Judgments Library

• 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]

• Deprived childhood exposed to violence and alcohol abuse by parents – due to uncontrollable behaviour placed in foster care and boys’ homes – sexual abuse while in care reported but ignored – early drug abuse and criminal offending: at [45]
• Bugmy principles applied generally at first instance to reduce moral culpability: at [47]

• Psychiatric report showed both parents substance abusers – mother used large quantities of drugs and alcohol during pregnancy – father introduced applicant to cannabis at age 5 years – daily user of cannabis by 10 years, amphetamines by 11 years and heroin by 13 years – displayed ADHD and ‘psychotic symptoms’ in teenage years although psychologist states ‘difficult to make a definitive diagnosis of applicant’s mental condition due to prodigious substance dependence’ – father’s substance abuse problems caused significant emotional neglect – criminal offending commenced at 15 years: at [10]-[27]
• Found sentence manifestly excessive – sentencing judge overstated subjective seriousness of offences and had insufficient regard to applicants’ background: at [117]

[99] We have set out the applicant’s subjective circumstances above (at [10]-[27]). Although as we indicated in dealing with Ground 1, the sentencing judge took those circumstances into account, we would respectfully disagree with his comment that not much should be made of them. It seems to us that the introduction to drugs at the age of 5 and what his Honour found to be significant emotional neglect caused by his father’s substance abuse problems along with the fact that the applicant had no relationship with his mother, were matters of significance. Further, the psychiatric and presentence reports summarised above (at [10]-[24]), which were not challenged at the hearing, demonstrate the applicant’s substance abuse had an effect both on his mental state and his overall level of functioning. These matters are significant in assessing the moral culpability of the offender: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [39], [43]-[45], although as was pointed out in that case, the inability to control his impulses may increase the importance of protection of the community: Bugmy supra at [45]; Engert (1995) 84 A Crim R 67 at 68.

• Offender’s upbringing marked by “parental criminal activity, substance abuse, severe and chronic neglect and familial violence within the home”: at [27]
• On appeal Court found Sentencing Judge had failed to give any weight to reduction of offender’s moral culpability because of emphasis on general deterrence and community protection: at [58]
• Accepted offender’s resort to violence was wholly a product of his profound childhood deprivation and youth – emphasis on reduction of moral culpability and importance of rehabilitation should have been greater than on community protection and deterrence: at [62], [65], [71]

• Juvenile offender with an upbringing marked by parental criminal activity, substance abuse, severe and chronic neglect and familial violence within the home – became a ward of the state at 7 years and moved frequently: at [26]-[35]
• Juvenile Justice report noted likely consequences of exposure to violence and relationship to offending.
• [33] … [The applicant] has a history of using physical aggression as a means to problem solve and manage conflict.
• …
• [The applicant] has a history of exposure to familial violence as a problem solving and conflict resolution strategy. It may therefore be likely that [the applicant] has developed a level of acceptance of this type of behaviour as a means to meet his identified needs and wants and as a strategy to deal with others.
• …
• [The applicant’s] offending demonstrates a direct association with his substance misuse, impulsiveness, antisocial thinking, poor decision making skills and negative peer influences.
• Found Sentencing Judge had failed to give any weight to reduction of offender’s moral culpability because of emphasis on general deterrence and community protection: at [58] youth and history of childhood deprivation required greater emphasis on rehabilitation and lesser emphasis on general deterrence: at [71]

• Offender suffered upbringing almost entirely devoid of developmental support – both parents drug addicts – father an armed robber – after father left family re-established contact when both in prison – family violence – step-father a violent and abusive criminal – constant moves around state disrupted education – mother unable to properly care for children – offender commenced substance abuse and developed mental health issues at early age: at [54]-[65]
• Psychologist report described impact of background:

[61] His early formative experiences led him to believe that unemployment, uncontrolled substance use, violence and crime were a normal part of life. This is an accurate summary of the Offender’s family life. With the exception of his grandmother, he has had no nexus to conventional and responsible social groups in the community.

[123] His background is of extreme deprivation and disadvantage in childhood, undermining his ability for suitable personality formation, emotional-regulation, stable attachment and socialisation. Severe behavioural disturbance emerged in childhood and despite external (medication and counselling) intervention, his domestic milieu was so damaging that his adjustment only worsened into adolescence, further aggravated by polysubstance use disorder and then the sudden loss of his mother when aged 16 years. He has engaged in a nihilistic lifestyle involving criminality in adolescence and early adulthood, with no understanding of how to go about navigating community life in a positive way, learning to manage his own unstable affect with substance use. In this way he has followed the sad example set for him in his childhood environment. He acknowledges the index offence in a way that suggests that he appreciates the terrible gravity of the loss, but is at this stage unable to withstand the psychological burden.”

• On sentence Bugmy principles applied to reduce moral culpability while balancing with protection of community: at [121], [145]-[146]

• Sentencing judge accepted offender’s ‘early years were extremely unsettled, chaotic, disruptive and adverse’ – born to 16 year old mother who abused drugs and alcohol during pregnancy – lived with mother until 8 years moving around the State – physically assaulted by step-father – ward of State for 6 years moving around towns and foster carers – lived 3 years with Aunt then refuges: at [51]-[54]

[55] These circumstances denied the offender any chance of learning or developing socially or mentally at school. Unsurprisingly this resulted in behavioural problems

• Background taken into account as mitigating factor on sentence:

[57] I take into account as relevant to the severity of the sentence I should impose his very disadvantageous background from birth. This appears to have led him into a criminal milieu and limited his exposure to moral guidance and example. I regard his moral culpability as to some extent reduced by this consideration. It also supports my view that he has reasonable prospects of rehabilitation.

• Sentencing judge accepted offender’s ‘early years were extremely unsettled, chaotic, disruptive and adverse’ – born to 16 year old mother who abused drugs and alcohol during pregnancy – lived with mother until 8 years old moving around the State – physically assaulted by step-father – Ward of State for 6 years moving around towns and foster carers – lived 3 years with Aunt then refuges: at [51]–[54]

[55] These circumstances denied the offender any chance of learning or developing socially or mentally at school. Unsurprisingly this resulted in behavioural problems… (mental health issues and drug abuse)

• Background taken into account as mitigating factor on sentence:

[57] I take into account as relevant to the severity of the sentence I should impose his very disadvantageous background from birth. This appears to have led him into a criminal milieu and limited his exposure to moral guidance and example. I regard his moral culpability as to some extent reduced by this consideration. It also supports my view that he has reasonable prospects of rehabilitation.

• Sentencing judge accepted offender’s ‘early years were extremely unsettled, chaotic, disruptive and adverse’ – born to 16 year old mother who abused drugs and alcohol during pregnancy – lived with mother until 8 years old moving around the State – physically assaulted by step-father – ward of State for 6 years moving around towns and foster carers – lived 3 years with Aunt then refuges: at [51]-[54]

[55] These circumstances denied the offender any chance of learning or developing socially or mentally at school. Unsurprisingly this resulted in behavioural problems… (mental health issues and drug abuse)

• Background taken into account as mitigating factor on sentence:

[57] I take into account as relevant to the severity of the sentence I should impose his very disadvantageous background from birth. This appears to have led him into a criminal milieu and limited his exposure to moral guidance and example. I regard his moral culpability as to some extent reduced by this consideration. It also supports my view that he has reasonable prospects of rehabilitation.

• Difficult childhood for aboriginal offender – father suffered from poor mental health culminating in suicide – frequent moves disrupted schooling – suffered racial abuse at school responding with anger and fists – sexual abuse – combination of these factors led to mental health problems and long term substance abuse – also resulted in ‘ young man who responded to racism forcefully becoming a chronically violent adult’: at [29], [30]
• Sentence to reflect the ‘adverse aspects of the life of this Aboriginal offender … without for a moment diminishing the value to be accorded by the criminal justice system to the life of the similarly disadvantaged Aboriginal man’: at [62], [63]

• Difficult childhood for aboriginal offender – father suffered from poor mental health culminating in suicide – frequent moves disrupted schooling – suffered racial abuse at school responding with anger and fists – sexual abuse – combination of these factors led to mental health problems and long term substance abuse – also resulted in ‘ young man who responded to racism forcefully becoming a chronically violent adult’: at [29], [30]
• Sentence to reflect the ‘adverse aspects of the life of this Aboriginal offender … without for a moment diminishing the value to be accorded by the criminal justice system to the life of the similarly disadvantaged Aboriginal man’: at [62], [63]

• Refugee background: at [86]; [212]. Life of dislocation and trauma provides context in which offending to be evaluated. Involvement in crime and willingness to resort to violence, particularly gun violence, cannot be divorced from personal histories and exposure to violence in formative years: at [73].
• Exposure to violence and dislocated family life caused psychiatric conditions; explains conduct and diminishes moral culpability to a degree: at [83].
• Such history may mitigate sentence because “a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending”: at [124]-[125]; Bugmy v The Queen (2013) 249 CLR 571 at [37], [43].
• “Social disadvantage … frequently … precedes the commission of crime.” (Bugmy at [37] citing Simpson J in Kennedy v The Queen [2010] NSWCCA 260 at [53].) The same is true of exposure to war, violence and dislocation. These matters, and their psychiatric impact, diminish culpability: at [213].
• History and psychological impact may diminish general deterrence and impact on an assessment of moral culpability, but also heightens need for protection of the community: at [208], [83], [98]; R v Engert (1995) 84 A Crim R 67.

• Court accepts expert diagnosis of FASD and impact of offender’s FASD: at [18]-[27]. Offending. Impaired reasoning powers significantly reduced capacity to understand cause and effect and the likely impact of his actions: at [22].

Remorse. “late guilty plea and slowness to acknowledge actions influenced by FASD”: at

[21], [27].

Custodial conditions. Prison will be more crushing than young offenders without a neurodisability, needs a high level of care and treatment: at [23].

Rehabilitation. Good rehabilitative prospects; “persons with FASD are not inherently dangerous”: at [23].

Further. As well as primary brain damage, full range of secondary disabilities including school failure, substance abuse, trouble with law and victimised as a consequence of undiagnosed and untreated FASD. These resulting difficulties have been severe, pervasive and lifelong: at [18].

• Given expert opinion that offending was linked to FASD and that a lengthy term of imprisonment would have a crushing effect, it was available to the sentencing judge to provide a larger combined discount for youth and psychological condition: at [24]. Culpability is reduced because of FASD and youth: at [30].
• However, final sentence not manifestly excessive: at [30].

• Traumatic brain injury age 16, motorbike accident
• Appellant had difficulty processing information and organising himself with a view to complying with legal obligations, and learning from mistakes. This explains why he failed to comply with his SORA reporting obligations. His moral culpability in relation to the breach of those obligations was thus moderated and specific deterrence had limited application: at [114]
• Moral culpability in relation to child pornography offending was not affected because expert evidence was that the appellant was able to understand that what he was doing was wrong. No causal link between ABI and child pornography: at [115]; Verdins (2007) 16 VR 269

• Evidence of deprived childhood – exposed to physical and sexual abuse – sent to live with other family members to escape violence – left home at 16 years and never had stable, independent accommodation – significant learning disability and low intelligence – drug use commenced at early age: at [26]-[36]
• Continuing impact of childhood described by sentencing judge as a life ‘bedevilled by matters of great personal crises, drug and alcohol addiction and homelessness’: at [38]
• Significance of ongoing impact of deprived childhood accepted on appeal – included lack of stability and permeance in residence:

[53] In the present case, the materials, put to the Court, on the plea, in relation to the appellant’s background and circumstances, were quite scant. Nevertheless, they were sufficient to demonstrate that the appellant had suffered a most deprived and traumatic upbringing, marked by physical and sexual abuse and violence, which had resulted in ongoing and unresolved psychological issues that have affected his conduct throughout his adult life. As a consequence of that upbringing, he had lived a life marked by significant lack of stability in terms of his residence, his employment, and his personal relationships. Those problems had been exacerbated by long standing and unresolved abuse by the appellant of alcohol and drugs. As properly accepted by the respondent in this case, the sentencing judge was correct to accept that the principles stated by the High Court in the passage from Bugmy, to which we have referred, applied to the sentences to be imposed on the appellant.

…

[57] … Most importantly, it was correctly accepted that the principles stated in Bugmy applied to the appellant, in light of his appalling background characterised by deprivation and trauma during his childhood, which had an ongoing and recurrent effect on him during his life. As a consequence of that trauma, he has suffered depression and sexual abuse trauma. He has a significant verbal learning disorder which inhibits his ability to overcome his deprived background. Those circumstances necessarily explain the unstable, if not chaotic, nature of his life since leaving home at the age of 16, characterised by the lack of any permanence in his residence, stability in his relationships, or consistency in his employment record. It also explains, at least substantially, his resort to alcohol and drug abuse. Clearly those matters need to be addressed. Taken together, they constitute strong mitigating circumstances which no doubt explain the lenient sentences imposed in respect of each charge.

• Despite strength of mitigating factors sentence not manifestly excessive in view of nature and gravity of offending and appellant’s criminal record: at [58]

• Commission of offences (at least in part) causally linked to mental impairment and drug abuse a key contributor to offending: at [67]
• Imprisonment will weigh more heavily and may have a significant adverse effect on mental health: at [47]; Verdins (2007) 16 VR 269
• General and specific deterrence should be given less weight: at [47]. Length of term of imprisonment moderated: at [48]

[50] The effect of Fernando and of Bugmy is to recognise that, in certain communities to which the circumstances in Fernando and Bugmy applied the abuse of alcohol and drugs is so prevalent and accompanied by violence that the intoxication no longer fits the description of being “self-induced”. In that way, the intoxication fits the description to which McClellan CJ at CL referred in Bourke.

…

[54] Most importantly, the learned sentencing judge took into account his finding that the applicant had used drugs of various kinds since he was 13 years of age and has been on and off a methadone programme for his heroin/morphine addiction since 2003. At the age of 13 years, the applicant was not at an age of “rational choice” that would give rise to the full responsibility for the moral culpability and the predictable consequences of a choice to become addicted: see Bourke, supra at [28], citing Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [185].

• Appeal against sentence imposed for an assault in 2009 and unrelated serious sexual offences against estranged partner in 2011 – found insufficient weight given at first instance to evidence of mental health and upbringing
• Background included physical, psychological and sexual abuse – early substance abuse – lived on street from late teens – developed serious mental health issues, substance dependence and personality disorder: at [18], [50]
• On appeal Court accepted opinion of psychiatrist that:

[37] (the offender) also has a history of poor attachment to his parents and marked behavioural disturbance in his youth. It is likely that the early onset of his alcohol abuse and the severe childhood sexual abuse, trauma and neglect he was exposed to adversely affected his personality formation and made him more prone to angry outbursts, difficulty sustaining relationships and impulsivity.

• In relation to first assault accepted upbringing and mental condition significantly contributed to applicant’s lack of control in response to provocation of victim: at [40]
• In relation to sexual offences concluded inadequate reference to, and consideration of, applicant’s background: at [88]-[91]

[90] I have set out above some of Dr Furst’s views as to the significance of the Applicant’s childhood. Indeed one hardly needs evidence that exposure and subjection to appreciable violence while a child is likely to have lasting and detrimental impacts. And it would be surprising if parents who practised such violence ever inculcated in their children proper standards of self-control, resilience in the face of adversity, and as to the treatment of others.

…

[114] When to the Applicant’s mental disability is added the impact of his upbringing, the Applicant’s offending is not to be judged by normal standards

• Appeal against sentence imposed for an assault in 2009 and unrelated serious sexual offences against estranged partner in 2011 – found insufficient weight given at first instance to evidence of mental health and upbringing
• Found on appeal inadequate weight had been given to unchallenged evidence from psychiatrist report and offender himself of significant childhood exposure to physical, psychological and sexual abuse – introduced to alcohol by uncles at 10y and using cannabis at 13y
• Background included physical, psychological and sexual abuse – early substance abuse – lived on street from late teens – developed serious mental health issues, substance dependence and personality disorder: at [18], [50]
• On appeal Court accepted opinion of psychiatrist that:

[37] (the offender) also has a history of poor attachment to his parents and marked behavioural disturbance in his youth. It is likely that the early onset of his alcohol abuse and the severe childhood sexual abuse, trauma and neglect he was exposed to adversely affected his personality formation and made him more prone to angry outbursts, difficulty sustaining relationships and impulsivity.

• In relation to first assault accepted upbringing and mental condition significantly contributed to applicant’s lack of control in response to provocation of victim: at [40]
• In relation to sexual offences concluded inadequate reference to, and consideration of, applicant’s background: at [88]-[91]

[114] When to the Applicant’s mental disability is added the impact of his upbringing, the Applicant’s offending is not to be judged by normal standards

• Whilst applicant’s tragic background in early childhood is a relevant factor (Bugmy (2013) 249 CLR 571), the applicant had adjusted well to life in Australia. In those circumstances, whilst recognising weight must be given to deprived background, the Court is not pers sentence manifestly excessive: at [76]. Appeal dismissed.
• Born in Sierra Leone; aged 6 witnessed father’s murder; refugee camp in Guinea for 10 years; 2009 migrated to Australia and successfully adapted to Australian life.