Judgments Library

• Release application for bail in relation to very serious violence offences – requirement to ‘show cause’
• Applicant gave birth to child while in remand – unsuitable for programs permitting newborns to remain with mothers while in custody due to nature of charges
• Reference to material in Bugmy Bar Book on incarceration of parents and caregivers – separation of mother and child creates extreme trauma for both and interferes with important bonding during infancy of newborn: at [11]

[15] Taking into account the delay in the case, the separation between Ms Jones and her baby, particularly as that would impact on the infant, the applicant’s lack of a record for violent offending, and the likelihood that she will be in custody well into next year, I am satisfied she has shown cause. A number of those matters are also relevant to an assessment of risk.

• Release application for bail in relation to very serious violence offences – requirement to ‘show cause’
• Applicant gave birth to child while in remand – unsuitable for programs permitting newborns to remain with mothers while in custody due to nature of charges
• Reference to material in Bugmy Bar Book on incarceration of parents and caregivers – separation of mother and child creates extreme trauma for both and interferes with important bonding during infancy of newborn: at [11]

[15] Taking into account the delay in the case, the separation between Ms Jones and her baby, particularly as that would impact on the infant, the applicant’s lack of a record for violent offending, and the likelihood that she will be in custody well into next year, I am satisfied she has shown cause. A number of those matters are also relevant to an assessment of risk.

• Sentence for stabbing of 18 year old cousin after significant escalation of ‘playful fighting’ – instantaneous surge of anger in response to unjustified perception of threat – unlawful and dangerous act
• Accepted evidence that offender sexually assaulted by teacher in Year 9 at school – subsequent PTSD exacerbated by Hodgkins Lymphoma when 19 years old – found dysregulation and impulsivity, partly the result of his PTSD and partly the result of his youth, materially contributed to offending conduct: at [85]-[91]
• Referred to research from Bugmy Bar Book on impact of childhood sexual abuse and PTSD

[90] The Bugmy Bar Book chapter titled “Childhood Sexual Abuse” contains research which demonstrates the link between childhood sexual abuse and adverse mental health, social and behavioural issues. The literature reveals consistent associations between child sexual abuse and significant negative mental health effects such as post-traumatic symptoms, aggressive behaviour, and conduct problems. It also results in an increased prevalence in diagnoses of PTSD and the use of illicit substances to deal with the symptoms flowing from PTSD.

• Court satisfied of CSA and therefore accepted PTSD diagnosis (RG v R [2025] NSWCCA 36). Offender’s impaired capacity is a product of the PTSD which is underpinned by the trauma caused by the CSA. That trauma also contributed to his use of illicit drugs. By reason of the offender’s youth and mental health his moral culpability is reduced: at [85], [89], [94].
• “The Bugmy Bar Book chapter titled “Childhood Sexual Abuse” contains research which demonstrates the link between childhood sexual abuse and adverse mental health, social and behavioural issues. The literature reveals consistent associations between child sexual abuse and significant negative mental health effects such as post-traumatic symptoms, aggressive behaviour, and conduct problems. It also results in an increased prevalence in diagnoses of PTSD and the use of illicit substances to deal with the symptoms flowing from PTSD”: at [90].

See also R v Tsingolas [2022] NSWDC 34 (Yehia SC DCJ); R v KL [2020] NSWDC 409 (Weinstein SC DCJ) at [61].

• Psychologist expressed opinion offender exposed to ‘multiple psychosocial disadvantages identified in the Bugmy Bar Book’: at [37]
• Sentencing Judge accepted submissions by both parties that background relevant to diminishing moral culpability: at [56], [70]-[72]

• Sentence imposed for manslaughter caused by unlawful and dangerous act – while intoxicated offender became angry and punched victim to head – made victim unsteady on feet – victim later died from injuries caused by falls after offender left
• Sentencing judge took into account evidence of offender’s difficult and deprived background including domestic violence, sexual abuse, early substance abuse, interrupted schooling and homelessness under Bugmy – reduced moral culpability: at [148]
• Impact of offender’s significant periods of homelessness since young age:
  • [139] I have written elsewhere that in my view homelessness sits at the apex of disadvantage: see R v Edwards [2022] NSWDC 110 at [97]. Without a home, one cannot have visitors. It is not possible to receive mail without a fixed home address. One cannot enter a home address on an application for a driver’s licence or other identification, or for government support. Without a home, there is no access to electricity, gas or water. It is not possible to store food, clothing and other possessions safely and securely. There is no Wi-Fi, which we take for granted, and no access to the internet on which we all depend. Where does one wash? Where does one cook? How does one stay warm or dry? How does one stay safe? In the context of this case, how will those who will supervise, be able to locate him?
  • [140] Mr Rose’s homelessness is directly related to his childhood deprivation. In the future, it will be necessary for him to have a home in order to have the best chance of rehabilitation. If he has no fixed home address, it will be extremely difficult for him to access treatment from service providers, including Community Corrections and case management services. It will be difficult for him to maintain meaningful relationships, which is clear from the offender’s history to date. Ms Hübner noted that the offender’s high risk of reoffending would decline if his dynamic factors were addressed. Perhaps the easiest dynamic factor to remedy is to find him stable accommodation. In my opinion, it is of utmost importance to ensure that the offender has a home, which I believe will materially reduce the risk of his reoffending.

[47] I am also satisfied that the sentence must be structured to allow him as long as possible on parole to assist the offender to re-integrate into the community. As Dr Hughes said, Mr Gilkes is “already quite institutionalised” and “prolonged detention will reduce the opportunity to develop general life skills, which would likely already be slower for Mr Gilkes given his cognitive difficulties.” She also believed, and I accept, that the offender “will need considerable wrap-around support on his release to assist him to integrate into the community and develop basic living skills.”

[48] His condition is also relevant to sentence in that, to again quote Dr Hughes, “prolonged detention would also likely result in further negative effects on his mental health, self-esteem and self-sufficiency”.

• Imposition of sentence for assault on emergency worker – in assessing suitability of offender for Mandatory Treatment and Monitoring Order took into account impact of institutionalization and community protection: at [99]-[104]
• Referred to Amanda Howerton et al, ‘The Consolations of Going Back to Prison: What “Revolving Door” Prisoners Think of Their Prospects’ (2009) 48(5) Journal of Offender Rehabilitation 439 cited in “Institutionalisation” by Dr Robyn Shields AM and Dr Andrew Ellis in a 2024 report for the Bugmy Bar Book Project Committee at [10], p.4.:

• Sentence for burglary and assault offences
• Noted defence counsel relied on Bugmy Bar Book on ‘Childhood Infant and Perinatal Exposure to, and Experience of, Domestic & Family Violence‘ to argue offending was linked to childhood exposure to extreme dysfunction, neglect and violence: at [38]
• Accepted disadvantaged upbringing had shaped offender’s life – further recognised ongoing impact of intergenerational trauma: at [64], [65]

• Sentencing for violence offences
• Noted, in relation to one offender, counsel referred to childhood exposure to violence and quoted statistics from the NSW Bugmy Bar Book: ‘Childhood, Infant and Perinatal Exposure to, and Experience of, Domestic and Family Violence’ that 67% of children exposed to domestic violence are at risk of developing adverse mental health and wellbeing outcomes – accepted slight reduction in moral culpability: at [46]-[47]

• Application for bail by Aboriginal male charged with arson, theft and bail offences
• Referred to research material on impact of homelessness, including Bugmy Bar Book chapter – noted interplay between homelessness and overincarceration of First Nations people: at [73]-[76]
• Noted homelessness should not alone constitute unacceptable risk in consideration of bail and giving significant weight to homelessness as a factor puts Aboriginal people at a disadvantage and contributes to their overrepresentation in custody: at [77]-[79], [105]

• Application for bail by Aboriginal male charged with arson, theft and bail offences
• Considered ‘historical and ongoing discriminatory systemic factors that have resulted in Aboriginal people being over-represented in the criminal justice system, including in the remand population’ and ‘the risk of harm and trauma that being in custody poses to Aboriginal people’ as required by s.3A(1)(a) and (b) Bail Act 1977 (Vic)
• Applicant’s first time in custody and relative youth – evidence custody has had deleterious effect on his mental health – has been a victim of assault in custody:

[84] The evidence before the Court of the applicant’s experience in custody is alarming and a red flag for the potential harm being in custody poses to him.

[85] Even short periods of incarceration, including remand, can have wide-ranging detrimental impacts. There is a real and ‘high risk of harm’ and trauma to the applicant posed by his continued remand by virtue of his ‘Aboriginality alone’: Re Terei [2024] VSC 294 at [60]

[86] …

Aboriginal people continue to die in Victorian prisons at high rates, not because they are more likely to die when in prison compared to other people, but because governments are locking first peoples up at shockingly high rates. Since the [Royal Commission into Aboriginal deaths in custody], 34 Aboriginal people have died in custody, 24 in the custody of Corrections Victoria. In the past four years alone, six Aboriginal people have died in the custody of Corrections Victoria … (Yoorrook Justice Commission, Yoorrook for Justice (4 September 2023), 360)

• Bail application for 15 year old boy charged with armed robbery offence
• Noted the well-established negative impacts of incarnation on young offenders, referring to research from the Bugmy Bar Book ‘Impacts of Imprisonment and Remand in Custody’ – concluded most powerful consideration in this case is that a grant of bail will maximise the applicant’s chance of rehabilitation and minimise the long-term risk to community: at [111]-[113]

• On appeal considered whether Magistrate failed to consider and apply Bugmy principles – both appellant and Crown submissions referred to matters described in Bugmy Bar Book: at [122], [139]
• In dismissing appeal Court found even if error no substantial miscarriage: at [172]

• Imposition of sentence on juvenile in Children’s Court
• Referred to Bugmy Bar Book as setting out in detail some of the experiences relevant to many Aboriginal people – listed 16 chapters – noted juvenile in this case ‘has been exposed to many of those experiences, or his personal history is relevant to them’: at [60]-[61]

• Sentencing for multiple property and burglary offences
• Psychologist referred to ‘research from the Bugmy Bar Book’ on the significant impact of adverse childhood experiences on a child’s social and emotional wellbeing – Sentencing Judge accepted full weight to be given to Bugmy principles: at [78]
• Report also referred to observation on impact of insufficient support on release in Bugmy Bar Book, Impacts of Imprisonment and Remand in Custody: at [86]

• Sentencing for aggravated robbery offence
• Sentencing Judge referred to Bugmy Bar Book Early Exposure to Alcohol and Other Drug Abuse as documenting effects of childhood marred by exposure to drug and alcohol use – reduced moral culpability and attenuated to some degree weight given to punishment and denunciation: at [107]
• Referred to Bugmy Bar Book Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation to support importance of strengthening offender’s connections with his family, his community and his children for the purpose of rehabilitation: at [149]

• Sentencing for aggravated robbery offence
• Sentencing Judge referred to Bugmy Bar Book Early Exposure to Alcohol and Other Drug Abuse as documenting effects of childhood marred by exposure to drug and alcohol use – reduced moral culpability and attenuated to some degree weight given to punishment and denunciation: at [107]
• Referred to Bugmy Bar Book Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation to support importance of strengthening offender’s connections with his family, his community and his children for the purpose of rehabilitation: at [149]

• Psychologist report cited Bugmy Bar Book, Childhood Exposure to Domestic and Family Violence and observed “there has been mounting empirical evidence of the effects of exposure to domestic and family violence on children’s development, and a growing recognition of the ways these harms can manifest in intergenerational cycles of trauma, violence and disadvantage”: at [92]
• Psychologist confirmed that which the Elders panel reiterated, and that is the strength to be found in the offender’s cultural identity and connectedness to culture, citing Significance of Culture to Wellbeing, Healing and Rehabilitation (Dr Paul Gray and Vanessa Edwige, June 2021) at [124]

• Psychologist report referred to Bugmy Bar Book, Childhood Exposure to Domestic and Family Violence (November 2019) and Bugmy Bar Book, Impacts of Imprisonment and Remand in Custody (November 2022) : at [54], [81]
• Referred to Wellbeing Report in noting importance of culture, kin, community and country:
• [82] Ms Edwige recorded what I know to be true and that is the inextricable link for Aboriginal people between our overall wellbeing and our sense of self experienced through our expression of cultural identity and our connectedness to kin, community, and country. For the offender, as a Yuin man, this factor could be a significant source of strength if he is given the opportunity to access services that promote his healing at the same time as reinforcing the strength to be found in his connectedness to our culture. (see Significance of Culture to Wellbeing, Healing and Rehabilitation, Dr Paul Gray and Vanessa Edwige, June 2021).
• Bugmy factors given full weight: at [70]