondent’ concluded sentences manifestly inadequate and allowed Crown appeal: at [136].

• Description of childhood included exposure to parents’ substance abuse and violence at hands of father – sexually assaulted by male friend of family – commenced cannabis use at 7-8 years, alcohol use at 11 years and amphetamines at 15 years: at [32]-[39]
• Found Sentencing Judge erred in declining to apply Bugmy principles – accepted causal link between background, drug addiction and offending: at [110]-[123]

[39] Dr Furst concluded his pathway into addiction and drug related offences was connected to his exposure to parental alcoholism, domestic violence and physical abuse victimisation

• Despite error, and although background represented ‘reasonably significant subjective feature relevant to the sentencing of the respondent’ concluded sentences manifestly inadequate and allowed Crown appeal: at [136].

• Background of significant deprivation – suffered CSA, mental and physical abuse, the impact of which manifested itself at a young age and contributed to diagnoses of psychological conditions: at [110], [116]. Expert evidence supported a causal connection between dysfunctional upbringing and offending or that it significantly contributed to offending. Dysfunctional upbringing, social deprivation and abuse represent a reasonably significant subjective feature: at [121], [123]; Bugmy v The Queen (2013) 249 CLR 571.

Judicial reference to research materials regarding impact of childhood sexual abuse – the Bugmy Bar Book.

• Indigenous offender with childhood of severe deprivation – sexually assaulted – mother suicided while in custody – another good friend also suicided – early substance abuse – extensive juvenile history: at [51]-[56]
• Re-sentenced on appeal after error as to maximum penalty conceded – background combined with mental health reduced moral culpability and mitigated emphasis on specific and general deterrence: at [60]

• Refugee status: at [6]. Several periods at refugee camp in Iraq: at [12].
• Background taken into account to reduce moral culpability in accordance with principles in Bugmy v The Queen [2013] HCA 37; 249 CLR 571. Early experience of oppression, persecution and discrimination as a Kurd growing up in Turkey, personal experience of violence and torture, fleeing homeland for safety at tender age: at [87].
• [Note: Crown sentence appeal (dismissed) R v Lelikan [2019] NSWCCA 316; (2019) 101 NSWLR 490].

• Aboriginal offender with long history of violence and incarceration – father a drug addict and often incarcerated – exposed to family violence – no appropriate male role model growing up – exposed to bullying and racism at school – behavioural problems including ADHD – early substance abuse – institutionalised: at [40]-[59]
• Psychologist report suggested ‘history of responding with aggression to perceptions of marginalisation extends from his experiences of social exclusion at school due to his Aboriginal heritage’ – response exacerbated by anxiety, substance abuse and gaol experience: at [60]
• Reference made to Baumeister studies and Lewis [2014] NSWSC 1127 – applied approach to social exclusion confirmed in Kentwell (No 2) [2015] NSWCCA 96: at [61]-[62]

[66] Nevertheless, his earlier offending, this offence for which I must pass sentence, and the subsequent offence for violence in gaol, all evidence the accuracy of the Baumeister studies and reflect the kind of reaction that Professor Baumeister suggested would, almost inevitably, flow from the kind of social exclusion that the offender has suffered.

• Found special circumstances in the need to address the issues associated with social exclusion and the need to overcome the antisocial behaviour caused by such exclusion: at [76]

• Psychiatric illnesses resulted from horrendous childhood abuse including CSA by stepfather. Familiar outcomes in cases of serious ongoing CSA are drug use and long-standing substance abuse disorder; and being forced into refuges and onto the streets: at [17], [36].

“[37] The considerations that arise when an offender’s life has fallen apart because they were the victim of CSA are similar to the sentencing principles that apply when the offender was the victim of domestic violence (R v TP [2018] NSWSC 369) or when their early life was marred by significant social deprivation and exposure to alcoholism and violence (Bugmy v The Queen (2013) 249 CLR 571).”

• The sentence should establish conditions which facilitate rehabilitation taking into account “the purpose of preventing recidivism and institutionalisation and facilitating a prisoner’s reintegration into the community”: at [18]; DPP(Vic) v Stone [2003] VSCA 208 at [20].
• In mitigation, the offender has spent so much of adult life in prison there is a danger of becoming so institutionalised by further imprisonment as to be unable to function in society upon release – the law should never give up on the prospects of someone avoiding institutionalisation, especially someone who out of self-respect wants to do so – however, this is only a consideration, and community protection is the most important one: at [18], [26].