Judgments Library

• 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

• Extensive description of background described as ‘marginalisation of rural and outback aboriginal communities’ and ‘a national disgrace’: at [4] – offender’s childhood likely impacted by grandparents being part of ‘stolen generation’: at [15 – para 9] – early years spent on mission surrounded by widespread alcohol abuse – victim and witness to family violence – left unsupervised – became State Ward at 10 years and endured multiple foster homes in different towns – separated from sisters – sexual abuse – poor education meant illiterate – early substance abuse as a result of an environment that ‘normalised substance abuse’ – early contact with criminal justice system – deaf in one ear: at [15]
• Childhood experiences combined with low intellectual functioning meant poor coping skills and continued substance abuse: at [15 – para 23-25] – also easily led by negative peers: at [15 – para 28]
• On Crown appeal concluded subjective circumstances justified application of Bugmy principles and leniency of individual sentences – sentences ‘tempered with considerable compassion and … structured in such a way as to foster his rehabilitation’: at [18] – total sentence, however, manifestly inadequate and degree of accumulation increased.

• Young male from rural Aboriginal community – parents separated when offender young due to domestic violence – continued exposure to father’s alcohol abuse and violence – learning difficulty and barely literate – little employment: at [26]-[31]
• Evidence of social-economic conditions of community provided by Aboriginal Legal Service field officer– referred also to findings of the Walgett Gamilaroi Working Community in 2005 – issues include: widespread violence and alcohol abuse – severe deprivation – racism and stereotyping – inequalities and lack of opportunity – lack of resources and living conditions – welfare mentality – difficulty accessing services – low levels of literacy and numeracy – low student retention and high truancy rates – high levels of criminal and anti-social activity – unemployment: at [22]-[23]
• Evidence of extreme deprivation, substance abuse and violence within community relevant and essential to understanding and assessing moral culpability of offender:

[25] The level of substance abuse and violence coupled with the lack of opportunity gives rise to a sense of hopelessness and disempowerment amongst some members of the local community that cannot be ignored when assessing the moral culpability in the individual’s case. This offender’s history of deprivation and exposure to alcohol abuse, violence and the lack of opportunity to thrive in such an environment is intrinsically connected to his current predicament. …

[40] The uncontested evidence before me is that the community from which the offender comes and in which he has been raised has experienced an appalling degree of deprivation over a long period of time. This offender is a product of that community and it is therefore necessary for me to assess his moral culpability, bearing in mind the particular socio-economic factors that exist in his community that have inevitably had an impact upon him. Failure to do so would be a failure to fulfil the principle of individualised justice. …

…

[49] Prolonged and widespread social disadvantage has produced a community so demoralised and alienated that many within it, like this offender, have succumbed to alcohol abuse, criminal misconduct and a sense of hopelessness. That background of disadvantage and of deprivation may impact upon the individual so deeply and so broadly that it serves to shed light on matters such as, for example, the offender’s recidivism.

…

[52] This offender has grown up with alcohol abuse being a normal part of his home life and also a devastating and entrenched problem in his peer group and his community. He committed these offences whilst affected by alcohol. The offender’s self-induced intoxication is not normally to be taken into account as a mitigating factor. However, the evidence before me demonstrates that he has experienced a deprived upbringing, including exposure to significant alcohol abuse and domestic violence resulting in a dysfunctional family environment and a significant degree of disadvantage. I am satisfied that his background of deprivation operates to reduce his moral culpability and thereby mitigate the sentence.

[65] In making those remarks I record that I am conscious of, and have applied, the provision in s 21A(5AA) of the Crimes (Sentencing Procedure) Act. I have not taken into account Mr Hines’ self-induced intoxication as a mitigating feature. However, his history of deprivation and exposure to alcohol and violence are so intrinsically connected to his current predicament that his moral culpability is diminished. These matters are relevant to a proper assessment of an appropriate and just sentence in accordance with what has fallen from the High Court in both Bugmy and Munda v Western Australia.

• 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

• Offender sentenced for maliciously wounding his de facto partner with a knife – disadvantaged background included early introduction to alcohol and long-standing abuse of it within communities where such conduct is not only the norm but positively encouraged by peer group pressure

(C) It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.

(E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave 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. (pp.62-63)

• Aboriginal offender from the Kimberley region –family history of instability, alcohol abuse and violence – suffering mental illness exacerbated by alcohol abuse
• Held on appeal by Malcolm CJ sentencing judge failed to take into account offender’s history of alcohol abuse and intoxication at time of offending, his mental illness and the likely effect of imprisonment on a Kimberley Aboriginal: at 36

(Malcolm CJ)

(p.36) … Drunkenness is not normally an excuse or a mitigating factor. In particular circumstances, however, it may be relevant as a mitigating factor. In the particular circumstances of this case the applicant’s abuse of alcohol reflects the socio-economic circumstances and the environment in which he has grown up and should be taken into account as a mitigating factor in the way which I suggested in Rogers v The Queen, unreported; CCA SCt of WA; Library No 7849; 14 September 1989 at 9-13. I do not wish to repeat what I said in Rogers save to say that the substantive point which I sought to make in my judgment at 10 was:

“It is a notorious fact that the increased use of alcohol by aboriginal persons in relatively recent times has caused grave social problems, including problems of violence, in the communities in which they live. The general circumstances which have led to problems associated with the consumption of alcohol may themselves provide circumstances of mitigation …”

…

In addition, account should be taken of the impact of a sentence of imprisonment on an aboriginal person in the light of his social and cultural background. As Muirhead J said in The Queen v Iginiwuni; unreported; SCt of NT; SCC No 6 of 1975; 12 March 1975:

“Both aboriginal and white people are generally speaking subject to the same laws. For years, however, the Judges of this Court in dealing with aborigines have endeavoured to make allowance for ethnic, environmental and cultural matters …”

Relationship between Bugmy Principles and s.21A(5AA) Crimes (Sentencing Procedure) Act

At common law intoxication and substance addition could be relevant as a mitigating factor where the origin or extent of the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, including where it commenced at a very young age. See:

R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R 149; [1999] NSWCCA 111 at [273] (Wood CJ at CL)

SS v R, JC v R [2009] NSWCCA 114 at [101]-[104] (Price J, Tobias JA and James J agreeing).

Any reliance upon self-induced intoxication at the time of the offence as a mitigating factor is now prohibited by s.21A(5AA) Crimes (Sentencing Procedure) Act which commenced on 31 January 2014:

(5AA) Special rule for self-induced intoxication

In determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor.

(5B) Subsections (5A) and (5AA) have effect despite any Act or rule of law to the contrary.

In the following cases a distinction is made between using the offender’s intoxication to mitigate the circumstances of the offence, and taking into account generally an offender’s early exposure to substance abuse and subsequent intoxication and addiction according to the Bugmy principles.

• Offender Rogers a 17y Aboriginal growing up in a remote community where alcohol forbidden – heavily intoxicated at time of offence
• Malcolm CJ allowed the appeal in relation to Rogers in view of mitigating factors and similar cases. Brisenden J agreed. In dissent Wallace J referred to the need to balance the context of intoxication in Aboriginal communities with the need to provide protection and deterrence within those communities.
• In his comments Malcolm CJ affirmed the principle that all offenders were subject to the same laws of the state but that within that principle the courts were permitted to take into account the social problems caused by alcohol in Aboriginal communities: at pp.305-308

It may be inferred from that the fact that he was a full-blood tribal aboriginal of limited education, who rarely went to town, that he was relatively inexperienced with the use of alcohol. This is relevant to mitigation in the particular circumstances, although mere drunkenness would not normally be accepted as a mitigating factor. As Muirhead J said in The Queen v Iginiwuni, SupCt NT (SCC No 6 of 1975, 23-5); unreported; 12th March 1975:

“Both aboriginal and white people are generally speaking subject to the same laws. For years, however, the Judges of this Court in dealing with aborigines have endeavoured to make allowance for ethnic, environmental and cultural matters …”

It is a notorious fact that the increased use of alcohol by aboriginal persons in relatively recent times has caused grave social problems, including problems of violence, in the communities in which they live. The general circumstances which have led to problems associated with the consumption of alcohol may themselves provide circumstances of mitigation …

• In setting the sentence Malcolm CJ also took into account that Rogers would serve his imprisonment in the south of the state away from his ordinary environment: at p.311