Fuller-Cust [2002] VSCA 168; (2002) 6 VR 496

• Aboriginal offender and his sister removed from parents and made wards of state at early age – natural parents refused access – placed into foster care with non-aboriginal family – strained relationship with foster mother – sexually abused – failed attempt to reunite with natural mother – placed in institutional care: at [94]-[104]
• Appeal against lengthy sentence allowed in view of error made in relation to rule of accumulation
• On re-sentence Batt JA and O’Bryan AJA both acknowledged the offender’s dysfunctional and disadvantaged childhood but found it carried little mitigating weight in view of nature and gravity of offences and offender’s criminal history: at [60]; [154]-[155]
• Dissenting as to the appropriate length of re-sentence Eames JA discussed at length the relevance of the offender’s Aboriginality, experience of childhood separation from his parents and subsequent foster care with his offending : at [74]-[92]

[92] When regard is had to the welfare and other expert reports which were tendered before the learned sentencing judge it emerges very clearly that far from his Aboriginality being an irrelevance to the circumstances in which the offending conduct occurred, it is pivotal. Indeed, the history of the applicant has remarkable similarities to many of the cases reported upon by the Royal Commission into Aboriginal Deaths in Custody. The impact of a person being separated from family, endeavouring to regain contacts with that family, being reb￭ in those efforts, and thereupon suffering anxiety about being denied the opportunity to fully embrace his or her Aboriginality, was often addressed in individual reports and in the findings of the final report of the Royal Commission. The Commissioners recognised the impact of a person, in those circumstances, being socialised not into the family and kin network which would otherwise be the experience of an Aboriginal person living in urban circumstances but being socialised, instead, by the need to survive in institutional communities, including juvenile detention facilities and homes. That is not to say that in all cases of such separation the impact on the child in later years must have been adverse: that possibility, however, needs to be recognised.

• Eames JA further considered findings of the Royal Commission into Aboriginal Deaths in Custody in relation to the offender’s history of out of home care: at [137]-[140]

[137] The Royal Commission into Aboriginal Deaths in Custody, in the National Report of the Commissioners, identified the over-representation of Aboriginal people in prisons and the underlying factors which led to such deaths in custody. The Commissioners identified one factor being the impact on Aboriginal people who had been separated from their natural families at an early age and placed under the control of welfare institutions and/or being adopted out. Of the 99 deaths in custody investigated by the Royal Commission, 43 of those who died experienced childhood separation from their natural families, through intervention by State authorities or by missions or other institutions

[138] The Royal Commissioners acknowledged that many non-Aboriginal people who participated in the removal of children from their parents in such circumstances did so for the best of motives, and that in some cases opportunities were offered to the children concerned which might otherwise not have been obtained. The Commissioners noted, however, that for most the consequences were negative. The Commissioners observed:

“The consequence of this history is the partial destruction of Aboriginal culture and a large part of the Aboriginal population, and also disadvantage and inequality of Aboriginal people in all the areas of social life where comparison is possible between Aboriginal and non-Aboriginal people. The other consequence is the considerable degree of breakdown of many Aboriginal communities and a consequence of that and of many other factors, the losing of their way by many Aboriginal people and with it the resort to excessive drinking, and with that violence and other evidence of the breakdown of society. As this report shows, this legacy of history goes far to explain the over-representation of Aboriginal people in custody, and thereby the death of some of them.”

The Commissioners noted that for Aboriginal people, this history “is burned into their consciousness”.

[139] The significance of the work of the Royal Commission and the potential relevance of its findings to cases involving Aboriginal offenders who had experienced separation from their natural families has been well recognised, and the potential for there to be a connection between that experience and later offending behaviour should not be underestimated.

[140] The report of the National Inquiry into Separation of Aboriginal and Torres Strait Islander Children from their Families, which was delivered by the President of the Human Rights and Equal Opportunity Commission, Sir Ronald Wilson, in April 1997, investigated the separation of Aboriginal children from their families “by compulsion, duress or undue influence”. The report therefore distinguished what it called “forcible removal” from removals “which were truly voluntary, at least on the part of parents who relinquished their children, or where the child was orphaned and there was no alternative indigenous carer to step in.” The report, however, made clear that the term of reference was treated as including not merely children who were “removed” from their parents but also those who experienced “separation from their families”. The authors of the report noted the results of the National Aboriginal and Torres Strait Islander Survey of 1994, conducted by the Australian Bureau of Statistics, which reported that Aboriginal people surveyed who had been taken away from their natural families as children were twice as likely to have been arrested on more than one occasion than were Aboriginal people who did not have that background.

Stolen Generation Case

Several unsuccessful attempts have been made to obtain compensation through the Courts for damage caused by the forced removal of members of the Stolen Generation. The only successful case to this date is State of South Australia v Lampard-Trevorrow [2010] SASC 56; (2010) 106 SASR 331 (Doyle CJ, Duggan and White JJ) where the plaintiff sded on the basis of negligence and misfeasance in public office. The case contains a detailed picture of the long-term damage caused to Mr Lampard-Trevorrow as a result of being removed from his indigenous family as a child.

Related Social Exclusion Cases

Although not categorised as part of the stolen generation the indigenous offenders in each of the following cases suffered social exclusion in the context of their adoption to a non-indigenous family.