Judgments Library

• Appeal allowed on basis disadvantage not taken into account – risk of institutionalisation a relevant consideration on resentence given applicant’s age and potentially crushing nature of sentence: at [45], [47].

• Capacity to control substantially impaired by severe, chronic post-traumatic stress disorder, depression and cognitive impairment, as a survivor of torture as a political prisoner in Ethiopia and trauma in refugee camps in Kenya and Somalia: at [2], [26]
• Extensive physical and mental disabilities as a result of background. Incarceration will be harsher due to mental state and ongoing physical pain and disability. It was in prison in Ethiopia that primary trauma of extended torture was sustained: at [39]-[40]; [46].

[102] Mr May’s drug addicted past, born of the despair and hopelessness of the communities in which he was raised, remains a feature of his overall subjective case. However, in conformity with s 21A(5AA) I have not had regard to the offender’s state of self-induced intoxication as a mitigating feature in assessing sentence.

[103] An offender’s history of early exposure to violence and drug use, and consequent drug addiction, can be relevant to the question of an offender’s moral culpability and capacity to regulate his emotions and conduct: Bugmy, at [43] – [44]. I have had regard to the offender’s drug addiction in that way, and as relevant to his future prospects.

• Offender’s difficult childhood detailed in psychologist report – abuse and violence – environment of alcohol abuse – deprivation from infancy – care provided by mother, grandmother, foster carers and institutions – homeless as a teenager – lived as victim in refuges – impact on education and subsequent employment – abuse of drugs and alcohol to block out early trauma – fits Bugmy / Fernando criteria: at [21]–[24]
• Dysfunctional childhood fundamental to assessing combination of objective and subjective features – person with dysfunctional childhood does not bear equal moral responsibility: at [30]–[32]
• Quoted Millwood [2012] NSWCCA 2 at [69]

Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions … That his background is a relevant consideration affording some (although limited) mitigation is entirely consistent with the approach taken by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58, a decision which has repeatedly been followed in this Court.

• Offender’s difficult childhood detailed in psychologist report – abuse and violence – environment of alcohol abuse – deprivation from infancy – care provided by mother, grandmother, foster carers and institutions – homeless as a teenager – lived as victim in refuges – impact on education and subsequent employment – abuse of drugs and alcohol to block out early trauma – fits Bugmy / Fernando criteria: at [21]-[24]
• Dysfunctional childhood fundamental to assessing combination of objective and subjective features –person with dysfunctional childhood does not bear equal moral responsibility: at [30]-[32]

• Both offenders had significantly disadvantaged and unstable childhood including violence, drug abuse, homelessness, neglect, poor education and early exposure to substance abuse – justified reduction in moral culpability but also relevant to questions of personal deterrence and community protection
• In circumstances of case accepted reduced non-parole period to extend period of supervision on parole justified and dismissed Crown appeal

[7] However the factual circumstances of the respondents’ offending and their antecedents acutely raises the tension between the competing sentencing purposes which judges must balance when punishing offenders for crimes borne out of great social, educational and financial impoverishment. The respondents were born into communities of entrenched social disadvantage. They were subject to parental neglect and abuse. They subsequently became homeless and addicted to drugs. These factors denied them meaningful social engagement and the development of adult moral responsibility which comes with it. On the other hand, those very circumstances remain criminogenic factors which call for community protection and deterrence.

[8] The Courts do not balance these competing considerations subjectively but by reference to a coherent body of sentencing principles and precedent. In the ordinary course, having regard to the purposes of parole, a non-parole period of less than 50 per cent of the head sentence can only be justified by good evidence of solid prospects of rehabilitation and indications that the risk of recidivism is low. There was no such evidence with respect to either of the respondents. Yet, at the time of the commission of the offences Ethram Hughes was just 18 and David Rigney-Brown 19. Sentencing principle recognises that the good reasons for differentiating between youths and adults do not vanish when the clock strikes midnight on the day before an offender’s eighteenth birthday.

[9] There are additional principle based reasons which support the relatively low non-parole periods fixed by the Judge. First, through no fault of their own, the respondents did not develop adult insights, values and responsibility because of their social deprivation and marginalisation. For that reason their moral culpability is relatively less. Secondly, the nonparole periods were significantly longer, particularly in the case of Ethram Hughes, than any earlier imposed periods of imprisonment or detention. The law of sentencing recognises that in the case of a youth incremental increases may sufficiently serve the purposes of personal deterrence. Thirdly, supervision on parole is more intensely and strongly managed than any other corrections order. The respondents have not yet had the opportunity to reform themselves through a period on parole.

• Refugee. Parents and siblings killed in Sudan; refugee camp seven years; illiterate; alcohol and drug abuse: at [35]-[36].
• Disadvantaged background properly taken into account by sentencing judge: moderation of principles of deterrence and denunciation to reflect deprivation, disadvantage and very great hardship suffered during formative years: at [35]-[36].
• Background disadvantage as reducing moral culpability while at same time increasing importance of protecting community: at [35]-[36]; Bugmy v The Queen (2013) 249 CLR 571 at [44].

• Comprehensive discussion of Australian and overseas cases and literature regarding FASD: at [3]-[25].
• Court allowed tender of additional evidence relating to FASD: at [124].
• FASD is a mental impairment: at [121]. FASD involves a spectrum of disorders. Blanket propositions about how FASD bears on the sentencing process should be avoided. Attention must be directed to details of the particular diagnosis of FASD, including nature and extent of specific disabilities and deficits, and how they bear upon the considerations relevant to sentence: at [123].
• FASD a mitigating factor: at [132]. FASD left appellant with significant deficits in cognitive, linguistic and executive functioning; compromised reasoning, logical thought and self-control: at [125]-[126]. FASD, and lived trauma, contributed to behaviour; a significant (but not sole) cause of offending: at [127]. FASD impacted upon diminished moral culpability; moderated weight as to personal and general deterrence; diminished adverse impact of primary judge’s findings that appellant acted ‘deliberately’ and ‘violently’; remorse: at [127].
• Rehabilitation: capacity for learning and positive change: at [143].

• FASD / ‘Neurocognitive disorder’ exacerbated by family dysfunction: at [75].
• Immediate term of imprisonment not appropriate. Cognitive deficits limit the general and personal deterrent effect of imprisonment. Community protection would be short-term, as time in custody will do nothing to address a cycle of offending and imprisonment on release: at [6]; [69]; [75]-[80].
• Re-sentenced to community-based option: at [83]-[85].

• Aboriginal male adopted by non-Aboriginal family at 12 months – felt like “a black fella in a white fella’s world” – trouble at school – grew up ignorant of cultural heritage – early alcohol abuse due to school experience – asked to leave home due to drinking problem: at [73]-[74]
• On re-sentence accepted that Fernando and Bugmy considerations could apply to ‘non-traditional’ cases involving social exclusion as experienced by offender: at [13] per Bathurst CJ, at [88]-[94] per Rothman J.
• Reference to studies which establish link between social exclusion and discrimination and aggression and anti-social behaviour: at [90]-[94] per Rothman J

[90] I proceeded in Lewis to rely upon studies in the United States of America relating to the effect on behaviour of social exclusion and discrimination. It is unnecessary to reiterate those comments or refer in detail again to the studies.

[91] Those studies disclose, somewhat counter-intuitively, that social exclusion from the prevailing group has a direct impact and causes high levels of aggression, self-defeating behaviours, and reduced pro-social contributions to society as a whole, poor performance in intellectual spheres and impaired self-regulation. While intuitively, for those who have not themselves suffered such extreme social exclusion, the response to exclusion would be greater efforts to secure acceptance, the above studies make clear that the opposite occurs.

[92] Thus, a person, such as the appellant, who has suffered extreme social exclusion on account of his race, even from the family who had adopted him, is likely to engage in self-defeating behaviours and suffer the effects to which earlier reference has been made. This is how the appellant has been affected.

[93] Circumstances such as that are akin to a systemic background of deprivation and are a background of a kind that may compromise the person’s capacity to mature and to learn from experience: Bugmy at [41] and [43]. As a consequence, this background of social exclusion will, on the studies to which detailed reference has been made in Lewis, explain an “offender’s recourse to violence…such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced”: Bugmy at [44].

[94] The studies by Professor Baumeister, reference to which is contained in the judgment in Lewis, make clear that such extreme social exclusion will likely result in anti-social behaviour and most likely result in criminal offending. However, in each case, there must be evidence to suggest the application of these principles and the effect of the exclusion. In this case, the evidence in relation to the appellant of that factor is substantial.

• Accepted evidence of impact of social exclusion on offender, with evidence of prospects of rehabilitation justify lesser sentence – balanced against seriousness of offending: at [98]-[99]

• Aboriginal adopted to non-Aboriginal family at 12 months – felt like “a black fella in a white fella’s world” – trouble at school – grew up ignorant of cultural heritage – early alcohol abuse due to school experience – asked to leave home due to drinking problem: at [73]-[74]
• On re-sentence accepted that Fernando and Bugmy considerations could apply to ‘non-traditional’ cases involving social exclusion as experienced by offender: at [13] per Bathurst CJ, at [88]-[94] per Rothman J
• Reference to studies which establish link between social exclusion and discrimination and aggression and anti-social behaviour: at [90]-[94] per Rothman J

[90] I proceeded in Lewis to rely upon studies in the United States of America relating to the effect on behaviour of social exclusion and discrimination. It is unnecessary to reiterate those comments or refer in detail again to the studies.

[91] Those studies disclose, somewhat counter-intuitively, that social exclusion from the prevailing group has a direct impact and causes high levels of aggression, self-defeating behaviours, and reduced pro-social contributions to society as a whole, poor performance in intellectual spheres and impaired self-regulation. While intuitively, for those who have not themselves suffered such extreme social exclusion, the response to exclusion would be greater efforts to secure acceptance, the above studies make clear that the opposite occurs.

[92] Thus, a person, such as the appellant, who has suffered extreme social exclusion on account of his race, even from the family who had adopted him, is likely to engage in self-defeating behaviours and suffer the effects to which earlier reference has been made. This is how the appellant has been affected.

[93] Circumstances such as that are akin to a systemic background of deprivation and are a background of a kind that may compromise the person’s capacity to mature and to learn from experience: Bugmy at [41] and [43]. As a consequence, this background of social exclusion will, on the studies to which detailed reference has been made in Lewis, explain an “offender’s recourse to violence…such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced”: Bugmy at [44].

[94] The studies by Professor Baumeister, reference to which is contained in the judgment in Lewis, make clear that such extreme social exclusion will likely result in anti-social behaviour and most likely result in criminal offending. However, in each case, there must be evidence to suggest the application of these principles and the effect of the exclusion. In this case, the evidence in relation to the appellant of that factor is substantial.

• Accepted evidence of impact of social exclusion on offender, with evidence of prospects of rehabilitation justify lesser sentence – balanced against seriousness of offending: at [98]-[99]

• Description of background of young Aboriginal offender revealed extreme neglect resulting in removal from mother’s care at 2 years – exposure to itinerant lifestyle, adult sexual activity, substance abuse, violence and erratic parenting – numerous foster placements – abuse – lived on streets, with friends and with mother since 14 years – associated with criminals since 7 years – disrupted education – received award under Victim’s Compensation and Rehabilitation Act for physical abuse inflicted by mother and partner – early substance abuse: at [69]–[83], [88]
• Consequences of early mistreatment included behavioural problems, increased aggression, delinquency and criminality through teenage years – PSTD: at [84]–[85]
• Difficult sentencing exercise – childhood and youth relevant to mitigation of moral culpability, deterrence and retribution – balanced with gravity of offences and other sentencing principles: at [107]–[108] (see also Simpson J at [14]–[15])

• Applicant awaiting trial for serious offences – show cause circumstances include death of brother while applicant on remand and refusal of authorities to permit attendance at funeral: at [15]

[16] The other evidence before me, which includes an affidavit of his mother and an affidavit of another brother, provides cogent evidence that this is an extremely close family and I accept that the inability of the applicant to attend the funeral created exceptional hardship. As his mother put it:

“Being in custody has been extremely difficult for him. His brother, Tolga Toksoz, 21, with whom he was very close, passed away this year, while he was in custody. He was denied access to attend the funeral. He was extremely upset about Tolga’s death and naturally remains so. He is upset not only at his passing, but also at not being able to grieve when family (this continues to today). He feels upset on a continuing basis that he did not have closure in seeing his brother before his burial and saying good bye. Ahmed is religious. In our religion it is important to farewell the spirit. Also, in our religion, the body is wrapped in cotton cloth and buried in the soil. It is only the immediate male relatives who are allowed to carry the body and bury a deceased family member. The applicant feels he failed in his duty to carry his brother’s body. He has recounted to me many sad dreams where he has been unable to say good bye to his brother, and had other dreams of burying him. He tell me he prays daily for his brother. I know his anguish would exist even if he were on bail now but it is has been and continues to be worsened by his incarnation for the reasons above and his failure to do his duty at the burial. I know he will carry that with him for the rest of his life. His unhappiness is compounded by his continued separation from us as we are all still grieving for Tolga.”

• Combination of delay, weak Crown case and exceptional personal hardship satisfies show cause requirements under ss 16A and 16B Bail Act – bail granted

[79] In accordance with s 21A(5AA), I make it clear that I have not taken into account as a mitigating feature the self-induced intoxication of the offender at the time of the offence. However, in conformity with the High Court’s judgments in Bugmy and Munda, I have taken into account the fact that the offender’s early exposure to both domestic violence and drug and alcohol abuse reduce his moral culpability and capacity to control his emotions.

• Offender stabbed female partner in back while intoxicated – Counsel on sentence submitted offender a ‘traditionally orientated aboriginal’ who grew up on missions in Western Australia and lived in remote Yatala community at time of offence – exposed to intergenerational alcohol abuse and violence – ‘living between two worlds and not coping with either’: at [19]-[20]
• On appeal Gray and Sulan JJ found the sentencing judge committed numerous errors including a failure to properly consider the link between the offender’s background of intergenerational alcohol abuse and violence and the offending: at [46]

[35] … The Judge failed to identify, in his remarks, the link between the intergenerational alcohol abuse, the circumstances of the defendant, a traditional Aboriginal man not living on-country, and his offending conduct. It would appear that the Judge failed to adequately understand the submissions of defence counsel that the defendant was living between two worlds and not coping with either because of the degrading effects of alcohol on him, on his family, upon his extended family and upon his community. He was addicted to alcohol and had no one to turn to because they were all in the same position. The question for the Judge was whether his offending behaviour was understandable and explicable in the context of his early life and upbringing on those missions and his subsequent experiences. These were matters directly relevant to an assessment of blameworthiness and culpability.

…

[49] There is little doubt that the consumption of alcohol was the precipitating cause of the defendant’s offending. His history of alcohol dependence and exposure to violence are relevant considerations. This history, as put by defence counsel, was not challenged and provides an explanation for the defendant’s conduct. His disadvantaged background is a relevant consideration in the circumstances of this proceeding.

• Refugee, fled Iraq, suffered severe physical and sexual abuse in refugee camp: at [30]-[31].
• Post-traumatic stress disorder from childhood experiences (and other mental health conditions) meant impaired mental functioning contributed to offending, reducing moral culpability and jail will be harder due to mental difficulties: at [31].

• ABI affecting frontal lobes likely due to history of severe polysubstance abuse: at [61]
• Expert psychiatric report stating: ABI relevant to commission of offences. At time of offences, acute intoxication was associated with impaired capacity to think clearly or make calm rational choices, and judgment was impaired. There was a causal association between intoxication and offending. The respondent was clearly disinhibited, and ABI is associated with a marked predisposition to disinhibition: at [5], [47]–[48]; Verdins (2007) 16 VR 269
• Crown appeal allowed. Shorter non-parole period than otherwise would have been imposed having regard to factors including ABI: at [3], [73]

• Both parents heroin addicts – father in and out of gaol – mother also imprisoned – largely left to own devices from a very early age due to parents’ drug addiction – ‘deprived of parental guidance and suffered emotional neglect’: at [37]-[38]
• Psychologist described the respondent as ‘having lived the “life script” he had been given, namely drug addiction and criminal activities to fund it.’: at [39] and having a “life path … largely predetermined, raised in a household where both parents were heroin-dependent”: at [49]
• Sentencing Judge accepted ‘respondent’s moral culpability was less than the culpability of an offender whose formative years had not been marred by having been raised in a household in which both parents were heroin dependent and, for significant periods, incarcerated as a result’: at [50]
• Crown Appeal dismissed

• Both parents heroin addicts – father in and out of gaol – mother also imprisoned – largely left to own devices from a very early age due to parents’ drug addiction – ‘deprived of parental guidance and suffered emotional neglect’: at [37]-[38]
• Psychologist described the respondent as ‘having lived the “life script” he had been given, namely drug addiction and criminal activities to fund it.’: at [39] and having a “life path … largely predetermined, raised in a household where both parents were heroin-dependent”: at [49]
• Sentencing Judge accepted ‘respondent’s moral culpability was less than the culpability of an offender whose formative years had not been marred by having been raised in a household in which both parents were heroin dependent and, for significant periods, incarcerated as a result’: at [50]
• Crown Appeal dismissed

• Young offender with aboriginal heritage – exposed to substance abuse and family violence – removed from parents at early age due to abuse and neglect – unstable childhood with multiple placements in foster care, with different family members, juvenile detention centre and children’s refuge – returned to live with mother for short period until her incarceration – moved to live with father – interrupted schooling – offender reported many of those who support him have history of engaging in antisocial and/or criminal activities at [34]-[40]
• [50] In Ms Hare’s opinion the respondent’s disrupted schooling through truancy, suspension, expulsion and periods of detention impacted upon the development of his verbal and literacy skills. She was unable to offer any definitive view as to the impact of the respondent’s sustained use of cannabis on his cognitive function, finding it difficult to disentangle its impact from the interplay of other socio-cultural factors. She did express the view, however, that the respondent’s cannabis use was likely to be superseded by his exposure to the negative influences in his childhood and early adolescence, including abuse and neglect, poor education and his generally delinquent lifestyle.
• Background of violence and substance abuse, neglect, poor role models and disrupted education identified as risk factors to future offending – required balancing of community protection with reduction in moral culpability: at [52], [103]-[107]
• Crown appeal dismissed