King; Bugmy; CJ [2006] NSWSC 161

• Subjective mitigating factors considered by sentencing judge include inability to attend mother’s funeral

[23] There is another issue arising from the offender’s custodial situation which warrants consideration. It is described in the following terms by the author of the pre-sentence report:

Mr King made various applications to visit his mother who became seriously ill after an initial stroke in February 2005, then again on 28th October when she suffered a second stroke. Despite an urgent request from the offender’s solicitors, his application to attend his mother’s hospital bed and funeral were denied. A report dated 31st October 2005 stated that, although there were no relatives of the victim housed at Broken Hill at the time, the family feud and “hostility in the community” towards the offender and his family may cause problems for the offender’s partner.

In response, a letter from a community worker requesting information as to why the offender was not granted permission to attend his mother’s bedside and funeral (held on 11th November 2005) was referred to the Commissioner on 18th November 2005. A Departmental report dated 4th December 2005, in response to this, stated that local issues and association problems, the nature of the offence, and risk of being assaulted at Broken Hill were all factors in denying Mr King his request. The report also noted that, due to the seriousness of his mother’s condition, he may not have reached her bedside in time to see her.

[24] Whatever be the merits of the situation, it is not difficult to appreciate how disconcerting it must have been for the offender not to be able to attend his mother’s bedside and funeral.