DPP v Swain (a pseudonym) (No.2) [2025] ACTSC 209

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

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

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

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

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

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