Judgments Library

• Sentencing of Aboriginal man for family violence offences
• Significantly disadvantaged childhood including exposure to heroin abuse of mother:

[61] You experienced significant disadvantage as a child. Your mother was dependent on heroin prior to and after you were born. She and your father separated when you were two. You stayed in her care despite her ongoing use of heroin until you were four or five years of age. These are formative years for a child. Research establishes “that children in families with parental or carer substance abuse are at greater risk of a range of adverse developmental outcomes”. It “may increase the likelihood of children being substance misusers themselves and being involved in the juvenile justice system”: Bugmy Bar Book Project Committee (eds), ‘Early Exposure to Alcohol and Other Drug Abuse’ Bugmy Bar Book (November 2019).

• Disrupted schooling also a significant disadvantage:

[65] You left school in Year 8, having experienced behavioural challenges, and completed Year 10 [redacted]. The disruption of your schooling is a significant disadvantage: see, generally, Bugmy Bar Book Project Committee (eds), ‘Interrupted School Attendance and Suspension’ Bugmy Bar Book (October 2023)

• Childhood disadvantage reduces extent to which offender can be considered appropriate vehicle for general deterrence: at [84]
• Drug and Alcohol Treatment Order imposed

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

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

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

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

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

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

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

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

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

• 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.

• Psychological report described 15y old Wiradjuri man with complex developmental trauma – born to drug addicted 15y mother and removed into non-indigenous foster care at 12 months – exposed to mother’s drug use throughout life – experienced younger brother’s removal from mother’s care and placement with different carer due to mother’s drug use – early substance abuse – difficult schooling period – disconnection with cultural identity – multiple significant losses and grief – externalised grief, loss and anger through maladaptive techniques – profound trauma resulting in mental health and behavioural issues
• Psychological report supported by references to multiple Bugmy Bar Book chapters: at [56], [58], [62], [63]
• Further reference to Significance of Culture to Wellbeing, Healing and Rehabilitation Report with emphasis on importance of culturally appropriate treatment to facilitate rehabilitation – importance of individual rehabilitation to both individual and community protection: at [81]-[85]
• Reference to comment in Hoskins [2021] NSWCCA 165 that childhood deprivation does not need to be profound at [81]-[85]
• Application of Bugmy principles

• Indigenous offender raised by aunt in stable environment until returned to biological mother’s care at 13y – unaware aunt was not real mother and no understanding why not raised by biological parents – struggled with feelings of abandonment – life became destabilised and chaotic in permissive environment under mother – biological family relationships characterised by violence, exposure to alcohol and criminal conduct normalised
• Not necessary to characterise an offender’s childhood as one of “profound deprivation” before Bugmy principles apply: at [57]
• Causative link not required citing Dungay [2020] NSWCCA 209: at [57]-[58]
• Bugmy principles apply here especially in view of exposure to criminal milieu during formative adolescence period – exacerbated by momentous discovery in relation to his biological parents and subsequent identity issues and introduction to use of alcohol – sentencing judge erred in finding no evidence supporting application of Bugmy considerations : at [61]-[64]

Per Basten JA, agreeing

[1] I agree with Brereton JA that the sentencing judge, in an otherwise thorough and careful judgment, failed to apply the principles articulated by the High Court in Bugmy v The Queen. Although those principles can apply generally to offenders brought up in circumstances of social disadvantage, they have particular application and are commonly invoked in relation to members of Indigenous communities. That is because, as has been documented by numerous inquiries and research studies, those communities continue to exhibit the dislocation resulting from foreign invasion, disruption of culture and minority racial status.[2] However, they are also the principal victims of alcohol driven violence of the kind exhibited by the applicant, Douglas Hoskins. To downplay the principle of protection of the community, identified as a purpose of sentencing in s 3A(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW), is to diminish both the appearance and perhaps the fact of equal protection of those Indigenous communities. On the other hand, it must be recognised that incarceration has not proved an effective deterrent of anti-social behaviour in these circumstances; its deterrent effect being compromised by lack of insight which is itself a common feature of the circumstances which lessen moral culpability.

[2] These conflicting considerations place a sentencing judge in a difficult position; their acknowledgement provides little practical assistance in determining an appropriate sentence. The solution to the social problems does not lie in the criminal courts, whose best course may be to err on the side of leniency.

[2] See, eg, Kentwell v R (No 2) [2015] NSWCCA 96 at [89]-[92] (Rothman J; McCallum J agreeing) referring to R v Lewis [2014] NSWSC 1127 at [37]-[38] (Rothman J); Royal Commission into Aboriginal Deaths in Custody, National Report Volume 1 (AGPS, 1991) at Chs 1.4-1.5

• Difficult childhood – both parents heroin addicts – exposure to drug abuse including driving with father to source drugs – parental incarceration – exposure to family violence – transient accommodation with father – early drug abuse and self-harm – diagnosis of PTSD: at [25]-[27]
• Accepted psychologist opinion as to impact of PTSD on offending – risky, reckless and self-destructive behaviour – inability to self-regulate – aggression, substance use and deficits in impulse control – developmental trauma: at [28]
• Applied Bugmy and Millwood [2012] NSWCCA 2 at [69]- justified sentence well below range: at [37]

• Offender struck and killed pedestrian with car – no culpability for accident but failed to stop
• Childhood history of exposure to drug and alcohol abuse, physical abuse, domestic violence and multiple care givers – possible PTSD: at [49]-[59]
• Accepted on appeal psychologist’s suggestion that failure to stop linked to impaired judgment and poor decision making in context of emotional distress and panicked state: at [71]-[74]
• Concluded disadvantaged and dysfunctional background operated to provide some explanation for offence – while self-interest and self-preservation still key factors moral culpability reduced in view of childhood trauma: at [78]

• ‘History of trauma, dispossession, abandonment and deprivation explains how it is that Ms Turnbull comes to be where she is today’: at [27] – no father figure and little parental support throughout life – mother drank heavily and often left children to fend for themselves – exposed to violence and sexual abuse – homelessness and early drug abuse – first child at 14 years – significant impact of loss of second child during pregnancy at 24 weeks – adult life marred by domestic violence – post traumatic stress disorder: at [27]-[45]
• Extraordinary history of abuse and trauma taken into account as causally connected to drug abuse and offending: at [38]
• Referred to failure of system:

[45] … There appears to have been a failure in the system to intervene at critical stages of Ms Turnbull’s life. Ms Turnbull is an abandoned and vulnerable Aboriginal offender who has appeared in the lower courts on many occasions. It is difficult to escape the conclusion that intensive and culturally appropriate intervention and supervision, of the kind that a focussed and dedicated court would have provided, may have assisted the offender during her most difficult times and broken the cycle of violence, abuse and offending.

[31] I am of the view that s 21A(5AA) must be taken to apply for all purposes so that the exception to the common law rule that intoxication was not a mitigating circumstances in respect of persons who acquired their addiction in their youth has been abrogated. At the same time, I am of the view that Mr Wilson’s alternative argument ought to be accepted and to the extent to which Bugmy considerations ameliorate and reduce what might otherwise be the moral culpability associated with this offending, it is relevant to bear in mind that Mr Coats’s substance abuse disorder commenced between the ages of 13 and 15. However, accepting that by his mid-thirties he was no doubt in the grip of it, it was not until then that he started using ice.

[32] None of this means that intoxication is a justification for Mr Coats’s offending. But the matters I have referred to in relation to his upbringing, his disadvantage and the dysfunctionality of his youth do reduce to some extent his moral culpability for this offending including the consideration that it was committed while he was under the effect of intoxicating illicit drugs which addiction he acquired as an aspect of his childhood deprivation.

• Description of childhood included exposure to parents’ substance abuse and violence at hands of father – sexually assaulted by male friend of family – commenced cannabis use at 7-8 years, alcohol use at 11 years and amphetamines at 15 years: at [32]-[39]
• Found Sentencing Judge erred in declining to apply Bugmy principles – accepted causal link between background, drug addiction and offending: at [110]-[123]

[39] Dr Furst concluded his pathway into addiction and drug related offences was connected to his exposure to parental alcoholism, domestic violence and physical abuse victimisation

• Despite error, and although background represented ‘reasonably significant subjective feature relevant to the sentencing of the respondent’ concluded sentences manifestly inadequate and allowed Crown appeal: at [136].

• Evidence established both parents drug addicts and unable to properly look after offender or provide proper role models – raised by sister who was only four years older – toxic environment of substance abuse and violence – poor school experience – developed longstanding dependence upon drugs as a result of background: at [16]-[21]
• On appeal referred to relationship between background, substance addiction and offences:

[21] In short, the applicant, a young man just two years past the age at which the criminal justice system regards one as an adult, had, by the time of the offences, developed a longstanding dependence upon prohibited drugs, no doubt largely as a consequence of his upbringing, and the psychological damage it inflicted upon him. And it was the effect of those drugs that played a central role in the offences: his gross intoxication was the aggravating feature of each of the two major counts; he claimed not to have slept for days, no doubt as a result of the ingestion of amphetamines; and that lack of sleep, combined with the direct effects of the drugs, surely played a role in his grossly dangerous mode of driving and its catastrophic consequences.

• Found sentence manifestly excessive: at [24]

[36] Here, where the offender first consumed alcohol, in relatively large quantities, at the age of five, well prior to the age of criminal responsibility or an age of rational decision-making, and was, probably by the time of criminal responsibility and certainly by the time of majority, an alcoholic or an addict in the consumption of alcohol, the notion of “voluntary” consumption of alcohol takes on a wholly different complexion.

[37] More importantly, when dealing with the Bugmy factors, one is not making allowance or mitigating for “intoxication”. The factors relate to a deprived environment of which alcohol forms part. It is the moral culpability associated with that environment for which allowance is made; not intoxication, and the state of inebriation of the offender at the precise time of the commission is not the most relevant aspect of that issue.

[38] It is probably unnecessary to resolve finally the foregoing issue, about which, no doubt, there may be different views. The reason it is unnecessary to determine the issue finally is that, as the Crown points out in its most helpful Supplementary Submissions, whether or not one can take into account intoxication as a mitigating factor, when it is a reflection of the environment in which the offender was raised “it does not impact upon the relevance of the offender’s deprived background” as a factor in sentencing. …

[39] In the current circumstances, it would be impossible, given the expert evidence, to deal with culpability and the degree of deliberation in the offender’s conduct, without considering the effect of alcohol on the offender.

…

[78] Nevertheless, the state of intoxication of the offender is a matter that tells significantly on the culpability of the offender and his background brings into play the principles embodied in the issues that relate to an environment of abuse and social exclusion which have affected Mr Russell’s executive decision-making and render him far less a person who stands as a good example for the purposes of general deterrence.

• Expert evidence established 29 year old offender had been exposed to physical and emotional abuse by his father as a very young child then introduced to illicit drug culture, and accompanying criminal activity and violence, by his step-father – dysfunctional childhood caused mental health issues: at [14]-[15].
• Sentencing judge erred in finding these factors were of diminished value because offender was ‘a mature man who has had ample opportunity to address his difficulties’ – contrary to Bugmy: at [21]-[22]
• On re-sentence found offender’s dysfunctional childhood and early exposure to drug culture provided ‘a compelling explanation for his addiction and ongoing involvement in criminal offences’ as well as causing his ‘significant and chronic mental health problems’ making custody likely to be more onerous: at [35]

• Psychiatric report showed both parents substance abusers – mother used large quantities of drugs and alcohol during pregnancy – father introduced applicant to cannabis at age 5 years – daily user of cannabis by 10 years, amphetamines by 11 years and heroin by 13 years – displayed ADHD and ‘psychotic symptoms’ in teenage years although psychologist states ‘difficult to make a definitive diagnosis of applicant’s mental condition due to prodigious substance dependence’ – father’s substance abuse problems caused significant emotional neglect – criminal offending commenced at 15 years: at [10]-[27]
• Found sentence manifestly excessive – sentencing judge overstated subjective seriousness of offences and had insufficient regard to applicants’ background: at [117]

[99] We have set out the applicant’s subjective circumstances above (at [10]-[27]). Although as we indicated in dealing with Ground 1, the sentencing judge took those circumstances into account, we would respectfully disagree with his comment that not much should be made of them. It seems to us that the introduction to drugs at the age of 5 and what his Honour found to be significant emotional neglect caused by his father’s substance abuse problems along with the fact that the applicant had no relationship with his mother, were matters of significance. Further, the psychiatric and presentence reports summarised above (at [10]-[24]), which were not challenged at the hearing, demonstrate the applicant’s substance abuse had an effect both on his mental state and his overall level of functioning. These matters are significant in assessing the moral culpability of the offender: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [39], [43]-[45], although as was pointed out in that case, the inability to control his impulses may increase the importance of protection of the community: Bugmy supra at [45]; Engert (1995) 84 A Crim R 67 at 68.

[50] The effect of Fernando and of Bugmy is to recognise that, in certain communities to which the circumstances in Fernando and Bugmy applied the abuse of alcohol and drugs is so prevalent and accompanied by violence that the intoxication no longer fits the description of being “self-induced”. In that way, the intoxication fits the description to which McClellan CJ at CL referred in Bourke.

…

[54] Most importantly, the learned sentencing judge took into account his finding that the applicant had used drugs of various kinds since he was 13 years of age and has been on and off a methadone programme for his heroin/morphine addiction since 2003. At the age of 13 years, the applicant was not at an age of “rational choice” that would give rise to the full responsibility for the moral culpability and the predictable consequences of a choice to become addicted: see Bourke, supra at [28], citing Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346 at [185].

• Appeal against sentence imposed for an assault in 2009 and unrelated serious sexual offences against estranged partner in 2011 – found insufficient weight given at first instance to evidence of mental health and upbringing
• Found on appeal inadequate weight had been given to unchallenged evidence from psychiatrist report and offender himself of significant childhood exposure to physical, psychological and sexual abuse – introduced to alcohol by uncles at 10y and using cannabis at 13y
• Background included physical, psychological and sexual abuse – early substance abuse – lived on street from late teens – developed serious mental health issues, substance dependence and personality disorder: at [18], [50]
• On appeal Court accepted opinion of psychiatrist that:

[37] (the offender) also has a history of poor attachment to his parents and marked behavioural disturbance in his youth. It is likely that the early onset of his alcohol abuse and the severe childhood sexual abuse, trauma and neglect he was exposed to adversely affected his personality formation and made him more prone to angry outbursts, difficulty sustaining relationships and impulsivity.

• In relation to first assault accepted upbringing and mental condition significantly contributed to applicant’s lack of control in response to provocation of victim: at [40]
• In relation to sexual offences concluded inadequate reference to, and consideration of, applicant’s background: at [88]-[91]

[114] When to the Applicant’s mental disability is added the impact of his upbringing, the Applicant’s offending is not to be judged by normal standards

[102] Mr May’s drug addicted past, born of the despair and hopelessness of the communities in which he was raised, remains a feature of his overall subjective case. However, in conformity with s 21A(5AA) I have not had regard to the offender’s state of self-induced intoxication as a mitigating feature in assessing sentence.

[103] An offender’s history of early exposure to violence and drug use, and consequent drug addiction, can be relevant to the question of an offender’s moral culpability and capacity to regulate his emotions and conduct: Bugmy, at [43] – [44]. I have had regard to the offender’s drug addiction in that way, and as relevant to his future prospects.

[79] In accordance with s 21A(5AA), I make it clear that I have not taken into account as a mitigating feature the self-induced intoxication of the offender at the time of the offence. However, in conformity with the High Court’s judgments in Bugmy and Munda, I have taken into account the fact that the offender’s early exposure to both domestic violence and drug and alcohol abuse reduce his moral culpability and capacity to control his emotions.

• Offender stabbed female partner in back while intoxicated – Counsel on sentence submitted offender a ‘traditionally orientated aboriginal’ who grew up on missions in Western Australia and lived in remote Yatala community at time of offence – exposed to intergenerational alcohol abuse and violence – ‘living between two worlds and not coping with either’: at [19]-[20]
• On appeal Gray and Sulan JJ found the sentencing judge committed numerous errors including a failure to properly consider the link between the offender’s background of intergenerational alcohol abuse and violence and the offending: at [46]

[35] … The Judge failed to identify, in his remarks, the link between the intergenerational alcohol abuse, the circumstances of the defendant, a traditional Aboriginal man not living on-country, and his offending conduct. It would appear that the Judge failed to adequately understand the submissions of defence counsel that the defendant was living between two worlds and not coping with either because of the degrading effects of alcohol on him, on his family, upon his extended family and upon his community. He was addicted to alcohol and had no one to turn to because they were all in the same position. The question for the Judge was whether his offending behaviour was understandable and explicable in the context of his early life and upbringing on those missions and his subsequent experiences. These were matters directly relevant to an assessment of blameworthiness and culpability.

…

[49] There is little doubt that the consumption of alcohol was the precipitating cause of the defendant’s offending. His history of alcohol dependence and exposure to violence are relevant considerations. This history, as put by defence counsel, was not challenged and provides an explanation for the defendant’s conduct. His disadvantaged background is a relevant consideration in the circumstances of this proceeding.