Judgments Library

• Sentencing of 17 year old Aboriginal offender for serious driving and robbery offences after participation in sentencing conversation in Pilot Circle Sentencing List – profoundly disadvantaged and traumatic childhood – removed from parents at 14 months – foster care involved abuse, separation from siblings and instability – no meaningful connection with any adult charged with his care – let down by system – history of contact with juvenile justice system
• Psychologist referred to, and quoted from, ‘Child Abuse and Neglect’ and ‘Out of Home Care’ chapters of Bugmy Bar Book, noting lifelong and intergenerational impact of childhood trauma and link to contact with criminal justice system – Sentencing Judge accepted and gave full weight to profoundly disadvantaged and traumatic childhood – reduced moral culpability and substantially moderated weight given to general deterrence, denunciation and punishment: at [167]-[209]

[199] Pedro’s childhood was absent meaningful connection with any adult charged with his care. Ms Edwige observed:

[Pedro] described feelings of loss and grief associated with his foster parent’s inability to demonstrate genuine regard. The impact this had on [Pedro]’s sense of self, identity, belonging and connectedness was profound.

[200] The only continuous feature of Pedro’s life has been instability. He has spent much of his teenage life either in custody or at residential facilities. As noted by Ms Edwige, “If the primary caregiver is replaced by an institution this impacts on the meaningful development of self-identity and in turn how the child and later adult relates to others”.

[201] Pedro has not had the kind of consistent moral guidance necessary to properly navigate the challenges of adolescence. As a consequence, Pedro necessarily “has fewer emotional resources to guide his (or her) behavioural decisions” than a person who had a “normal” or “advantaged” upbringing: R v Millwood [2012] NSWCCA 2 per Simpson J at [69] (with whom Bathurst CJ and Adamson J agreed).

• Further noted history of institutional care also contributed to risk of institutionalisation, which can impact potential for rehabilitation: at [218]-[223]

• 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]

• 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

• Removed from care of parents by extended family when aged 3–4 years – at 9 years placed into foster care due to behaviour – multiple placements probably connected to behavioural difficulties – separation from family and feeling of being unwanted – impact on education – early substance abuse – low intelligence – supported himself through welfare and crime: at [35]–[46]
• Bugmy principles given due consideration and applied to reduce moral culpability: at [57], [61], [84]

• Mother jailed when offender 4 years old resulting in placement in foster care until 15 years – separated from siblings – physical and sexual abuse – multiple placements – compromised education – limited employment: at [44]
• Diagnosed with schizophrenia at 15 years – in opinion of psychologist offender predisposed to developing schizophrenia due to genetic vulnerabilities and early environmental stressors including domestic violence and sexual abuse – exacerbated by substance abuse, isolation and incarceration: at [48]
• Mental health and socially impoverished, disadvantaged and deprived background impacted assessment of moral culpability: at [49]

• Background of impoverishment, neglect and physical abuse – inadequate housing with father – removed into state care – early substance abuse – frequent encounters with criminal justice system – reinstated to mother’s care but her chronic alcoholism and lack of parental supervision resulted in juvenile detention, youth refuge and foster care: at [33]–[34]
• Bugmy principles applied generally at first instance – balanced with personal deterrence and community protection: at [35]

• Deprived childhood exposed to violence and alcohol abuse by parents – due to uncontrollable behaviour placed in foster care and boys’ homes – sexual abuse while in care reported but ignored – early drug abuse and criminal offending: at [45]
• Bugmy principles applied generally at first instance to reduce moral culpability: at [47]

• Sentencing judge accepted offender’s ‘early years were extremely unsettled, chaotic, disruptive and adverse’ – born to 16 year old mother who abused drugs and alcohol during pregnancy – lived with mother until 8 years old moving around the State – physically assaulted by step-father – Ward of State for 6 years moving around towns and foster carers – lived 3 years with Aunt then refuges: at [51]–[54]

[55] These circumstances denied the offender any chance of learning or developing socially or mentally at school. Unsurprisingly this resulted in behavioural problems… (mental health issues and drug abuse)

• Background taken into account as mitigating factor on sentence:

[57] I take into account as relevant to the severity of the sentence I should impose his very disadvantageous background from birth. This appears to have led him into a criminal milieu and limited his exposure to moral guidance and example. I regard his moral culpability as to some extent reduced by this consideration. It also supports my view that he has reasonable prospects of rehabilitation.

• Offender’s difficult childhood detailed in psychologist report – abuse and violence – environment of alcohol abuse – deprivation from infancy – care provided by mother, grandmother, foster carers and institutions – homeless as a teenager – lived as victim in refuges – impact on education and subsequent employment – abuse of drugs and alcohol to block out early trauma – fits Bugmy / Fernando criteria: at [21]–[24]
• Dysfunctional childhood fundamental to assessing combination of objective and subjective features – person with dysfunctional childhood does not bear equal moral responsibility: at [30]–[32]
• Quoted Millwood [2012] NSWCCA 2 at [69]

Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions … That his background is a relevant consideration affording some (although limited) mitigation is entirely consistent with the approach taken by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58, a decision which has repeatedly been followed in this Court.

• Description of background of young Aboriginal offender revealed extreme neglect resulting in removal from mother’s care at 2 years – exposure to itinerant lifestyle, adult sexual activity, substance abuse, violence and erratic parenting – numerous foster placements – abuse – lived on streets, with friends and with mother since 14 years – associated with criminals since 7 years – disrupted education – received award under Victim’s Compensation and Rehabilitation Act for physical abuse inflicted by mother and partner – early substance abuse: at [69]–[83], [88]
• Consequences of early mistreatment included behavioural problems, increased aggression, delinquency and criminality through teenage years – PSTD: at [84]–[85]
• Difficult sentencing exercise – childhood and youth relevant to mitigation of moral culpability, deterrence and retribution – balanced with gravity of offences and other sentencing principles: at [107]–[108] (see also Simpson J at [14]–[15])

• Young offender with aboriginal heritage – exposed to substance abuse and family violence – removed from parents at early age due to abuse and neglect – unstable childhood with multiple placements in foster care, with different family members, juvenile detention centre and children’s refuge – returned to live with mother for short period until her incarceration – moved to live with father – interrupted schooling – two brothers serving periods of imprisonment for armed robbery, reportedly related to their alcoholism – offender reported many of those who support him have history of engaging in antisocial and/or criminal activities: at [34]–[40]
• Background of violence and substance abuse, neglect, poor role models and disrupted education identified as risk factors to future offending – required balancing of community protection with reduction in moral culpability: at [52], [103]–[107]
• Crown appeal dismissed

• Extensive description of background described as ‘marginalisation of rural and outback aboriginal communities’ and ‘a national disgrace’: at [4] – offender’s childhood likely impacted by grandparents being part of ‘stolen generation’: at [15 – para 9] – early years spent on mission surrounded by widespread alcohol abuse – victim and witness to family violence – left unsupervised – became State Ward at 10 years and endured multiple foster homes in different towns – separated from sisters – sexual abuse – poor education meant illiterate – early substance abuse as a result of an environment that ‘normalised substance abuse’ – early contact with criminal justice system – deaf in one ear: at [15]
• Childhood experiences combined with low intellectual functioning meant poor coping skills and continued substance abuse: at [15 – para 23–25] – also easily led by negative peers: at [15 – para 28]
• On Crown appeal concluded subjective circumstances justified application of Bugmy principles and leniency of individual sentences – sentences ‘tempered with considerable compassion and … structured in such a way as to foster his rehabilitation’: at [18] – total sentence, however, manifestly inadequate and degree of accumulation increased.

• Loveridge’s background included gross neglect from an early age – forced to shop and care for siblings at age 6 years until placed in foster care – evidence of serious mental health problems and problematical behaviour by age 7 years – by age 16 years anger management problems, poor impulse control and anti-social behavioural issues including criminal activities – living in unauthorised and inappropriate placements or on the street – poly-substance abuse: at [36]–[40]
• Relationship of background to moral culpability taken into account

[43] Taking all this material together, it is, I think, appropriate to deal with Loveridge on the basis that, as a result of circumstances beyond his control, his insight into the true moral character of his actions and his ability to exercise judgment about them was significantly less than that of a young person of his age who had grown up in a healthy and supportive familial situation. To these problems must be added the immaturity which is the natural concomitant of his age. Though on one level he was well capable of glib, indeed cunning denials and creative lies, yet they were exposed with relative ease. Nevertheless, I have no doubt that Loveridge well, if incompletely, appreciated the moral and criminal culpability of his actions although I rather think that his callousness was significantly contributed to, if not entirely caused by, the warped moral world that shaped his upbringing.

• AB removed from parents at 12 months of age due to neglect, physical abuse, exposure to heroin abuse and domestic violence – multiple placements with extended family and foster carers – standard of care ‘uneven’ – resisted appropriate boundaries – continued exposure to violence at instance of mother – transient accommodation – family and extended family all have criminal records – limited schooling – early substance abuse – pre-sentence report suggests developed belief ‘violence is a normal part of life’ – poor insight: at [44]–[50]
• While deprived backgrounds to be given full weight on sentence must be balanced with protection of community in view of demonstrated inability to control violent impulse – dangerous individuals: at [55]–[56]