Judgments Library

• 20 year old indigenous offender sentenced for assault offences
• Reference to the Significance of Culture to Wellbeing, Healing and Rehabilitation Report commissioned by the Bugmy Bar Book Committee and importance of offender’s growing connection to Country and culture for long-term healing and rehabilitation: at [4]
• Considered profound and emotional impact of childhood trauma with reference to chapters in Bugmy Bar Book on ‘Childhood Exposure to Domestic and Family Violence’ (November 2019); ‘Early Exposure to Alcohol and Other Drug Abuse’ (November 2019), ‘Out-of-Home Care’, (September 2021) and ‘Interrupted School Attendance and Suspension’ (December 2019): at [50]-[52]
• Accepted evidence of positive engagement with Worldview Foundation program providing holistic life management programs and employment opportunities for Aboriginal and Torres Strait Islander people facing disadvantage: at [55]-[59]
• Reference to potential negative consequences of imprisonment for offender and community, referring to Bugmy Bar Book, ‘Impacts of Imprisonment and Remand in Custody’ (November 2022) – imposed Intensive Correction Order: at [63]-[67]

• 20 year old Aboriginal youth – childhood exposure to family violence, drug and alcohol abuse and separation from carers and loved ones – racism and interruption of education
• Evidence of ‘extraordinary progress’ made during engagement with Worldview Foundation program providing holistic life management programs and employment opportunities for Aboriginal and Torres Strait Islander people facing disadvantage: at [55]-[59]
• In considering appropriateness of Intensive Corrections Order referred to Bugmy Bar Book, ‘Impacts of Imprisonment and Remand in Custody’ (November 2022)

[65] In considering whether to impose an ICO, it is necessary to have a realistic appreciation of the potential negative consequences, for you and for the community, of a term of imprisonment served in full-time custody: see, e.g., Bugmy Bar Book, Impacts of Imprisonment and Remand in Custody (November 2022). Imprisonment is often seriously detrimental for the person detained, particularly when they are young and have never served a sentence of imprisonment before: Dixon (1975) ACTR 13, 19-20. Opportunities and incentives for rehabilitation are limited and forced cohabitation with those convicted of criminal offences can operate as ‘a catalyst for renewed criminal activity upon release’: Boulton [2014] VSCA 342 [107]-[108]; 46 VR 308, 334.

[66] In your case there is little doubt that to sentence you to a term of imprisonment to be served in full-time custody would bring to an end and potentially reverse the progress you have made towards rehabilitation.

• 20 year old indigenous offender sentenced for assault offences
• Reference to the Significance of Culture to Wellbeing, Healing and Rehabilitation Report commissioned by the Bugmy Bar Book Committee and importance of offender’s growing connection to Country and culture for long-term healing and rehabilitation: at [4]
• Considered profound and emotional impact of childhood trauma with reference to chapters in Bugmy Bar Book on ‘Childhood Exposure to Domestic and Family Violence’ (November 2019); ‘Early Exposure to Alcohol and Other Drug Abuse’ (November 2019), ‘Out-of-Home Care’, (September 2021) and ‘Interrupted School Attendance and Suspension’ (December 2019): at [50]-[52]
• Accepted evidence of positive engagement with Worldview Foundation program providing holistic life management programs and employment opportunities for Aboriginal and Torres Strait Islander people facing disadvantage: at [55]-[59]
• Reference to potential negative consequences of imprisonment for offender and community, referring to Bugmy Bar Book, ‘Impacts of Imprisonment and Remand in Custody’ (November 2022) – imposed Intensive Correction Order: at [63]-[67]

• In discussion on divergent views in relation to causal connection between disadvantaged background and offending referred to relevant cases and The Bugmy Bar Book Project: Presenting Evidence of Disadvantage and Evidence Concerning the Significance of Culture on Sentence – Judge Sophia Beckett (October 2021): at [38]-[42]

• Offender Māori with disadvantaged childhood including family violence, exposure to alcohol abuse and disruption to education
• Counsel provided “very helpful excerpts from “The Bar Book Project” (Bugmy Bar Book Committee, ‘Early Exposure to Alcohol and Other Drug Abuse’ in The Bar Book Project (Sydney, NSW; The Public Defenders, 2019)) on the effects of early exposure to alcohol and other drug abuse and on the effects of childhood exposure to domestic and family violence, which have been helpful and taken into account”: at [73], [87]

• Court allowed appeal against sentence – majority (Beech-Jones CJ at CL and Walton J) imposed lesser sentence of imprisonment
• Yehia J, in dissent, proposed Intensive Correction Order – referred to the punitive nature of imprisonment:

[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 [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.”

• After finding error at first instance appeal court took into account on re-sentence affidavit from appellant detailing adverse conditions of imprisonment under Covid-19 conditions – further took into account affidavit from appellant’s solicitor describing observation of adverse changes to demeanour of appellant and extract from Bugmy Bar Book “COVID-19: Risks and Impacts for Prisoners and Communities” chapter: at [122]-[126]
• Finding made of special circumstances based on need for treatment for mental health issues and continuing impact of Covid-19 pandemic on conditions of incarceration – aggregate non-parole period reduced on re-sentence: at [129]

• The Court below received Bugmy Bar Book material in relation to the co-accused on sentence:

[27] The defence … also relied on two chapters of the Bugmy Bar Book prepared by the Bugmy Bar Book Committee, titled “Childhood Sexual Abuse” and “Early Exposure to Alcohol and Other Drug Abuse”, which outline the effects of these experiences in the context of the criminal justice system.

• The Bugmy principles were found to apply to both accused. The appeal was allowed on the basis of parity.

• Applicant 84 year old frail prisoner – Sentencing Judge accepted assurances from Justice Health that applicant’s needs could be provided for within custodial system through specialist units catering for older prisoners with medium to high needs: at [37]
• On appeal Court accepted evidence of serious adverse developments in applicant’s physical health not evidence before Sentencing Judge: at [22]-[34]
• Also accepted evidence of conditions of applicant’s imprisonment subsequent to imposition of sentence – evidence established no vacancies in facilities for elderly prisoners with low to medium needs and fact that applicant housed in mainstream prison: at [35]-[46]

[43] The evidence before her Honour showed that the Kevin Waller Unit has 26 beds and that at the date of the sentence proceeding, they were all occupied. The Crown has not sought to challenge or rebut the applicant’s affidavits. There is no evidence of what assessment Justice Health has made of the applicant’s needs but if he has been assessed as ineligible for any higher level of care than placement in a mainstream cell without a shower that he can safely use, then the criteria being applied must constitute, of themselves, seriously deficient provision for the welfare of a prisoner in this class. If the applicant’s circumstances do qualify him to be housed in a unit where at least low to moderate aged care needs can be met, then the only explanation of him not being so placed must be unavailability. Whether the present unsafe placement arises from the adoption of inappropriate criteria or from lack of resources, the applicant’s evidence supports a conclusion that Corrective Services, in conjunction with Justice Health, is not able to provide conditions of imprisonment to the reasonable standard of safety and humanity that her Honour evidently understood would be provided when the sentence was passed.

…

[46] … It transpires that, in circumstances where the unit suitable for elderly prisoners with low to medium needs is at capacity, the applicant is simply relegated to a mainstream cell that is not equipped in fundamental respects for the management of a frail, unstable man of 84 years.

[47] The applicant’s affidavits suggest that limited resources are available to Corrective Services for the accommodation of geriatric prisoners who are at an advanced stage of physical and mental decline. In light of that scarcity, it can now be seen to have been counter-productive for Mr Rajiv Anand, on behalf of Justice Health, to have provided his report to her Honour in the aspirational and unrealistic terms that he adopted. If the sentencing judge had been frankly informed that, due to the Kevin Waller unit being at capacity, safe care for an inmate such as the applicant could not be assured, then her Honour would have had proper material upon which to consider a shorter term or an alternative sentencing option. Sentencing judges cannot make sound decisions with respect to geriatric offenders who are frail and/or in serious ill-health unless accurate information about conditions of custody is supplied. If lack of adequate facilities for such prisoners is chronic rather than temporary, then it will be the responsibility of the Director of Public Prosecutions to bring to the attention of the Executive that this shortfall in the capacity of the prison system may lead to sentencing judges being unable to impose otherwise appropriate terms of imprisonment in circumstances such as the present.

• Appeal allowed and sentence reduced

• Referred to Refugee Background chapter in Bugmy Bar Book – while rejecting Obiekie’s account of traumatic childhood in Nigeria accepted challenges and disadvantages he would have experienced moving from Nigeria and South Africa and integrating into Australian society: at [208]-[210]

• Offender a Gamilaroi women with significant childhood disadvantage – expert report cited research from Bugmy Bar Book chapters to support connection between ‘offender’s exposure to adverse childhood experiences, psychological health issues and offending’: at [25]-[27] – offender relied upon Bugmy Bar Book Executive Summaries of Childhood Exposure to Domestic and Family Violence and Childhood Sexual Abuse as exhibits: at [32]
• Casual connection established and moral culpability reduced: at [53]

• Extracts from Bugmy Bar Book tendered on sentence – in finding offender’s childhood of dysfunction, abuse and neglect justified a reduction in moral culpability and moderation of sentence Sentencing Judge set out consequences of childhood deprivation outlined to in these extracts: at [56]-[58]

[57] Some of the general consequences of childhood deprivation were outlined in the material tendered on behalf of the offender (Exhibits 4 to 9 being extracts of the Bugmy Bar Book), they include the following:

(1) That the effects of exposure to domestic violence on children’s development can include impacts upon the child’s behaviour, schooling, cognitive development and physical and mental wellbeing. Further, children who in early years are affected by exposure to domestic violence are vulnerable to developing long term mental health issues.

(2) Early exposure to drug and alcohol misuse may increase the likelihood of children being substance users themselves and being involved in the juvenile justice system.

(3) Interrupted schooling attendance can lead to lower educational outcomes which are a predictor of future contact with the criminal justice system. Low educational engagement has also been linked to poor health and wellbeing outcomes.

(4) Hearing impairment can also impact upon an individual’s language or behavioural development, leading to complex outcomes such as low education and attainment, social disruptions, and increased levels of dislocation, and increased levels of unemployment.

(5) Criminal behaviour is closely associated with low socio-economic status.

• Referred to report prepared by the Kirby Institute, University of New South Wales, dated 16 April 2020, and extract from the Bugmy Bar Book in relation to the COVID-19 risks and impacts – took into account onerous custodial conditions on sentence: at [64]-[66]

• Aboriginal offender with significantly disadvantaged upbringing
• Referred to Significance of Culture to Wellbeing, Healing and Rehabilitation report and importance of culturally appropriate services in rehabilitation of indigenous offenders:

[34] What is of particular significance is that the offender has apparently only recently had the dual support of two Indigenous controlled organisations, apparently working closely in cooperation with Community Corrections. He has clear motivation to not reoffend or return to drugs for the purposes of maintaining a positive relationship with his daughter, with the assistance of Kari Corporation. Recently, The Significance of Culture to Wellbeing, Healing and Rehabilitation Report, commissioned by the Bugmy Bar Book, has established the important role to be played by culturally appropriate services in the exercise of rehabilitating Indigenous offenders. The Report presents expert opinions, collates the findings of major reports, and draws from leading Indigenous scholarship to demonstrate the significance of culture for Aboriginal and Torres Strait Islander people in promoting healing and rehabilitation. With respect to sentencing proceedings in criminal matters, the Report outlines the significant benefits of culturally appropriate treatment and care that provides for a connection to culture, family and community, in achieving those outcomes. The report relevantly states as follows [emphasis added]:

• [E]xisting data regarding the ongoing over-incarceration of Aboriginal and Torres Strait children and adults clearly demonstrates that … current approaches are not adequate … There are long-standing community concerns regarding … [the] disproportionate impact on Aboriginal and Torres Strait Islander peoples and communities, including deaths in custody. The current evidence demonstrates that the ‘status quo’ approach is not effective or sustainable. … this report highlights the significance of culture to Aboriginal and Torres Strait Islander peoples, and the importance of connecting to culture and culturally appropriate treatments to facilitate healing, including in a criminal justice setting. It highlights the importance of the social and emotional wellbeing framework for Aboriginal and Torres Strait Islander people, the need to understand this holistic world view and the need to take into account both individual and social factors in how healing is promoted. Finally, the report identifies culture as a strength that builds capacity in Aboriginal and Torres Strait Islander people, which is seen as a protective factor.
• [35] The Report recognises that approaches to rehabilitation which address systemic issues and disadvantage have far better outcomes for Aboriginal and Torres Strait Islander people and communities and keep communities together. This includes discussion of intersections affecting people with disability, and families involved with child protection systems. In practical terms, rehabilitation for Aboriginal and Torres Strait Islander people is enhanced by services that support individuals to build core capabilities within a culturally safe environment, including learning to recognise destructive behaviours, building coping skills, and forming supportive and pro-social relationships. These are all recognised as protective factors against re-offending. In R v BS-X, Justice Loukas-Karlsson made extensive reference to this report, noting its relevance to the evidence in that case in the application of principles of Bugmy v The Queen. (citations omitted)
• Found offender’s prospects of rehabilitation not unfavourable in light of significant culturally appropriate supports available on his release: [36]
• Referred to material in Hearing Impairment chapter of Bugmy Bar Book: [39]-[42]
• Concluded deprived childhood relevant to reduction of moral culpability – hearing impairment will make custodial conditions more difficult:
• [44] As a result of this finding, the role to be played by general deterrence on sentence is diminished to a degree, as is the weight to be given to other purposes of sentencing, particularly as to denunciation. With his repeat offending, specific deterrence continues to have a role to play, but conversely, rehabilitation must be given substantial weight, particularly at this critical time when he is motivated to change and has all of the appropriate supports in place. As observed above, his chances of rehabilitation at present are perhaps better than they have ever been, particularly if Tharawal, can assist the offender to seek treatment for his hearing impairment, or at least provide him with access to hearing aids.

• Aboriginal offender with significantly disadvantaged upbringing
• Referred to Significance of Culture to Wellbeing, Healing and Rehabilitation report and importance of culturally appropriate services in rehabilitation of indigenous offenders:

[34] What is of particular significance is that the offender has apparently only recently had the dual support of two Indigenous controlled organisations, apparently working closely in cooperation with Community Corrections. He has clear motivation to not reoffend or return to drugs for the purposes of maintaining a positive relationship with his daughter, with the assistance of Kari Corporation. Recently, The Significance of Culture to Wellbeing, Healing and Rehabilitation Report, commissioned by the Bugmy Bar Book, has established the important role to be played by culturally appropriate services in the exercise of rehabilitating Indigenous offenders. The Report presents expert opinions, collates the findings of major reports, and draws from leading Indigenous scholarship to demonstrate the significance of culture for Aboriginal and Torres Strait Islander people in promoting healing and rehabilitation. With respect to sentencing proceedings in criminal matters, the Report outlines the significant benefits of culturally appropriate treatment and care that provides for a connection to culture, family and community, in achieving those outcomes. The report relevantly states as follows [emphasis added]:

• [E]xisting data regarding the ongoing over-incarceration of Aboriginal and Torres Strait children and adults clearly demonstrates that … current approaches are not adequate … There are long-standing community concerns regarding … [the] disproportionate impact on Aboriginal and Torres Strait Islander peoples and communities, including deaths in custody. The current evidence demonstrates that the ‘status quo’ approach is not effective or sustainable. … this report highlights the significance of culture to Aboriginal and Torres Strait Islander peoples, and the importance of connecting to culture and culturally appropriate treatments to facilitate healing, including in a criminal justice setting. It highlights the importance of the social and emotional wellbeing framework for Aboriginal and Torres Strait Islander people, the need to understand this holistic world view and the need to take into account both individual and social factors in how healing is promoted. Finally, the report identifies culture as a strength that builds capacity in Aboriginal and Torres Strait Islander people, which is seen as a protective factor.
• [35] The Report recognises that approaches to rehabilitation which address systemic issues and disadvantage have far better outcomes for Aboriginal and Torres Strait Islander people and communities and keep communities together. This includes discussion of intersections affecting people with disability, and families involved with child protection systems. In practical terms, rehabilitation for Aboriginal and Torres Strait Islander people is enhanced by services that support individuals to build core capabilities within a culturally safe environment, including learning to recognise destructive behaviours, building coping skills, and forming supportive and pro-social relationships. These are all recognised as protective factors against re-offending. In R v BS-X, Justice Loukas-Karlsson made extensive reference to this report, noting its relevance to the evidence in that case in the application of principles of Bugmy v The Queen. (citations omitted)
• Found offender’s prospects of rehabilitation not unfavourable in light of significant culturally appropriate supports available on his release: [36]
• Referred to material in Hearing Impairment chapter of Bugmy Bar Book: [39]-[42]
• Concluded deprived childhood relevant to reduction of moral culpability – hearing impairment will make custodial conditions more difficult:
• [44] As a result of this finding, the role to be played by general deterrence on sentence is diminished to a degree, as is the weight to be given to other purposes of sentencing, particularly as to denunciation. With his repeat offending, specific deterrence continues to have a role to play, but conversely, rehabilitation must be given substantial weight, particularly at this critical time when he is motivated to change and has all of the appropriate supports in place. As observed above, his chances of rehabilitation at present are perhaps better than they have ever been, particularly if Tharawal, can assist the offender to seek treatment for his hearing impairment, or at least provide him with access to hearing aids.

• Context of disadvantage arising from hearing impairment. The Bugmy Bar Book collates research regarding prevalence and impact of long-term hearing impairment amongst Aboriginal and Torres Strait Islander communities: at [39]–[41]
• For this applicant, hearing impairment may have led to learning difficulties and may have manifested in appearance of intellectual deficits. Time in custody has been more difficult as a result of hearing impairment: at [42]–[43]; R v Russell (1995) 84 A Crim R 286; DPP (Cth) v Ramos [2018] VSCA 290

[101] The Defence Tender Bundle also included a number of summaries from the Bugmy Bar Book Project covering the topics of Exposure to Family Violence, Interrupted School Attendance and Multiple Suspensions, Unemployment, Homelessness, Social Exclusion, and COVID-19 Risks and Impacts for Prisoners and Communities. I should note, without detailing them that I have had regard to those summaries

…

[104] … I do find that Bugmy principles have some role to play in the instinctive synthesis which leads to a consideration of an overall sentence, and the fixing of an appropriate non‑parole period.

• Extracts from Bugmy Bar Book relevant to childhood exposure to domestic and family violence, early exposure to alcohol and other drug abuse and childhood sexual abuse and its impact on children tendered on sentence – provided reference material in addressing deleterious effect of childhood deprivation upon offender: at [63]

• Aboriginal offender with disadvantaged background including sexual abuse, exposure to violence and substance abuse, interrupted school attendance and homelessness
• Accepted tender of four chapters from Bugmy Bar Book and referred to additional two chapters – described as ‘invaluable resource’.

[77] The Bar Book Project, known as the Bugmy Bar Book, contains research chapters freely available to practitioners derived from respected experts. It is found on the Public Defenders website: https://www.publicdefenders.nsw.gov.au/barbook, and provides an invaluable resource of evidence relating to sixteen (soon to be eighteen) indicia of disadvantage: see N Cowdery AO QC, J Hunter and R McMahon, “Sentencing and disadvantage: The Use of Research to Inform the Court” (2020) 32(5) JOB 43.

[78] Indeed each chapter of the Bar Book has a subtitle as follows:-

The purpose of this document is to collate published research, the findings of government reports and inquiries, and academic commentary in relation to [name of relevant chapter] and the effects this may have on a person’s behaviour; development and social well-being; and links to contact with the criminal justice system.

[79] The Bar Book provides additional expert material based on international research which may be used when sentencing an offender: see R v Tsingolas [2022] NSWDC 34 per Yehia SC DCJ. …

• Consideration and summary of research and findings of each relevant chapter from Bugmy Bar Book and application to this offender and the assessment of his moral culpability: [76]-[105]

• Aboriginal offender with disadvantaged background including sexual abuse, exposure to violence and substance abuse, interrupted school attendance and homelessness
• Referred to chapters from Bugmy Bar Book as ‘an invaluable resource’

[80] As to childhood exposure to domestic and family violence, the Bar Book cites research that “there is mounting empirical evidence of the effects of exposure to domestic and family violence on children’s development, and a growing recognition of the ways these harms can manifest in intergenerational cycles of trauma, violence and disadvantage.”

[81] Whilst the offender himself was apparently not the object of the violence:

There is increasing recognition that children exposed to family violence are not passive ‘witnesses’ and that they suffer lasting effects even if they are not the direct object of the violence or do not directly witness it.

[82] Here, there would appear to be no doubt about the effect of the violence in the offender’s family on Mr Edwards.

[83] As Fullerton J said in Perkins v R [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.

• Aboriginal offender with disadvantaged background including sexual abuse, exposure to violence and substance abuse, interrupted school attendance and homelessness
• Referred to chapters from Bugmy Bar Book as ‘invaluable resource’: at [77]
• Homelessness referred to as ‘apex of disadvantage’

[95] Although the reported episodes of homelessness in the offender’s case are sporadic, the Bar Book notes that it is “one of the most potent examples of disadvantage in the community and one of the most important markers of social exclusion”. It is well known that Aboriginal and Torres Strait Islander persons have a significantly increased incidence of homelessness compared to the general Australian community.

[96] Furthermore, the Bar Book cites research that housing, homelessness and mental health are interrelated, and that episodes of homelessness can trigger mental health issues. As the research suggests, and which appears obvious, there is a relationship between homelessness and poverty, violence, substance abuse, social exclusion, ill health and interaction with the criminal justice system.

[97] Homelessness in my opinion sits at the apex of disadvantage, for how can a person be effectively rehabilitated without a permanent abode? The offender may have no access to the internet and all the information available to the average person. He has no fixed address to receive mail or to access home treatment from service providers including Community Corrections and case management services. He has no place to store his possessions including food and clothing. He has no place to wash and maintain hygiene. Without a home, he is destined to live a transient lifestyle, disconnected from society and isolated from friends, family and support networks.

[98] The offender’s (sporadic) homelessness is not to be underestimated as a barrier to his ultimate rehabilitation for these reasons, and in my view constitutes significant disadvantage.