Judgments Library

• 22 year old Aboriginal man with childhood marked by disruption and dysfunction – consistently exposed to substance abuse, family violence, and neglect – risk of becoming institutionalised – importance of extended period of supervision upon release from custody – imposed sentence of 3 years 2 months imprisonment, suspended after 14 months with conditions including engaging with Aboriginal rehabilitation services

[76] The offender has engaged in serious offending since becoming an adult and is consequently familiar with the custodial environment. Ms Edwige recorded that the offender is comfortable in the custodial environment because of the predictability and routine it provides. There is a risk I think, of him becoming institutionalised. This view fits with the offender’s concerns about his current capacity to comply with the strict regime of supervision that accompanies an Intensive Correction Order (ICO) such that it would “set him up to fail”. It is of concern that such a young man would feel more certain of his prospects of success in a custodial environment than he would with significant supports in the community.

[77] Rehabilitation is a pursuit in both the offender and the community’s interests, it being the most durable guarantor of community protection: Hogan v Hinch [2011] HCA 47; 243 CLR 506 at [32].

…

[86] …The effect on the offender of incarceration in an adult prison at this stage in his life is likely to hinder rather than enhance his capacity for rehabilitation. This includes the risk that the environment, as well as the anti-social attitudes it houses, will become normalised.

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[101] There is a compelling basis upon which to conclude that an extended period of supervision would provide the offender with the best opportunity to pursue rehabilitation in the community. This will be the longest period the offender has ever spent in full-time custody and his release back into the community, given the predictability of prison life, may be a difficult experience requiring significant support over an extended period.

• 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]
• Sentencing Judge 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]-[71]

• Observed importance of connection to community and culture to offender’s long-term healing and rehabilitation citing Vanessa Edwige and Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report commissioned by the Bugmy Bar Book Committee, June 2021): at [73]

• Observed importance of connection to community and culture to offender’s long-term healing and rehabilitation citing Vanessa Edwige and Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report commissioned by the Bugmy Bar Book Committee, June 2021: at [73]

• Psychologist report tendered on behalf of offender noted review of contents of Bugmy Bar Book: at [169]
• Report further referred to Bugmy Bar Book in concluding: at [173]
• [The offender] reported a history which indicated that he experienced a high degree of disadvantage and deprivation due to childhood sexual abuse, multiple occasions of early exposure to family violence by multiple partners, early exposure to alcohol and drug abuse by his mother’s various partners (as well as getting marijuana from his mother during his mid-teens). These issues have been reviewed earlier in this report and are all considerations noted by the Bugmy Bar Book as resulting in intergenerational cycles of trauma, violence and disadvantage. Further, the Bugmy Bar Book has noted that there is a “robust body of research evidence (which) clearly demonstrates the link between child sexual abuse and a spectrum of adverse mental health, social, sexual, interpersonal and behavioural as well as physical health consequences.

• Evidence of successful engagement in formal rehabilitation program justified suspended sentence for serious offences

[65] The role of the Glen program in assisting Mr Welsh must also be acknowledged. Culturally sensitive programs such as the Glen can be of immense importance: see Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing Healing and Rehabilitation (Report, Public Defenders (NSW), The Bugmy Bar Book Project, June 2021), 19 – 40. As that report notes, “strong cultural supports and programs in communities that help facilitate the building of healthy communities ‘will facilitate the successful reintegration of Indigenous offenders once they leave custody, while also reducing the likelihood of Indigenous people commencing a criminal trajectory’” (at 32 [130]). As Mr Welsh explained, it was “the whole experience” of the Glen program which has been so critical to his rehabilitation.

(see earlier related judgment below)

• Evidence of successful engagement in formal rehabilitation program justified suspended sentence for serious offences

[65] The role of the Glen program in assisting Mr Welsh must also be acknowledged. Culturally sensitive programs such as the Glen can be of immense importance: see Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing Healing and Rehabilitation (Report, Public Defenders (NSW), The Bugmy Bar Book Project, June 2021), 19 – 40. As that report notes, “strong cultural supports and programs in communities that help facilitate the building of healthy communities ‘will facilitate the successful reintegration of Indigenous offenders once they leave custody, while also reducing the likelihood of Indigenous people commencing a criminal trajectory’” (at 32 [130]). As Mr Welsh explained, it was “the whole experience” of the Glen program which has been so critical to his rehabilitation.

Note: see earlier related judgment below

• Imposition of sentence after cancellation of Treatment Order
• Considered impact of exposure to family violence as a child:
• [27] In determining the appropriate non-parole period, weight must be given to the lines of force that shaped your life as a child that continue to impact you today. The pre-sentence report prepared for your original sentence, dated 22 June 2023, records that as a child you were exposed to family violence both as a witness and a victim. You had experiences no child should have to face. This exposure and the lack of safety and stability you experienced as a child is key to understanding your challenges with addiction and your resort to violence: Bugmy [2013] HCA 37; 249 CLR 571 (Bugmy) at [44]; see generally, Bugmy Bar Book Committee (eds), ‘Childhood Exposure to, and Experience of, Domestic and Family Violence’, Bugmy Bar Book (May 2024) at [36]-[44].

• Imposition of sentence after cancellation of Treatment Order
• Considered impact of exposure to family violence as a child:

[27] In determining the appropriate non-parole period, weight must be given to the lines of force that shaped your life as a child that continue to impact you today. The pre-sentence report prepared for your original sentence, dated 22 June 2023, records that as a child you were exposed to family violence both as a witness and a victim. You had experiences no child should have to face. This exposure and the lack of safety and stability you experienced as a child is key to understanding your challenges with addiction and your resort to violence: Bugmy [2013] HCA 37; 249 CLR 571 (Bugmy) at [44]; see generally, Bugmy Bar Book Committee (eds), ‘Childhood Exposure to, and Experience of, Domestic and Family Violence’, Bugmy Bar Book (May 2024) at [36]-[44].

• Sentencing of Aboriginal man for family violence offences

[60] I do not know whether connection to culture is important to you. If it is important to you, then you should know that strengthening this connection may be beneficial to your wellbeing, healing, and rehabilitation: Vanessa Edwige and Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report, June 2021).

• Significantly disadvantaged childhood including exposure to heroin abuse of mother:

[61] … Research establishes “that children in families with parental or carer substance abuse are at greater risk of a range of adverse developmental outcomes”. It “may increase the likelihood of children being substance misusers themselves and being involved in the juvenile justice system”: Bugmy Bar Book Project Committee (eds), ‘Early Exposure to Alcohol and Other Drug Abuse’ Bugmy Bar Book (November 2019).

• Disrupted schooling is significant disadvantage: Bugmy Bar Book Project Committee (eds), ‘Interrupted School Attendance and Suspension’ Bugmy Bar Book (October 2023)
• Drug and Alcohol Treatment Order imposed

• Sentencing of Aboriginal man for family violence offences
• Significantly disadvantaged childhood including exposure to heroin abuse of mother:

[61] You experienced significant disadvantage as a child. Your mother was dependent on heroin prior to and after you were born. She and your father separated when you were two. You stayed in her care despite her ongoing use of heroin until you were four or five years of age. These are formative years for a child. Research establishes “that children in families with parental or carer substance abuse are at greater risk of a range of adverse developmental outcomes”. It “may increase the likelihood of children being substance misusers themselves and being involved in the juvenile justice system”: Bugmy Bar Book Project Committee (eds), ‘Early Exposure to Alcohol and Other Drug Abuse’ Bugmy Bar Book (November 2019).

• Disrupted schooling also a significant disadvantage:

[65] You left school in Year 8, having experienced behavioural challenges, and completed Year 10 [redacted]. The disruption of your schooling is a significant disadvantage: see, generally, Bugmy Bar Book Project Committee (eds), ‘Interrupted School Attendance and Suspension’ Bugmy Bar Book (October 2023)

• Childhood disadvantage reduces extent to which offender can be considered appropriate vehicle for general deterrence: at [84]
• Drug and Alcohol Treatment Order imposed

• Sentencing of Aboriginal man for family violence offences

[60] I do not know whether connection to culture is important to you. If it is important to you, then you should know that strengthening this connection may be beneficial to your wellbeing, healing, and rehabilitation: Vanessa Edwige and Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report, June 2021).

• Significantly disadvantaged childhood including exposure to heroin abuse of mother:

[61] … Research establishes “that children in families with parental or carer substance abuse are at greater risk of a range of adverse developmental outcomes”. It “may increase the likelihood of children being substance misusers themselves and being involved in the juvenile justice system”: Bugmy Bar Book Project Committee (eds), ‘Early Exposure to Alcohol and Other Drug Abuse’ Bugmy Bar Book (November 2019).

• Disrupted schooling is significant disadvantage: Bugmy Bar Book Project Committee (eds), ‘Interrupted School Attendance and Suspension’ Bugmy Bar Book (October 2023)
• Drug and Alcohol Treatment Order imposed

• Sentencing of Aboriginal man for family violence offences
• Significantly disadvantaged childhood including exposure to heroin abuse of mother:

[61] You experienced significant disadvantage as a child. Your mother was dependent on heroin prior to and after you were born. She and your father separated when you were two. You stayed in her care despite her ongoing use of heroin until you were four or five years of age. These are formative years for a child. Research establishes “that children in families with parental or carer substance abuse are at greater risk of a range of adverse developmental outcomes”. It “may increase the likelihood of children being substance misusers themselves and being involved in the juvenile justice system”: Bugmy Bar Book Project Committee (eds), ‘Early Exposure to Alcohol and Other Drug Abuse’ Bugmy Bar Book (November 2019).

• Disrupted schooling also a significant disadvantage:

[65] You left school in Year 8, having experienced behavioural challenges, and completed Year 10 [redacted]. The disruption of your schooling is a significant disadvantage: see, generally, Bugmy Bar Book Project Committee (eds), ‘Interrupted School Attendance and Suspension’ Bugmy Bar Book (October 2023)

• Childhood disadvantage reduces extent to which offender can be considered appropriate vehicle for general deterrence: at [84]
• Drug and Alcohol Treatment Order imposed

• Re-sentencing of Aboriginal man for robbery and assault offences – traumatic childhood including exposure to violence and substance abuse – complex mental health and substance abuse issues
• Noted working with Aboriginal Liaison Officer at prison to establish culturally appropriate support in community
• [83] Strengthening your connection to community and culture through working with these services may well be central to your long-term healing and rehabilitation: see Vanessa Edwige and Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report commissioned by the Bugmy Bar Book Committee, June 2021).
• Sentence of imprisonment with non-parole period imposed to ensure release plans in place and appropriate conditions for supervision and support established.

• Aboriginal man with traumatic childhood including exposure to violence and substance abuse – complex mental health and substance abuse issues
• Noted working with Aboriginal Liaison Officer at prison to establish culturally appropriate support in community
• [83] Strengthening your connection to community and culture through working with these services may well be central to your long-term healing and rehabilitation: see Vanessa Edwige and Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report commissioned by the Bugmy Bar Book Committee, June 2021).
• Sentence of imprisonment with non-parole period imposed to ensure release plans in place and appropriate conditions for supervision and support established.

• Accepted disadvantaged background including exposure to violence and neglect, homelessness, interrupted education and early substance abuse – referred to Yehia DCJ (as her Honour then was) in Maher [2021] NSWDC 80 at [91] and the chapter “Childhood Exposure to Domestic and Family Violence” in Public Defenders (NSW), The Bugmy Bar Book Project (online, November 2019) in relation to the impact of exposure to violence: at [60]
• Moral culpability reduced to some extent by reason of background although community protection remained significant: at [62]

• Imposition of sentence after breach of suspended sentence
• 17y Aboriginal child with childhood history of domestic violence, exposure to substance abuse, incarceration of father and interrupted schooling:
• [23] … As Vanessa Edwige, psychologist, observed in her psychological report prepared in relation to the original offence, the effects of these experiences on a child’s social and emotional wellbeing are well-documented: Public Defenders (NSW), The Bugmy Bar Book Project (online, last updated March 2024). As Ms Edwidge explained, the young person was “not privy to the protective factors that enhance a child’s wellbeing”.

• Took into account on sentence offender’s significant childhood disadvantage.
• Further took into account impact of offender’s incarceration on his relationship to his children

[64] I further note it was a choice of the offender not to expose his young children to a custodial setting through visits and knowledge that he is in prison. Consequently he has not seen his children for a number of months. I note the negative effects of parental incarceration identified in the Bugmy Bar Book:

Parental incarceration may interfere with the attachment relationship between a child and their parent or caregiver, cause financial hardship, disrupt care and living arrangements, and subject children to stigmatisation and shame. This may impact upon a child’s emotional, behavioural, and psychological development, educational performance, delinquency and risk of offending.

• Took into account on sentence significant childhood disadvantage.
• Further took into account impact of offender’s incarceration on his relationship to his children

[64] I further note it was a choice of the offender not to expose his young children to a custodial setting through visits and knowledge that he is in prison. Consequently he has not seen his children for a number of months. I note the negative effects of parental incarceration identified in the Bugmy Bar Book:

Parental incarceration may interfere with the attachment relationship between a child and their parent or caregiver, cause financial hardship, disrupt care and living arrangements, and subject children to stigmatisation and shame. This may impact upon a child’s emotional, behavioural, and psychological development, educational performance, delinquency and risk of offending.

• Referred to offender’s childhood trauma commenting:
• [54] … The relationship between child sexual abuse and the development of addiction as a consequence of using illicit substances to manage psychological trauma are now well understood: Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) vol 3, 11 cited in Bugmy Bar Book Committee, ‘Child Sexual Abuse’ in The Bugmy Bar Book Project (Sydney NSW; The Public Defenders; November 2019).