Judgments Library

• Imposition of sentence for mother causing GBH to infant child
• Took into account material tendered on sentence including substantial extracts from Bugmy Bar Book, psychologist report and transcript of interview between offender and defence counsel – established powerful subjective case based on childhood deprivation: at [75]-[82]

• Disadvantaged background included sexual abuse while in care of DoCS

[108] Whilst it is conceded that evidence from the Bugmy Bar Book is general in nature, it is relied upon by the offender to understand the opinions expressed by Ms Grujoska as to the offender’s childhood disadvantage and better explain the connection between the offender’s background and the offending.

[109] The Bugmy Bar Book has found that childhood sexual abuse which I find the offender was subjected to, is a ‘substantial risk factor for the development of subsequent mental health problems’, which can include major depression, increased risk of alcohol and drug dependence, often as a means of coping with the psychological trauma of having been abused, aggressive behaviours and social anxiety (The Bugmy Bar Book Project, ‘Childhood Sexual Abuse, ‘Executive Summary’ (November 2019).

[187] I am conscious of the fact that the statutory ratio, without variation, would allow for a substantial period of parole. However, I find special circumstances in the case of Mr Cage and Mr Lowcock, warranting some variation of the statutory ratio. I make that finding because I accept that each offender requires intensive treatment and counselling, including but not limited to trauma counselling, anger management and substance abuse treatment once released to the community. Such rehabilitation would be better facilitated in the community.

[188] Each offender is institutionalised and will require treatment and support to reintegrate into community life and reduce the risk of recidivism. The protection of the community will only be served in a meaningful way if these offenders are provided with the intensive support necessary to prevent relapse and maximise prosocial development upon release.

• Sentence imposed for murder – referred to body of research from Bugmy Bar Book:

[254] One of the bodies of research referred to in the Bugmy Bar Book is the Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse. The Commission explained:

• “When a child is sexually abused, the effects can be devastating. For many, the impacts of the abuse last for their whole lives. When the abuse occurs in an institution and the institutional response is inadequate, victims can experience additional adverse impacts. While each person’s story is unique, for many victims the abuse has created a complex constellation of mental health symptoms and associated negative outcomes that have changed their lives profoundly. The abuse can reach into all areas of the victim’s life: mental health; interpersonal relationships; physical health; sexual identity; gender identity and sexual behaviour; connection to culture; spirituality; interactions with society; and education employment and economic security.”

• Stabbing murder of mother during confrontation over identity of offender’s father
• Accepted evidence of dysfunctional childhood included physical, emotional and sexual abuse, exposure to violence and substance abuse, neglect, out of home care, homelessness and chronic self-harm from early age – closely related to mental health issues including Borderline Personality Disorder and PTSD: at [187]-[196]

[191] As to the offender’s well-documented exposure to domestic violence, I note the comments of Fullerton J in Perkins [2018] NSWCCA 62 at [99]:

• “The insidious effects of exposure to family and domestic violence on children in their formative years, and the potential for that exposure to play out in unforeseen ways as a young child develops from adolescence into adulthood, are well researched and documented.”
• Found at least indirect material contribution between these factors and offending to reduce moral culpability:
• [200] In my opinion there is a clear association, or a bright line between, or a co-relationship with or a nexus between the offender’s mental health issues, the sexual abuse she suffered as a child, her childhood exposure to domestic and family violence including her need to fend for herself from time to time, her early exposure to alcohol and other drugs and her episodic homelessness, that whilst perhaps may not amount to causation comes very close. In my view, there is at least an indirect material contribution between the offender’s mental health and the offending.
• [201] In my opinion, in all of the offender’s circumstances, and because of the combination of the disadvantages she has suffered (foreseen by a psychologist many years ago), she was unable to make choices in the same way as an average person at the time of the offending.
• [202] I must determine whether the disadvantage and adversity suffered by AB reduces her moral culpability. In my opinion, there is more than ample indicia, which I do not arrange in any hierarchy. In this case there is abundant evidence to establish the offender’s background of significant deprivation, and I give it full weight in this sentencing exercise: Bugmy v the Queen (2013) 249 CLR 571 at [44]: see also Hoskins v R [2021] NSWCCA 169 per Brereton JA at [57].
• [203] I note the oft cited quote of Simpson J, as her Honour then was, in R v Millwood [2012] NSWCCA 2 at [69]:
• “I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a “normal” or “advantaged” upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions.”
• [204] This is such a case. In my opinion, taking into account the very limited emotional resources of the offender, and the trauma she has experienced, her moral culpability is reduced. This finding does not extinguish AB’s moral culpability for the murder of her mother. She bears responsibility for the commission of that offence. My finding is that her moral culpability is diminished, which I will take into account as a matter to synthesise on sentence.

• Execution killing of grandmother in her home on behalf of associate – nature of killing raised imposition of life sentence as available sentencing option: at [94]
• Accepted evidence of offender’s childhood of deprivation including exposure to physical and sexual abuse, substance abuse and early criminal offending – found such history a ‘significant matter in this case’ adopting relevant passages from Bugmy at [43] and Millwood [2012] NSWCCA 2 at [68]-[69]

[83] … the history of childhood dysfunction and abuse is a very significant matter in this case. I am satisfied that it led to his history of relatively minor but repetitive offending, his resort to drugs, and ultimately to a form of institutionalisation and a loss of moral compass.

…

[86] I am satisfied that this offender’s case fits squarely within these principles and that his history of childhood deprivation, neglect, dysfunction and abuse reduces his moral culpability for this offence. In reaching that conclusion, I have taken into account the degree of planning involved, but I am not pers that this diminishes greatly the weight to be given to the impact of his history of trauma and dysfunction. He had the kind of childhood that “leaves its mark” and that has impacted on his decision-making and moral compass. This is a matter of some significance in assessing his moral culpability and in deciding the sentence that should be imposed.

• Found reduction in moral culpability justified determinate sentence: at [94]-[95]

• Aboriginal male born to Aboriginal mother stolen from mother as newborn in hospital – mother’s life shaped by this fact – adopted by Dutch emigrees – marginalised, struggled to form her own identity and was starved of her connection to country and to her Aboriginal family – struggled with alcoholism and depression – trauma and rupture of family and culture passed on to offender – offender only son of five children who grew up with mother and experienced difficult childhood

• Value of Aboriginal Community Justice report – pilot program providing Gladue style reports – based on 13 conferences and consultation with family:

[53] The report provides a rich and culturally informed perspective on your history. The report’s contents take the contents of the psychological opinion into account, but, crucially, place those perspectives in a historical and cultural context.

[54] The report places your history in the setting of the intergenerational trauma derived from your mother Josephine’s trauma as part of the Stolen Generation, and in the related systemic deprivations affecting Aboriginal people.

[55] Your life has unfolded in the shadow of the disruption of your family’s removal from country and culture, particularly from the theft of your mother from her mother as an infant. You have both received, and borne witness to, your mother’s suffering as the result of that dislocation.

[56] You were also a witness to your mother’s endurance of violent and criminal offending against her of the most personal and serious kind. You still nurse sorrow and guilt at not being able to prevent this crime from happening while in her presence, even though you were only a small child at the time. You have both managed and suffered from her addictions to alcohol and depression. Ms Hamilton reports: Extensive documentation indicates that individuals who were forcibly removed as part of the stolen generations have frequently encountered heightened risks of substance abuse and mental health challenges. These experiences have had profound intergenerational implications, significantly impacting their children as well.

[57] You, Mr Backer, participated in the process of the creation of the Aboriginal Community Justice Report which in itself was a lengthy and personal experience.

[58] The report gives me a strong evidentiary basis to accept that intergenerational trauma is relevant to your sentence, and I take it into account in moderating my assessment of your moral culpability for your offending, by applying the ‘general’ principle as articulated in the case of Bugmy v The Queen. [59] I have a much better informed appreciation of the matters personal to you and I also have evidence of the profound and structural disadvantages you have endured and which inform your responses to the world around you. These matters have left you vulnerable and I give these matters full weight in my sentencing decision.

• Sentencing for child abuse offences
• Defence counsel referred to Bugmy Bar Book ‘Childhood Sexual Abuse’ to support submission that history of childhood sexual abuse enlivened Bugmy sentencing principles: at [63]

• Application for bail by Aboriginal woman charged with drug offences
• In considering whether exceptional circumstances justified bail took into account impact of incarceration of applicant on her children – referred to two chapters from Bugmy Bar Book: ‘Impacts of Imprisonment and Remand in Custody’ and ‘Incarceration of a Parent or Caregiver’.

[45] What is equally clear is that incarceration has a lasting impact on the families and children of the offender. The incarceration of a parent may impact negatively on the physical and mental health of the children of an offender, their development, education and employment outcomes. I reject the submission that Ms Males’ children are doing fine while their mother is on remand. The children of incarcerated persons are the ‘invisible victims’ of the criminal justice system. The parenting duties and the objective of keeping families together is a significant factor in any application. When I consider the historic separation of Aboriginal families, along with Ms Males’ own difficult family upbringing, I see no good reason to contribute to her continued incarceration at this stage. I therefore consider that there are exceptional circumstances justifying the grant of bail.

• Application for bail by Aboriginal woman charged with drug offences
• In considering whether exceptional circumstances justified bail took into account impact of incarceration of applicant on her children – referred to two chapters from Bugmy Bar Book: ‘Impacts of Imprisonment and Remand in Custody’ and ‘Incarceration of a Parent or Caregiver’.
• [45] What is equally clear is that incarceration has a lasting impact on the families and children of the offender. The incarceration of a parent may impact negatively on the physical and mental health of the children of an offender, their development, education and employment outcomes. I reject the submission that Ms Males’ children are doing fine while their mother is on remand. The children of incarcerated persons are the ‘invisible victims’ of the criminal justice system. The parenting duties and the objective of keeping families together is a significant factor in any application. When I consider the historic separation of Aboriginal families, along with Ms Males’ own difficult family upbringing, I see no good reason to contribute to her continued incarceration at this stage. I therefore consider that there are exceptional circumstances justifying the grant of bail.

• Application for bail by Aboriginal woman charged with multiple violence offences – considered requirement under s.3A Bail Act 1977 (Vic) to take into account issues related to applicant’s Aboriginality.
• [43] The consideration of these factors is necessarily an involved process. It requires the decision maker to contemplate what the historic and ongoing overrepresentation of Aboriginal and Torres Strait Islander people in custody means for the individual before them. It also requires the decision maker to contemplate the specific circumstances of the individual within the broader context of their cultural identity and to view their circumstances through that lens. The Bugmy Bar Book provides carefully researched materials that speak to the significance of this cultural identity on every aspect of the individual and their application.
• Referred specifically to chapters ‘Impacts of Imprisonment and Remand in Custody’ and ‘Aboriginal and Torres Strait Islander Stolen Generations and Descendants’: at [49]

[49] As noted by both parties, this application is subject to the show compelling reason test. Although it is conceded by the respondent that the applicant has demonstrated a compelling reason justifying her release on bail, I would have considered that this threshold was met in any event. Ms McLaughlin has never served a term of imprisonment and has no recorded convictions. It is therefore very unlikely that she will receive a sentence that exceeds the period on remand and this is a compelling factor. Further, I take into account that discrimination has pervaded the lives of Aboriginal people and that incarceration has a cyclical impact on their social and emotional wellbeing. I have also taken into account the challenging circumstances that Ms McLaughlin has faced in her life, especially an involvement with foster care from a very young age and an upbringing riddled with trauma. Additionally, her offending appears to coincide with a deterioration in her mental health, which provides yet another compelling reason for placing her with supports rather than behind bars. Ms McLaughlin is also a direct descendant of the Stolen Generation and it is important to acknowledge the impact this may have on her. For example, a recent study of the Australian Institute of Health and Welfare has explored the lasting impacts on the descendants of the Stolen Generation as compared to Aboriginal and Torres Strait Islander people without any experience of being removed, which included a finding that descendants are 1.5 times as likely to have been arrested in the last five years and 1.3 times as likely to have poor mental health.

• Application for bail by Aboriginal woman charged with multiple violence offences – considered requirement under s.3A Bail Act 1977 (Vic) to take into account issues related to applicant’s Aboriginality.
• Referred to carefully researched materials in Bugmy Bar Book:
• [43] The consideration of these factors is necessarily an involved process. It requires the decision maker to contemplate what the historic and ongoing overrepresentation of Aboriginal and Torres Strait Islander people in custody means for the individual before them. It also requires the decision maker to contemplate the specific circumstances of the individual within the broader context of their cultural identity and to view their circumstances through that lens. The Bugmy Bar Book provides carefully researched materials that speak to the significance of this cultural identity on every aspect of the individual and their application.
• Referred specifically to chapters ‘Impacts of Imprisonment and Remand in Custody’ and ‘Aboriginal and Torres Strait Islander Stolen Generations and Descendants’: at [49]

• Offender refugee from Sudan who spent ten years with family in refugee camp in Ethiopia – exposed to violence, deprivation and war related trauma.
• Referred to material in Bugmy Bar Book Committee, ‘Refugee Background’ in Bugmy Bar Book (online, July 2021): at [36]
• [37] … The literature makes it very clear that violence is endemic within the experience of refugee families as they make their way to Australia (and beyond). For that reason, despite the absence of more recent material to demonstrate the specific impact of your upbringing on your offending, I consider that your moral culpability is modestly reduced by your childhood experiences.

• Consideration of exceptional circumstances justifying grant of bail included reference to applicant’s youth and criminogenic impact of continued incarceration:

[36] Many of the factors in s 3B apply to JB’s application. For example, releasing JB on bail would allow the relationship between him and his parents to be strengthened or at least preserved, would promote his education, would minimise the stigma associated with incarceration, and would reduce the criminogenic risks of further incarceration, particularly for a child like JB, who is of Sudanese descent. There is evidence before the Court, which I accept, that JB presents as an impressionable young person, one easily influenced by peers. As a result, in JB’s case, the criminogenic impact of further time in custody is likely to be high. Further, releasing him on bail would give proper weight to the injunction that incarceration is regarded as a last resort for a child.

• Aboriginal offender exposed to background of extreme family violence, substance abuse and deprivation – incarceration of father – poor educational experience – poverty and child neglect
• Mother a member of Stolen Generations – placed with non-indigenous family when a few months old – came to feel rejected by both Aboriginal and non-Aboriginal cultures: at [26]
• Offender came to attention of welfare authorities by age 12 months – welfare reports acknowledge role of intergeneration trauma – effect of later removal from care of mother and separation from family, community and country deeply damaging – sexually assaulted on multiple occasions while in care or juvenile detention; at [25], [38]

[34] The individual trauma experienced by you, and the intergenerational trauma present throughout your family, led you to have disturbed and insecure attachments, an impaired ability to self-regulate when distressed, low self-esteem, and a perception of the world as a hostile place.

• Serious cognitive issues including FASD – cognitive functioning exacerbated by limited educational attainment, history of trauma, and intergenerational trauma: at [72]
• Application of Bugmy principles to reduce moral culpability:

[64] There is no dispute that the Bugmy principles apply with considerable force in your case. You were raised in a family and community marred by substance abuse and extreme violence. Your values, responses and vulnerabilities were shaped by your childhood experiences. You then developed your own issues with substance abuse and impulsive behaviour.

[65] They are also experiences that sit within the context of your aboriginality, historical disadvantage and intergenerational trauma. Your mother is a member of the Stolen Generations. You were removed from your mother’s custody, and from your country and land. The connection between person and country reinforces Aboriginal and Torres Strait Islander peoples’ identity and sense of belonging. Both your mother’s removal, and your removal, have been deeply traumatic for you and your family.

[66] When applying Bugmy and giving “full weight” to “deprivation” it is important to do so from a strengths-based perspective. It is important that courts do not frame deprivation in ways that are divorced from the continuing strength inherent in belonging. You are a proud Yorta Yorta man. It is clear that your connection to your family and your culture is very important to you and that, despite being removed from your mother’s custody and placed in out-of-home care, you never lost your love for culture, your family and your community. You have maintained your connection to culture through engaging with elders, with mentors, and with aboriginal organisations such as the Rumbalara Aboriginal Cooperative. More recently you have engaged with the aboriginal liaison officer in custody, and sought to be transferred to the Koori unit at Ravenshall.

• Appeal against decision not to grant protection visas
• In relation to two applicants accepted possibility of trauma contributing to undiagnosed mental health issues, referencing discussion in Refugee Background chapter in Bugmy Bar Book about challenges faced by asylum seekers integrating into Australian society: at [146] Fn 20 and [159] Fn 22.
• Decision not to grant visa affirmed

• Appeal against decision not to revoke mandatory cancellation of visa
• Visa cancelled after applicant sentenced for offence of assault with intent to rob in company
• Applicant referred to ‘Refugee Background’ in the Bugmy Bar Book – no further mention in judgment: at [30]
• Appeal allowed ‘another reason’: at [129]

• Crown appeal against sentence dismissed – sentence not manifestly inadequate
• Bugmy principles applied at first instance to reduce moral culpability: see Ruwhiu [2022] ACTSC 290 (Refshauge AJ) below – affirmed on appeal – background of domestic violence, exposure to alcohol abuse and disrupted schooling: at [38]; [124]
• Per Baker J:

[127] The link between childhood exposure to domestic violence and alcohol abuse and offending is well documented: see the ‘Early Exposure to Alcohol and Other Drug Abuse’ Chapter of The Bar Book Project (Bugmy Bar Book Committee), which was tendered by the respondent’s counsel in the sentencing proceedings at first instance.

[128] It was to the respondent’s credit that he was able, with apparently little support, to overcome his background and become a law-abiding and productive member of society for over two decades. However, the respondent’s childhood was not erased when he overcame his first addictions and commenced employment as a forester. His background remained an important part of his “make-up” which was relevant to all aspects of the sentencing discretion: Bugmy (No 2) at [43]. In particular, as the sentencing judge found, when the respondent lost the structure and financial wellbeing that his employment provided during the COVID-19 pandemic, “he did not have the supports and childhood formation to avoid the unravelling of his life, leading to drug use and crime”. For these reasons, there was a connection between the respondent’s disadvantaged background and the offending.

• Crown appeal against sentence dismissed – sentence not manifestly inadequate
• Bugmy principles applied at first instance to reduce moral culpability in Ruwhiu [2022] ACTSC 290 (Refshauge AJ) – affirmed on appeal – background of domestic violence, exposure to alcohol abuse and disrupted schooling: at [38]; [124]
• Per Baker J:

[127] The link between childhood exposure to domestic violence and alcohol abuse and offending is well documented: see the ‘Early Exposure to Alcohol and Other Drug Abuse’ Chapter of The Bar Book Project (Bugmy Bar Book Committee), which was tendered by the respondent’s counsel in the sentencing proceedings at first instance.

[128] It was to the respondent’s credit that he was able, with apparently little support, to overcome his background and become a law-abiding and productive member of society for over two decades. However, the respondent’s childhood was not erased when he overcame his first addictions and commenced employment as a forester. His background remained an important part of his “make-up” which was relevant to all aspects of the sentencing discretion: Bugmy (No 2) at [43]. In particular, as the sentencing judge found, when the respondent lost the structure and financial wellbeing that his employment provided during the COVID-19 pandemic, “he did not have the supports and childhood formation to avoid the unravelling of his life, leading to drug use and crime”. For these reasons, there was a connection between the respondent’s disadvantaged background and the offending.

• Crown appeal against sentence dismissed – sentence not manifestly inadequate
• Bugmy principles applied at first instance to reduce moral culpability – affirmed on appeal – background of domestic violence, exposure to alcohol abuse and disrupted schooling: at [38]; [124]
• Per Baker J:

[127] The link between childhood exposure to domestic violence and alcohol abuse and offending is well documented: see the ‘Early Exposure to Alcohol and Other Drug Abuse’ Chapter of The Bar Book Project (Bugmy Bar Book Committee), which was tendered by the respondent’s counsel in the sentencing proceedings at first instance.

[128] It was to the respondent’s credit that he was able, with apparently little support, to overcome his background and become a law-abiding and productive member of society for over two decades. However, the respondent’s childhood was not erased when he overcame his first addictions and commenced employment as a forester. His background remained an important part of his “make-up” which was relevant to all aspects of the sentencing discretion: Bugmy (No 2) at [43]. In particular, as the sentencing judge found, when the respondent lost the structure and financial wellbeing that his employment provided during the COVID-19 pandemic, “he did not have the supports and childhood formation to avoid the unravelling of his life, leading to drug use and crime”. For these reasons, there was a connection between the respondent’s disadvantaged background and the offending.