R v Birch [2016] NSWSC 816

• Offender’s difficult childhood detailed in psychologist report – abuse and violence – environment of alcohol abuse – deprivation from infancy – care provided by mother, grandmother, foster carers and institutions – homeless as a teenager – lived as victim in refuges – impact on education and subsequent employment – abuse of drugs and alcohol to block out early trauma – fits Bugmy / Fernando criteria: at [21]–[24]
• Dysfunctional childhood fundamental to assessing combination of objective and subjective features – person with dysfunctional childhood does not bear equal moral responsibility: at [30]–[32]
• Quoted Millwood [2012] NSWCCA 2 at [69]

Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions … That his background is a relevant consideration affording some (although limited) mitigation is entirely consistent with the approach taken by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58, a decision which has repeatedly been followed in this Court.