Judgments Library

• Sentencing judge declined to order Aboriginal sentencing conference under s 9C Criminal Law (Sentencing) Act 1988 (SA) – on appeal Court found refusal an error in exercise of sentencing discretion and sentence manifestly excessive – matter remitted for sentencing conference
• In considering validity and purpose of sentencing conference Gray J referred to importance of using conference to identify and understand risk factors associated with criminal offending – referred to findings of Royal Commission into Aboriginal Deaths in Custody and other studies which showed such factors more prevalent in Aboriginal populations – importance of Courts being alert to possible relevance of factors including childhood separation from families, social marginalisation, intergenerational cycle of abuse and violence, lack of education and unemployment, poor health and alcohol abuse in relation to Aboriginal offenders and cultural dispossession: at [41]–[51]

[49] There remains a high level of incarceration of Aboriginal people. In the 20 years following the Royal Commission report, the proportion of Aboriginal prisoners has almost doubled. As at 30 June 2013, there were 8,430 prisoners who identified as Aboriginal and Torres Strait Islander, representing just over one quarter, 27%, of the total prisoner population of 30,775.47 It has been noted by the Indigenous Justice Clearinghouse that: 48

… Indigenous offenders are particularly over-represented in acts intended to cause injury, public order offences, offences against justice and unlawful entry … Indigenous offenders are younger than non-Indigenous offenders, have their first contact with the justice system at a younger age, and are more likely to be repeat offenders. High risk alcohol consumption is a significant risk factor, as is socioeconomic disadvantage. Risk factors around dispossession, colonisation and child removal are more difficult to measure, but are thought to have contributed to social disorganisation and an intergenerational cycle of violence.

[50] The overrepresentation of Aboriginal people in prison demonstrates an ongoing need for the criminal justice system to be alert to the factors that create a risk of offending. In 1997, the Human Rights and Equal Opportunity Commission49 in its National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families: Bringing Them Home Report found that “[a]n entrenched pattern of disadvantage and dispossession continues to wreak havoc and destruction in Indigenous families and communities.” 50 It noted the ongoing relevance of the removal of Aboriginal people from their family:51

Social justice measures taken by governments should have special regard to the inter-generational effects of past removals. Parenting skills and confidence, the capacity to convey Indigenous culture to children, parental mental health and the capacity to deal with institutions such as schools, police, health departments and welfare departments have all been damaged by earlier policies of removal.

Unless these conditions are altered and living conditions improved, social and familial disruption will continue. Child welfare and juvenile justice law, policy and practice must recognise that structural disadvantage increases the likelihood of Indigenous children and young people having contact with welfare and justice agencies. They must address this situation.

[51] More contemporary evidence also demonstrates that the risk factors which the Royal Commission identified as contributing to interaction with the legal system, such as poor health, limited education and unemployment, continue to be statistically more prevalent in Aboriginal communities.52 It has been suggested that the risk factors for offending by Aboriginal people are largely similar to those for the wider population, but that the higher incidence of such factors may explain higher rates of offending.

Further, there exist risk factors specific to Aboriginal people, including forced removal, which have an intergenerational effect.53 It has been suggested that:54

… Policies of child removal and institutionalisation have severely damaged the parenting capacity of many Indigenous people. Many parents are further incapacitated by their poor health, substance abuse and by imprisonment. Poor parenting is a very significant risk factor for offending …

Of great concern is the identification of an intergenerational cycle of abuse and violence. Indigenous children frequently witness or experience violence, which is normalised and increases the risk that they themselves will use violence …

49 Now known as the Australian Human Rights Commission.

50 Human Rights and Equal Opportunity Commission, Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families: Bringing Them Home Report (April 1997) 559.

51 [Ibid] 557.

52 See for example the findings of the Steering Committee for the Review of Government Service Provision, Overcoming Indigenous Disadvantage: Key Indicators 2011 (25 August 2011) Australian Government Productivity Commission.

53 Dr Troy Allard, Understanding and preventing Indigenous offending: Brief 9 (December 2010) Indigenous Justice Clearinghouse http://www.indigenousjustice.gov.au/briefs/brief009.pdf

54 [Ibid].

[105] There is the loss of personal autonomy and of privacy, and the associated loss of control over choice of activities and choice of associates. The prisoner is subject to strict discipline, restriction of movement, forced association with other prisoners and — for a substantial part of each day — confinement in a small cell (in many instances, a cell shared with a cellmate not of the prisoner’s choosing). There is, moreover, exposure to the risks associated with the confinement of large numbers of people in a small space — violence, bullying, intimidation.

…

[107] Importantly for present purposes, these features of the restrictive prison environment also have the consequence that the opportunities, and incentives, for rehabilitation are very limited. For example, there is no access to sustained treatment for psychological problems or addiction. Access to anger management and sex offender treatment programs is rationed, and such programs are often unavailable to those sentenced to short prison terms.

[108] In addition, imprisonment is often seriously detrimental for the prisoner, and hence for the community. The regimented institutional setting induces habits of dependency, which lead over time to institutionalisation and to behaviours which render the prisoner unfit for life in the outside world. Worse still, the forced cohabitation of convicted criminals operates as a catalyst for renewed criminal activity upon release. Self-evidently, such consequences are greatly to the community’s disadvantage.

[109] These same points were made with great force 40 years ago by Fox J in R v Dixon (1975) ACTR 13 at 19-20. His Honour said:

In general, but by no means always, persons convicted of serious crime are the maladjusted people of the community, and some will have developed serious behavioural problems. … Unfortunately, gaol may well make their anti-social tendencies worse. This is not always the case; sometimes the experience of gaol effects a real improvement. Nevertheless, I think it is well accepted that it is so in most cases; at least where the sentences are at all long. The reasons are obvious enough: the prisoners are kept in unnatural, isolated conditions, their every activity is so strictly regulated and supervised that they have no opportunity to develop a sense of individual responsibility, they are deprived of any real opportunity to learn to live as members of society, their only companions are other criminals, some of whom are bound to be quite vicious, their sex life must be unnatural, scope for psychiatric treatment is very limited, if not non-existent, and employment is limited and stereotyped. To many this must seem one of the most absurd aspects of the whole matter. They may well ask why the system has to be so anti-social in operation, why it cannot be improved so that people for whom there is a prospect of reformation, and who are not so dangerous that they have to be kept in strict confinement, are given a real opportunity for self-improvement. The irony is that prison authorities are among the strongest advocates of reform.

…

When, therefore, a court has to consider whether to send a young person to gaol for the first time, it has to take into account the likely adverse effects of a gaol sentence. A distinct possibility, particularly if the sentence is a long one, is that the person sent to gaol will come out more vicious, and distinctly more anti-social in thoughts and deed than when he went in. His own personality may well be permanently impaired in a serious degree. If he could be kept in gaol for the rest of his life, it might be possible to ignore the consequences to society, but he will re-enter society and often while still quite young. His new-found propensities then have to be reckoned with. A substantial minority of persons who serve medium or long gaol sentences soon offend again.

[110] In 2013, this Court in DPP v Anderson (2013) 228 A Crim R 128 endorsed Fox J’s criticisms:

There is no reason to believe that in 2013 the adult prison system has changed sufficiently to remove these concerns, notwithstanding considerable efforts by many people over a long period. The community would still ask today, as his Honour suggested then, why the prison system has to be ‘so anti-social in operation, why it cannot be improved so that people for whom there is a prospect of reformation are given a real opportunity for self-improvement’. Time and again, courts are told that correctional authorities are simply not adequately resourced to provide the sorts of facilities which are essential if those in prison — many of whom have very serious psychological and behavioural problems — are to be meaningfully rehabilitated and assisted so that, when they are released, they will have some real prospect of reintegration into the community.

[12] The appellant is an Aboriginal man who was raised in Wilcannia, a town in far-western New South Wales. He is one of a number of siblings. He grew up in a household in which alcohol abuse and violence were commonplace. He has had little formal education and is unable to read or write. …

• Aboriginal offender whose background included growing up in a household where alcohol abuse and violence commonplace – limited formal education – commenced alcohol and drug abuse at 13 years of age – saw father stab his mother 15 times – all offender’s siblings had criminal records and offender commenced own record at 12 years of age – spent many years in custody – mental health issues possibly from alcohol: at [12]-[13]

[40] Of course, not all Aboriginal offenders come from backgrounds characterised by the abuse of alcohol and alcohol-fuelled violence. However, Wood J was right to recognise both that those problems are endemic in some Aboriginal communities, and the reasons which tend to perpetuate them. The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.

…

[43]…. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, 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.

[44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.

• Aboriginal offender whose background included growing up in a household where alcohol abuse and violence commonplace – limited formal education – commenced alcohol and drug abuse at 13 years – saw father stab his mother 15 times – all offender’s siblings had criminal records and offender commenced own record at 12 years – spent many years in custody – mental health issues possibly from alcohol: at [12]-[13]

[40] Of course, not all Aboriginal offenders come from backgrounds characterised by the abuse of alcohol and alcohol-fuelled violence. However, Wood J was right to recognise both that those problems are endemic in some Aboriginal communities, and the reasons which tend to perpetuate them. The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.

…

[43] The Director’s submission should be accepted. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, 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.

[44] Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase

• Loveridge’s background included gross neglect from an early age – forced to shop and care for siblings at age 6 years until placed in foster care – evidence of serious mental health problems and problematical behaviour by age 7 years – by age 16 years anger management problems, poor impulse control and anti-social behavioural issues including criminal activities – living in unauthorised and inappropriate placements or on the street – poly-substance abuse: at [36]–[40]
• Relationship of background to moral culpability taken into account

[43] Taking all this material together, it is, I think, appropriate to deal with Loveridge on the basis that, as a result of circumstances beyond his control, his insight into the true moral character of his actions and his ability to exercise judgment about them was significantly less than that of a young person of his age who had grown up in a healthy and supportive familial situation. To these problems must be added the immaturity which is the natural concomitant of his age. Though on one level he was well capable of glib, indeed cunning denials and creative lies, yet they were exposed with relative ease. Nevertheless, I have no doubt that Loveridge well, if incompletely, appreciated the moral and criminal culpability of his actions although I rather think that his callousness was significantly contributed to, if not entirely caused by, the warped moral world that shaped his upbringing.

• AB removed from parents at 12 months of age due to neglect, physical abuse, exposure to heroin abuse and domestic violence – multiple placements with extended family and foster carers – standard of care ‘uneven’ – resisted appropriate boundaries – continued exposure to violence at instance of mother – transient accommodation – family and extended family all have criminal records – limited schooling – early substance abuse – pre-sentence report suggests developed belief ‘violence is a normal part of life’ – poor insight: at [44]–[50]
• While deprived backgrounds to be given full weight on sentence must be balanced with protection of community in view of demonstrated inability to control violent impulse – dangerous individuals: at [55]–[56]

• Homeless, indigenous woman with chronic substance abuse problem sentenced to imprisonment for breaching move on order and carrying article with intent to cause fear – long history of nuisance offences
• Held on appeal sentence manifestly excessive and failed to take into account offender’s socio-economic disadvantage – referred to Neal (1982) 149 CLR 305; Fernando (1992) 76 A Crim R 58 and Churchill [2000] WASCA 230: at [44]-[48]

[48] In the present case I accept that the appellant’s offences were a consequence of her long-term issues of substance abuse which, in turn, are particular problems in the Aboriginal community of which she is a part. Her Aboriginality explains and throws light on the particular offences and her circumstances. The appellant’s position of disadvantage and her addictions were factors that had to be taken into account in order to have a proper understanding of the seriousness of her offending. The magistrate erred by failing to take into account these factors. Accordingly, leave must be granted in respect of ground 2.

• Pre-sentence report based on interview with offender, mother, consultations with psychologist and counsellor and psychiatric assessment.

Although aged 12 at time of offending, respondent’s mental age was 9: at [8], [22].

Lack of appropriate sexual education and developmental immaturity arising from FASD may have contributed to offending: at [8]-[9].

FASD can result in: cognitive and behavioural deficits including mental retardation, learning difficulties, hyperactivity, attention deficits and poor social skills, impulsiveness, difficulty foreseeing consequences of actions, poor sense of personal boundaries, lack of judgment and susceptibility to peer pressure: at [9].

• This is not a case where detention had to be imposed: at [46]. The respondent’s age, both actual and mental, and absence of any convictions or offending strongly militated against the recording of a conviction: at [50].

• The effect of incarceration in an adult prison on a young offender will more likely impair, rather than improve, prospects of successful rehabilitation. Imprisonment for any substantial period carries the recognised risk that anti-social tendencies may be exacerbated. The likely detrimental effect of adult prison on a youthful offender has adverse flow-on consequences for the community: at [36]; R v Mills (1998) 4 VR 235.

• ABI due to motor accident followed by increased drug use and dependence. Psychotic episode leading to commission of offences
• Mental state deficiencies significantly mitigated moral culpability; and reduced need for denunciation, general deterrence and punishment. Likely effects of imprisonment and mental state also justify a more merciful and directed sentence: at [14]–[16]; Verdins (2007) 16 VR 269
• A shorter non-parole period is imposed. Appellant’s mental state and need for a substantial period of supervised treatment is more just, and would more probably deter re-offending: at [22]–[24]

• Hearing disability had resulted in a quite profound effect on offender’s development with particular reference to his ability to engage socially; immature for age (aged 20–22): at [54], [70].

• Significant brain injury from childhood accident resulting in mild intellectual impairment
• Sentencing judge found: Offence linked to mental illness exacerbated by continuing abuse of drugs; Causal connection between mental health and offence reduced the importance of general deterrence: at [20]; Special circumstances based on ABI would make prison more onerous: at [24]; Impaired intellectual functioning (inability to control temper; extreme outbursts of anger) reduces moral culpability; Offence less objectively serious than otherwise would have been: at [35]
• [CCA determined issue as to provocation only. Appeal dismissed].

• Respondent aged 18y at time of escape from minimum security prison

[13] … Although he was found to lack insight into his offending behaviour, the sentencing judge appeared to accept that he was still affected by the authorities’ decision not to allow him to attend his father’s funeral which had taken place only shortly before he escaped from custody. His Honour acknowledged that he had strong family ties but described his rehabilitation prospects as “clouded”.

• All three offenders raised in deprived circumstances, in an indigenous community where alcohol abuse and violence were commonplace: at [42]
• After reviewing relevant cases the Court summarised the principles relating to the relevance of childhood disadvantage: at [46] and made the following comments:

[50] The prevalence of disadvantage within indigenous communities does not diminish its significance for the individual offender. On the contrary, membership of a community where disadvantage is widespread might compound the difficulties suffered by a particular individual. The social and economic disadvantages often found in indigenous communities are powerful considerations. The fact that disadvantage amongst members of an indigenous community is widespread must not be allowed to reduce the impact of disadvantage as a sentencing factor in a particular case.

[51] In the present case, the sentencing judge appreciated that he had to assess the extent to which the circumstances of the upbringing of the respondents – social, environmental and cultural factors – assumed a significance in the application of sentencing principles. Their backgrounds might explain the presence or absence of motive; identify influences which had contributed to the commission of the offence; or reveal circumstances relevant to the nature of the sentence which should be imposed. But background will not necessarily be a mitigating circumstance. As Franklin J said in R v E (a child):

Whilst the factors of Aboriginality, ethnic oppression, socio-economic deprivation, family environment and similar matters or any of them may have relevance in a particular case to the appropriate sentence to be imposed on an offender, none of them is self-executing in the sense that its mere existence necessarily requires a reduction of the penalty otherwise appropriate to the offence.

[52] The deprived background of the respondents was relevant to an assessment of the weight to be given to both general and specific deterrence. As Derrington J said in Yougie:

Of highest importance is the deterrent effect for the protection of potential victims and the turning of the court’s face against violence as a general proposition is justifiable. At the same time it would be wrong to fail to acknowledge the social difficulties faced by Aboriginals in this context where poor self image and other demoralising factors have placed heavy stresses on them leading to alcohol abuse and consequential violence. Its endemic presence in these communities, despite heavy prison sentences, is proof of the serious problem and, to some extent, the limited nature of deterrence in this social context.

[53] The respondents’ deprived upbringing was also relevant to a consideration of their alcohol abuse and its contribution to the commission of the offence. The sentencing judge was entitled to consider the extent to which, as a result of the respondents’ backgrounds, their chronic alcohol abuse was the result of a diminished choice. As we have noted, the abuse of alcohol reflected the environment in which each respondent grew up. As Wood J said in Fernando, there needs to be:

realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities and the gross social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.

• Applying these principles to this case the court concluded the mitigatory effect of the offenders deprived and dysfunctional background could be given little weight in view of their criminal history, their chronic alcohol abuse and the circumstances of the offending: at [61] The Crown appeal was allowed and the sentences increased.

• Adjustment disorder with chronic depressed mood caused by stress of trial and inability to attend father’s funeral in Nigeria

[31] While he has been in custody he has been examined by a respected psychiatrist, Dr Jonathon Carne, who, not surprisingly, finds that he had an adjustment disorder with depressed mood, which has become chronic. Dr Carne attributes this depressive reaction to a series of stresses, notably the trial, but also to one other factor, namely the fact that he has been on bail pending the trial and because of his bail conditions, he was unable to travel to Nigeria for the funeral of his father. He is the oldest of several children and he told both Dr Carne and the probation officer that the eldest son is expected to play a leading role in the funeral. His inability to do so has caused him distress. Clearly, he is suffering from a psychiatric condition and Dr Carne recommends that he be treated for it. I will direct that when he is returned to custody, a copy of Dr Carne’s report be provided to the Department of Corrective Services to go with him.

• Taken into account in favour of offender are main points from expert report: at [24] –
• Delayed trauma reaction due to hardship and persecution of childhood refugee experiences.
• Traumatic childhood refugee experience likely have led offender to perceive violence to be particularly threatening, acting as trigger to violent past memories and over-reaction.
• Inability to control violent reaction to deceased’s behaviour traced back to horrific experiences as a child-refugee.
• Disrupted education, lack of fluency in English and strained childhood likely impacted on ability to cognitively manage effectively in threatening situations.
• Finding that offender will not behave in this manner again and represents no continuing threat to safety of the community: at [29].

• Court accepted neuropsychologist’s opinion of causal relationship / significant role of brain injury and commission of offences: at [11]; Verdins (2007) 16 VR 269
• Inappropriate vehicle for general deterrence; applicant has been rehabilitated; mental and physical ill health likely to render prison more onerous: at [12]
• Brain injury aged 14, fell from racehorse

• Subjective mitigating factors considered by sentencing judge include inability to attend mother’s funeral

[23] There is another issue arising from the offender’s custodial situation which warrants consideration. It is described in the following terms by the author of the pre-sentence report:

Mr King made various applications to visit his mother who became seriously ill after an initial stroke in February 2005, then again on 28th October when she suffered a second stroke. Despite an urgent request from the offender’s solicitors, his application to attend his mother’s hospital bed and funeral were denied. A report dated 31st October 2005 stated that, although there were no relatives of the victim housed at Broken Hill at the time, the family feud and “hostility in the community” towards the offender and his family may cause problems for the offender’s partner.

In response, a letter from a community worker requesting information as to why the offender was not granted permission to attend his mother’s bedside and funeral (held on 11th November 2005) was referred to the Commissioner on 18th November 2005. A Departmental report dated 4th December 2005, in response to this, stated that local issues and association problems, the nature of the offence, and risk of being assaulted at Broken Hill were all factors in denying Mr King his request. The report also noted that, due to the seriousness of his mother’s condition, he may not have reached her bedside in time to see her.

[24] Whatever be the merits of the situation, it is not difficult to appreciate how disconcerting it must have been for the offender not to be able to attend his mother’s bedside and funeral.

• Childhood included violence at hands of father and racial vilification at school – offender responded to vilification by self-harming: at [18]-[21]
• Combination of Aboriginality, racial vilification at school and childhood experiences led, in part, to development of Borderline Personality Disorder: at [44]

[45] Dr Lloyd was relying on principles formulated by Dr Linehan in his published works, Skills Training for Treating Borderline Personality Disorder and Cognitive Behavioural Treatment of Borderline Personality Disorder, the Guildford Press New York. Dr Lloyd applied those principles to this case when he wrote:

“Deemed self invalidation. Dennis’ early childhood experiences were fragmented invalidating and dangerous. All through his childhood he experienced racial vilification at school.”

[46] Dr Lloyd expressed the view that the conduct of the offender towards the child, namely, the months of physical harm, with the harm becoming lethal for the child, “describes a set pattern of behaviour that contributes to describing Dennis’ personality”. Dr Lloyd saw the racial vilification as playing a part in the onset of the Borderline Personality Disorder.

• Accepted there was no error in sentencing judge applying Fernando principles: at [48]
• Despite subjective mitigating factors sentence found to be manifestly inadequate: at [68]

• Conditions of suspended sentence included to remain away from Wilcannia during term of sentence unless, upon prior application to sentencing judge, permitted to do so: at [38]
• Condition intended to assist appellant in drug rehabilitation while providing exception for attendance at funerals:

[45] However, his Honour recognised that Mr Bugmy may need to attend the funeral of a relative. He said this: (ROS p13)

“I acknowledge that there are obligations imposed on all Aboriginal people to attend funerals. I would not do anything to stop Mr Bugmy attending a funeral in Wilcannia, but I would be requiring him to get my consent before he did it; not just turn up. If he turned up for a funeral he could anticipate the consent would be given on strict conditions. It would mean he would go and he would return, and he would get into no trouble in Wilcannia. There is only one way he could stay out of trouble in Wilcannia and that would be to refrain from drinking.”

• Condition of bond quashed on appeal – unduly harsh and unreasonable: at [71]