Hoskins [2021] NSWCCA 169

• Indigenous offender raised by aunt in stable environment until returned to biological mother’s care at 13y – unaware aunt was not real mother and no understanding why not raised by biological parents – struggled with feelings of abandonment – life became destabilised and chaotic in permissive environment under mother – biological family relationships characterised by violence, exposure to alcohol and criminal conduct normalised
• Not necessary to characterise an offender’s childhood as one of “profound deprivation” before Bugmy principles apply: at [57]
• Causative link not required citing Dungay [2020] NSWCCA 209: at [57]-[58]
• Bugmy principles apply here especially in view of exposure to criminal milieu during formative adolescence period – exacerbated by momentous discovery in relation to his biological parents and subsequent identity issues and introduction to use of alcohol – sentencing judge erred in finding no evidence supporting application of Bugmy considerations : at [61]-[64]

Per Basten JA, agreeing

[1] I agree with Brereton JA that the sentencing judge, in an otherwise thorough and careful judgment, failed to apply the principles articulated by the High Court in Bugmy v The Queen. Although those principles can apply generally to offenders brought up in circumstances of social disadvantage, they have particular application and are commonly invoked in relation to members of Indigenous communities. That is because, as has been documented by numerous inquiries and research studies, those communities continue to exhibit the dislocation resulting from foreign invasion, disruption of culture and minority racial status.[2] However, they are also the principal victims of alcohol driven violence of the kind exhibited by the applicant, Douglas Hoskins. To downplay the principle of protection of the community, identified as a purpose of sentencing in s 3A(c) of the Crimes (Sentencing Procedure) Act 1999 (NSW), is to diminish both the appearance and perhaps the fact of equal protection of those Indigenous communities. On the other hand, it must be recognised that incarceration has not proved an effective deterrent of anti-social behaviour in these circumstances; its deterrent effect being compromised by lack of insight which is itself a common feature of the circumstances which lessen moral culpability.

[2] These conflicting considerations place a sentencing judge in a difficult position; their acknowledgement provides little practical assistance in determining an appropriate sentence. The solution to the social problems does not lie in the criminal courts, whose best course may be to err on the side of leniency.

[2] See, eg, Kentwell v R (No 2) [2015] NSWCCA 96 at [89]-[92] (Rothman J; McCallum J agreeing) referring to R v Lewis [2014] NSWSC 1127 at [37]-[38] (Rothman J); Royal Commission into Aboriginal Deaths in Custody, National Report Volume 1 (AGPS, 1991) at Chs 1.4-1.5