Judgments Library

• Offender’s background of exposure to family violence and substance abuse explains to some degree offending behaviour such that moral culpability reduced: at [63]
• Conclusion supported by reference to judicial notice taken by sentencing judge in Dunn [2023] NSW CCA 1 of Bugmy Bar Book chapter on ‘Early Exposure to Alcohol and Other Drug Abuse’ and 2007 House of Representatives Standing Committee on Family and Human Services Inquiry into the Impact of Illicit Drug Use on Families: at [64]-[65]

• Offender’s background of exposure to family violence and substance abuse explains to some degree offending behaviour such that moral culpability reduced: at [63]

[64] In reaching this conclusion, I have had regard to the consideration by the New South Wales Court of Criminal Appeal’s observation of the judicial notice taken by the sentencing judge in Dunn v R [2023] NSW CCA 1 as to what is provided in the Bugmy Bar Book chapter on early exposure to alcohol and other drug abuse: see ‘Early Exposure to Alcohol and Other Drug Abuse’ in the Public Defenders New South Wales (ed), The Bugmy Bar Book (November 2019). This chapter provides in part –

The direct effects of early exposure to substance abuse on children may include: emotional and physical abuse and other forms of maltreatment; modelling of poor drinking and substance abusing behaviours; inadequate supervision; and separation from parents due to incarceration and hospitalisation. In turn, these factors increase the likelihood that children will themselves develop substance abuse problems, making it more probable that they will come into contact with the criminal justice system […]

There is a well-established, but complex, link between alcohol and substance abuse and criminal offending. This link may develop when children who have been exposed to substance abuse at an early age go on to model their carer’s poor behaviours.

[65] Further, with reference to the 2007 House of Representatives Standing Committee on Family and Human Services Inquiry into the Impact of Illicit Drug Use on Families, the chapter provides –

The inquiry heard that parental use of drugs can normalise their use and cause children to model a particular kind of coping behaviour:

We have observed a dynamic where illicit drug-using parents use drugs to manage challenging personal experiences and pass this form of coping behaviour onto their children.

[66] This last observation is particularly apt in respect to Mr Burge, who described his resort to illicit substance abuse following the passing of each of his parents, because of their own alcohol and substance abuse difficulties, and the unprocessed grief he continues to experience. Mr Burge was now, perhaps in part reflective of the aspects of the Treatment Order that he did engage positively with, able to articulate insight into the influence of his past experiences to his use of illicit substances, and, by extension, his criminal offending.

• Primary victim one of two persons fatally stabbed outside unit block – alleged offender acquitted of murder of primary victim on basis of self-defence – convicted of manslaughter of second person on basis of excessive self defence
• Initial claim for counselling and recognition payment by primary victim’s daughter refused – Assessor accepted primary victim died from act of violence under s.19 Victims Rights and Support Act 2013 but refused claim under s.44(1) on basis primary victim’s own conduct directly led to death: at [4]-[5]
• Request for internal review made on ground:

[15] …(the primary victim)’s actions did not entirely cause her death; and that consideration should be given to (her) childhood, attitude and disposition.

• Submissions included description of primary victim’s difficult childhood with relevant material from Bugmy Bar Book highlighting impact of experience of disadvantage of Aboriginal people: at [8]
• On review accepted primary victim’s actions contributed to her death but that facts of matter supported reduction not refusal of amount of recognition payment: at [41]-[42]

See related cases:

FYG v Commissioner of Victims Rights [2024] NSWCATAD 5

FZB v Commissioner of Victims Rights [2024] NSWCATAD 2

• Appeal from decision of NSW Civil and Administrative Tribunal in relation to residential tenancy agreement – application for leave to rely upon chapter on homelessness in Bugmy Bar Book refused: at [92]-[100]
• Material constituted new evidence available but not presented to Tribunal at first instance – after review of contents not satisfied would further applicant’s case – useful but generic information – would not have assisted Tribunal assess applicant’s particular circumstances – absence of specific information about tenant’s financial situation and alternative housing

• Crown appeal against sentence for multiple child sexual offences allowed – sentence found to be manifestly inadequate
• Evidence at first instance included diagnoses of PTSD from period on remand – respondent constantly stood over in relation to buy-ups and sexual favours – bullied by prison guards – assaulted and sexually assaulted on multiple occasions – witnessed bashings and rapes within prison setting, including one bashing that led to death of victim: at [44], [71]
• Although concluding, in circumstances of case, maintenance of public confidence in the administration of justice required re-sentencing, two judges expressed concern about prison conditions and inability of state to provide adequate protection for prisoners.

Per Fagan J

[82] I have had the advantage of reading in draft the reasons of Dhanji J. I share his Honour’s grave concern about the apparent exposure of the respondent to violence and sexual abuse at the hands of other inmates while in custody on remand. I am unable to say more, particularly as to whether fault or neglect may be attributed, because the evidence on the appeal, naturally, did not include comprehensive evidence of the nature and surrounding circumstances of the relevant incidents.

Per Dhanji J

[87] It would be entirely understandable if the victims of the respondent’s crimes, and indeed others in the community, were to feel no sympathy for the respondent’s complaints of being sexually assaulted given the crimes he has committed. It is not, however, the question of sympathy for the respondent. Offenders are imprisoned because we as a society insist on adherence to our laws. That same insistence does not stop at the prison gates.

[88] Failures such as those which have occurred here place the courts in a difficult position. In cases such as this, the State complains the term of imprisonment was inadequate. Yet the State, through a different arm, has failed to provide appropriate conditions for that imprisonment. Similar concerns arise daily for judicial officers considering bail applications, particularly where significant delay is expected prior to resolution of the charges.

…

[90] I have given anxious consideration to whether the appellant has satisfied its onus to establish this Court should exercise its discretion so as to intervene and correct sentence. The failure of the State and the consequent additional impact of imprisonment on the respondent is a powerful factor against intervention.

• Applicant struck female bar attendant with glass while intoxicated -consideration of relationship between PTSD and intoxication at time of offence
• Submissions to Sentencing Judge referred to Bugmy Bar Book, Bugmy (2013) 249 CLR 571; [2013] HCA 37 and DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194: at [38]

• Applicant struck female bar attendant with glass while intoxicated
• At first instance Sentencing Judge rejected submissions that moral culpability should be substantially reduced on basis applicant’s alcohol abuse disorder caused by Post Traumatic Stress Disorder
• Where evidence of combination of dysfunctional childhood, mental illness and substance addiction it can be important to identify what factors are causative – while deprived childhood and/or mental illness may reduce moral culpability, drug or alcohol addiction usually does not: at [97]
• In this case no evidence appellant had no control over alcohol intake – Sentencing Judge expressed difficulty in accepting blanket proposition that applicant’s alcoholism was direct result of chronic PTSD – not satisfied moral culpability should have been “lessened substantially” on basis drinking on night of offence caused by PTSD – although satisfied it was “a” causal factor was not satisfied “the” causal factor: at [101]-[108]
• On appeal referred to Bourke (2010) 199 A Crim R 38; [2010] NSWCCA 22 and Kelly [2016] NSWCCA 246 at [26] – “…intoxication…will ordinarily not mitigate the penalty save as where the intoxication is the result of an addiction, and the original addiction did not involve a free choice” – in this case no suggestion that when applicant started drinking alcohol, he did not have free choice: at [98]

• Supply of cocaine on multiple occasions to undercover operative to repay drug debt
• Sentencing judge accepted evidence of profound childhood deprivation including emotional and physical neglect, extensive substance abuse by parents, parental incarceration, homelessness and involvement in criminal activity to support father’s addiction – caused longstanding psychological issues and substance abuse from early age: at [25]-[35], [104]
• In allowing appeal found Sentencing Judge erred in stating offender’s moral culpability cannot be reduced pursuant to an application of Bugmy principles if offence is pre-planned: at [110]-[113]
• Further found Sentencing Judge erred by using evidence of progress made by applicant in overcoming adversities as sufficiently successful to break any causative relationship, if there ever had been, between damage done to his moral compass by neglect he experienced in his childhood and his offending behaviour: at [114]

• Evidence on sentence established offender was a descendant of a member of the Stolen Generation, suffered from social exclusion, had interrupted school attendance, lived in Out of Home Care, had signs and symptoms of FASD and had multiple disabilities affecting cognition – extracts from Bugmy Bar Book addressing consequences of these factors tendered and referred to on sentence: at [57]-[58], [66]-[67]
• Moral culpability substantially reduced – diagnosis and adverse childhood experiences have resulted in substantial deficits in reasoning, problem solving, planning, abstract thinking, judgement, academic learning and experiential learning – not appropriate vehicle for general deterrence – multiple disabilities reduced impact of specific deterrence – Youth remains relevant factor – retribution and punishment a reduced role in sentencing exercise: at [68]

• Imposition of Community Treatment Order for juvenile in relation to multiple offences of violence – history of mental illness and childhood deprivation
• Referred to Bugmy Bar Book as comprising ’expertly reviewed research’ and quoted from Executive Summary of select chapters: at [42]-[43]

• Sentencing for drug offence
• Two parts of Bugmy Bar Book regarding impacts of imprisonment and remand in custody on people with a refugee background tendered on behalf of offender – subsequently referred to by Sentencing Judge: at [9], [91]

• Offender sentenced for multiple offences including use offensive weapon to prevent apprehension and aggravated break, enter and stea
• Research from Bugmy Bar Book (Early Exposure to Alcohol and Other Drug Abuse and Parental Incarceration chapters) cited and quoted in psychologist report: at [32]

• Sentencing for driving offences
• Found extracts from Bugmy Bar Book helpful in assessment of moral culpability: at [60]

• Sentencing of offender for domestic violence offences
• Lengthy history of offending – first went into custody in 1993 as a young adult – after short time in community served significant period in custody for murder – when released repeatedly reoffended – spent only three of the last 33 years in the community – period of just over a year on parole prior to commission of these offences longest period he had spent in the community as an adult

[30] …He put that “success” relative to the rest of his life down to, very strict supervision and support. The material before me supports that conclusion. The support of a psychologist and parole officer continued but after the first 12 months it was not as intensive.

[31] Although he had a psychologist and parole officer to turn to, he did not seek their support when he began offending.

[32] This is, frankly, not surprising. Every study I have read, and my significant experience in dealing with people in custody since I started practice in the mid-1970s indicates that long terms of imprisonment have a generally negative impact on prisoners.

[33] Prison environments are extreme in many respects. They are physically and psychologically taxing. They impose rigid routines on offenders. They remove any capacity for individual decision making about aspects of the person’s ordinary life. Often, long terms of imprisonment lead to institutionalisation. This means that the longer a person spends in custody the less their ability to live independently and exercise personal responsibility. If a person has never lived a normal life in the community, it is very hard for them to learn how to lead a normal life on release. Prisoners existing and living in inherently violent environment learn to use aggression and violence, they lose self-worth, and they tend to blame others, and take out on others, their own failings. All of which occurred here: “Impacts of Imprisonment and Remand in Custody” (2022) The Bugmy Bar Book Project.

• Sentencing of offender for domestic violence offences – offender spent thirty of previous thirty three years in custody: at [30]
• Cited “Impacts of Imprisonment and Remand in Custody” (2022) The Bugmy Bar Book Project in comment on negative impact of imprisonment:

[33] Prison environments are extreme in many respects. They are physically and psychologically taxing. They impose rigid routines on offenders. They remove any capacity for individual decision making about aspects of the person’s ordinary life. Often, long terms of imprisonment lead to institutionalisation. This means that the longer a person spends in custody the less their ability to live independently and exercise personal responsibility. If a person has never lived a normal life in the community, it is very hard for them to learn how to lead a normal life on release. Prisoners existing and living in inherently violent environment learn to use aggression and violence, they lose self-worth, and they tend to blame others, and take out on others, their own failings.

• Sentencing for child sexual assault offences
• Psychological report set out disadvantaged background of offender, making particular reference to ‘issues contained within the Bugmy Bar Book’: at [61]

• Sentencing Judge accepted psychologist report detailing evidence of offender’s childhood trauma – reference to “Impacts of Imprisonment and Remand in Custody” (2022) The Bugmy Bar Book Project – offender demonstrated some insight and expressed intention to undertake culturally informed residential rehabilitation plan through an indigenous centre
• [53] Gaol itself causes trauma. The community should understand that the longer people are locked in gaol the worse that they can become

…

[55] Sentencing Judges face a dilemma; community safety requires a person to be removed from the community. At the same time, by removing a person and keeping them in gaol can make them worse. This is particularly so for someone like Gowans who has underlying psychological, and trauma induced symptoms, as they have impaired judgment and are not rational decision makers.

…

[57] Too long a period in gaol can cause him to lose motivation and to adjust to gaol and not plan and work for the future. At the same time, he has to understand that he cannot behave as he did and that further behaviour in that nature will inevitably lead to further and lengthier gaol sentences.

…

[60] A finding of special circumstances will enable him the opportunity to engage in culturally appropriate rehabilitation programs. He has to be provided with some ownership of his own sentencing outcome. He has to become, not just a problem, but part of the solution. He has to actively participate in his rehabilitation.

• Noting reference to “Impacts of Imprisonment and Remand in Custody” (2022) The Bugmy Bar Book Project in psychologist report detailing evidence of childhood trauma, Sentencing Judge stated:

[53] Gaol itself causes trauma. The community should understand that the longer people are locked in gaol the worse that they can become

…

[55] Sentencing Judges face a dilemma; community safety requires a person to be removed from the community. At the same time, by removing a person and keeping them in gaol can make them worse. This is particularly so for someone like Gowans who has underlying psychological, and trauma induced symptoms, as they have impaired judgment and are not rational decision makers.

• Accepted relationship between childhood disadvantage, drug use and offending – noted that sections from Bugmy Bar Book referred to by defence counsel provided ‘generalities’ – specifics provided by psychologist report: at [87]-[89]

• Weight given on sentence to childhood deprivation – reference to Bugmy Bar Book material on consequences of interrupted schooling – stated evidence in this case demonstrated offender’s schooling was interrupted, although extent not made clear from evidence: at [128]-[129]