DPP v Djabmara & Turner [2023] VCC 826

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

[25] She also said:

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

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

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

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