Terrick [2009] VSCA 220 (2009) 24 VR 457

• All three offenders raised in deprived circumstances, in an indigenous community where alcohol abuse and violence were commonplace: at [42]
• After reviewing relevant cases the Court summarised the principles relating to the relevance of childhood disadvantage: at [46] and made the following comments:

[50] The prevalence of disadvantage within indigenous communities does not diminish its significance for the individual offender. On the contrary, membership of a community where disadvantage is widespread might compound the difficulties suffered by a particular individual. The social and economic disadvantages often found in indigenous communities are powerful considerations. The fact that disadvantage amongst members of an indigenous community is widespread must not be allowed to reduce the impact of disadvantage as a sentencing factor in a particular case.

[51] In the present case, the sentencing judge appreciated that he had to assess the extent to which the circumstances of the upbringing of the respondents – social, environmental and cultural factors – assumed a significance in the application of sentencing principles. Their backgrounds might explain the presence or absence of motive; identify influences which had contributed to the commission of the offence; or reveal circumstances relevant to the nature of the sentence which should be imposed. But background will not necessarily be a mitigating circumstance. As Franklin J said in R v E (a child):

Whilst the factors of Aboriginality, ethnic oppression, socio-economic deprivation, family environment and similar matters or any of them may have relevance in a particular case to the appropriate sentence to be imposed on an offender, none of them is self-executing in the sense that its mere existence necessarily requires a reduction of the penalty otherwise appropriate to the offence.

[52] The deprived background of the respondents was relevant to an assessment of the weight to be given to both general and specific deterrence. As Derrington J said in Yougie:

Of highest importance is the deterrent effect for the protection of potential victims and the turning of the court’s face against violence as a general proposition is justifiable. At the same time it would be wrong to fail to acknowledge the social difficulties faced by Aboriginals in this context where poor self image and other demoralising factors have placed heavy stresses on them leading to alcohol abuse and consequential violence. Its endemic presence in these communities, despite heavy prison sentences, is proof of the serious problem and, to some extent, the limited nature of deterrence in this social context.

[53] The respondents’ deprived upbringing was also relevant to a consideration of their alcohol abuse and its contribution to the commission of the offence. The sentencing judge was entitled to consider the extent to which, as a result of the respondents’ backgrounds, their chronic alcohol abuse was the result of a diminished choice. As we have noted, the abuse of alcohol reflected the environment in which each respondent grew up. As Wood J said in Fernando, there needs to be:

realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities and the gross social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.

• Applying these principles to this case the court concluded the mitigatory effect of the offenders deprived and dysfunctional background could be given little weight in view of their criminal history, their chronic alcohol abuse and the circumstances of the offending: at [61] The Crown appeal was allowed and the sentences increased.