Judgments Library

• 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 [103]-[104]

• Griffith remand to permit offender to continue in rehabilitation program prior to final sentence in light of positive engagement
• [10] The material from the Glen is very positive. The letter of 23 October 2023 addresses the offender’s Indigenous heritage, and notes that the offender has spent time with therapists and completed “cultural healing courses” which have “allowed him to reconnect back with his spirit and culture.” As Vanessa Edwige and Dr Paul Gray report in Significance of Culture to Wellbeing, Healing and Rehabilitation (Report commissioned by the Bugmy Bar Book Committee, Public Defenders New South Wales, 2021), connection to culture is a powerful protective factor that promotes resilience, self-esteem, self-worth and ultimately, rehabilitation (see especially at [212] – [214]). See similarly HA (a pseudonym) v the Queen [2021] VSCA 64 at [58] – [59], where the Court noted that “[r]econnection of an Aboriginal offender with culture and Country can constitute a pivotal factor diverting such a person from entrenched offending behaviour”.
• See final judgment above

• Ordered Griffith remand to permit offender to continue in rehabilitation program prior to final sentence in light of positive engagement
• [10] The material from the Glen is very positive. The letter of 23 October 2023 addresses the offender’s Indigenous heritage, and notes that the offender has spent time with therapists and completed “cultural healing courses” which have “allowed him to reconnect back with his spirit and culture.” As Vanessa Edwige and Dr Paul Gray report in Significance of Culture to Wellbeing, Healing and Rehabilitation (Report commissioned by the Bugmy Bar Book Committee, Public Defenders New South Wales, 2021), connection to culture is a powerful protective factor that promotes resilience, self-esteem, self-worth and ultimately, rehabilitation (see especially at [212] – [214]). See similarly HA (a pseudonym) v the Queen [2021] VSCA 64 at [58] – [59], where the Court noted that “[r]econnection of an Aboriginal offender with culture and Country can constitute a pivotal factor diverting such a person from entrenched offending behaviour”.

Note: see final judgment above

• Plaintiff kept in overflow area of prison for several days without access to exercise area or shower facilities – injured by prison officers during forcible removal from cell after becoming angry and smashing window in door or cell – whether use of force necessary and reasonable in circumstances of case.
• Chief Justice acknowledged conditions challenging and stressful for prisoners and staff presenting difficult management issues: at [1]-[12]
• [7] … It has been acknowledged that imprisonment is often “seriously detrimental for the prisoner” and can exacerbate behavioural problems: Boulton v R [2014] VSCA 342; 46 VR 308 at [108]–[109] (Maxwell P, Nettle, Neave, Redlich and Osborn JJA).

[8] …Custodial isolation and overcrowding risks exacerbating mental illness, as noted in the Inquiry into Victoria’s Criminal Justice System (2022) at pg 594 (cited in the Bugmy Bar Book chapter on “Impacts of Imprisonment and Remand in Custody”):

Practices such as use of isolation, restricting visits from family and friends, overcrowding, poor access to health services and programs, and negative interactions with correctional officers have a significant impact upon mental health. The psychiatric impacts of prison are particularly acute for Aboriginal and Torres Strait Islander people. For example, Aboriginal women in prison are hospitalised for mental illness at triple the rate of Aboriginal women in the community.

…

[12] This dangerous, intractable tension between the rights of prisoners and the safety of corrections officers will continue so long as full-time imprisonment remains the primary form of punishment for serious offences and prisons continue to be overcrowded, under-resourced and unable to offer prisoners any real opportunities for education and reform.

• Concluded use of force not necessary and reasonable – awarded damages for injuries.

• Civil matter – claim for damages for assault and battery – prisoner assaulted by correctional officers – whether use of force necessary and reasonable
• In description of difficult conditions at time of alleged assault referred to inquiry cited in chapter of Bugmy Bar Book:
• [8] There was evidence that one of the prisoners kept in the overflow area had severe mental health issues and was at times at significant risk of self-harm, while another had refused to return to his cell in the overflow area earlier that day. Custodial isolation and overcrowding risks exacerbating mental illness, as noted in the Inquiry into Victoria’s Criminal Justice System (2022) at pg 594 (cited in the Bugmy Bar Book chapter on “Impacts of Imprisonment and Remand in Custody”):
• Practices such as use of isolation, restricting visits from family and friends, overcrowding, poor access to health services and programs, and negative interactions with correctional officers have a significant impact upon mental health. The psychiatric impacts of prison are particularly acute for Aboriginal and Torres Strait Islander people. For example, Aboriginal women in prison are hospitalised for mental illness at triple the rate of Aboriginal women in the community.

• Offender’s childhood included exposure to violence and substance abuse and instability.
• Accepted background likely to have impacted lack of emotional regulation and decision-making:
• [77] … Such impacts are well documented: Bugmy Bar Book Committee, ‘Childhood Exposure to Domestic & Family Violence” in The Bar Book Project (Sydney, NSW, The Public Defenders, 2019) at 4-8’.
• Offender’s social deprivation and historical family violence does not excuse offending itself but some weight given in reducing moral culpability: at [79]
• See also
• DPP v Jewell [2023] ACTSC 348 (McWilliam J) at [75]
• DPP v Houghton [2024] ACTSC 68 (McWilliam J) at [21]

• Offender from disadvantaged childhood including family violence, trauma and neglect, out of home care, sexual abuse and exposure to adult pornography
• Psychologist report clearly identified and explained link between offender’s Post Traumatic Stress Disorder resulting from childhood sexual abuse and the offences: at [25]-[28]

[28] There is now a “robust body of research evidence” that “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”: The Bugmy Bar Book Project, Childhood Sexual Abuse, at p. 1.

• Moral culpability reduced to a moderate degree: at [29] – offender’s background of childhood sexual and physical abuse, including abuse while in an institution and mental illness part of exceptional circumstances permitting immediate release to recognisance without serving custodial sentence: at [46]

• Appeal from decision of NSW Civil and Administrative Tribunal in residential tenancy agreement dismissed
• Application for leave to rely upon statutory declaration and Bugmy Bar Book Executive Summary on Homelessness as additional evidence refused: at [67]-[68]

A summary of this case is also available on the NSW Judicial Commission’s Judicial Information Research System (JIRS): Link

• Appeal against sentence imposed for well-planned murder of underworld figure.
• Evidence tendered of offender’s disadvantaged childhood at first instance – indigenous offender – exposed to violence and substance abuse – low socio-economic status and neglect – incarceration of both parents – mother a member of Stolen Generation.

Ground 4 – per Simpson AJA (Dhanji and McNaughton JJ agreeing)

• Unanimously allowed appeal on ground Sentencing Judge erred in not applying principles in Bugmy to reduce appellant’s moral culpability – psychologist report clearly identified causal connection between disadvantaged background and offence, and nothing in Bugmy supports suggestion of Sentencing Judge that deprived background could diminish moral culpability for lesser offences but not for more serious offence of murder: at [71]-[76]

Ground 5 – per Simpson AJA (McNaughton J agreeing – Dhanji J dissenting on this ground)

• In declining to uphold separate ground that Sentencing Judge erred in finding extracts from Bugmy Bar Book irrelevant to sentencing process Simpson AJA considered ‘the use, if any, that may properly be made of that material.’ at [77]
• Described Bugmy Bar Book as containing a ‘considerable quantity of social research’ that is ‘undoubtedly a useful compilation of material relevant to understanding the effects of social disadvantage and deprivation’: at [83]-[85]
• Further commented ‘the survey of reference materials qualifies as “expert evidence”, that is, “expert knowledge” drawn from what appears to be academic research, that is capable of assisting a sentencing judge to understand specific evidence about the circumstances of a particular offender, placed in a wider context’: at [90]
• While warning such material alone cannot substitute for evidence in respect of an individual offender, accepted it may be useful in some cases in laying a foundation for acceptance of relevance of evidence of offender’s personal circumstances: at [91]
• In this case additional material from Bugmy Bar Book did not add to comprehensive nature of psychologist report and failure by Sentencing Judge to have regard to material did not contribute to the error under Ground Four: at [97]

Ground 5 – per Dhanji J (dissenting on this ground)

• In separate judgment Dhanji J found evidence of Bugmy Bar Book chapters were relevant and capable of bearing on determination of sentence, and failure of Sentencing Judge to have regard to material constituted an error: at [131]
• After summarising the way evidence of offender’s background had been supplemented with chapters from Bugmy Bar Book before the Sentencing Judge, Dhanji J observed the value of the research lay in its potential to enhance understanding of impact of an offender’s background, particularly in cases where connection to offending is not self-evident and contested: at [145]-[146], [150]
• Also considered importance of counsel’s presentation of material, including use of references to specific paragraphs of Bugmy Bar Book relied upon in submissions, narrowing material required to be reviewed by Sentencing Judge. at [152]

• Appeal against sentence imposed for well-planned murder of underworld figure.
• Evidence tendered of offender’s disadvantaged childhood at first instance – indigenous offender – exposed to violence and substance abuse – low socio-economic status and neglect – incarceration of both parents – mother a member of Stolen Generation.
• Sentencing Judge erred in not applying principles in Bugmy to reduce appellant’s moral culpability – psychologist report clearly identified causal connection between disadvantaged background and offence, and nothing in Bugmy supports suggestion of Sentencing Judge that deprived background could not diminish moral culpability for serious offences of murder: at [71]-[76]

• Prior to delivering sentence Sentencing Judge provided each party with chapter from Bugmy Bar Book Project which discussed child sexual abuse and its relevance to sentence – confirmed parties did not object to her Honour having regard to material in chapter – observed it effectively supported report of psychologist: at [59]

[64] … “That takes me to what is to be made of that material on sentence. I have marked for identification the chapter on Childhood Sexual Abuse produced by the Bar Book in November 2019 which further corroborates the opinion of the psychologist. That Bar Book Project chapter makes reference to the Australian Institute of Family which indicates that children who have been exposed to sexual abuse have been found to suffer from increased risk of drug and alcohol dependence, to suffer from various anxiety disorders and are also found to be at greater risk of engaging in risky behaviours, particularly risky sexual behaviours, during adolescence and in adulthood, and are less able to cope with sexual impulses and may develop lifelong difficulties tolerating or regulating distress, behaviour and impulses and have greater difficulty in managing interpersonal relationships.

• Crown appeal against sentence for multiple sexual offences
• At sentence hearing Sentencing Judge took into account respondent’s history of cancer and evidence establishing respondent not receiving appropriate medical care in custody – rejected Crown submission that medical services of Justice Health commensurate with those available in wider community and that it would not be justified to impose lesser sentence or to find special circumstances on basis of respondent’s health issues – imposed ‘lenient’ sentence with ‘very generous finding of special circumstances: at [46], [48]
• [47] Her Honour was justified in these conclusions. The evidence showed that the respondent’s medical care had been neglected and that Justice Health’s claims in its brochure could not be taken at face value. This is not the first time that assertions by Justice Health concerning its capacity to provide healthcare for inmates have been presented to a sentencing judge but have been shown to be gravely unreliable: see Brierley v R [2022] NSWCCA 26. The really serious circumstance proved by uncontested medical records in the respondent’s case was that his clinical management had been interrupted by imprisonment at a critical stage, when a course of treatment for a diagnosed progressive disease had been undertaken and follow-up with a PET scan and endoscopy was necessary in order to ascertain whether further treatment would be needed. It would be obvious to anyone that the follow-up was time-critical. The notation of Justice Health personnel, on the day of his admission to prison, was “Priority semi urgent”. On the face of the material before the sentencing judge a delay of more than 4 months without those procedures having been conducted, or even an appointment made with an external provider, was medically neglectful. It would not be going too far to say that it was inhumane to keep a prison inmate, in the respondent’s state of health, under suspense for over 4 months, not knowing whether his condition may be deteriorating, not knowing whether the further testing that he requires will be provided or, if so, when.
• Found sentence not manifestly inadequate in circumstances of case – “Had the Court taken a different view of the adequacy of the sentence, it would inevitably have exercised its discretion not to increase it in view of the further four months of delay in provision of essential and urgent medical attention since the respondent was before the District Court.”: at [49]-[53]

• Crown appeal against sentence of imprisonment for death of four year old in kayaking accident
• Error found in assessment of objective seriousness of offence – despite error found sentence not inadequate but comfortably within the wide discretion entrusted to the sentencing Judge in circumstances of case: at [81], [88]
• In considering application of Whyte guideline judgment quoted with approval comments of Yehia J in Bresnahan [2022] NSWCCA 288 on punitive nature of imprisonment

[69] The guideline involved two distinct components. The first, as modified in Whyte, was that “a custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgement”. Judge McGrath applied this aspect of the guideline and, despite the respondent’s compelling personal circumstances and their impact on her moral culpability, imposed a full-time custodial sentence. That is no small thing. As Yehia J wrote recently: (Bresnahan [2022] NSWCCA 288 at [150])

“It must be remembered that imprisonment is uniquely punitive because it involves the complete loss of liberty, loss of personal autonomy, loss of privacy, forced association, restriction of movement, and exposure to violence and intimidation. In Mainwaring v R [2009] NSWCCA 207, Harrison J (at [71]) made an observation with which I respectfully agree:

‘Any period of imprisonment must be understood for what it is: onerous, unpleasant, oppressive and burdensome. It is, as it should be, the last available punitive resort in any civilised system of criminal justice. Public discussions about the need to deter crime by the imposition of heavier sentences are not always obviously, or at least apparently, informed by an appreciation of the significance of full-time incarceration upon men and women who receive such sentences. In contrast, I have no doubt that the learned trial judge was acutely aware of such matters, as his careful disposition of the case reveals.’”

• Offender suffered upbringing almost entirely devoid of developmental support – both parents drug addicts – father involved in armed robberies – father left family and re-established contact with offender when both in prison – family violence – stepfather a violent and abusive criminal – constant moves around state disrupted education – mother unable to properly care for children – offender commenced substance abuse and developed mental health issues at early age: at [134]-[145]
• Level of deprivation described as ‘severe’ with ‘uncontroversial causal connection between it and offending’: at [150]
• While specific reference of sentencing judge to Bugmy principles meant no patent error satisfied of latent error – not apparent reduction in moral culpability is reflected in starting point of sentence: at [151]

[161] First, I do not accept that the applicant’s moral culpability should only be modified “to an extent” given his childhood of profound deprivation. I would not limit the finding in that way.

[162] Secondly, I would depart from the sentencing judge’s finding that the applicant’s dysfunctional background only operated “to a degree” to compromise his capacity to mature and learn from experience. Again, given the evidence, including from Mr Sheehan, I would not limit the finding in that way either.

• Sole issue on appeal was parity
• Quoted extensively from judgment of Sentencing Judge including section headed ‘Background of Disadvantage’ – Sentencing Judge had ‘reference to the Public Defender’s Bugmy Bar Book chapter on early exposure to alcohol and other drugs’ and took ‘judicial note that research shows that children in families with parental or carer substance abuse, are at greater risk of a range of adverse developmental outcomes.’: at [23]
• Sentencing judge further commented:

Living in a household where misuse of alcohol and drugs occur, may increase the likelihood of children being substance misusers themselves and being involved in the juvenile justice system. The direct effects of childhood exposure to alcohol and other drug abuse, may include emotional and physical abuse, maltreatment, modelling of poor drinking and substance abusing behaviours, inadequate supervision and separation from parents.

The placement of children into the care of other care givers or the placement with informal kinship care arrangements, or being placed in out of home care, protection and authorities can result Parental incarceration and/or experiences of out of home care, are themselves factors which may increase the likelihood of a person coming into contact with tile criminal justice system.

The relevant references to those studies can be found on the website just cited. The potential relevance of evidence of early exposure to alcohol and/or other drug abuse in sentencing proceedings includes an assessment of moral culpability, moderation of the weight to be given to general deterrence and determining the weight to be given to specific deterrence and protection of the community.

It is also relevant to a finding of special circumstances and the shaping of conditions to enhance prospects of rehabilitation. I accept that matters personal to the offender that are causally connected with or materially contributed to the commission of the offences, are relevant to the assessment of the objective criminality of the offending.

• Declined to read tendered chapters of Bugmy Bar Book – generic nature of statement in the Bugmy Bar Book of association between abusive or sexually abusive background and development of psychological, behavioural and substance use issues ‘adds nothing’ – relied upon psychiatrist and psychologist reports detailing deprived childhood: at [54]-[58]

• Offender’s case included three chapters from the “Bar Book Project” – “Childhood Exposure to Domestic and Family Violence”, “Incarceration of a Parent or Caregiver”, and “Early Exposure to Alcohol and other Drug Abuse”: at [56]

[60] The offender tendered a large volume of material in his case, including whole chapters of a publication. The text extracts are generic and of little real assistance, unless information in them can be directly tied by evidence to the offender’s situation. In the offender’s case, making that link depends largely upon acceptance of the offender’s untested and unsworn, and frequently contradictory, account of his own circumstances.

• Found offender unreliable historian and evidence of background contradictory

• Application for bail by 11 year old Aboriginal male with 59 outstanding charges – multiple and complex needs – previously declined to engage with support programs – remanded to Youth Justice Centre when previously refused bail
• Consideration of Youth Justice policy to provide voluntary bail support not mandatory bail supervision where no guilty plea – policy designed to reduce criminalisation of non-compliance with supervision – importance of ensuring bail support still comprehensive and co-ordinated: at [30]-[42]
• Emphasis on importance of providing children who have multiplicity of complex needs with support, supervision, and guidance in the community as opposed to detaining them in custody – referred to supporting research material

[43] Ensuring that the community is protected against antisocial and criminal behaviour requires more than simply locking up an 11-year-old. What is required is an intensive and coordinated approach. In the case of an Indigenous child, it requires referral to culturally appropriate programs, ideally managed and staffed by Indigenous caseworkers. The significance of culture to well-being, healing and rehabilitation, has been recognised and there is little doubt that “conceptualisations of wellbeing, and therefore efforts for healing and rehabilitation, are intrinsically tied to culture, with Indigenous perspectives of well-being and healing reflecting holistic worldviews that consider connections between physical, social and emotional well-being, individual and collective wellbeing, and the impact of social political and historical factors”. [1]

[44] The findings of the Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory [2] indicted that incarcerated children and young people are more likely to have experienced poor physical and mental health and disproportionately higher levels of disadvantage than the general population. Accordingly, their health needs may be greater than those of children and young people in noncustodial settings. The report also noted that children and young people in detention are a particularly vulnerable group. They have varying and complex needs and behaviours. Many have come from crisis situations or a background of disadvantage, have experienced trauma or have a range of health issues. Detention itself may give rise to trauma, which may compound already highly complex behaviours and needs. To address the needs of these children and young people effectively, underlying issues need to be recognised and properly addressed and treated. Research shows that threatening and punitive interactions, incarceration, and punishment escalate the aggressive behaviour of troubled youth. [3]

1. Vanessa Edwidge and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (June 2021) at 5.

2. Final Report of the Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (17 November 2017).

3. A Safer Northern Territory through Correctional Interventions: Summary Report of the Review of the Northern Territory Department of Correctional Services (31 July 2016).

• In this case satisfied “bail support” plan sufficiently comprehensive and ameliorates risks – release application granted: at [46], [54]

• Application for bail by 11 year old Aboriginal male with 59 outstanding charges – multiple and complex needs – previously declined to engage with support programs – remanded to Youth Justice Centre when previously refused bail
• Consideration of Youth Justice policy to provide voluntary bail support not mandatory bail supervision where no guilty plea – policy designed to reduce criminalisation of non-compliance with supervision – importance of ensuring bail support still comprehensive and co-ordinated: at [30]-[42]
• Emphasis on importance of providing children who have multiplicity of complex needs with support, supervision, and guidance in the community as opposed to detaining them in custody – referred to supporting research material

[43] Ensuring that the community is protected against antisocial and criminal behaviour requires more than simply locking up an 11-year-old. What is required is an intensive and coordinated approach. In the case of an Indigenous child, it requires referral to culturally appropriate programs, ideally managed and staffed by Indigenous caseworkers. The significance of culture to well-being, healing and rehabilitation, has been recognised and there is little doubt that “conceptualisations of wellbeing, and therefore efforts for healing and rehabilitation, are intrinsically tied to culture, with Indigenous perspectives of well-being and healing reflecting holistic worldviews that consider connections between physical, social and emotional well-being, individual and collective wellbeing, and the impact of social political and historical factors”. [1]

[44] The findings of the Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory [2] indicted that incarcerated children and young people are more likely to have experienced poor physical and mental health and disproportionately higher levels of disadvantage than the general population. Accordingly, their health needs may be greater than those of children and young people in noncustodial settings. The report also noted that children and young people in detention are a particularly vulnerable group. They have varying and complex needs and behaviours. Many have come from crisis situations or a background of disadvantage, have experienced trauma or have a range of health issues. Detention itself may give rise to trauma, which may compound already highly complex behaviours and needs. To address the needs of these children and young people effectively, underlying issues need to be recognised and properly addressed and treated. Research shows that threatening and punitive interactions, incarceration, and punishment escalate the aggressive behaviour of troubled youth. [3]

1. Vanessa Edwidge and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (June 2021) at 5.

2. Final Report of the Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (17 November 2017).

3. A Safer Northern Territory through Correctional Interventions: Summary Report of the Review of the Northern Territory Department of Correctional Services (31 July 2016).

• In this case satisfied “bail support” plan sufficiently comprehensive and ameliorates risks – release application granted: at [46], [54]

• Sentence imposed for murder – found offender’s experience of childhood sexual abuse relevant to adverse mental health, social, interpersonal, physical, and behavioural consequences – referred to research material in Bugmy Bar Book from Royal Commission into Institutional Responses to Child Sexual Abuse and Australian Institute of Family Studies on impact of childhood sexual abuse: at [140]-[149]