Juli (1990) 50 A Crim R 31

• Aboriginal offender from the Kimberley region –family history of instability, alcohol abuse and violence – suffering mental illness exacerbated by alcohol abuse
• Held on appeal by Malcolm CJ sentencing judge failed to take into account offender’s history of alcohol abuse and intoxication at time of offending, his mental illness and the likely effect of imprisonment on a Kimberley Aboriginal: at 36

(Malcolm CJ)

(p.36) … Drunkenness is not normally an excuse or a mitigating factor. In particular circumstances, however, it may be relevant as a mitigating factor. In the particular circumstances of this case the applicant’s abuse of alcohol reflects the socio-economic circumstances and the environment in which he has grown up and should be taken into account as a mitigating factor in the way which I suggested in Rogers v The Queen, unreported; CCA SCt of WA; Library No 7849; 14 September 1989 at 9-13. I do not wish to repeat what I said in Rogers save to say that the substantive point which I sought to make in my judgment at 10 was:

“It is a notorious fact that the increased use of alcohol by aboriginal persons in relatively recent times has caused grave social problems, including problems of violence, in the communities in which they live. The general circumstances which have led to problems associated with the consumption of alcohol may themselves provide circumstances of mitigation …”

…

In addition, account should be taken of the impact of a sentence of imprisonment on an aboriginal person in the light of his social and cultural background. As Muirhead J said in The Queen v Iginiwuni; unreported; SCt of NT; SCC No 6 of 1975; 12 March 1975:

“Both aboriginal and white people are generally speaking subject to the same laws. For years, however, the Judges of this Court in dealing with aborigines have endeavoured to make allowance for ethnic, environmental and cultural matters …”

Relationship between Bugmy Principles and s.21A(5AA) Crimes (Sentencing Procedure) Act

At common law intoxication and substance addition could be relevant as a mitigating factor where the origin or extent of the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, including where it commenced at a very young age. See:

R v Henry (1999) 46 NSWLR 346; (1999) 106 A Crim R 149; [1999] NSWCCA 111 at [273] (Wood CJ at CL)

SS v R, JC v R [2009] NSWCCA 114 at [101]-[104] (Price J, Tobias JA and James J agreeing).

Any reliance upon self-induced intoxication at the time of the offence as a mitigating factor is now prohibited by s.21A(5AA) Crimes (Sentencing Procedure) Act which commenced on 31 January 2014:

(5AA) Special rule for self-induced intoxication

In determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor.

(5B) Subsections (5A) and (5AA) have effect despite any Act or rule of law to the contrary.

In the following cases a distinction is made between using the offender’s intoxication to mitigate the circumstances of the offence, and taking into account generally an offender’s early exposure to substance abuse and subsequent intoxication and addiction according to the Bugmy principles.