Judgments and Decisions Referring to the Bugmy Bar Book
The Bugmy Bar Book has been cited in numerous published judgments and decisions of courts and tribunals in NSW, ACT, Victoria and Queensland. The table below presents a summary of published judgments and decisions referring to the Bugmy Bar Book.
Last update: July 2026
Criminal Cases
Criminal Cases
NSW Court of Criminal Appeal
-
- Appeal against sentence for drug offences
- Noted excerpts from the Bugmy Bar Book were included in the defence bundle handed up on the sentencing proceedings at first instance – executive summaries of chapters on childhood sexual abuse, child abuse and neglect, homelessness, impacts of imprisonment and remand in custody, and unemployment: at [43]
-
- Unspecified extracts from Bugmy Bar Book tendered at first instance – relied particularly on history sexual abuse, social isolation and low socio-economic status: at [71]-[73]
- Concluded on appeal Sentencing Judge appropriately dealt with interrelationship between Bugmy considerations and mental health issues: at [80]-[81]
-
- At first instance applicant relied upon ‘two Bugmy Bar Book executive summaries’: at [96]
- Background included sexual abuse at school, death of father from dementia and early substance abuse: at [101]
- Sentencing Judge noted applicant’s mental health and childhood sexual abuse reduced significance of general deterrence “to some degree” but general deterrence remained a sentencing factor of importance: at [117]
-
- Applicant struck female bar attendant with glass while intoxicated -consideration of relationship between PTSD and intoxication at time of offence
- Submissions to Sentencing Judge referred to Bugmy Bar Book, Bugmy (2013) 249 CLR 571; [2013] HCA 37 and DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194: at [38]
-
A summary of this case is also available on the NSW Judicial Commission’s Judicial Information Research System (JIRS): Link
- Appeal against sentence imposed for well-planned murder of underworld figure.
- Evidence tendered of offender’s disadvantaged childhood at first instance – indigenous offender – exposed to violence and substance abuse – low socio-economic status and neglect – incarceration of both parents – mother a member of Stolen Generation.
Ground 4 – per Simpson AJA (Dhanji and McNaughton JJ agreeing)
- Unanimously allowed appeal on ground Sentencing Judge erred in not applying principles in Bugmy to reduce appellant’s moral culpability – psychologist report clearly identified causal connection between disadvantaged background and offence, and nothing in Bugmy supports suggestion of Sentencing Judge that deprived background could diminish moral culpability for lesser offences but not for more serious offence of murder: at [71]-[76]
Ground 5 – per Simpson AJA (McNaughton J agreeing – Dhanji J dissenting on this ground)
- In declining to uphold separate ground that Sentencing Judge erred in finding extracts from Bugmy Bar Book irrelevant to sentencing process Simpson AJA considered ‘the use, if any, that may properly be made of that material.’ at [77]
- Described Bugmy Bar Book as containing a ‘considerable quantity of social research’ that is ‘undoubtedly a useful compilation of material relevant to understanding the effects of social disadvantage and deprivation’: at [83]-[85]
- Further commented ‘the survey of reference materials qualifies as “expert evidence”, that is, “expert knowledge” drawn from what appears to be academic research, that is capable of assisting a sentencing judge to understand specific evidence about the circumstances of a particular offender, placed in a wider context’: at [90]
- While warning such material alone cannot substitute for evidence in respect of an individual offender, accepted it may be useful in some cases in laying a foundation for acceptance of relevance of evidence of offender’s personal circumstances: at [91]
- In this case additional material from Bugmy Bar Book did not add to comprehensive nature of psychologist report and failure by Sentencing Judge to have regard to material did not contribute to the error under Ground Four: at [97]
Ground 5 – per Dhanji J (dissenting on this ground)
- In separate judgment Dhanji J found evidence of Bugmy Bar Book chapters were relevant and capable of bearing on determination of sentence, and failure of Sentencing Judge to have regard to material constituted an error: at [131]
- After summarising the way evidence of offender’s background had been supplemented with chapters from Bugmy Bar Book before the Sentencing Judge, Dhanji J observed the value of the research lay in its potential to enhance understanding of impact of an offender’s background, particularly in cases where connection to offending is not self-evident and contested: at [145]-[146], [150]
- Also considered importance of counsel’s presentation of material, including use of references to specific paragraphs of Bugmy Bar Book relied upon in submissions, narrowing material required to be reviewed by Sentencing Judge. at [152]
-
- Prior to delivering sentence Sentencing Judge provided each party with chapter from Bugmy Bar Book Project which discussed child sexual abuse and its relevance to sentence – confirmed parties did not object to her Honour having regard to material in chapter – observed it effectively supported report of psychologist: at [59]
[64] … “That takes me to what is to be made of that material on sentence. I have marked for identification the chapter on Childhood Sexual Abuse produced by the Bar Book in November 2019 which further corroborates the opinion of the psychologist. That Bar Book Project chapter makes reference to the Australian Institute of Family which indicates that children who have been exposed to sexual abuse have been found to suffer from increased risk of drug and alcohol dependence, to suffer from various anxiety disorders and are also found to be at greater risk of engaging in risky behaviours, particularly risky sexual behaviours, during adolescence and in adulthood, and are less able to cope with sexual impulses and may develop lifelong difficulties tolerating or regulating distress, behaviour and impulses and have greater difficulty in managing interpersonal relationships.
-
- Sole issue on appeal was parity
- Quoted extensively from judgment of Sentencing Judge including section headed ‘Background of Disadvantage’ – Sentencing Judge had ‘reference to the Public Defender’s Bugmy Bar Book chapter on early exposure to alcohol and other drugs’ and took ‘judicial note that research shows that children in families with parental or carer substance abuse, are at greater risk of a range of adverse developmental outcomes.’: at [23]
- Sentencing judge further commented:
Living in a household where misuse of alcohol and drugs occur, may increase the likelihood of children being substance misusers themselves and being involved in the juvenile justice system. The direct effects of childhood exposure to alcohol and other drug abuse, may include emotional and physical abuse, maltreatment, modelling of poor drinking and substance abusing behaviours, inadequate supervision and separation from parents.
The placement of children into the care of other care givers or the placement with informal kinship care arrangements, or being placed in out of home care, protection and authorities can result Parental incarceration and/or experiences of out of home care, are themselves factors which may increase the likelihood of a person coming into contact with tile criminal justice system.
The relevant references to those studies can be found on the website just cited. The potential relevance of evidence of early exposure to alcohol and/or other drug abuse in sentencing proceedings includes an assessment of moral culpability, moderation of the weight to be given to general deterrence and determining the weight to be given to specific deterrence and protection of the community.
It is also relevant to a finding of special circumstances and the shaping of conditions to enhance prospects of rehabilitation. I accept that matters personal to the offender that are causally connected with or materially contributed to the commission of the offences, are relevant to the assessment of the objective criminality of the offending.
-
- 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.
-
- Aboriginal offender aged 19 years involved in sustained assault on two males in car park – detail of childhood trauma set out in psychologist report including violence, exposure to substance abuse and parental incarceration, homelessness and poor educational engagement – aggravated by mother’s mental health and sister’s serious illness – resulted in unresolved complex developmental trauma: at [33]-[42]
- Chapter of Bugmy Bar Book titled “Childhood Exposure to Domestic and Family Violence” tendered on sentence in the proceedings below and marked for identification: at [32]
- The sentencing Judge erred in rejecting Bugmy submissions on basis applicant’s prior good character and demonstrated ability to ‘rise above’ disadvantage – ignored evidence of psychologist report identifying link between applicant’s childhood exposure to violence, abuse and other childhood stresses and the offences: at [84]-[90]
[88] Ms Edwige found a nexus between the applicant’s childhood trauma and his current mental health; his high anxiety level, emotional detachment, immaturity, his difficulties in interpersonal relating and his poor self-esteem.
[90] I accept the expert opinion of Ms Edwige as to manner in which the applicant’s childhood trauma has affected his development, behaviour and capacity to relate interpersonally, which in turn informed his decision-making and reactions in his commission of the offences and his ingestion of drugs and alcohol beforehand. For those reasons, the applicant’s moral culpability is reduced, warranting a reduction to be made to the application of general deterrence.
NSW Supreme Court
-
- Sentence for murder
- After noting evidence of significant trauma in offender’s childhood, Sentencing Judge referred to evidence of Dr Furst, and the Bugmy Bar Book material tendered on behalf of offender as supporting a link between such trauma and some of the difficulties the offender came to develop, including substance abuse problems, depression and anxiety: at [56]
-
- Release application for bail in relation to very serious violence offences – requirement to ‘show cause’
- Applicant gave birth to child while in remand – unsuitable for programs permitting newborns to remain with mothers while in custody due to nature of charges
- Reference to material in Bugmy Bar Book on incarceration of parents and caregivers – separation of mother and child creates extreme trauma for both and interferes with important bonding during infancy of newborn: at [11]
[15] Taking into account the delay in the case, the separation between Ms Jones and her baby, particularly as that would impact on the infant, the applicant’s lack of a record for violent offending, and the likelihood that she will be in custody well into next year, I am satisfied she has shown cause. A number of those matters are also relevant to an assessment of risk.
-
- Sentence for stabbing of 18 year old cousin after significant escalation of ‘playful fighting’ – instantaneous surge of anger in response to unjustified perception of threat – unlawful and dangerous act
- Accepted evidence that offender sexually assaulted by teacher in Year 9 at school – subsequent PTSD exacerbated by Hodgkins Lymphoma when 19 years old – found dysregulation and impulsivity, partly the result of his PTSD and partly the result of his youth, materially contributed to offending conduct: at [85]-[91]
- Referred to research from Bugmy Bar Book on impact of childhood sexual abuse and PTSD
[90] The Bugmy Bar Book chapter titled “Childhood Sexual Abuse” contains research which demonstrates the link between childhood sexual abuse and adverse mental health, social and behavioural issues. The literature reveals consistent associations between child sexual abuse and significant negative mental health effects such as post-traumatic symptoms, aggressive behaviour, and conduct problems. It also results in an increased prevalence in diagnoses of PTSD and the use of illicit substances to deal with the symptoms flowing from PTSD.
-
Woods; Hayes; McLachlan; Harding; Farnsworth (No 2) [2024] NSWSC 545
Criminal LawBugmy Bar Book: Childhood Sexual Abuse- Sentence imposed for murder – referred to body of research from Bugmy Bar Book:
[254] One of the bodies of research referred to in the Bugmy Bar Book is the Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse. The Commission explained:
- “When a child is sexually abused, the effects can be devastating. For many, the impacts of the abuse last for their whole lives. When the abuse occurs in an institution and the institutional response is inadequate, victims can experience additional adverse impacts. While each person’s story is unique, for many victims the abuse has created a complex constellation of mental health symptoms and associated negative outcomes that have changed their lives profoundly. The abuse can reach into all areas of the victim’s life: mental health; interpersonal relationships; physical health; sexual identity; gender identity and sexual behaviour; connection to culture; spirituality; interactions with society; and education employment and economic security.”
-
- Offender’s case included three chapters from the “Bar Book Project” – “Childhood Exposure to Domestic and Family Violence”, “Incarceration of a Parent or Caregiver”, and “Early Exposure to Alcohol and other Drug Abuse”: at [56]
[60] The offender tendered a large volume of material in his case, including whole chapters of a publication. The text extracts are generic and of little real assistance, unless information in them can be directly tied by evidence to the offender’s situation. In the offender’s case, making that link depends largely upon acceptance of the offender’s untested and unsworn, and frequently contradictory, account of his own circumstances.
- Found offender unreliable historian and evidence of background contradictory
-
- Application for bail by 11 year old Aboriginal male with 59 outstanding charges – multiple and complex needs – previously declined to engage with support programs – remanded to Youth Justice Centre when previously refused bail
- Consideration of Youth Justice policy to provide voluntary bail support not mandatory bail supervision where no guilty plea – policy designed to reduce criminalisation of non-compliance with supervision – importance of ensuring bail support still comprehensive and co-ordinated: at [30]-[42]
- Emphasis on importance of providing children who have multiplicity of complex needs with support, supervision, and guidance in the community as opposed to detaining them in custody – referred to supporting research material
[43] Ensuring that the community is protected against antisocial and criminal behaviour requires more than simply locking up an 11-year-old. What is required is an intensive and coordinated approach. In the case of an Indigenous child, it requires referral to culturally appropriate programs, ideally managed and staffed by Indigenous caseworkers. The significance of culture to well-being, healing and rehabilitation, has been recognised and there is little doubt that “conceptualisations of wellbeing, and therefore efforts for healing and rehabilitation, are intrinsically tied to culture, with Indigenous perspectives of well-being and healing reflecting holistic worldviews that consider connections between physical, social and emotional well-being, individual and collective wellbeing, and the impact of social political and historical factors”. [1]
[44] The findings of the Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory [2] indicted that incarcerated children and young people are more likely to have experienced poor physical and mental health and disproportionately higher levels of disadvantage than the general population. Accordingly, their health needs may be greater than those of children and young people in noncustodial settings. The report also noted that children and young people in detention are a particularly vulnerable group. They have varying and complex needs and behaviours. Many have come from crisis situations or a background of disadvantage, have experienced trauma or have a range of health issues. Detention itself may give rise to trauma, which may compound already highly complex behaviours and needs. To address the needs of these children and young people effectively, underlying issues need to be recognised and properly addressed and treated. Research shows that threatening and punitive interactions, incarceration, and punishment escalate the aggressive behaviour of troubled youth. [3]
1. Vanessa Edwidge and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (June 2021) at 5.
2. Final Report of the Royal Commission and Board of Inquiry into the Protection and Detention of Children in the Northern Territory (17 November 2017).
3. A Safer Northern Territory through Correctional Interventions: Summary Report of the Review of the Northern Territory Department of Correctional Services (31 July 2016).
- In this case satisfied “bail support” plan sufficiently comprehensive and ameliorates risks – release application granted: at [46], [54]
-
- Sentence imposed for murder – found offender’s experience of childhood sexual abuse relevant to adverse mental health, social, interpersonal, physical, and behavioural consequences – referred to research material in Bugmy Bar Book from Royal Commission into Institutional Responses to Child Sexual Abuse and Australian Institute of Family Studies on impact of childhood sexual abuse: at [140]-[149]
-
- 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]
-
- 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]
-
- 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.
-
- Evidence of WD’s deprived and disadvantaged childhood accepted by Crown – included parental neglect, disrupted schooling, exposure to domestic violence, exposure to parental substance abuse, early introduction to substance abuse and serious parental and family mental illness: [256]-[259]
- Court provided with summaries of research into impacts of childhood exposure to domestic and family violence; early exposure to alcohol and other drug use and interrupted school attendance derived from Bugmy Bar Book: [261]
- Referred to cases where deprived background found to reduce moral culpability, or at least to significantly mitigate sentence, for offences involving planning: [264]
- Offender’s childhood a crucial feature of his case and relevant to both assessment of moral culpability and need for rehabilitation: [265]-[267]
-
- Kirby Institute Report and chapter from Bugmy Bar Book relied upon in documentary evidence: [60]
- [60] A report from the Kirby Institute at the University of New South Wales dated 16 April 2020 discussed issues connected with the management of the condition in prisons, whilst an extract from theBugmy Bar Book of 20 September 2021 considered the incidence of COVID-19 infection in the prison system, and the wider impact of the virus on prisoners.
- Kirby Institute report ‘largely unhelpful, dating as it does from April 2020. The COVID-19 situation is fluid and much has changed since that time, including the availability of vaccines to both the general and prison population.’: [127]
-
- Sentence for offence of conspiracy to commit misuse of public office –
- Reliance upon Kirby Institute Report on COVID-19 and the Impact on New South Wales Prisoners (April 2020) and Bugmy Bar Book chapter titled ‘COVID-19: Risks and Impacts for Prisoners and Communities’: [116]-[121]
- Further considered evidence from NSW Corrective Services as to current practices in relation to Covid-19 in correctional centres: at [122]-[132]
- Concluded increased risk in view of offenders’ age and premorbid chronic health conditions relevant to finding of special circumstances: at [149]-[150]
ACT Court of Appeal
-
- Appeal against sentence for family violence offences
- Court referred to appellant’s childhood exposure to violence and alcohol – noted the effects of this upbringing upon the appellant’s moral development, understanding of relationships, and capacity for selfcontrol are clear, referring to the Bugmy Bar Book chapters ‘Early Exposure to Alcohol and Other Drug Abuse’ and ‘Childhood, Infant and Perinatal Exposure to, and Experience of, Domestic and Family Violence’ – further noted the sentencing judge properly accepted the weight to be given to general deterrence and punishment should be moderated: at [60]
-
- Psychologist report admitted as fresh evidence on appeal
- [17] Ms Edwige’s report in respect of the appellant provides a comprehensive analysis of his background, psychosocial history, education, history of substance abuse and medical and psychiatric history. She cites extensively from materials available from the Bugmy Bar Book Project, including its chapters on early exposure to alcohol and drugs, child abuse and neglect, child sexual abuse, out of home care and homelessness. The report is plainly relevant to sentencing considerations, including the application of the principles stated in Bugmy v The Queen [2013] HCA 37; 249 CLR 571, the High Court’s articulation of which was the inspiration for the Bugmy Bar Book Project.
- Appeal allowed and matter remitted for resentence
- Psychologist report admitted as fresh evidence on appeal
-
- Crown appeal against sentence dismissed – sentence not manifestly inadequate
- Bugmy principles applied at first instance to reduce moral culpability: see Ruwhiu [2022] ACTSC 290 (Refshauge AJ) below – 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.
ACT Supreme Court
-
- Sentencing for burglary offence after participation in sentencing conversation
- Psychologist report referred to Bugmy Bar Book chapters Childhood, Infant and Perinatal Exposure to, and Experience of, Domestic and Family Violence and Early Exposure to Alcohol and Other Drug Abuse: at [40], [42]
- Sentencing Judge accepted disadvantaged childhood must be given full weight and moral culpability reduced: at [70]
-
- Sentencing of 19 year old offender
- Recognised authorities holding youth justice principles still apply although not a juvenile offender – authorities reflect neurodevelopmental research, which recognises that whilst “legal adulthood begins at age 18 years in Australia, key brain regions, especially those involved in decision-making, emotional control, and social understanding, continue to develop until at least age 25”: Jody Kamminga et al, Decision-Making, Emotion and Behaviour Regulation in 18-to-25 Year-Olds: A Neurodevelopmental Perspective (Bugmy Bar Book Report, 2025) 18: at [31]
-
- Sentencing of 38 year old offender for drug offences and offences of violence against intimate partner.
- In considering impact of offender’s childhood referred to Bugmy Bar Book chapters: Early Exposure to Harmful Alcohol and Other Drug Use; Child Abuse and Neglect and Homelessness: at [29]
-
- Sentencing for recklessly inflict gbh
- Psychologist report cited research from Bugmy Bar Book Project – observed offender’s childhood experience was one which can have significant impact “on a child’s social and emotional well-being”: at [30]
- Sentencing Judge accepted offender’s disadvantaged childhood experience explains to a significant degree his resort to violence in face of a degree of provocation by victim and required reduction in moral culpability: at [47]
-
DPP v Catania [2026] ACTSC 54
Criminal LawBugmy Bar Book: Early Exposure to Alcohol and Other Drug Abuse- Sentencing for family violence offences
- Offences occurred as a direct result of offender’s drug use – referred to Bugmy Bar Book, Early Exposure to Harmful Alcohol and Other Drug Use in considering normalising impact of offender’s exposure to parental drug use during childhood: at [16]
-
- Psychologist Vanessa Edwige quoted from Bugmy Bar Book: Child Abuse and Neglect: at [91]-[92]
- Bugmy principles applied
-
- Psychologist Vanessa Edwige quoted from Bugmy Bar Book: Early Exposure to Alcohol and Other Drug Abuse and Child Abuse and Neglect: at [85]-[87]
- Bugmy principles applied
-
- Sentencing for offence of violence
- Offender of refugee background – no pre-sentence report available – submitted on behalf of offender ‘typical refugee reaction to police’ could explain refusal to co-operate with pre-sentence authorities – relied upon ‘Refugee Background paragraph’ in the Bugmy Bar Book
- Accepted by Sentencing Judge as possible explanation – also accepted relevance of passage in relation to trauma offender suffered as a child in South Sudan: at [14]-[16]
-
- Sentencing for property and burglary offences after participation in sentencing conversation
- Psychologist report referred to Bugmy Bar Book chapters Child Abuse and Neglect, Childhood, Infant and Perinatal Exposure to, and Experience of, Domestic and Family Violence, Early Exposure to Alcohol and Other Drug Abuse and Interrupted School Attendance and Suspension – accepted report demonstrated disadvantaged and traumatic childhood: at [01]-[105], [116]
- Sentencing Judge additionally referred to chapter Early Exposure to Alcohol and Other Drug Abuse: at [118]
-
- Sentencing of 17 year old Aboriginal offender for serious driving and robbery offences after participation in sentencing conversation in Pilot Circle Sentencing List.
- 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]
- Psychologist report made detailed treatment recommendations including cultural supports and cultural healing plan – emphasis on facilitating offender’s cultural connectivity, identity and connectedness to culture confirmed what was reiterated by Elders Panel and Significance of Culture to Wellbeing, Healing and Rehabilitation Report (Dr Paul Gray and Vanessa Edwige, June 2021) – Sentencing Judge found that ‘with the appropriate supports in place offender’s prospects of rehabilitation are positive’: at [210]-[226]
- Noted concern that offender at risk of institutionalisation given his age, background of institutional care and evidence of short time in adult correctional centre – referred to Institutionalisation Report by Dr Robyn Shields AM and Dr Andrew Ellis, 2024: at [219]
-
- Reference by psychologist to Childhood, Infant and Perinatal Exposure to, and Experience of, Domestic & Family Violence chapter and Child Abuse and Neglect chapter in Bugmy Bar Book: at [86]
- Sentencing Judge accepted application of Bugmy principles based upon opinion of psychologist: at [127]
-
- Sentencing for family violence offences
- Sentencing Judge referred to research from Bugmy Bar Book, Childhood, Infant and Perinatal Exposure to, and Experience of, Domestic and Family Violence to support finding that the enduring impacts of the offender’s exposure to family violence are readily apparent with the cycle of violence being repeated by the next generation – found impact reduced moral culpability but also raised community protection concern: at [37]
- Also referred to Bugmy Bar Book, Impacts of Imprisonment and Remand in Custody in considering impact of imprisonment on young offender – found young age of offender elevates promotion of rehabilitation: at [74]
-
- Offender declined to acknowledge any trauma in childhood – in view of contrary evidence from offender’ sister Counsel for offender drew attention of court to extracts from Bugmy Bar Book chapters on Early Exposure to Alcohol and Other Drug Abuse and Child Abuse and Neglect – considered by Sentencing Judge but not satisfied Bugmy principles enlivened based on information known to Court: at [52]-[54]
-
- Psychologist report referred to, and quoted from, relevant chapters of Bugmy Bar Book in assessing impact of offender’s childhood – included sections from Incarceration of Parent or Caregiver, Interrupted School Attendance and Suspension, Early Exposure to Alcohol and Other Drug Abuse and Impacts of Imprisonment and Remand in Custody: at [54]-[59]
- Sentencing Judge accepted childhood reduced moral culpability but also influenced assessment of rehabilitation prospects and community protection: at [77]
-
DPP v MacKay [2025] ACTSC 42
Criminal LawBugmy Bar Book: Interrupted School Attendance and Suspension- Counsel sought to invoke Bugmy principles in respect of reported disrupted schooling – relied upon Bugmy Bar Book chapter Interrupted School Attendance and Suspension – no further details: at [41]
- Sentencing Judge not pers on the evidence: at [41]
-
- Sentencing Judge accepted evidence of offender’s upbringing marred by exposure to domestic violence and substance abuse, emotional abuse and neglect
[36] … it is now well recognised that exposure to domestic and family violence can have substantial effects on a child’s development. These harms may manifest in intergenerational cycles of trauma, violence and disadvantage: Monica Campo, ‘Children’s Exposure to Domestic and Family Violence: Key Issues and Responses’ (Policy and practice paper, CFCA Policy Paper No 36, Australian Institute of Family Studies, December 2015). See further Bugmy Bar Book, Childhood Exposure to Domestic and Family Violence (November 2021)
- Accepted psychologist’s opinion that both psychological conditions and background contributed to commission of offence – moral culpability reduced: at [35]-[38]
-
DPP v Roberts [2024] ACTSC 405
Criminal LawBugmy Bar Book: Impacts of Imprisonment and Remand in Custody- Sentencing for multiple property and burglary offences
- Psychologist referred to ‘research from the Bugmy Bar Book’ on the significant impact of adverse childhood experiences on a child’s social and emotional wellbeing – Sentencing Judge accepted full weight to be given to Bugmy principles: at [78]
- Report also referred to observation on impact of insufficient support on release in Bugmy Bar Book, Impacts of Imprisonment and Remand in Custody: at [86]
-
DPP v Scott [2024] ACTSC 378
Criminal LawBugmy Bar Book: Early Exposure to Alcohol and Other Drug Abuse• Sentencing for aggravated robbery offence
• Sentencing Judge referred to Bugmy Bar Book Early Exposure to Alcohol and Other Drug Abuse as documenting effects of childhood marred by exposure to drug and alcohol use – reduced moral culpability and attenuated to some degree weight given to punishment and denunciation: at [107]
• Referred to Bugmy Bar Book Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation to support importance of strengthening offender’s connections with his family, his community and his children for the purpose of rehabilitation: at [149] -
- Psychologist report cited Bugmy Bar Book, Childhood Exposure to Domestic and Family Violence and observed “there has been 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”: at [92]
- Psychologist confirmed that which the Elders panel reiterated, and that is the strength to be found in the offender’s cultural identity and connectedness to culture, citing Significance of Culture to Wellbeing, Healing and Rehabilitation (Dr Paul Gray and Vanessa Edwige, June 2021) at [124]
-
DPP v Coulter [2024] ACTSC 262
Criminal LawBugmy Bar Book: Impacts of Imprisonment and Remand in Custody- Psychologist report referred to Bugmy Bar Book, Childhood Exposure to Domestic and Family Violence (November 2019) and Bugmy Bar Book, Impacts of Imprisonment and Remand in Custody (November 2022) : at [54], [81]
- Sentencing Judge referred to Wellbeing Report in noting importance of culture, kin, community and country:
- [82] Ms Edwige recorded what I know to be true and that is the inextricable link for Aboriginal people between our overall wellbeing and our sense of self experienced through our expression of cultural identity and our connectedness to kin, community, and country. For the offender, as a Yuin man, this factor could be a significant source of strength if he is given the opportunity to access services that promote his healing at the same time as reinforcing the strength to be found in his connectedness to our culture. (see Significance of Culture to Wellbeing, Healing and Rehabilitation, Dr Paul Gray and Vanessa Edwige, June 2021).
- Bugmy factors given full weight: at [70]-[71]
-
- Observed importance of connection to community and culture to offender’s long-term healing and rehabilitation citing Vanessa Edwige and Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report commissioned by the Bugmy Bar Book Committee, June 2021: at [73]
-
- Psychologist report tendered on behalf of offender noted review of contents of Bugmy Bar Book: at [169]
- Report further referred to Bugmy Bar Book in concluding: at [173]
- [The offender] reported a history which indicated that he experienced a high degree of disadvantage and deprivation due to childhood sexual abuse, multiple occasions of early exposure to family violence by multiple partners, early exposure to alcohol and drug abuse by his mother’s various partners (as well as getting marijuana from his mother during his mid-teens). These issues have been reviewed earlier in this report and are all considerations noted by the Bugmy Bar Book as resulting in intergenerational cycles of trauma, violence and disadvantage. Further, the Bugmy Bar Book has noted that there is a “robust body of research evidence (which) 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.
-
- Evidence of successful engagement in formal rehabilitation program justified suspended sentence for serious offences
[65] The role of the Glen program in assisting Mr Welsh must also be acknowledged. Culturally sensitive programs such as the Glen can be of immense importance: see Vanessa Edwige and Dr Paul Gray, Significance of Culture to Wellbeing Healing and Rehabilitation (Report, Public Defenders (NSW), The Bugmy Bar Book Project, June 2021), 19 – 40. As that report notes, “strong cultural supports and programs in communities that help facilitate the building of healthy communities ‘will facilitate the successful reintegration of Indigenous offenders once they leave custody, while also reducing the likelihood of Indigenous people commencing a criminal trajectory’” (at 32 [130]). As Mr Welsh explained, it was “the whole experience” of the Glen program which has been so critical to his rehabilitation.
Note: see earlier related judgment below
-
- Imposition of sentence after cancellation of Treatment Order
- Considered impact of exposure to family violence as a child:
- [27] In determining the appropriate non-parole period, weight must be given to the lines of force that shaped your life as a child that continue to impact you today. The pre-sentence report prepared for your original sentence, dated 22 June 2023, records that as a child you were exposed to family violence both as a witness and a victim. You had experiences no child should have to face. This exposure and the lack of safety and stability you experienced as a child is key to understanding your challenges with addiction and your resort to violence: Bugmy [2013] HCA 37; 249 CLR 571 (Bugmy) at [44]; see generally, Bugmy Bar Book Committee (eds), ‘Childhood Exposure to, and Experience of, Domestic and Family Violence’, Bugmy Bar Book (May 2024) at [36]-[44].
-
- Sentencing of Aboriginal man for family violence offences
[60] I do not know whether connection to culture is important to you. If it is important to you, then you should know that strengthening this connection may be beneficial to your wellbeing, healing, and rehabilitation: Vanessa Edwige and Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report, June 2021).
- Significantly disadvantaged childhood including exposure to heroin abuse of mother:
[61] … 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 is significant disadvantage: Bugmy Bar Book Project Committee (eds), ‘Interrupted School Attendance and Suspension’ Bugmy Bar Book (October 2023)
- Drug and Alcohol Treatment Order imposed
-
- Aboriginal man with traumatic childhood including exposure to violence and substance abuse – complex mental health and substance abuse issues
- Noted working with Aboriginal Liaison Officer at prison to establish culturally appropriate support in community
- [83] Strengthening your connection to community and culture through working with these services may well be central to your long-term healing and rehabilitation: see Vanessa Edwige and Paul Gray, Significance of Culture to Wellbeing, Healing and Rehabilitation (Report commissioned by the Bugmy Bar Book Committee, June 2021).
- Sentence of imprisonment with non-parole period imposed to ensure release plans in place and appropriate conditions for supervision and support established.
-
- Accepted disadvantaged background including exposure to violence and neglect, homelessness, interrupted education and early substance abuse – referred to Yehia DCJ (as her Honour then was) in Maher [2021] NSWDC 80 at [91] and the chapter “Childhood Exposure to Domestic and Family Violence” in Public Defenders (NSW), The Bugmy Bar Book Project (online, November 2019) in relation to the impact of exposure to violence: at [60]
- Moral culpability reduced to some extent by reason of background although community protection remained significant: at [62]
-
- Imposition of sentence after breach of suspended sentence
- 17y Aboriginal child with childhood history of domestic violence, exposure to substance abuse, incarceration of father and interrupted schooling:
- [23] … As Vanessa Edwige, psychologist, observed in her psychological report prepared in relation to the original offence, the effects of these experiences on a child’s social and emotional wellbeing are well-documented: Public Defenders (NSW), The Bugmy Bar Book Project (online, last updated March 2024). As Ms Edwidge explained, the young person was “not privy to the protective factors that enhance a child’s wellbeing”.
-
- Took into account on sentence significant childhood disadvantage.
- Further took into account impact of offender’s incarceration on his relationship to his children
[64] I further note it was a choice of the offender not to expose his young children to a custodial setting through visits and knowledge that he is in prison. Consequently he has not seen his children for a number of months. I note the negative effects of parental incarceration identified in the Bugmy Bar Book:
Parental incarceration may interfere with the attachment relationship between a child and their parent or caregiver, cause financial hardship, disrupt care and living arrangements, and subject children to stigmatisation and shame. This may impact upon a child’s emotional, behavioural, and psychological development, educational performance, delinquency and risk of offending.
-
- Referred to offender’s childhood trauma commenting:
- [54] … The relationship between child sexual abuse and the development of addiction as a consequence of using illicit substances to manage psychological trauma are now well understood: Royal Commission into Institutional Responses to Child Sexual Abuse, Final Report (2017) vol 3, 11 cited in Bugmy Bar Book Committee, ‘Child Sexual Abuse’ in The Bugmy Bar Book Project (Sydney NSW; The Public Defenders; November 2019).
-
Burge (No.2) [2024] ACTSC 20
Criminal LawBugmy Bar Book: Early Exposure to Alcohol and Other Drug Abuse- Offender’s background of exposure to family violence and substance abuse explains to some degree offending behaviour such that moral culpability reduced: at [63]
- Conclusion supported by reference to judicial notice taken by sentencing judge in Dunn [2023] NSW CCA 1 of Bugmy Bar Book chapter on ‘Early Exposure to Alcohol and Other Drug Abuse’ and 2007 House of Representatives Standing Committee on Family and Human Services Inquiry into the Impact of Illicit Drug Use on Families: at [64]-[65]
-
- Ordered Griffith remand to permit offender to continue in rehabilitation program prior to final sentence in light of positive engagement
- [10] The material from the Glen is very positive. The letter of 23 October 2023 addresses the offender’s Indigenous heritage, and notes that the offender has spent time with therapists and completed “cultural healing courses” which have “allowed him to reconnect back with his spirit and culture.” As Vanessa Edwige and Dr Paul Gray report in Significance of Culture to Wellbeing, Healing and Rehabilitation (Report commissioned by the Bugmy Bar Book Committee, Public Defenders New South Wales, 2021), connection to culture is a powerful protective factor that promotes resilience, self-esteem, self-worth and ultimately, rehabilitation (see especially at [212] – [214]). See similarly HA (a pseudonym) v the Queen [2021] VSCA 64 at [58] – [59], where the Court noted that “[r]econnection of an Aboriginal offender with culture and Country can constitute a pivotal factor diverting such a person from entrenched offending behaviour”.
Note: see final judgment above
-
Palmer v ACT (No.2) [2023] ACTSC 340
Civil LawBugmy Bar Book: Impacts of Imprisonment and Remand in Custody- Civil matter – claim for damages for assault and battery – prisoner assaulted by correctional officers – whether use of force necessary and reasonable
- In description of difficult conditions at time of alleged assault referred to inquiry cited in chapter of Bugmy Bar Book:
- [8] There was evidence that one of the prisoners kept in the overflow area had severe mental health issues and was at times at significant risk of self-harm, while another had refused to return to his cell in the overflow area earlier that day. Custodial isolation and overcrowding risks exacerbating mental illness, as noted in the Inquiry into Victoria’s Criminal Justice System (2022) at pg 594 (cited in the Bugmy Bar Book chapter on “Impacts of Imprisonment and Remand in Custody”):
- Practices such as use of isolation, restricting visits from family and friends, overcrowding, poor access to health services and programs, and negative interactions with correctional officers have a significant impact upon mental health. The psychiatric impacts of prison are particularly acute for Aboriginal and Torres Strait Islander people. For example, Aboriginal women in prison are hospitalised for mental illness at triple the rate of Aboriginal women in the community.
-
- Offender’s childhood included exposure to violence and substance abuse and instability.
- Accepted background likely to have impacted lack of emotional regulation and decision-making:
- [77] … Such impacts are well documented: Bugmy Bar Book Committee, ‘Childhood Exposure to Domestic & Family Violence” in The Bar Book Project (Sydney, NSW, The Public Defenders, 2019) at 4-8’.
- Offender’s social deprivation and historical family violence does not excuse offending itself but some weight given in reducing moral culpability: at [79]
- See also
- DPP v Jewell [2023] ACTSC 348 (McWilliam J) at [75]
- DPP v Houghton [2024] ACTSC 68 (McWilliam J) at [21]
-
- Offender from disadvantaged childhood including family violence, trauma and neglect, out of home care, sexual abuse and exposure to adult pornography
- Psychologist report clearly identified and explained link between offender’s Post Traumatic Stress Disorder resulting from childhood sexual abuse and the offences: at [25]-[28]
[28] There is now a “robust body of research evidence” that “clearly demonstrates the link between child sexual abuse and a spectrum of adverse mental health, social, sexual, interpersonal and behavioural as well as physical health consequences”: The Bugmy Bar Book Project, Childhood Sexual Abuse, at p. 1.
- Moral culpability reduced to a moderate degree: at [29] – offender’s background of childhood sexual and physical abuse, including abuse while in an institution and mental illness part of exceptional circumstances permitting immediate release to recognisance without serving custodial sentence: at [46]
-
- 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]
-
- Counsel handed up Bugmy Bar Book Early Exposure to Alcohol and Other Drugs chapter ‘in support of the proposition that children of parents who misuse alcohol and drugs are at greater risk of subsequently developing alcohol and other drug problems themselves’: at [57]
-
- 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: [81]-[85]
- Reference to comment in Hoskins [2021] NSWCCA 165 that childhood deprivation does not need to be profound [81]-[85]
- Application of Bugmy principles
VIC Supreme Court
-
- Application for bail by Aboriginal male charged with arson, theft and bail offences
- Referred to research material on impact of homelessness, including Bugmy Bar Book chapter – noted interplay between homelessness and overincarceration of First Nations people: at [73]-[76]
- Noted homelessness should not alone constitute unacceptable risk in consideration of bail and giving significant weight to homelessness as a factor puts Aboriginal people at a disadvantage and contributes to their overrepresentation in custody: at [77]-[79], [105]
-
- Bail application for 15 year old boy charged with armed robbery offence
- Noted the well-established negative impacts of incarnation on young offenders, referring to research from the Bugmy Bar Book ‘Impacts of Imprisonment and Remand in Custody’ – concluded most powerful consideration in this case is that a grant of bail will maximise the applicant’s chance of rehabilitation and minimise the long-term risk to community: at [111]-[113]
-
- Application for bail by Aboriginal woman charged with drug offences
- In considering whether exceptional circumstances justified bail took into account impact of incarceration of applicant on her children – referred to two chapters from Bugmy Bar Book: ‘Impacts of Imprisonment and Remand in Custody’ and ‘Incarceration of a Parent or Caregiver’.
- [45] What is equally clear is that incarceration has a lasting impact on the families and children of the offender. The incarceration of a parent may impact negatively on the physical and mental health of the children of an offender, their development, education and employment outcomes. I reject the submission that Ms Males’ children are doing fine while their mother is on remand. The children of incarcerated persons are the ‘invisible victims’ of the criminal justice system. The parenting duties and the objective of keeping families together is a significant factor in any application. When I consider the historic separation of Aboriginal families, along with Ms Males’ own difficult family upbringing, I see no good reason to contribute to her continued incarceration at this stage. I therefore consider that there are exceptional circumstances justifying the grant of bail.
-
- Application for bail by Aboriginal woman charged with multiple violence offences – considered requirement under s.3A Bail Act 1977 (Vic) to take into account issues related to applicant’s Aboriginality.
- Referred to carefully researched materials in Bugmy Bar Book:
- [43] The consideration of these factors is necessarily an involved process. It requires the decision maker to contemplate what the historic and ongoing overrepresentation of Aboriginal and Torres Strait Islander people in custody means for the individual before them. It also requires the decision maker to contemplate the specific circumstances of the individual within the broader context of their cultural identity and to view their circumstances through that lens. The Bugmy Bar Book provides carefully researched materials that speak to the significance of this cultural identity on every aspect of the individual and their application.
- Referred specifically to chapters ‘Impacts of Imprisonment and Remand in Custody’ and ‘Aboriginal and Torres Strait Islander Stolen Generations and Descendants’: at [49]
-
- Offender refugee from Sudan who spent ten years with family in refugee camp in Ethiopia – exposed to violence, deprivation and war related trauma.
- Referred to material in Bugmy Bar Book Committee, ‘Refugee Background’ in Bugmy Bar Book (online, July 2021): at [36]
- [37] … The literature makes it very clear that violence is endemic within the experience of refugee families as they make their way to Australia (and beyond). For that reason, despite the absence of more recent material to demonstrate the specific impact of your upbringing on your offending, I consider that your moral culpability is modestly reduced by your childhood experiences.
WA Supreme Court
-
- On appeal considered whether Magistrate failed to consider and apply Bugmy principles – both appellant and Crown submissions referred to matters described in Bugmy Bar Book: at [122], [139]
- In dismissing appeal Court found even if error no substantial miscarriage: at [172]
NSW District Court
-
- Sentence for domestic violence offences
- Sentencing Judge referred to Bugmy Bar Book: – stated homelessness is “one of the most potent examples of disadvantage in the community, and one of the most important markers of social exclusion” – took into account childhood disadvantage, drug and alcohol addiction and homelessness in reducing offender’s moral culpability: at [39]-[41]
-
- Sentence for drug offences
- Offender gave birth to child in custody – child being cared for by grandmother – referred to information provided from Bugmy Bar Book concerning negative impact of the incarceration of a parent on a child – concluded in this case harm to both mother and child significant – sentence will be deliberately lenient: at [77]-[78]
-
- Six executive summaries from Bugmy Bar Book tendered on behalf of offender:
- [23] The Bugmy Bar Book is now recognised to be a reliable collation of expert research on the potential impacts of various forms of nationally recognised disadvantage on persons appearing before the criminal justice system. The book is evidence-based, distilling extracts from major reports and leading research in peer review journals into accessible summaries. In many respects, it footnotes basic truths that I find myself to be well acquainted with, at least since my involvement in the criminal law, which goes back to 1991. I am satisfied that the Bugmy Bar Book, and the executive summaries I have referred to, is the product of rigorous interagency and consultative review processes to ensure that it is accurate, comprehensive and contemporary.
- [24] I find myself reaching the same conclusion expressed by Yehia SC DCJ, as her Honour then was, in the case of Tsingolas [2022] NSWDC 34 at [87]-[88], cited with approval by Lonegan J in Stanley (No 2) [2023] NSWSC 74 at [72].
- [25] I accept that there are limits, nevertheless, on the Bugmy Bar Book and its various chapters. For such exogenous knowledge to become relevant, there must already be evidence before the Court establishing a form of disadvantage relevant to the Bugmy Bar Book chapters that are relied upon. Where this threshold of ‘specifics’ is reached, the Court can then have regard to the ‘generalities’ in the research when applying fundamental sentencing principles: see Campbell [2024] NSWDC 413 (Neilson DCJ) [87]-[88].
- In consideration of offender’s background referred to research where relevant to explain effects of experiences: at [26]
- Six executive summaries from Bugmy Bar Book tendered on behalf of offender:
-
- Offender sentenced for recklessly causing grievous bodily harm
- Member of stolen generation being removed from family at age 2-3y – sexually abused in multiple childhood institutions
- [46] The principles described as deriving from Fernando (1992) 76 A Crim R 58 and Bugmy (2013) 249 CLR 571; [2013] HCA 387 are clearly enlivened given the circumstances of this offender’s background and past life. Regrettably, he reflects the type of outcome which is regularly encountered with the victims of the Stolen Generation, as described. His exposure to sexual offending in childhood institutions is a frequent and common factor with respect to many such individuals. The psychological material provided is strongly supportive not only of detailed consideration of the various Bugmy principles with extensive quotations from the Bugmy Bar Book but also invokes a consideration of the principles derived from Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 with respect to the ongoing commission of Mr Nixon’s offending. These factors strongly point towards a reduction in moral culpability.
-
- Offender sole carer for young son who had been neglected under mother’s care – referred to reports highlighting impact of incarceration of parent on child.
- [46] There are risks to children because disruption to the family unit at critical times can cause lasting trauma and impact on a child’s future emotional and cognitive processes. So much is revealed by the reports now before the Court individually and by considered academic writing and reports of enquiries and Royal Commissions: Commonwealth of Australia, Australian Human Rights Commission, Bringing them home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (1997); Parliament of Victoria, Legislative Council: Legal and Social Issues Committee, Inquiry into Children Affected by Parental Incarceration (August 2022); V Edwidge and P Gray, “Significance of Culture to Wellbeing, Healing and Rehabilitation” (2021) The Bugmy Bar Book Project 50; Commonwealth of Australia, Australian Law Reform Commission, Report 103 Same Crime, Same Time: Sentencing of Federal Offenders, (April 2006) at 6.124; A Symonds, “Children of prisoners” (2009) 21(3) Judicial Officers Bulletin 24.
- Law flexible enough permit Sentencing Judge to take into account as a matter of mitigation impact of imprisonment of offender on his child: at [49]
- Offender sole carer for young son who had been neglected under mother’s care – referred to reports highlighting impact of incarceration of parent on child.
-
R v Coleman [2024] NSWDC 658
Criminal LawBugmy Bar Book: Early Exposure to Alcohol and Other Drug Abuse- Offender sentenced for multiple offences including use offensive weapon to prevent apprehension and aggravated break, enter and stea
- Research from Bugmy Bar Book (Early Exposure to Alcohol and Other Drug Abuse and Parental Incarceration chapters) cited and quoted in psychologist report: at [32]
-
- Sentencing of offender for domestic violence offences – offender spent thirty of previous thirty three years in custody: at [30]
- Cited “Impacts of Imprisonment and Remand in Custody” (2022) The Bugmy Bar Book Project in comment on negative impact of imprisonment:
[33] Prison environments are extreme in many respects. They are physically and psychologically taxing. They impose rigid routines on offenders. They remove any capacity for individual decision making about aspects of the person’s ordinary life. Often, long terms of imprisonment lead to institutionalisation. This means that the longer a person spends in custody the less their ability to live independently and exercise personal responsibility. If a person has never lived a normal life in the community, it is very hard for them to learn how to lead a normal life on release. Prisoners existing and living in inherently violent environment learn to use aggression and violence, they lose self-worth, and they tend to blame others, and take out on others, their own failings.
-
- Noting reference to “Impacts of Imprisonment and Remand in Custody” (2022) The Bugmy Bar Book Project in psychologist report detailing evidence of childhood trauma, Sentencing Judge stated:
[53] Gaol itself causes trauma. The community should understand that the longer people are locked in gaol the worse that they can become
…
[55] Sentencing Judges face a dilemma; community safety requires a person to be removed from the community. At the same time, by removing a person and keeping them in gaol can make them worse. This is particularly so for someone like Gowans who has underlying psychological, and trauma induced symptoms, as they have impaired judgment and are not rational decision makers.
-
- Weight given on sentence to childhood deprivation – reference to Bugmy Bar Book material on consequences of interrupted schooling – stated evidence in this case demonstrated offender’s schooling was interrupted, although extent not made clear from evidence: at [128]-[129]
-
- Imposition of sentence for mother causing GBH to infant child
- Took into account material tendered on sentence including substantial extracts from Bugmy Bar Book, psychologist report and transcript of interview between offender and defence counsel – established powerful subjective case based on childhood deprivation: at [75]-[82]
-
- Disadvantaged background included sexual abuse while in care of DoCS
[108] Whilst it is conceded that evidence from the Bugmy Bar Book is general in nature, it is relied upon by the offender to understand the opinions expressed by Ms Grujoska as to the offender’s childhood disadvantage and better explain the connection between the offender’s background and the offending.
[109] The Bugmy Bar Book has found that childhood sexual abuse which I find the offender was subjected to, is a ‘substantial risk factor for the development of subsequent mental health problems’, which can include major depression, increased risk of alcohol and drug dependence, often as a means of coping with the psychological trauma of having been abused, aggressive behaviours and social anxiety (The Bugmy Bar Book Project, ‘Childhood Sexual Abuse, ‘Executive Summary’ (November 2019).
-
- Declined to read tendered chapters of Bugmy Bar Book – generic nature of statement in the Bugmy Bar Book of association between abusive or sexually abusive background and development of psychological, behavioural and substance use issues ‘adds nothing’ – relied upon psychiatrist and psychologist reports detailing deprived childhood: at [54]-[58]
-
- 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.
-
[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]
-
- Offender experienced a traumatic childhood including sexual and physical abuse in a boys home resulting in mental health issues including PTSD
- Causal link established between childhood abuse and offence – offender’s PTSD triggered by perceived threat of victim and response was unreasonable and excessive self-defence: [76]-[80]
- Studies and research on potential impact of childhood sexual abuse referred to by both Crown and defence counsel – included material contained in Bugmy Bar Book chapter on Childhood Sexual Abuse – should be seen as extension of subjective material in individual case: at [81]-[92]
[87] This material should be seen as an extension of the subjective material provided in the individual case – here, the expert reports and the evidence of the offender. 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.
[The Court went on to discuss Kentwell v R (No 2) [2015] NSWCCA; Perkins v R [2018] NSWCCA 62 (Fullerton J); Bugmy v The Queen [2013] HCA 37; [2013] 249 CLR 571]
[92] I am required to determine whether the offender’s adversities and disadvantage (primarily amongst them his childhood experience of sexual abuse) reduces his moral culpability. The material filed on his behalf is complemented by the expert opinions expressed in the body of research to which I have been referred. That research not only contextualises the material directly relevant to this offender’s subjective case, but also assists me in having a broader understanding (based on expert material rather than my own inexpert understanding of human affairs) of the ongoing and profound impact of childhood sexual abuse.
-
- Referred to Child Sexual Abuse chapter in Bugmy Bar Book in consideration of relevance of offender’s history of being sexually abused as a child:
- [129] Detailed reference may be found in the Bugmy Bar Book chapter on ‘Child Sexual Abuse’. That chapter collates research, commentary and findings in relation to child sexual abuse and the effect that it has on a person’s behaviour, development, mental, physical and social wellbeing and subsequent involvement in the criminal justice system.
- [130] The involvement of the present offender in childhood sexual abuse as a victim is corroborated by the account in her mother’s affidavit and I accept that childhood sexual abuse as described did occur. Research linking such abuse to disorders including personality disorders, together with the psychiatric and psychological material in the present matter, make it likely that such abuse against the offender had an impact on her involvement in the criminal conduct against her own children. I accept that this is relevant in an assessment of moral culpability; see Bugmy [2013] HCA 37; (2013) 249 CLR 571.
-
[28] I take into account those conditions both in custody and on bail as well as the significant evidence presented by Mr Bickford, without challenge and the summaries in the extract from the Bugmy Bar Book dealing with COVID-19 and the risks and impacts for prisoners and communities which are becoming well known to judges of this Court in light of the evidence that we hear on an almost daily basis as to the restrictions upon prisoners during the period of the COVID pandemic. These restrictions include a lack of visits, restrictions on phone calls and the ever-present anxiety as to the possibility of contacting the COVID virus while in a custodial environment.
[29] I accept that his term in custody, along with other prisoners at that time, was more arduous than would be for the case for prisoners who had served sentences outside of the COVID pandemic and it is an important factor to be synthesised, along with the other sentencing principles in this case.
-
- Aboriginal offender removed from mother’s care at 11 months – Bugmy principles applied to reduce moral culpability – no causal connection required
[68] … In most case a causal connection between the crime and factors that reduce moral culpability is not required. That principle stems from the recognition that in sentencing decisions; immaturity, social disadvantage, a childhood deprivation (such as exposure to violence and alcohol abuse), trauma (including as a victim of crime) and mental or intellectual incapacity (often in combination) frequently precedes the commission of crime: Kennedy [2010] NSWCCA 260 at [53]; Millwood [2012] NSWCCA 2 at [69]; Muldrock (2011) 244 CLR 120; [2011] HCA 39 at [54] & [58]; Bugmy (2013) 249 CLR 571: [2013] HCA 37at [40] and [45]; AWF (2000) 2 VR 1; [2000] VSCA 172; Nasrallah [2021] NSWCCA 207 at [12]; KT; Clarke-Jeffries.
- Relied upon Significance of Culture to Wellbeing, Healing and Rehabilitation report in considering impact of incarceration of offender in view of impending birth of child – ICO imposed
[71] If Levvell is returned to gaol he will miss the birth of his child and not be there to support his partner and care for the bay in its first years. There is nothing so exceptional in this simple fact that of itself requires a non-custodial option: Edwards (1996) 90 A Crim R 510 at 515: Hoskins [2016] NSWCCA 157 at [63]. That said, any impact of a custodial sentence must be synthesised along with all other factors.
[72] When a parent is gaoled, there is often a significant disruption in the family and an increased risk to any children. Disruption to a family at a critical time can cause lasting trauma and impact on a child’s future emotional and cognitive processes. Positive experiences as a child can enrich lives. Adverse childhood experiences can have lifelong negative impacts: Significance of Culture to Wellbeing, Healing and Rehabilitation; V Edwidge and P Gray, Bugmy Bar Book Project, 2021 at [50]. Levvell was negatively impacted by his removal from his mother as a baby; any prolonged separation from his soon to be born child risks continuing that cycle.
-
- Bugmy Bar Book chapters provided with relevant principles and paragraphs referred to in written submissions – Exposure to Domestic and Family Violence, Interrupted School Attendance and Early Exposure to Alcohol and Other Drug Abuse: [48]-[50]
-
- Referred to Bugmy Bar Book Project chapters on Childhood Sexual Abuse and Childhood Exposure to Domestic and Family Violence, considering the impact of these factors and relevance to assessment of offender’s moral culpability: [54]-[55]
- Referred to research into the importance of indigenous and culturally appropriate rehabilitation programs
[49] … I accept that recent research and expert opinion indicates that rehabilitation services provided by Indigenous and culturally appropriate organisations, who understand and acknowledge the trauma suffered by Indigenous communities as a result of general removal, segregation and discrimination, together with the support of her close family and community, provide the offender with the best chance of being rehabilitated. These facilities, with oversight by Community Corrections offer a protective measure both for the individual but also the community.
-
- Evidence established offenders were Aboriginal brothers with deprived and disadvantaged childhood – intergeneration trauma resulting from mother’s removal from family as a child – exposure to family and domestic violence and alcohol abuse – introduction to substance abuse at early age – unstable educational history resulting in learning and behavioural difficulties: [54]-[67]
- Mother removed from family as a child and suffered abuse in out of home care – alcoholic by nineteen with ongoing alcohol addiction problems – impact of trauma of this removal on childhood of offenders – described Aboriginal and Torres Strait Islander Stolen Generations and Descendants chapter in Bugmy Bar Book as research summary that ‘helpfully collates recent findings from numerous sources documenting the adverse consequences experienced by both members of Stolen Generations and their descendants’:
[61] …compared with Aboriginal and Torres Strait Islander people who were not removed or who did not have family members removed, descendants of members of Stolen Generations have been found to experience higher rates of incarceration, interaction with police and arrest; poorer physical and mental health outcomes; higher rates of violence; and have a lower level of trust in the general community.
- Both offenders exposed to violence and alcoholism throughout childhood – reference made to Childhood Exposure to Domestic and Family Violence chapter of Bugmy Bar Book:
[70] Irrespective of the age of a child, it is ongoing exposure to violence which has been associated with the highest likelihood of behavioural difficulties. Indeed, research shows that prolonged exposure to violence may cause children to experience trauma and post-traumatic stress disorders which have lasting effects on the child’s development, behaviour and well-being. These symptoms include low self-esteem, poor coping mechanisms and substance abuse, as well as complex disturbances such as an inability to regulate emotion, and cognitive and behavioural developmental delays.
[71] The offenders’ history of deprivation and disadvantage is relevant to reducing their moral culpability. Growing up experiencing or witnessing anger and/or violence and being exposed to such violence in families and communities can lead to individuals responding with anger and violence ‘almost automatically’ in response to other people’s behaviour of perceived provocation, and a reduced capacity to access other ways of dealing with these triggers.
[72] This history of deprivation, and the research material tendered in the proceedings relating to the potential impact of such a background upon individuals exposed to such disadvantage in their childhood, is directly relevant to the way in which the offenders (in particular, Trevor) reacted on this occasion. His capacity to self-regulate and contain his anger was impaired. This is not to excuse his conduct in any way. The victim suffered serious injury that has resulted in ongoing impairment. Although the victim was the initial aggressor, he did not deserve the beating he received at the hands of the offenders (either directly or by way of joint criminal enterprise). That history is, however, relevant to an assessment of moral culpability and the weight to be given to some of the purposes of sentencing.
- Background of disadvantage and deprivation reduced moral culpability but balanced with protection of the community: [74]
-
[71] Mr King on behalf of the offender annexed to his written submissions (MFI 3 on sentence) extracts from the New South Wales Public Defenders Bugmy Bar Book Project. Clearly, given the material from Professor Greenberg, the principles enunciated by the High Court in Bugmy v The Queen [2013] HCA 37 are enlivened reducing the offender’s moral culpability
-
[67] I have material from the Bar Book project. Chapters from that source of information with which I am familiar, dealing with the effect upon individuals of childhood sexual abuse and early exposure to alcohol and other drug abuse. I have again read through those chapters. I have been to some presentations on the Bar Book project.
-
- 14-year-old female offender committed offences on 5-year-old brother – dysfunctional background including sexual and physical abuse – complex metal health issues with ASD, anxiety and PTSD – limited cognitive ability – inability of mother to provide appropriate support
[60] 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.
[61] Indeed, the Bar Book Project, found on the Public Defenders website: https://www.publicdefenders.nsw.gov.au/barbook, provides an invaluable resource of evidence relating to disadvantage. For example, as to childhood sexual abuse, it cites research that sexual abuse is a ‘substantial risk factor for the development of subsequent mental health problems’. 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.” See also 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.
- Full weight given to Bugmy principles and moral culpability substantially diminished: [62]-[65]
-
- Offender subjected to sexual abuse as a child – link to subsequent alcohol abuse, mental health and offending: at [24]-[31]
- [41] I was helpfully referred to the “Bugmy Bar Book”, a resource found on the Public Defenders website and linked to the Judicial Commission website. Reference is there made to research showing that survivors of childhood sexual abuse maybe at greater risk of engaging in risky sexual behaviours, a comment based on the Australian Institute of Family Studies report “The long-term effects of Child Sexual Abuse”, CFCA paper no. 11 2013, at 8.
- Background justified reduction of moral culpability: [40]-[44]
Victoria County Court
-
- Imposition of sentence for assault on emergency worker – in assessing suitability of offender for Mandatory Treatment and Monitoring Order took into account impact of institutionalization and community protection: at [99]-[104]
- Referred to Amanda Howerton et al, ‘The Consolations of Going Back to Prison: What “Revolving Door” Prisoners Think of Their Prospects’ (2009) 48(5) Journal of Offender Rehabilitation 439 cited in “Institutionalisation” by Dr Robyn Shields AM and Dr Andrew Ellis in a 2024 report for the Bugmy Bar Book Project Committee at [10], p.4.:
-
- Sentence for burglary and assault offences
- Noted defence counsel relied on Bugmy Bar Book on ‘Childhood Infant and Perinatal Exposure to, and Experience of, Domestic & Family Violence‘ to argue offending was linked to childhood exposure to extreme dysfunction, neglect and violence: at [38]
- Accepted disadvantaged upbringing had shaped offender’s life – further recognised ongoing impact of intergenerational trauma: at [64], [65]
-
- Sentencing for violence offences
- Noted, in relation to one offender, counsel referred to childhood exposure to violence and quoted statistics from the NSW Bugmy Bar Book: ‘Childhood, Infant and Perinatal Exposure to, and Experience of, Domestic and Family Violence’ that 67% of children exposed to domestic violence are at risk of developing adverse mental health and wellbeing outcomes – accepted slight reduction in moral culpability: at [46]-[47]
-
- Sentencing for child abuse offences
- Defence counsel referred to Bugmy Bar Book ‘Childhood Sexual Abuse’ to support submission that history of childhood sexual abuse enlivened Bugmy sentencing principles: at [63]
-
- Sentencing of offender for child sexual offences
- Accepted history of childhood trauma, family violence, sexual abuse, exposure to substance abuse, out of home care and interrupted schooling: at [31]-[32]
- Summary of impact of childhood trauma by reference to Bugmy Bar Book chapters on family violence, early exposure to alcohol and drug use, childhood sexual abuse and interrupted schooling – slight reduction in moral culpability: at [55]-[63]
-
[66] Other than the submissions identified, no other submissions were made and no material was placed before the Magistrate about the appellant’s personal circumstances, background, and any physical or mental health condition. An Aboriginal offender who can be shown to have suffered systemic disadvantage in a way that explains or contributes to an understanding of the offending is entitled to have that taken into account as a mitigating factor. Although the appellant was an Aboriginal man raised in Aurukun, no submissions were made to the learned Magistrate about early exposure to alcohol abuse or violence, deprived background, social disadvantage, or trauma.[20] This meant that there was no material for the learned Magistrate to act upon in that respect. It is incumbent on the advocate appearing on sentence to place relevant material in mitigation before the court. The court cannot act in a vacuum.
Footnote [20]: See Bugmy [2013] HCA 37; [2013] 249 CLR 571; Fernando (1992) 76 A Crim R 58. See also the resources available to assist practitioners appearing for Aboriginal offenders such as the New South Wales Public Defender’s Office Bugmy Bar Book at https://www.publicdefenders.nsw.gov.au/barbook
-
- Offender sentenced for robbery offences
- Traumatic childhood as member of persecuted ethnic minority in Myanmar – family came to Australia when offender 8 years old as refugees – continued exposure to difficulty and violence – reference to matters impacting refugee students as set out in Bugmy Bar Book: at [33] – receiving specialised counselling
- Moral culpability and general deterrence reduced in view of traumatic background: at [67]
-
- Took into account psychologist’s opinion that offender’s mental health issues and conduct disorder had origins in childhood trauma – referred to Childhood Sexual Abuse chapter in Bugmy Bar Book in footnote: at [60]
Queensland District Court
-
[66] Other than the submissions identified, no other submissions were made and no material was placed before the Magistrate about the appellant’s personal circumstances, background, and any physical or mental health condition. An Aboriginal offender who can be shown to have suffered systemic disadvantage in a way that explains or contributes to an understanding of the offending is entitled to have that taken into account as a mitigating factor. Although the appellant was an Aboriginal man raised in Aurukun, no submissions were made to the learned Magistrate about early exposure to alcohol abuse or violence, deprived background, social disadvantage, or trauma.[20] This meant that there was no material for the learned Magistrate to act upon in that respect. It is incumbent on the advocate appearing on sentence to place relevant material in mitigation before the court. The court cannot act in a vacuum.
Footnote [20]: See Bugmy [2013] HCA 37; [2013] 249 CLR 571; Fernando (1992) 76 A Crim R 58. See also the resources available to assist practitioners appearing for Aboriginal offenders such as the New South Wales Public Defender’s Office Bugmy Bar Book at https://www.publicdefenders.nsw.gov.au/barbook
ACT Magistrates Court
-
- Sentence for assault and property offences – report of psychologist drew on literature about trauma contained in Bugmy Bar Book: at [58]
- In finding appellant’s childhood significantly impacted by mother’s heroin addiction Magistrate referred to Bugmy Bar Book: at [70]
- Found moral culpability substantially reduced: at [77]
-
- 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]
-
Etheredge v Freeman [2022] ACTMC 11
Criminal LawBugmy Bar Book: Incarceration of a Parent or Caregiver- 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]
-
- 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]
Children’s Courts
-
Police v Pedro Swain (pseudonym) [2024] ACTCC 1
Criminal Law- Imposition of sentence on juvenile in Children’s Court
- Referred to Bugmy Bar Book as setting out in detail some of the experiences relevant to many Aboriginal people – listed 16 chapters – noted juvenile in this case ‘has been exposed to many of those experiences, or his personal history is relevant to them’: at [60]-[61]
-
- Evidence on sentence established offender was a descendant of a member of the Stolen Generation, suffered from social exclusion, had interrupted school attendance, lived in Out of Home Care, had signs and symptoms of FASD and had multiple disabilities affecting cognition – extracts from Bugmy Bar Book addressing consequences of these factors tendered and referred to on sentence: at [57]-[58], [66]-[67]
- Moral culpability substantially reduced – diagnosis and adverse childhood experiences have resulted in substantial deficits in reasoning, problem solving, planning, abstract thinking, judgement, academic learning and experiential learning – not appropriate vehicle for general deterrence – multiple disabilities reduced impact of specific deterrence – Youth remains relevant factor – retribution and punishment a reduced role in sentencing exercise: at [68]
-
- Imposition of Community Treatment Order for juvenile in relation to multiple offences of violence – history of mental illness and childhood deprivation
- Referred to Bugmy Bar Book as comprising ’expertly reviewed research’ and quoted from Executive Summary of select chapters: at [42]-[43]
-
Police v Axl Joseph (pseudonym) [2023] ACTCC 1
Criminal Law- Imposition of sentence on juvenile in Children’s Court
- Referred to Bugmy Bar Book as setting out in detail some of the experiences relevant to many Aboriginal people – listed 16 chapters – noted juvenile in this case ‘has been exposed to many of those experiences, or his personal history is relevant to them’: at [103]-[104]
Family Law Cases
Federal Circuit and Family Court
-
- In application for parenting order Judge to consider right of children to enjoy their Aboriginal culture under s.60CC(3) Family Law Act
- Judges of Court have available ‘publications about Aboriginal cultures and identity from reputable sources not reasonably open to challenge’ – in this case Judge had regard, without objection of parties, to Bugmy Bar Book Project Committee, Cultural Dispossession Experienced by Aboriginal and Torres Strait Islander Peoples (Updated February 2025) and Judicial Commission of New South Wales, Equality before the Law Bench Book (October 2023), Section 2: at [68]-[80]
Civil Cases
ACT Supreme Court
-
Palmer v ACT (No.2) [2023] ACTSC 340
Civil LawBugmy Bar Book: Impacts of Imprisonment and Remand in Custody- Civil matter – claim for damages for assault and battery – prisoner assaulted by correctional officers – whether use of force necessary and reasonable
- In description of difficult conditions at time of alleged assault referred to inquiry cited in chapter of Bugmy Bar Book:
- [8] There was evidence that one of the prisoners kept in the overflow area had severe mental health issues and was at times at significant risk of self-harm, while another had refused to return to his cell in the overflow area earlier that day. Custodial isolation and overcrowding risks exacerbating mental illness, as noted in the Inquiry into Victoria’s Criminal Justice System (2022) at pg 594 (cited in the Bugmy Bar Book chapter on “Impacts of Imprisonment and Remand in Custody”):
- Practices such as use of isolation, restricting visits from family and friends, overcrowding, poor access to health services and programs, and negative interactions with correctional officers have a significant impact upon mental health. The psychiatric impacts of prison are particularly acute for Aboriginal and Torres Strait Islander people. For example, Aboriginal women in prison are hospitalised for mental illness at triple the rate of Aboriginal women in the community.
Tribunals
-
- Appeal from decision of NSW Civil and Administrative Tribunal in relation to residential tenancy agreement – application for leave to rely upon chapter on homelessness in Bugmy Bar Book refused: at [92]-[100]
- Material constituted new evidence available but not presented to Tribunal at first instance – after review of contents not satisfied would further applicant’s case – useful but generic information – would not have assisted Tribunal assess applicant’s particular circumstances – absence of specific information about tenant’s financial situation and alternative housing
-
1823926 (Refugee) [2023] AATA 3097
Administrative LawImmigration LawBugmy Bar Book: Refugee Background- Appeal against decision not to grant protection visas
- In relation to two applicants accepted possibility of trauma contributing to undiagnosed mental health issues, referencing discussion in Refugee Background chapter in Bugmy Bar Book about challenges faced by asylum seekers integrating into Australian society: at [146] Fn 20 and [159] Fn 22.
- Decision not to grant visa affirmed
-
LGNC and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2282
Administrative LawBugmy Bar Book: Refugee Background- Appeal against decision not to revoke mandatory cancellation of visa
- Visa cancelled after applicant sentenced for offence of assault with intent to rob in company
- Applicant referred to ‘Refugee Background’ in the Bugmy Bar Book – no further mention in judgment: at [30]
- Appeal allowed ‘another reason’: at [129]
-
- Appeal from decision of NSW Civil and Administrative Tribunal in residential tenancy agreement dismissed
- Application for leave to rely upon statutory declaration and Bugmy Bar Book Executive Summary on Homelessness as additional evidence refused: at [67]-[68]