Judgments Library

• CSA by two older males, left home aged 12 due to violence, abused substances; is afflicted by trauma-related disorder (PTSD) concerning his upbringing and his CSA: at [10], [13], [30], [31]. Profound dysfunction, disadvantage and abuse relevant to evaluation of moral culpability and played a significant role in shaping personality and responses. His subjective culpability could not be equated with a person who committed the same offence with the advantage of a normal, stable childhood home environment. Those factors constituted an important mitigating circumstance: at [32]; Bugmy v The Queen (2013) 249 CLR 571.

• Aged 25; acquired brain injury from assaults and car accidents; impaired mental functioning; deprived background; institutionalised both by way of care organisations as a child, sentences while a young child or youth and sentences as an adult; substance abuse
• In the absence of some step or process designed to break the cycle of the appellant’s offending, the community will continue to require protection from his offending indefinitely. Moreover, the appellant’s deprived background must be given full weight: at [54]; Bugmy v The Queen (2013) 249 CLR 571
• Appeal allowed. New sentence of 19 months imprisonment with CCO of 3 years imposed

• Mother of offender (Dargan) a Yorta Yorta woman removed from parents and adopted by non-Aboriginal family – father of Irish descent, overtly racist and did not respect Aboriginality of wife or children – father also subjected family to severe physical and emotional violence: at [30]
• Accepted offender’s background, including confusion concerning Koori identity, relevant to assessment of culpability for offence:

[74] While the judge was not satisfied that Dargan’s bipolar disorder was causally connected with his offending in this case, nevertheless his Honour correctly accepted that the principles, stated by the High Court in Bugmy, were relevant to the evaluation of Dargan’s subjective culpability for the offending in the case. As mentioned, Dargan’s traumatic and turbulent upbringing, and his confusion concerning his Koori identity arising from the overt racism of his father, were directly relevant to a proper assessment of his subjective culpability for the offending in the present case. In essence, the offending was not committed by a person who had had the advantage of a stable and secure upbringing guided by proper parenting. Dargan’s attitudes to society, and his anti-social conduct, were necessarily the product of the manner in which he had been raised in his formative years. While those considerations do not excuse his offending, nevertheless, as the judge correctly acknowledged, they were relevant to a fair evaluation of Dargan’s moral culpability. Necessarily, Dargan’s culpability was at a lower level than if he had had the advantage of a proper and stable upbringing, without being subjected to the dysfunction and violence that he had suffered during his formative years.

• On re-sentence regarded as noteworthy that the offender had “taken sensible steps to reconnect with his Yorta heritage, and to engage with it, as a pathway to reformation and rehabilitation into the community”: at [95]

• Take into account youth and that brain injury likely to have affected decision-making capacity and hence culpability for offending conduct. Significant head injury clearly does not make it any easier for offender to lead law-abiding life. Significant criminal history, difficult background, limited education, less suitable vehicle for general deterrence: at [21]

• Evidence established both parents drug addicts and unable to properly look after offender or provide proper role models – raised by sister who was only four years older – toxic environment of substance abuse and violence – poor school experience – developed longstanding dependence upon drugs as a result of background: at [16]-[21]
• On appeal referred to relationship between background, substance addiction and offences:

[21] In short, the applicant, a young man just two years past the age at which the criminal justice system regards one as an adult, had, by the time of the offences, developed a longstanding dependence upon prohibited drugs, no doubt largely as a consequence of his upbringing, and the psychological damage it inflicted upon him. And it was the effect of those drugs that played a central role in the offences: his gross intoxication was the aggravating feature of each of the two major counts; he claimed not to have slept for days, no doubt as a result of the ingestion of amphetamines; and that lack of sleep, combined with the direct effects of the drugs, surely played a role in his grossly dangerous mode of driving and its catastrophic consequences.

• Found sentence manifestly excessive: at [24]

• Evidence established both parents drug addicts and unable to properly look after offender or provide proper role models – raised by sister who was only four years older – toxic environment of substance abuse and violence – poor school experience – developed longstanding dependence upon drugs as a result of background: at [16]-[21]
• On appeal referred to relationship between background, substance addiction and offences:

[21] In short, the applicant, a young man just two years past the age at which the criminal justice system regards one as an adult, had, by the time of the offences, developed a longstanding dependence upon prohibited drugs, no doubt largely as a consequence of his upbringing, and the psychological damage it inflicted upon him. And it was the effect of those drugs that played a central role in the offences: his gross intoxication was the aggravating feature of each of the two major counts; he claimed not to have slept for days, no doubt as a result of the ingestion of amphetamines; and that lack of sleep, combined with the direct effects of the drugs, surely played a role in his grossly dangerous mode of driving and its catastrophic consequences.

• Found sentence manifestly excessive: at [24]

• Unprovoked stabbing during road rage incident – background of ‘social deprivation and substantial disadvantage’ including exposure to violence and alcohol abuse: at [14]

[61] Persons of Aboriginal descent are not entitled to any greater leniency than any other person. Nevertheless, as the High Court stated in Bugmy the social exclusion and disempowerment of persons of Aboriginal descent and of Aboriginal communities seems to have made an environment of violence, alcohol and drugs more prevalent in the Aboriginal community than in the total population. The answer is not longer incarceration. The answer lies in the treatment that neutralises or reverses the effect of social exclusion, disempowerment, discrimination and violent environment. It is fair to say that the respondent has taken steps towards that end.

• Sentence imposed outside range and manifestly inadequate but appeal dismissed in view of offender’s insight into offending and rehabilitation: at [62], [68]

• Offender’s deprived childhood detailed in forensic psychologist report – sexual and physical violence – mother’s drug addiction and neglect of family – offender required at times to steal food and necessities – disrupted education, learning difficulties and subsequent limited vocational history – transient accommodation including time on streets – early drug abuse – serious mental health issues: at [20]-[43]

[42] (Psychologist) concluded that the applicant’s:

“learning, social and emotional vulnerabilities has seemingly coloured much of his life including having negatively impacted his general world-view and mental health, and directly contributed to his early involvement in substance abuse, criminal behaviours and persistent antisociality thereafter”

• After finding sentence manifestly excessive Court found childhood and mental health moderated both moral culpability and relevance of general deterrence ‘by no small degree’ on re-sentence: at [90]

• Offender’s deprived childhood detailed in forensic psychologist report – sexual and physical violence – mother’s drug addiction and neglect of family – offender required at times to steal food and necessities – disrupted education, learning difficulties and subsequent limited vocational history – transient accommodation including time on streets – early drug abuse – serious mental health issues: at [20]-[43]

[42] (Psychologist) concluded that the applicant’s:

“learning, social and emotional vulnerabilities has seemingly coloured much of his life including having negatively impacted his general world-view and mental health, and directly contributed to his early involvement in substance abuse, criminal behaviours and persistent antisociality thereafter”

• After finding sentence manifestly excessive Court found childhood and mental health moderated both moral culpability and relevance of general deterrence ‘by no small degree’ on re-sentence: at [90]

• Offender’s deprived childhood detailed in forensic psychologist report – sexual and physical violence – mother’s drug addiction and neglect of family – offender required at times to steal food and necessities – disrupted education, learning difficulties and subsequent limited vocational history – transient accommodation including time on streets – early drug abuse – serious mental health issues: at [20]-[43]

[42] (Psychologist) concluded that the applicant’s:

“learning, social and emotional vulnerabilities has seemingly coloured much of his life including having negatively impacted his general world-view and mental health, and directly contributed to his early involvement in substance abuse, criminal behaviours and persistent antisociality thereafter”

• After finding sentence manifestly excessive Court found childhood and mental health moderated both moral culpability and relevance of general deterrence ‘by no small degree’ on re-sentence: at [90]

• The CCA held the applicant’s sentence did not reflect the sentencing judge’s finding that mental impairment due to brain injury and background of significant childhood deprivation should ameliorate sentences: at [50], [62]–[67], [76]; Bugmy v The Queen (2013) 249 CLR 571 at [43]–[45]
• Where an offender’s background has been so dysfunctional and deprived such that capacity to exercise sound judgments is impaired, and the level of impairment is worsened by mental illness, general deterrence will have a lesser role: at [77]–[78], [89]–[90]; DPP (Cth) v De La Rosa (2010) 205 A Crim R 1; (2010) 79 NSWLR 1
• Brain injury age 16 hit by vehicle; forgetfulness, difficulties finding words, concentration, dizziness, unclear thinking: at [32]–[33]; Mental health, episodes of uncontrolled rage where often “blacks out”, only vague memories of behaviour: at [39]–[40]

• Refugee status; refugee camp: at [32], [46]. No evidence that offender’s experience in Sierra Leone had any causal link to offending or otherwise adversely impacting on time in prison. Nevertheless, with those qualifications, the respondent had a strong subjective case: at [63] per Hoeben CJ at CL (N Adams J agreeing); Bugmy v The Queen [2013] HCA 37; 249 CLR 571.
• cf. Offender’s experience as a refugee from Sierra Leone is not necessarily irrelevant because there is no evidence of a causal link between that experience and his offending: at [72] per White JA citing Perkins v R [2018] NSWCCA 62 at [72]-[81].

• At sentence hearing for violent stabbing murder by 18 year old male psychologist report referred to offender’s childhood exposure to family violence at hands of stepfather but drew no conclusions as to possible impact on offender – on appeal all three judges considered sentencing judge understated evidence of background but, by majority, dismissed appeal
• Hoeben CJ at CL at [40]-[42] concluded no mitigation where no evidence to either infer or establish link between offender’s background and offending.
• White JA at [71]-[88] acknowledged Bugmy did not provide clear answer as to whether causal connection required but accepted background of serious social deprivation could still constitute general mitigating factor on sentence even where no such connection established – concluded in this case no lesser sentence warranted in view of seriousness of offence.
• In her dissenting judgment Fullerton J accepted there was no evidence of a causal connection between offender’s background and the offence such as to justify a reduction in his moral culpability but was prepared to take evidence into account generally as subjective mitigating factor – found error in assessment of applicant’s subjective circumstances warranted re-sentence: at [96]-[102], [136]
• Fullerton J referred to general research on effects of exposure to family violence:

[99] First, 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. Recognition of these effects and their potential for lasting harm has found expression and application in a range of academic and forensic disciplines. In curial contexts, where the safety and welfare of a child is the court’s primary concern, in particular where placement outside the family home is under consideration, the need to give full weight to the harm associated with family and domestic violence and the direct and indirect impact of that harm on a child is obvious. The potential impact of exposure to family and domestic violence is no less obvious when the subjective circumstances of an offender are assessed for sentencing purposes, irrespective of the age of the offender.

Note: Special leave to appeal to the High Court from this decision was refused on 14.12.2018

• 19 year old male sentenced as a low level dealer engaging in drug supply to support addiction – accepted evidence from mother of offender’s exposure to family violence at 15 years and consequent change in behaviour – accepted violence occurred in formative years for offender – found offender adversely affected justifying reduction in moral culpability: at [72]-[74].
• Mother’s evidence justified consideration of general research and academic writings describing psychological and behavioural impacts experienced by children exposed to domestic violence – impacts include anxiety, trauma symptoms, antisocial behaviour, low social competence, low self-esteem, mood problems, loneliness and difficulties at school: at [40]-[53].
• Rejected Crown submission that Bugmy considerations only relevant where offence was spontaneous response to frustration – compromised capacity to mature and learn from experience may be just as relevant to planned offence depending upon circumstances of offence: at [57]-[68]

[36] Here, where the offender first consumed alcohol, in relatively large quantities, at the age of five, well prior to the age of criminal responsibility or an age of rational decision-making, and was, probably by the time of criminal responsibility and certainly by the time of majority, an alcoholic or an addict in the consumption of alcohol, the notion of “voluntary” consumption of alcohol takes on a wholly different complexion.

[37] More importantly, when dealing with the Bugmy factors, one is not making allowance or mitigating for “intoxication”. The factors relate to a deprived environment of which alcohol forms part. It is the moral culpability associated with that environment for which allowance is made; not intoxication, and the state of inebriation of the offender at the precise time of the commission is not the most relevant aspect of that issue.

[38] It is probably unnecessary to resolve finally the foregoing issue, about which, no doubt, there may be different views. The reason it is unnecessary to determine the issue finally is that, as the Crown points out in its most helpful Supplementary Submissions, whether or not one can take into account intoxication as a mitigating factor, when it is a reflection of the environment in which the offender was raised “it does not impact upon the relevance of the offender’s deprived background” as a factor in sentencing. …

[39] In the current circumstances, it would be impossible, given the expert evidence, to deal with culpability and the degree of deliberation in the offender’s conduct, without considering the effect of alcohol on the offender.

…

[78] Nevertheless, the state of intoxication of the offender is a matter that tells significantly on the culpability of the offender and his background brings into play the principles embodied in the issues that relate to an environment of abuse and social exclusion which have affected Mr Russell’s executive decision-making and render him far less a person who stands as a good example for the purposes of general deterrence.

• Sentenced for violent death of young child at hands of abusive partner – sustained assault over a week
• History of extreme childhood abuse – upon death of mother lived with father – subjected to physical and psychological abuse, neglect and systemic sexual abuse by father and step-mother – isolated from extended family: at [54]-[56]
• Abuse resulted in chronic and complex mental health and personality disorders – post-traumatic stress disorder with dissociative symptoms of depersonalisation – series of violently abusive relationships with male partners based on fear of abandonment: at [51]-[61]
• Provides some explanation for failure to protect or remove daughter from partner’s abuse and justified significant reduction in moral culpability although did not relieve her of criminal liability: at [62]-[66]

[61] Dr Ellis’s views coincided with Ms Lucas’s opinion that the dissociative nature of AS’s PTSD and associated learned helplessness, compounded by difficulties in problem solving and a perception of hopelessness, provides some psychological insight into why, despite an appreciation of the severity of the abuse her daughter was subjected to and its potential consequences, she failed to remove her daughter from the risk of harm. They considered it likely that her minimisation of the level of violence was a strategy to avoid further violence and fear, conditioned from her childhood where reactivity or a response to abuse resulted in further punishment at her father’s hand.

• Also permitted some reduction for non-exculpatory duress under s.21A(3)(d) Crimes (Sentencing Procedure) Act 1999: at [70]

• Severe hearing impediment and learning difficulties suffered as a result: at [11]
• Sentencing judge accepted that intellectual deficits and hearing impediment are likely to make custody more difficult; that cognitive impairment and personality traits meant limited or no understanding of ramifications of offending conduct or insight into effect of conduct on victims. These factors provided ‘insight or some explanation’ for offending conduct: at [16]

• Very aware of applicant’s sad shocking background. It does moderate sentence but there are limits to its ameliorating influence. There was no specific evidentiary nexus established between this deprivation and the offending in question: at [229].
• Refugee; early life in Sierra Leone marked by extreme violence and trauma; refugee camp.

• Background of impoverishment, neglect and physical abuse – inadequate housing with father – removed into state care – early substance abuse – frequent encounters with criminal justice system – reinstated to mother’s care but her chronic alcoholism and lack of parental supervision resulted in juvenile detention, youth refuge and foster care: at [33]–[34]
• Bugmy principles applied generally at first instance – balanced with personal deterrence and community protection: at [35]

• Expert evidence established 29 year old offender had been exposed to physical and emotional abuse by his father as a very young child then introduced to illicit drug culture, and accompanying criminal activity and violence, by his step-father – dysfunctional childhood caused mental health issues: at [14]-[15].
• Sentencing judge erred in finding these factors were of diminished value because offender was ‘a mature man who has had ample opportunity to address his difficulties’ – contrary to Bugmy: at [21]-[22]
• On re-sentence found offender’s dysfunctional childhood and early exposure to drug culture provided ‘a compelling explanation for his addiction and ongoing involvement in criminal offences’ as well as causing his ‘significant and chronic mental health problems’ making custody likely to be more onerous: at [35]