| Copeland [2022] NSWDC 545 (Fitzsimmons SC DCJ) Assault offence – reference to research from Bugmy Bar Book chapters in expert report – use of Executive Summaries as exhibits
| Offender a Gamilaroi women with significant childhood disadvantage – expert report cited research from Bugmy Bar Book chapters to support connection between 'offender's exposure to adverse childhood experiences, psychological health issues and offending': at [25]-[27] – offender relied upon Bugmy Bar Book Executive Summaries of Childhood Exposure to Domestic and Family Violence and Childhood Sexual Abuse as exhibits: at [32]
Causal connection established and moral culpability reduced: at [53]
|
Bennett [2022] NSWDC 321 (Beckett DCJ)
Sentencing for property offences – consideration of Wellbeing Report on importance of indigenous controlled organisations for rehabilitation – referenced chapter from Bugmy Bar Book on hearing impairment
| Aboriginal offender with significantly disadvantaged upbringing
Referred to
Significance of Culture to Wellbeing, Healing and Rehabilitation Report and importance of culturally appropriate services in rehabilitation of indigenous offenders:
[34] What is of particular significance is that the offender has apparently only recently had the dual support of two indigenous controlled organisations, apparently working closely in cooperation with Community Corrections. He has clear motivation to not reoffend or return to drugs for the purposes of maintaining a positive relationship with his daughter, with the assistance of Kari Corporation. Recently,
The Significance of Culture to Wellbeing, Healing and Rehabilitation report, commissioned by the Bugmy Bar Book, has established the important role to be played by culturally appropriate services in the exercise of rehabilitating Indigenous offenders. The Report presents expert opinions, collates the findings of major reports, and draws from leading Indigenous scholarship to demonstrate the significance of culture for Aboriginal and Torres Strait Islander people in promoting healing and rehabilitation. With respect to sentencing proceedings in criminal matters, the Report outlines the significant benefits of culturally appropriate treatment and care that provides for a connection to culture, family and community, in achieving those outcomes. The report relevantly states as follows [emphasis added]:
[E]xisting data regarding the ongoing over-incarceration of Aboriginal and Torres Strait children and adults clearly demonstrates that … current approaches are not adequate … There are long-standing community concerns regarding … [the] disproportionate impact on Aboriginal and Torres Strait Islander peoples and communities, including deaths in custody. The current evidence demonstrates that the 'status quo' approach is not effective or sustainable. … this report highlights the significance of culture to Aboriginal and Torres Strait Islander peoples, and the importance of connecting to culture and culturally appropriate treatments to facilitate healing, including in a criminal justice setting. It highlights the importance of the social and emotional wellbeing framework for Aboriginal and Torres Strait Islander people, the need to understand this holistic world view and the need to take into account both individual and social factors in how healing is promoted.
Finally, the report identifies culture as a strength that builds capacity in Aboriginal and Torres Strait Islander people, which is seen as a protective factor.
[35] The Report recognises that approaches to rehabilitation which address systemic issues and disadvantage have far better outcomes for Aboriginal and Torres Strait Islander people and communities and keep communities together. This includes discussion of intersections affecting people with disability, and families involved with child protection systems. In practical terms, rehabilitation for Aboriginal and Torres Strait Islander people is enhanced by services that support individuals to build core capabilities within a culturally safe environment, including learning to recognise destructive behaviours, building coping skills, and forming supportive and pro-social relationships. These are all recognised as protective factors against re-offending. In
R v BS-X, Justice Loukas-Karlsson made extensive reference to this report, noting its relevance to the evidence in that case in the application of principles of
Bugmy v The Queen. (citations removed) Found offender's prospects of rehabilitation not unfavourable in light of significant and culturally appropriate supports available on his release:
at [36]
Referred to material in
Hearing Impairment chapter of Bugmy Bar Book:
at [39]-[42]
Concluded deprived childhood relevant to reduction of moral culpability – hearing impairment will make custodial conditions more difficult:
[44] As a result of this finding, the role to be played by general deterrence on sentence is diminished to a degree, as is the weight to be given to other purposes of sentencing, particularly as to denunciation. With his repeat offending, specific deterrence continues to have a role to play, but conversely, rehabilitation must be given substantial weight, particularly at this critical time when he is motivated to change and has all of the appropriate supports in place. As observed above, his chances of rehabilitation at present are perhaps better than they have ever been, particularly if Tharawal, can assist the offender to seek treatment for his hearing impairment, or at least provide him with access to hearing aids. |
Tomlinson [2022] NSWDC 220 (Sutherland SC DCJ)
|
[101] The Defence Tender Bundle also included a number of summaries from the
Bugmy Bar Book Project covering the topics of
Exposure to Family Violence, Interrupted School Attendance and Multiple Suspensions, Unemployment, Homelessness, Social Exclusion, and COVID-19 Risks and Impacts for Prisoners and Communities. I should note, without detailing them that I have had regard to those summaries
…
[104] … I do find that
Bugmy principles have some role to play in the instinctive synthesis which leads to a consideration of an overall sentence, and the fixing of an appropriate non‑parole period. |
Edwards [2022] NSWDC 110 (Weinstein SC DCJ)
Sentencing for aggravated carjacking – consideration of relevant Bugmy Bar Book chapters – an 'invaluable resource' | Aboriginal offender with disadvantaged background including sexual abuse, exposure to violence and substance abuse, interrupted school attendance and homelessness
Accepted tender of four chapters from
Bugmy Bar Book and referred to additional two chapters – described as 'invaluable resource'.
[77] The Bar Book Project, known as the
Bugmy Bar Book,
contains research chapters freely available to practitioners derived from respected experts. It is found on the Public Defenders website:
https://www.publicdefenders.nsw.gov.au/barbook, and provides an invaluable resource of evidence relating to sixteen (soon to be eighteen) indicia of disadvantage: see N Cowdery AO QC, J Hunter and R McMahon, "Sentencing and disadvantage: The Use of Research to Inform the Court"
(2020) 32(5) JOB 43.
[78] Indeed each chapter of the Bar Book has a subtitle as follows:-
The purpose of this document is to collate published research, the findings of government reports and inquiries, and academic commentary in relation to
[name of relevant chapter] and the effects this may have on a person's behaviour; development and social well-being; and links to contact with the criminal justice system.
[79] The Bar Book provides additional expert material based on international research which may be used when sentencing an offender: see
R v Tsingolas [2022] NSWDC 34 per Yehia SC DCJ. … Consideration and summary of research and findings of each relevant chapter from
Bugmy Bar Book and application to this offender and the assessment of his moral culpability:
at [76]-[105]
|
Tsingolas [2022] NSWDC 34 (Yehia SC DCJ)
Reckless wounding – causal connection between childhood sexual abuse and offending – relevance of studies and research including Bugmy Bar Book Project | Offender experienced a traumatic childhood including sexual and physical abuse in a boys home resulting in mental health issues including PTSD
Causal link established between childhood abuse and offence – offender's PTSD triggered by perceived threat of victim and response was unreasonable and excessive self-defence:
at [76]-[80]
Studies and research on potential impact of childhood sexual abuse referred to by both Crown and defence counsel – included material contained in
Bugmy Bar Book chapter on
Childhood Sexual Abuse – should be seen as extension of subjective material in individual case:
at [81]-[92]
[87] This material should be seen as an extension of the subjective material provided in the individual case – here, the expert reports and the evidence of the offender. To an extent greater than ever before, sentencing Judges are now assisted by a body of research into the impact of various forms of childhood disadvantage, deprivation and trauma that may have an ongoing and profound impact upon the individual.
[88] Sentencing Judges in the 21st Century have the benefit of that assistance. The material provided is expert research and study that allows for a better understanding of the potentially profound impact of an individual's childhood experiences upon, amongst other things, their capacity to mature, control impulse and self-regulate. The research complements the psychological, psychiatric and other evidence relied upon in the individual case, and can be of substantial assistance in explaining the offending conduct, assessing moral culpability and/or informing the appropriate penalty.
[89] This approach has been recognised and utilised in a number of cases in the Court of Criminal Appeal.
[The Court went on to discuss
Kentwell V R (No 2) [2015] NSWCCA;
Perkins v R
[2018] NSWCCA 62 (Fullerton J); Bugmy v The Queen [2013] HCA 37; [2013] 249 CLR 571]
[92] I am required to determine whether the offender's adversities and disadvantage (primarily amongst them his childhood experience of sexual abuse) reduces his moral culpability. The material filed on his behalf is complemented by the expert opinions expressed in the body of research to which I have been referred. That research not only contextualises the material directly relevant to this offender's subjective case, but also assists me in having a broader understanding (based on expert material rather than my own inexpert understanding of human affairs) of the ongoing and profound impact of childhood sexual abuse. |
Levvell [2021] NSWDC 518 (Haesler SC DCJ)
Detain for advantage – no causal connection required in most cases – reference to
Significance of Culture to Wellbeing, Healing and Rehabilitation Report in considering impact of incarceration of offender on impending birth of child | Aboriginal offender removed from mother's care at 11 months –
Bugmy principles applied to reduce moral culpability – no causal connection required
[68] … In most case a causal connection between the crime and factors that reduce moral culpability is not required. That principle stems from the
recognition that in sentencing decisions; immaturity, social disadvantage, a childhood deprivation (such as exposure to violence and alcohol abuse), trauma (including as a victim of crime) and mental or intellectual incapacity (often in combination) frequently precedes the commission of crime:
Kennedy [2010] NSWCCA 260 at [53];
Millwood [2012] NSWCCA 2 at [69];
Muldrock (2011) 244 CLR 120; [2011] HCA 39 at [54] & [58];
Bugmy (2013) 249 CLR 571: [2013] HCA 37at [40] and [45];
AWF (2000) 2 VR 1; [2000] VSCA 172;
Nasrallah [2021] NSWCCA 207 at [12];
KT;
Clarke-Jeffries. Relied upon
Significance of Culture to Wellbeing, Healing and Rehabilitation Report in considering impact of incarceration of offender in view of impending birth of child – ICO imposed
[71] If Levvell is returned to gaol he will miss the birth of his child and not be there to support his partner and care for the bany in its first years. There is nothing so exceptional in this simple fact that of itself requires a non-custodial option:
Edwards (1996) 90 A Crim R 510 at 515:
Hoskins [2016] NSWCCA 157 at [63]. That said, any impact of a custodial sentence must be synthesised along with all other factors.
[72] When a parent is gaoled, there is often a significant disruption in the family and an increased risk to any children. Disruption to a family at a critical time can cause lasting trauma and impact on a child's future emotional and cognitive processes. Positive experiences as a child can enrich lives. Adverse childhood experiences can have lifelong negative impacts:
Significance of Culture to Wellbeing, Healing and Rehabilitation; V Edwidge and P Gray, Bugmy Bar Book Project, 2021 at [50]. Levvell was negatively impacted by his removal from his mother as a baby; any prolonged separation from his soon to be born child risks continuing that cycle. |
Saunders [2021] NSWDC 508 (Mahoney SC DCJ) |
Bugmy Bar Book chapters provided with relevant principles and paragraphs referred to in written submissions –
Exposure to Domestic and Family Violence, Interrupted School Attendance and Early Exposure to Alcohol and Other Drug Abuse:
at [48]-[50]
|
Lin [2021] NSWDC 523 (Mahoney SC DCJ) |
Bugmy Bar Book executive summaries for chapters on
child sexual abuse, childhood exposure to domestic and family violence and low socioeconomic status provided, with relevant principles and paragraphs referred to at [24]
|
Sequera [2021] NSWDC 573 (Mahoney SC DCJ) |
Relevant entries from the
Bugmy Bar Book referred to in submissions, acknowledged at [79]
|
Jones
[2021] NSWDC 713 (M L Williams SC DCJ)
Sentence for offence of use carriage service to procure child for sexual activity – reference to Bugmy Bar Book on effect of Covid-19 on custodial conditions |
[28] I take into account those conditions both in custody and on bail as well as the significant evidence presented by Mr Bickford, without challenge and the summaries in the extract from the
Bugmy Bar Book dealing with COVID-19 and the risks and impacts for prisoners and communities which are becoming well known to judges of this Court in light of the evidence that we hear on an almost daily basis as to the restrictions upon prisoners during the period of the COVID pandemic. These restrictions include a lack of visits, restrictions on phone calls and the ever-present anxiety as to the possibility of contacting the COVID virus while in a custodial environment.
[29] I accept that his term in custody, along with other prisoners at that time, was more arduous than would be for the case for prisoners who had served sentences outside of the COVID pandemic and it is an important factor to be synthesised, along with the other sentencing principles in this case. |
Kirk [2021] NSWDC 389 (Beckett DCJ) | Referred to
Bar Book Project chapters on
Childhood Sexual Abuse
and Childhood Exposure to Domestic and Family Violence, considering the impact of these factors and relevance to assessment of offender's moral culpability:
at [54]-[55]
Referred to research into the importance of indigenous and culturally appropriate rehabilitation programs
[49] … I accept that recent research and expert opinion indicates that rehabilitation services provided by Indigenous and culturally appropriate organisations, who understand and acknowledge the trauma suffered by Indigenous communities as a result of general removal, segregation and discrimination, together with the support of her close family and community, provide the offender with the best chance of being rehabilitated. These facilities, with oversight by Community Corrections offer a protective measure both for the individual but also the community. |
Maher; Maher [2021] NSWDC 80 (Yehia SC DCJ)
Inflict GBH – causal link between disadvantaged background and offending – reference to Bugmy Bar Book chapters on stolen generations and exposure to family and domestic violence | Evidence established offenders were Aboriginal brothers with deprived and disadvantaged childhood – intergeneration trauma resulting from mother's removal from family as a child – exposure to family and domestic violence and alcohol abuse – introduction to substance abuse at early age - unstable educational history resulting in learning and behavioural difficulties:
at [54]-[67]
Mother removed from family as a child and suffered abuse in out of home care – alcoholic by nineteen with ongoing alcohol addiction problems – impact of trauma of this removal on childhood of offenders - described
Aboriginal and Torres Strait Islander Stolen Generations and Descendants chapter in
Bugmy Bar Book as research summary that 'helpfully collates recent findings from numerous sources documenting the adverse consequences experienced by both members of Stolen Generations and their descendants':
[61] …compared with Aboriginal and Torres Strait Islander people who were not removed or who did not have family members removed, descendants of members of Stolen Generations have been found to experience higher rates of incarceration, interaction with police and arrest; poorer physical and mental health outcomes; higher rates of violence; and have a lower level of trust in the general community.
Both offenders exposed to violence and alcoholism throughout childhood – reference made to
Childhood Exposure to Domestic and Family Violence chapter of
Bugmy Bar Book:
[70] Irrespective of the age of a child, it is ongoing exposure to violence which has been associated with the highest likelihood of behavioural difficulties. Indeed, research shows that prolonged exposure to violence may cause children to experience trauma and post-traumatic stress disorders which have lasting effects on the child's development, behaviour and well-being. These symptoms include low self-esteem, poor coping mechanisms and substance abuse, as well as complex disturbances such as an inability to regulate emotion, and cognitive and behavioural developmental delays.
[71] The offenders' history of deprivation and disadvantage is relevant to reducing their moral culpability. Growing up experiencing or witnessing anger and/or violence and being exposed to such violence in families and communities can lead to individuals responding with anger and violence 'almost automatically' in response to other people's behaviour of perceived provocation, and a reduced capacity to access other ways of dealing with these triggers.
[72] This history of deprivation, and the research material tendered in the proceedings relating to the potential impact of such a background upon individuals exposed to such disadvantage in their childhood, is directly relevant to the way in which the offenders (in particular, Trevor) reacted on this occasion. His capacity to self-regulate and contain his anger was impaired. This is not to excuse his conduct in any way. The victim suffered serious injury that has resulted in ongoing impairment. Although the victim was the initial aggressor, he did not deserve the beating he received at the hands of the offenders (either directly or by way of joint criminal enterprise). That history is, however, relevant to an assessment of moral culpability and the weight to be given to some of the purposes of sentencing.
Background of disadvantage and deprivation reduced moral culpability but balanced with protection of the community:
at [74] |
Dixon
[2020] NSWDC 751 (Norrish QC DCJ)
Robbery offence – sentencing judge familiar with Bar Book project and read through relevant chapters |
[67] I have material from the
Bar Book project. Chapters from that source of information with which I am familiar, dealing with the effect upon individuals of childhood sexual abuse and early exposure to alcohol and other drug abuse. I have again read through those chapters. I have been to some presentations on the Bar Book project. |
Pout
[2020] NSWDC 751 (Lerve DCJ)
Sexual offences – extracts from Bugmy Bar Book Project annexed to submissions |
[71] Mr King on behalf of the offender annexed to his written submissions (MFI 3 on sentence) extracts from the New South Wales Public Defenders
Bugmy Bar Book Project. Clearly, given the material from Professor Greenberg, the principles enunciated by the High Court in
Bugmy v The Queen [2013] HCA 37 are enlivened reducing the offender's moral culpability |
KL
[2020] NSWDC 409 (Weinstein SC DCJ)
Child sexual offences – Bugmy Bar Book Project an invaluable resource of evidence relating to disadvantage | 14-year-old female offender committed offences on 5-year-old brother - dysfunctional background including sexual and physical abuse – complex metal health issues with ASD, anxiety and PTSD – limited cognitive ability – inability of mother to provide appropriate support
[60] As Fullerton J said in
Perkins v R [2018] NSWCCA 62 at 99:
The insidious effects of exposure to family and domestic violence on children in their formative years, and the potential for that exposure to play out in unforeseen ways as a young child develops from adolescence into adulthood, are well researched and documented.
[61] Indeed, the
Bar Book Project, found on the Public Defenders website:
https://www.publicdefenders.nsw.gov.au/barbook, provides an invaluable resource of evidence relating to disadvantage. For example, as to childhood sexual abuse, it cites research that sexual abuse is a 'substantial risk factor for the development of subsequent mental health problems'. As to childhood exposure to domestic and family violence, the Bar Book cites research that "there is mounting empirical evidence of the effects of exposure to domestic and family violence on children's development, and a growing recognition of the ways these harms can manifest in intergenerational cycles of trauma, violence and disadvantage." See also N Cowdery AO QC, J Hunter and R McMahon, "Sentencing and disadvantage: The Use of Research to Inform the Court" (2020) 32(5) JOB 43.
Full weight given to
Bugmy principles and moral culpability substantially diminished:
at [62]-[65]
|
GAM
[2020] NSWDC 304 (Priestly SC DCJ)
Child sexual offences – history of sexual abuse as a child – helpfully referred to Bugmy Bar Book Project | Offender subjected to sexual abuse as a child – link to subsequent alcohol abuse, mental health and offending:
at [24]-[31]
[41] I was helpfully referred to the "Bugmy Bar Book", a resource found on the Public Defenders website and linked to the Judicial Commission website. Reference is there made to research showing that survivors of childhood sexual abuse maybe at greater risk of engaging in risky sexual behaviours, a comment based on the Australian Institute of Family Studies report "The long-term effects of Child Sexual Abuse", CFCA paper no. 11 2013, at 8. Background justified reduction of moral culpability:
at [40]-[44]
|
Sebbens [2020] NSWDC 213 (M L Williams SC DCJ)
Robbery offences – reference to extracts from Bugmy Bar Book Project | Offender described as having 'a wretched start to life' with the 'full constellation of
Bugmy type features:
at [1]
Refers to extracts from new
Bugmy Bar Book Project being helpfully included in defence counsel submissions:
at [16]
|