Police v Tracey [2022] ACTMC 26

• 50 year old Indigenous offender sentenced for assault offences committed while in lawful custody – separation from mother, family, culture and Country through adoption at 6 weeks of age led to lifetime of isolation, institutionalisation and deep depression: at [6]

[7] Understanding your experience as a child and ward of the state provides a key explanation for the offending for which you are to be sentenced, as it does for the long history of offending in which you have engaged. The ‘effects of profound childhood deprivation do not diminish with the passage of time and repeat offending’: Bugmy v The Queen [2013] HCA 37 [44]; [2013] HCA 37; 249 CLR 571, 595.

[8] No child should have to face the experiences you have faced. It is clear that these experiences have shaped you and that you suffer greatly under their weight. To adopt the words of Dean J in Veen v R (No 2) [1988] HCA 14 [9]; (1988) 164 CLR 465, 495 your current circumstances ‘must realistically be seen as having been at least partly caused by the oppressive and deforming yoke … society laid upon [your] formative years’.

• Accepted significant impact of abuse suffered while offender detained in two notorious institutions as a child and young person:

[55] As is recognised by the Australian Law Reform Commission in its Pathways to Justice – An Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples, Final Report (2017) ‘child removal into out-of-home care and juvenile detention could be considered as key drivers of adult incarceration’ (p 485). See also, Bugmy Bar Book, Out of Home Care (September 2021) pp 10-12; Bugmy Bar Book, Impacts of Imprisonment and Remand in Custody (November 2022).

• Impact of childhood trauma moderated moral culpability and established special circumstances permitting sentence to be imposed concurrent to existing sentence with period of parole – importance of supervision in community after release from custody: at [19]-[21]; [84]