Judgments Library

• Evidence established offender’s childhood marked by deprivation and dysfunction – violence, poverty and exposure to substance abuse: at [58]-[74]
• Although no requirement for causal connection, unchallenged evidence established offender’s background of disadvantage and deprivation directly contributed to offence: at [84]
• Reference to 2021 Report, ‘Significance of Culture to Rehabilitation and Wellbeing’ by Ms Edwige and Dr Gray on importance of culturally appropriate rehabilitation programs for indigenous offenders: at [82]-[83] – also reference to executive summary of Bugmy Bar Book Chapter on ‘Impacts of Imprisonment on Remand in Custody’: at [104]
• Finding of special circumstances based on real risk offender will become institutionalised, first time he will serve term of full-time imprisonment, risk at some point during imprisonment he may develop major depression and requirement of lengthy period on parole to assist with readjusting to life in community and accessing culturally appropriate rehabilitation programs: at [103]-[107]

• Evidence established offender’s childhood marked by deprivation and dysfunction – violence, poverty and exposure to substance abuse – mental health issues: at [58]-[74]
• Reference to executive summary of Bugmy Bar Book Chapter on ‘Impacts of Imprisonment on Remand in Custody’ highlighting adverse impact of incarceration on mental health: at [104]
• Found special circumstances based on real risk offender will become institutionalised – lengthy period of imprisonment, first time he will serve term of full-time imprisonment, risk of developing major depression and requirement of lengthy period on parole to assist with readjusting to life in community and accessing culturally appropriate rehabilitation programs: at [107]

• Evidence established offender’s childhood marked by deprivation and dysfunction – violence, poverty and exposure to substance abuse: at [58]-[74]
• Although no requirement for causal connection, unchallenged evidence established offender’s background of disadvantage and deprivation directly contributed to offence: at [84]
• Reference to 2021 Report, ‘Significance of Culture to Rehabilitation and Wellbeing’ by Ms Edwige and Dr Gray on importance of culturally appropriate rehabilitation programs for indigenous offenders: at [82]-[83] – also reference to executive summary of Bugmy Bar Book Chapter on ‘Impacts of Imprisonment on Remand in Custody’: at [104]
• Finding of special circumstances based on real risk offender will become institutionalised, first time he will serve term of full-time imprisonment, risk at some point during imprisonment he may develop major depression and requirement of lengthy period on parole to assist with readjusting to life in community and accessing culturally appropriate rehabilitation programs: at [103]-[107]

• Offender to be sentenced for murder of female partner – application to have offender appear for sentence proceedings by audio-visual link opposed by Crown – representations made by sisters of deceased that applicant should attend sentencing proceedings in-person and on country: at [16]
• Importance of Indigenous cultural values and principles emphasized by Court:
• [20] It is important to commence by acknowledging that the importance of recognising Indigenous cultural values and principles is increasingly accepted in the criminal law in New South Wales and in Australia more broadly. For example, the Bugmy Bar Book is increasingly relied upon as a resource capable of assisting judicial officers in making informed decisions in a range of matters. Some chapters of the Bugmy Bar Book deal specifically with the impact of intergenerational trauma brought about by cultural dispossession, and the impact on members of the stolen generations and their descendants.
• [21] The Walama List provides a therapeutic approach to sentencing of Indigenous offenders and incorporates some elements of restorative justice. The Sentencing Conversations are led by Elders and Respected Persons who provide essential cultural perspectives, values, and principles. The process acknowledges the importance of cultural authority to healing.
• …
• [27] The Crown is to be commended for highlighting the importance of recognising Indigenous cultural values and principles in the criminal law. In an appropriate case where there is sufficient evidence, it may be wholly appropriate that cultural values and principles would dictate that a direction is made for an offender to appear in-person at sentencing proceedings.
• In this case not pers in-person attendance would better fulfil purpose of sentencing where proceedings will not be conducted pursuant to restorative justice model: at [25]

• 16 year old offender born in Liberia – moved from mother’s care when 6 years old – childhood of violent abuse at hands of father – significant difficulties at school – homelessness prior to offending – became involved in gang and substance abuse at 13 years: [54]-[70]
• Bugmy principles applied in view of background – reduced moral culpability and need for general and specific deterrence: at [94]-[97]

[94] In the circumstances of the present case, which I have already outlined, I accept that the principles in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 apply because of the offender’s deprived upbringing involving, as it did, exposure to parental neglect, alcohol abuse and family violence and the significant cultural and social dislocation inherent in moving from West Africa to Australia. These factors, in my view, contributed to his educational difficulties, being bullied, illicit drug use and gang membership.

[95] Dr Collins described the situation in the following terms:

“36. [The offender] experienced a difficult upbringing where he was removed from caregivers with whom he had formed attachments and placed with his father, who was reportedly violent and abused alcohol. He experienced sadistic forms of physical abuse in that environment and was treated harshly as compared with his siblings. That abusive and inconsistent parenting propelled him towards older peers with whom he began to engage in drug abuse and crime. [His] engagement in school declined and he self-described as engaging in ongoing crime due to having no future prospects…

37. A cycle of offending with brief engagement in treatment in custody continued up to [the offender’s] arrest on the current charges.”

[96] The offender’s evidence was that he owed money to one of the co-offenders for drugs and took part in the intended robbery to pay off the debt he owed and to obtain some money for himself. As a result of his drug use and gang membership, he was led to engage in criminal activities, including crimes of the type in which he has been involved.

• Sentence imposed for manslaughter – Crown identified relevant Bugmy considerations including exposure to violence and substance abuse: at [73]
• Adopted observations by Yehia SC DCJ (as her Honour then was) in Tsingolas [2022] NSWDC 34 at [87] to [90] as to value, role and use of research on impact of childhood deprivation and exposure to violence: at [72]
• Offender’s moral culpability reduced although balanced with element of general and specific deterrence: at [75]

• Sentence imposed for manslaughter – Bugmy considerations including exposure to family and community violence, exposure to substance abuse and incarceration of family members: at [73]
• [71] I am required to determine whether the offender’s adversities and disadvantage reduces his moral culpability. As well as her assessment of the offender personally, the report of Ms Edwige includes some well traversed research that contextualises the events in the offender’s history and helps to provide a broader understanding of the ongoing and profound impacts of childhood deprivation and exposure to violence such as the offender had experienced.
• [72] I agree with and gratefully adopt the following observations by Yehia SC DCJ (as her Honour then was) in R v Tsingolas [2022] NSWDC 34 at [87] to [90] as to the role and use of that research:
• “[87] … To an extent greater than ever before, sentencing Judges are now assisted by a body of research into the impact of various forms of childhood disadvantage, deprivation and trauma that may have an ongoing and profound impact upon the individual.
• [88] Sentencing Judges in the 21st Century have the benefit of that assistance. The material provided is expert research and study that allows for a better understanding of the potentially profound impact of an individual’s childhood experiences upon, amongst other things, their capacity to mature, control impulse and self-regulate. The research complements the psychological, psychiatric and other evidence relied upon in the individual case, and can be of substantial assistance in explaining the offending conduct, assessing moral culpability and/or informing the appropriate penalty.
• [89] This approach has been recognised and utilised in a number of cases in the Court of Criminal Appeal. In Kentwell v R (No 2) [2015] NSWCCA, Bathurst CJ and McCallum J (as she then was) agreed with the remarks of Rothman J when re-sentencing the appellant. Those remarks included references to research conducted by Professor Baumeister, which made it clear that extreme social exclusion will likely result in antisocial behaviour and most likely result in criminal offending, a factor relevant to that case.
• [90] In Perkins v R [2018] NSWCCA 62, Fullerton J referred to 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, a matter “well researched and documented”. Her Honour referred to recognition of these effects and the potential for lasting harm, finding expression and application in a range of academic and forensic disciplines: [99] [100] [101] [102] [103].”
• Offender’s moral culpability reduced, although balanced with element of general and specific deterrence: at [75]

• Applicant pleaded guilty to serious drug charges – on remand for 22 months – no previous application for bail accepting will receive lengthy sentence
• Wife brutally murdered 6 days prior to application
• Special or exceptional circumstances established – needed to support four young children and arrange care for youngest two – attendance at funeral – access to familial support and grief counselling – bail granted

• Bail granted for Aboriginal woman charged with stalking and intimidation and being armed with intent
• Acknowledged research from Bugmy Bar Book Chapter: ‘Impacts of Imprisonment and Remand in Custody’ describing negative impacts on the physical and mental health of incarcerated individuals which persist after release – includes loss of housing, barriers to employment, significant negative impacts on families and communities, loss of culture and disconnection from Country and community, increased risk of subsequent contact with the criminal justice system and increased risk of self harm and depression – research further shows impacts more pronounced for Aboriginal and/or Torres Strait Islander Peoples, particularly women: at [16]-[21]
• [22] The Bugmy Bar Book research is a useful resource which has assisted the Court in understanding the impact of remand in custody, even for short periods. The research lends context to the material that has been tendered on behalf of the applicant which relates directly to her individual circumstances and background. The impact of incarceration on First Nations Peoples, and, in particular, First Nations women should never be under-estimated.
• Applicant’s underlying mental health and drug issues will be better treated and managed outside of custodial environment – such treatment and care will better serve protection of community: at [23]

• Application for release by Aboriginal woman charged with stalking and intimidation and being armed with intent
• Reliance placed on research from Bugmy Bar Book Chapter: ‘Impacts of Imprisonment and Remand in Custody’ to show negative impacts on the physical and mental health of incarcerated individuals which persist after release: at [16]
• Negative impacts include loss of housing, barriers to employment, significant negative impacts on families and communities, loss of culture and disconnection from Country and community, increased risk of subsequent contact with the criminal justice system and increased risk of self harm and depression: at [16]-[21]
• Research further shows impacts more pronounced for Aboriginal and/or Torres Strait Islander Peoples, particularly women: at [17]
• [22] The Bugmy Bar Book research is a useful resource which has assisted the Court in understanding the impact of remand in custody, even for short periods. The research lends context to the material that has been tendered on behalf of the applicant which relates directly to her individual circumstances and background. The impact of incarceration on First Nations Peoples, and, in particular, First Nations women should never be under-estimated.

• Offender sentenced to life imprisonment for murder – released to parole 2016 – over five years parole cancelled on three occasion due to continued use of prohibited drugs – In granting application to set new non-parole period accepted psychologist’s opinion that drug use explained by offender’s institutionalisation:

[25] … Mr Williams opined that an aspect of Mr Escalante’s circumstances that could more readily explain his offending behaviour is his long-term incarceration; effectively, Mr Escalante suffers from what is broadly labelled as institutionalisation. The result of a person being subject to external controls which govern their routines and social interactions and the experience of a long-term stigmatised status from an early age can be such that a person does not develop their autonomy, personality or capacity for independent judgment which impairs their ability to function effectively outside of the institutional environment. Mr Williams has observed that Mr Escalante’s descent into drug use correlated with a reduction in his hours of employment which lessened his structural restraints and increased his free time.

…

[41] The circumstances in which Mr Escalante breached his parole on both occasions are best viewed in light of Mr Williams’ assessment of the aetiology of Mr Escalante’s behaviour and its relationship with his psychological functioning. That is, that Mr Escalante’s institutionalisation has impaired his sense of autonomy and ability to make independent choices rendering him more reliant ‘on external contingencies and environmental constraints to control behaviour’. This goes some way to explain Mr Escalante’s first relapse into illicit substance abuse after the passing of his young child and subsequent relationship breakup. Furthermore, given the importance of structure and external contingencies such as full-time work, these factors shed light on the circumstances of his second relapse and cancellation of parole where, by virtue of undertaking the Matrix program, he had more free time.

• Sentencing for violent offence – accepted both offenders ‘first nations Australians, indigenous men whose lived experience of childhood trauma has been compounded by the impact of the intergenerational trauma experienced by far too many first nations Australians’: at [19], [40]
• Referred to acknowledgment of Attorney-General Jaclyn Symes to Yoorrook Justice Commission of the ‘impact of colonisation and dispossession on Aboriginal peoples, in particular, that the reality of colonisation involved the establishment of laws and policies with the specific intent of excluding and oppressing Aboriginal peoples and their laws, customs, cultures and traditions.’: at [24]

[25] She also said:

I acknowledge the fact that the justice system has both recently and historically been a site of exclusion and oppression, whether through laws that were specifically targeted at Aboriginal peoples, laws that were unequally applied to them, or through the refusal to enact specific laws for the advancement of Aboriginal peoples or engage Aboriginal peoples in the design of laws that affect them. I acknowledge that this has resulted in entrenched systemic and structural racism within the justice system and broader institutions of government. I acknowledge also that the impact and structures of colonisation are far-reaching and intergenerational and are continuing to affect Aboriginal peoples’ interactions with the criminal justice system.

[26] It is clear, therefore, that the impact of childhood deprivation and disadvantage, overlaid on the intergenerational trauma experienced by so many first nations Australians as a result of the continued impact of colonisation and dispossession, is relevant to the assessment of moral culpability, and generally would operate to reduce the weight which would ordinarily be given to denunciation and deterrence and increase the weight to be given to encouraging rehabilitation, and in determining what is, in all of the circumstances just punishment, when sentencing an offender, compared to one who has not suffered such compounding disadvantages.

• Satisfied offenders has established exception to mandatory imprisonment on basis that impaired mental functioning which would result in offenders being subject to substantially and materially greater than the ordinary burden or risks of imprisonment: at [69]

[66] In assessing the impaired mental functioning exception, the materials I have already referred to must be viewed in the context of the Attorney-General’s acknowledgement in her evidence to the Yoorrook Justice Commission, of the disproportionate impact of imprisonment on indigenous prisoners, the acknowledged systemic racism, which has and continues to lead to such differential outcomes, between indigenous and non-indigenous prisoners, and the direct personal application here for you, by reason of the direct connection with the appalling circumstances of the death of Veronica Nelson.

• 50 year old Indigenous offender sentenced for assault offences committed while in lawful custody – separation from mother, family, culture and Country through adoption at 6 weeks of age led to lifetime of isolation, institutionalisation and deep depression: at [6]
• Reference to the Significance of Culture to Wellbeing, Healing and Rehabilitation Report commissioned by the Bugmy Bar Book Committee and R v BS-X [81]-[82] – importance of offender’s growing connection to family and culture for long-term healing and rehabilitation: at [6]
• Accepted significant impact of abuse suffered while offender detained in two notorious institutions as a child and young person:

[54] Your experiences as a child and young person within these state run institutions caused you enormous and ongoing harm. They were institutions of fear, not safety; of isolation, not connection. Your criminal history demonstrates that your experiences in these institutions did not support you to live a healthy life in the community. Indeed, there is little doubt that the harm done to you in these institutions is inextricably linked to your offending and ongoing incarceration.

[55] As is recognised by the Australian Law Reform Commission in its Pathways to Justice – An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples, Final Report (2017) ‘child removal into out-of-home care and juvenile detention could be considered as key drivers of adult incarceration’ (p 485). See also, Bugmy Bar Book, Out of Home Care (September 2021) pp 10-12; Bugmy Bar Book, Impacts of Imprisonment and Remand in Custody (November 2022).

• Impact of childhood trauma moderated moral culpability and established special circumstances permitting sentence to be imposed concurrent to existing sentence with period of parole – importance of supervision in community after release from custody: at [19]-[21]; [84]

• 50 year old Indigenous offender sentenced for assault offences committed while in lawful custody – separation from mother, family, culture and Country through adoption at 6 weeks of age led to lifetime of isolation, institutionalisation and deep depression: at [6]

[7] Understanding your experience as a child and ward of the state provides a key explanation for the offending for which you are to be sentenced, as it does for the long history of offending in which you have engaged. The ‘effects of profound childhood deprivation do not diminish with the passage of time and repeat offending’: Bugmy v The Queen [2013] HCA 37 [44]; [2013] HCA 37; 249 CLR 571, 595.

[8] No child should have to face the experiences you have faced. It is clear that these experiences have shaped you and that you suffer greatly under their weight. To adopt the words of Dean J in Veen v R (No 2) [1988] HCA 14 [9]; (1988) 164 CLR 465, 495 your current circumstances ‘must realistically be seen as having been at least partly caused by the oppressive and deforming yoke … society laid upon [your] formative years’.

• Accepted significant impact of abuse suffered while offender detained in two notorious institutions as a child and young person:

[55] As is recognised by the Australian Law Reform Commission in its Pathways to Justice – An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples, Final Report (2017) ‘child removal into out-of-home care and juvenile detention could be considered as key drivers of adult incarceration’ (p 485). See also, Bugmy Bar Book, Out of Home Care (September 2021) pp 10-12; Bugmy Bar Book, Impacts of Imprisonment and Remand in Custody (November 2022).

• Impact of childhood trauma moderated moral culpability and established special circumstances permitting sentence to be imposed concurrent to existing sentence with period of parole – importance of supervision in community after release from custody: at [19]-[21]; [84]

• 50 year old Indigenous offender sentenced for assault offences committed while in lawful custody – separation from mother, family, culture and Country through adoption at 6 weeks of age led to lifetime of isolation, institutionalisation and deep depression: at [6]
• Reference to the Significance of Culture to Wellbeing, Healing and Rehabilitation Report commissioned by the Bugmy Bar Book Committee and R v BS-X [81]-[82] – importance of offender’s growing connection to family and culture for long-term healing and rehabilitation: at [6]
• Accepted significant impact of abuse suffered while offender detained in two notorious institutions as a child and young person:

[54] Your experiences as a child and young person within these state run institutions caused you enormous and ongoing harm. They were institutions of fear, not safety; of isolation, not connection. Your criminal history demonstrates that your experiences in these institutions did not support you to live a healthy life in the community. Indeed, there is little doubt that the harm done to you in these institutions is inextricably linked to your offending and ongoing incarceration.

[55] As is recognised by the Australian Law Reform Commission in its Pathways to Justice – An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples, Final Report (2017) ‘child removal into out-of-home care and juvenile detention could be considered as key drivers of adult incarceration’ (p 485). See also, Bugmy Bar Book, Out of Home Care (September 2021) pp 10-12; Bugmy Bar Book, Impacts of Imprisonment and Remand in Custody (November 2022).

• Impact of childhood trauma moderated moral culpability and established special circumstances permitting sentence to be imposed concurrent to existing sentence with period of parole – importance of supervision in community after release from custody: at [19]-[21]; [84]

• Sentencing of Aboriginal offender with profoundly traumatic childhood including physical and sexual abuse – offences committed while in custody

[36] … A ‘robust body of research now 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’: Australian Institute of Family Studies, The Long-term Effects of Child Sexual Abuse (CFCA Paper No 11, 2013) 23 cited in Bugmy Bar Book, Child Sexual Abuse (November 2019) 1.

• Referred to importance of structured culturally connected and engaged rehabilitation program on release:

[48] Strengthening your connection to community and culture in this way may well be central to your long-term healing and rehabilitation: see Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report commissioned by the Bugmy Bar Book Committee, 2021); R v BS-X [81]-[82]

• Found special circumstances permitting sentence to be imposed concurrent to existing sentence with period of parole – importance of potential for support and protection of community provided by supervised release: at [63]-[64]

• Sentencing of Aboriginal offender with profoundly traumatic childhood including physical and sexual abuse – offences committed while in custody

[36] … A ‘robust body of research now 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’: Australian Institute of Family Studies, The Long-term Effects of Child Sexual Abuse (CFCA Paper No 11, 2013) 23 cited in Bugmy Bar Book, Child Sexual Abuse (November 2019) 1.

• Referred to importance of structured culturally connected and engaged rehabilitation program on release:

[48] Strengthening your connection to community and culture in this way may well be central to your long-term healing and rehabilitation: see Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report commissioned by the Bugmy Bar Book Committee, 2021); R v BS-X [81]-[82]

• Found special circumstances permitting sentence to be imposed concurrent to existing sentence with period of parole – importance of potential for support and protection of community provided by supervised release: at [63]-[64]

• Aboriginal offender with disadvantaged background including incarceration of father, early substance abuse and death of Grandmother
• Referenced Incarceration of a Parent or Caregiver chapter from Bugmy Bar Book – research establishes negative and intergenerational impact of incarceration of parent on child’s emotional, behavioural and psychological development: [21]-[22]
• Referenced Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation report – importance of strengthening connection to community and culture as central to long-term healing and rehabilitation of offender: [39]
• Suspended sentence imposed as recommended by elders – reference to Yeddung Mura: Aboriginal corporation delivering services to First Nations People in ACT: [63]

• Aboriginal offender with disadvantaged background including incarceration of father, early substance abuse and death of Grandmother
• Referenced Incarceration of a Parent or Caregiver chapter from Bugmy Bar Book – research establishes negative and intergenerational impact of incarceration of parent on child’s emotional, behavioural and psychological development: at [21]-[22]
• Referenced Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation Report – importance of strengthening connection to community and culture as central to long-term healing and rehabilitation of offender: at [39]
• Suspended sentence imposed as recommended by elders – reference to Yeddung Mura: Aboriginal corporation delivering services to First Nations People in ACT: at [63]

• Aboriginal offender with disadvantaged background including incarceration of father, early substance abuse and death of Grandmother
• Referenced Incarceration of a Parent or Caregiver chapter from Bugmy Bar Book – research establishes negative and intergenerational impact of incarceration of parent on child’s emotional, behavioural and psychological development: [21]-[22]
• Referenced Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation report – importance of strengthening connection to community and culture as central to long-term healing and rehabilitation of offender: [39]
• Suspended sentence imposed as recommended by elders – reference to Yeddung Mura: Aboriginal corporation delivering services to First Nations People in ACT: [63]