9 Criminal Law

Aboriginal and Torres Strait Islander people are over-represented for wrongful convictions and one factor contributing to this is false confessions.⁷³ Other factors include prosecutorial misconduct, inadequate legal counsel, and ‘difficulties faced by Aboriginal and Torres Strait Islander people navigating the criminal justice system’.⁷⁴

Adam and van Golde identify reasons for false confessions including making ‘voluntary false confessions’ to protect others, and being coerced into making a confession, for example where the person is innocent but they make a confession to avoid punishment.⁷⁵ A common example which is often reported by Aboriginal Legal Service lawyers is that people may participate in an interview with police after being told that they are more likely to get bail if they tell their side of the story. False confessions may also be made where, because of the way in which questions are asked, the person comes to believe they did commit the crime alleged. Adam and van Golde also identify that some people voluntarily confess because of psychological issues.⁷⁶

It is important to keep an open mind in relation to the multitude of reasons why an innocent person may implicate themselves in a crime or otherwise provide an unreliable account in the context of police questioning.

The Anunga principles (also referred to as the Anunga guidelines or rules) are a comprehensive set of principles for interrogating Aboriginal and Torres Strait Islander people, and other partial speakers of English. The principles were set out in the Supreme Court of the Northern Territory by Forster J (Muirhead and Ward JJ agreeing) in R v Anunga.⁷⁷ They are designed to reduce the difficulties experienced by Aboriginal and Torres Strait Islander people during the course of police questioning. Forster J stated that the ‘guidelines are not absolute rules, departure from which will necessarily lead to statements being excluded, but police officers who depart from them without reason may find statements are excluded’.⁷⁸

The Anunga principles are as follows:

These principles have been included in the Northern Territory Police’s General Orders,⁸⁰ the Queensland Police Service’s Digital Electronic Recording of Interviews and Evidence Manual,⁸¹ and, in Western Australia, the Commissioner of Corrective Services’ Operating Policies and Procedures.⁸²

In R v BL,⁸³ Blokland J considered the application of the Anunga principles in the course of an application to exclude a record of interview of a 17-year-old from the Tiwi Islands. BL’s first language was Tiwi and he spoke only ‘partial English’. He was charged with one count of sexual intercourse without consent. In his second interview, he made various admissions.⁸⁴ Her Honour excluded the interview for reasons including the following:

Blokland J made the following observations in relation to the application of the Anunga principles:

The Anunga principles continue to be applied in the court’s discretion to exclude admissions for Aboriginal and Torres Strait Islander people and other partial speakers of English.⁹⁰ Following the Anunga principles, suggested trial directions were formulated by Justice Mildren,⁹¹ and further relevant resources developed such as Indigenous Protocols for Lawyers,⁹² and Recommended National Standards for Working with Interpreters in Courts and Tribunals.⁹³

The Anunga principles formed part of the reasoning to exclude a record of interview in the WA case involving Gene Gibson.⁹⁴

For further resources relating to the right to silence, admissions and the operation of the provisions which govern the admissibility of admissions, see Stephen Odgers, Uniform Evidence Law,¹⁰⁶ and Jill Hunter and James Metzger, The Trial.¹⁰⁷ For jurisdiction specific guidance see:

The value of appointing Aboriginal Community Liaison Officers (‘ACLOs’) is emphasised in the Alternatives to Incarceration reports which set out how ACLOs can play a pivotal liaison role between local Aboriginal communities and police:

The positive contributions made by ACLOs in brokering connections between the community and the police were set out in submissions from the Aboriginal Legal Services in New South Wales, the Northern Territory, Victoria and Western Australia during the Pathways to Justice inquiry. It was submitted that ACLOs should be at all police stations, and be available after hours and at weekends.¹¹⁷

Indigenous justice programs, such as night patrols and community patrol services have been operational since the 1980s. When Kungarakan Elder Professor Tom Calma AO was the Aboriginal and Torres Strait Islander Social Justice Commissioner, he made an address to the NSW Police in which he noted the value of Aboriginal and Torres Strait Islander people being the first responders to issues in the community:

The Australian Institute of Health and Welfare reported that ‘[c]ommunity patrols have the potential to increase Indigenous community safety’ and ‘can assist in reducing crime rates and alcohol-related harm and empower the local community’.¹¹⁹

Community patrol programs lead to improved outcomes for Aboriginal and Torres Strait Islander people, the communities where the patrols operate, and the local police services.¹²⁰

The Alternatives to Incarceration in the Australian Capital Territory report outlines:

Further:

Support for these programs, and recruitment of Aboriginal and Torres Strait Islander people at all levels of the justice system, builds safer communities.

Section 18(1)(k) of the Bail Act 2013 (NSW) provides for ‘any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment’.

In R v Brown¹⁸³ the Court stated that ‘the respondent is a person of Aboriginal background whose extended family and kinship, and other traditional ties, warrant significant consideration in the determination of whether or not to grant bail’.¹⁸⁴ The Court emphasised the need to carefully consider alternatives to the refusal of bail and also the need to be mindful of exploring bail proposals which are culturally appropriate:

The Equality before the Law Bench Book outlines practical considerations in relation to bail for Aboriginal and Torres Strait Islander people, including that they must not be subject to more stringent tests in relation to bail, or more stringent bail conditions, than would be applied for non-Indigenous people, and that paternalism is not appropriate.¹⁸⁶

It recommends that bail should be assessed in the following way:

The Significance of Culture report supports the position that ‘engagement in culturally appropriate programs reduces the likelihood of recidivism’:

Where an applicant is able to secure a place in a cultural program, the Significance of Culture report may provide the court with comfort that the program is more likely to assist the person’s recovery and healing, and therefore may reduce the likelihood of the person committing a further offence and reducing non-attendance at court.

Baker J granted a Griffiths remand in Director of Public Prosecutions (ACT) v Welsh (No 2),¹⁹¹ identifying a culturally safe residential rehabilitation program as providing an opportunity for the applicant to connect with his ‘spirit and culture’. Her Honour also referred to the Significance of Culture report:

When the matter was finalised by way of a suspended sentence, Baker J stated in Director of Public Prosecutions (ACT) v Welsh (No 3):

Another legislative provision that includes considerations specific to Aboriginal and Torres Strait Islander people is s 24(1)(b)(B)(iiic) of the Bail Act 1982 (NT), which provides that the court must consider ‘any needs relating to the person’s cultural background, including any ties to extended family or place, or any other cultural obligation’.

Sections 15, 16 and 34C of the Bail Act 1980 (Qld) provide that the court may take into account submissions from community justice groups (‘CJGs’)¹⁹⁴ in relation to the applicant and any risk factors, and may allow the CJG to inspect the court file. Chapter 24 of the Queensland Magistrates Court’s Bail Benchbook (titled ‘Indigenous Defendants’) provides guidance for decision-makers about these sections.¹⁹⁵

As noted above, the Australian Law Reform Commission recommends¹⁹⁶ that all state and territory bail laws should adopt the 2024 amendments to the Bail Act 1977 (Vic) which introduced s 3A. Section 3A supports decision-makers not to exacerbate incarceration rates of Aboriginal and Torres Strait Islander people.¹⁹⁷ The section also provides guidance to remind decision-makers to challenge any unconscious biases and promote culturally safe decisions,¹⁹⁸ and to support the cultural rights of Aboriginal and Torres Strait Islander people.¹⁹⁹

Section 3A(1) provides that a decision-maker must take into account

The Judicial College of Victoria²⁰¹ publishes guidance for decision-makers in applying s 3A.²⁰²

In Re McLaughlin,²⁰³ Incerti J granted bail to a woman after careful consideration of the fact of her Aboriginality, both in relation to her specific circumstances and the broader context:

In Western Australia, the Equal Justice Bench Book outlines the availability of relevant services such as the WA Aboriginal Legal Service’s Bail Support Service and Prison In-Reach Service.²⁰⁶

The social and emotional wellbeing (‘SEWB’) model of care is discussed is depth in 1 Introduction and in the Significance of Culture report.³¹⁴

The SEWB model, while developed in a First Nations health context, is useful for legal practitioners and judicial officers to better understand sources of strengths and the significance of connections. It is not suggested that this model be used as a framework for leading discussions with clients as this may be confronting for people who may have experienced disconnection and/or dispossession.

Non-Indigenous practitioners should undertake training and seek advice from First Nations people, working with their clients to build their capacity and meet their responsibility to communicate with their clients and their families in a culturally safe way.

The SEWB model can also be useful for informing (where possible and appropriate) cultural healing and/or treatment plans. Where possible and appropriate, healing and treatment plans should be written by, have input from or be reviewed by First Nations health professionals or other First Nations service providers.

Sources may include:

It is always important, if possible and appropriate, to seek advice and support from family and First Nations people working with the client to identify if there is a First Nations organisation or service provider to obtain or assist with taking a statement or affidavit from a client about their story.

This may include experiences of disadvantage and should also include evidence of strengths.

With respect to adverse experiences, Judge Yehia explained in R v Sharpley that the impact of widespread social disadvantage in a place where a person spent their formative years may be ‘relevant to the consideration of the relationship of these background matters to the assessment of the particular offender’s moral culpability and proper consideration of the principles of proportionality and equal justice’.³¹⁵ It is critical to identify and elevate the evidence which demonstrates the strength and resilience of the family, community, culture and connections which support the client.

Sources may include:

R v Sharpley³¹⁶ provides an example of adducing evidence of challenges experienced by the broader community. In this case, evidence was adduced in two ways: Walgett Gamilaraay Community Working Party in 2005 (see judgment at [5] for a description of the evidence by the working party), and field officer, Mr Gary Trindall (description of evidence adduced from [9] in the judgment).

Evidence relating to the community where a person grew up and other systemic issues may also be drawn from published statistics, historical documents, submissions or other documents produced by community representatives.

Sources may include:

The quality of the above evidence can be enhanced by assisting clients to connect to appropriate services. This is best achieved by obtaining advice from field officers or First Nations people supporting the person. Ideally, this is done very early so that the community connections can build and the benefits of the referrals are greater.

It is also important to ensure that all of the positive subjective material relating to the client’s support networks, cultural support and treatment is provided to any report writer (after obtaining instructions to do so) to improve the depth and quality of any report requested.

Practitioners may rely upon the Bugmy Bar Book research (and other research) and expert reports by tendering the material (or extracts of it) in the subjective case. For detailed guidance on how research can be used to enhance a subjective case and be used in proceedings, see:

See also the papers by Judge Sophia Beckett:

An example of a case relying on research, which pre-dates the introduction of the Bugmy Bar Book, is Kentwell v The Queen (No 2).³¹⁷ Rothman J (with whom Bathurst CJ and McCallum J agreed) confirmed that there needs to be an evidentiary foundation before research can be relied upon:

The uncontested background of the applicant relating to social exclusion in Kentwell came from the pre-sentence report:

Rothman J applied the research as follows:

The Bugmy Bar Book maintains a summary of cases referring to its research which can assist courts and practitioners to consider how the research can inform judicial decision-making.

Arrest as a last resort — Lawful arrest may be improper — Summons should be used by police for minor offences — Evidence obtained in consequence of an impropriety — Evidence Act 1995 (NSW) (‘Evidence Act’) s 138

Appeal to quash a magistrate’s orders under s 109(a) of the Justices Act 1902 (NSW)

In February 1999, Constable Robins approached Mr Carr in regard to a minor incident. Mr Carr, who was intoxicated, refused to cooperate and swore at Constable Robins, saying, ‘Fuck you. I didn’t fucken do it, you can get fucked’. Constable Robins then arrested Mr Carr for offensive language. Mr Carr struggled and was further charged with resisting, assaulting and intimidating police. The magistrate held that the arrest was lawful but improper, and that the evidence relating to these charges was obtained in consequence of an impropriety under s 138 of the Evidence Act. The magistrate found that Constable Robins could have proceeded by way of summons or a field court attendance notice (‘FCAN’) instead of making an arrest. The Director of Public Prosecutions (‘DPP’) appealed.

There were three issues on appeal. The first was whether the meaning of ‘improper’ in s 138 of the Evidence Act requires bad faith, abuse of power, or intentional wrongdoing by police. The second issue was whether Constable Robins’ arrest for minor offences improper because a summons or FCAN could have been issued. The third was whether the evidence of subsequent charges against Mr Robinson was obtained in consequence of improper arrest within the meaning of s 138(1)(b).

Smart AJ dismissed the appeal and made no order as to costs.

His Honour rejected the DPP’s submission that impropriety requires ‘bad faith’ or ‘an abuse of power’. His Honour distinguished Ridgeway v The Queen³³⁵ as that case had a different factual context. As he explained (at [22]):

Impropriety covers a broader range of conduct than illegality. His Honour agreed that ‘what is improper will vary from case to case and will be determined by reference to the relevant facts and circumstances of each case’ (at [27]).

His Honour agreed with the magistrate’s finding that Constable Robins’ decision to arrest was improper and ‘born of expediency’ because it was ‘far quicker’ to arrest a ‘drunk, hostile, aggressive swearing’ man (at [36]). His Honour reiterated that it is improper to arrest a person for a minor offence when the person presents no flight risk at [35]:

In the present case, Constable Robins had been a police officer for five years. He knew Mr Carr as a long-term resident of Wellington and where he lived. There was no question as to Mr Carr’s identity and his usual place of residence. Constable Robins was aware that it was open to him to proceed by way of summons or a FCAN. His Honour criticised Constable Robins’ action, observing that he ‘escalated the incident and led to the alleged commission of further offences’ (at [37]).

Smart AJ agreed with the DPP’s submission that, even if the arrest was improper, the mere fact that Mr Carr’s resisting, assaulting and intimidating police happened after the arrest did not necessarily make the evidence of those acts ‘obtained’ for the purpose of s 138(1) of the Evidence Act (at [52]). However, his Honour noted that the present case concerned obtaining evidence of new offences precipitated by police impropriety. As his Honour explained at [63]:

Smart AJ endorsed the magistrate’s finding, albeit with the caution that it was confined to the particular facts. His Honour stated at [67]–[68]:

Smart AJ held (at [82]) that the impropriety was serious:

False imprisonment — Wrongful arrest — Arrest without warrant — Conditions precedent to exercise of power — Honest but mistaken belief in existence of power

Appeal from a decision of the Supreme Court of the Australian Capital Territory (Franki J)

In August 1976, Inspector Broomby of the ACT Police Force arrested Sergeant Donaldson of the same force without a warrant, mistakenly relying on s 352 of the Crimes Act 1900 (NSW) (‘NSW Crimes Act’). Sergeant Donaldson was charged with several offences, including larceny. At the time of arrest, Inspector Broomby did not consider issuing a summons, as it was common practice within the ACT Police Force to commence criminal matters involving adults by way of arrest. Sergeant Donaldson sued Inspector Broomby in the Supreme Court, seeking compensation for false imprisonment and wrongful arrest. Franki J held the arrest to be unlawful, but Donaldson’s claim failed because he had not given the one-month notice required under s 563 of the NSW Crimes Act. Sergeant Donaldson then appealed.

The Court considered whether, if a police officer mistakenly relied on s 352 of the NSW Crimes Act to effect the arrest, the officer was entitled to the protection of s 563 of the NSW Crimes Act on the basis that the arrest was ‘reasonably supposed to have been done in pursuance of this Act’.

The majority (Deane J, Kelly J agreeing, Fisher J dissenting) allowed the appeal and awarded $1000 in damages for wrongful arrest, with full costs.

The majority held that Sergeant Donaldson’s arrest by Inspector Broomby constituted false imprisonment and wrongful arrest. The only general power of arrest without a warrant Inspector Broomby could rely on was s 8A of the Crimes Act 1914 (Cth). As Inspector Broomby did not have reasonable grounds to believe that proceedings by summons would be ineffective, the conditions required to exercise that power were not met. Therefore, the arrest without warrant was unlawful (at 527).

Deanne J (at 525–6) began his judgment by emphasising the intrusive nature of arrest:

Arrest without warrant — Purpose of arrest — Intention to charge — Intention to bring a person before an authorised person — Arrest merely for purpose of asking questions or making investigations — Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 99

Appeal from a decision of the Court of Appeal of New South Wales (McColl and Basten JJA, Emmett A-JA dissenting)

On 22 December 2013, Bradford James Robinson voluntarily entered the Sydney City Police Station regarding an alleged breach of an Apprehended Violence Order with the police. Upon his arrival, Constable Smith arrested Mr Robinson without a warrant. Mr Robinson participated in a voluntary interview and was later released without charge. He sued the State of New South Wales in the District Court, claiming damages for false imprisonment. The State argued that the arrest was lawful under s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’). Mr Robinson’s claim was dismissed at first instance, then succeeded in the Court of Appeal. The State sought special leave to appeal to the High Court.

The Court considered whether a police officer may lawfully arrest a person without a warrant under s 99 of the LEPRA when, at the time of the arrest, the officer has not formed an intention to take the person before an authorised officer to answer a charge for an offence.

The majority (Bell, Gageler, Gordon and Edelman JJ; Kiefel CJ, Keane and Nettle JJ dissenting) dismissed the State’s appeal with costs.

The majority found that Constable Smith had no intention, at the time of arrest, of bringing Mr Robinson before an authorised officer to be dealt with according to law. Instead, Constable Smith intended to do so only if sufficient evidence later emerged to justify a charge. His decision to charge depended on what Mr Robinson said during the voluntary interview, showing that the arrest was made for investigative purposes rather than for the purpose of answering a charge. Consequently, the arrest was unlawful under s 99 of the LEPRA (at [116]).

The majority’s reasoning drew heavily on Jordan CJ’s decision in Bales v Parameter.³³⁶ The majority restated the ‘single criterion’ for arrest at [63]:

The majority held that the powers conferred on police under s 99 of the LEPRA are exercisable only for the purpose of taking the person before a magistrate (or other authorised officer) to be dealt with according to law to answer a charge. The majority further noted that an arrest ‘merely for the purpose of questioning’ or ‘asking questions or making investigations’ is improper and therefore unlawful (at [93], [110]). The majority explained that this ‘single criterion’ for arrest has remained unchanged despite the enactment and amendment of the LEPRA (at [94]).

The majority clarified what compliance with s 99 requires:

Coroner’s inquest — Death in custody — First Nations woman — Bail offence — Unrepresented bail application — Bail Act 1977 (Vic) — Consideration of exceptional circumstances test to grant bail — Unacceptable risk test — Failure to administer proper medical care

Veronica Nelson, a Gunditjmara, Dja Dja Wurrung, Wiradjuri and Yorta Yorta woman, died in custody following an unsuccessful bail application for offences relating to theft from a shop and failure to appear at court while on bail. The bail laws in the Bail Act 1977 (Vic) operate discriminatorily as people who commit low-level offences that do not pose a threat to the community can be refused bail unless they can prove that there are exceptional circumstances. In Veronica’s bail application, there was also a failure to take into account (a mandatory consideration) her Aboriginality.

Ms Nelson was arrested on outstanding warrants relating to the indictable offence of theft of fragrances from a shop and for the summary offence of failing to appear on bail at the Magistrates’ Court.³³⁷

Under s 4AA(2)(c) of the Bail Act 1997 (Vic) (‘Bail Act’), which was brought in by amendments in 2018, Veronica had to prove there were exceptional circumstances required to justify a grant of bail as she had committed a sch 2 offence (a theft) while she was on bail for another offence related to a theft from a shop.³³⁸ Determining whether there are exceptional circumstances involves considering surrounding circumstances; this includes whether the accused is an Aboriginal or Torres Strait Islander person.³³⁹ Even if exceptional circumstances have been proven to justify bail, then under s 4E of the Bail Act, bail must still be refused if the accused would pose an unacceptable risk of flight, further offending, endangering public safety or the administration of justice.³⁴⁰ Under s 3A of the Bail Act, issues that arise due to the person’s Aboriginality must be taken into account when determining bail. These include (non-exhaustively) the ongoing systemic discrimination against Aboriginal people, the importance of maintaining connection to culture, and any trauma or intergenerational trauma experienced.

A barrister, Mr Antos, met with Veronica but only for a maximum of six minutes,³⁴¹ and she was left legally unrepresented in her bail application.³⁴² Veronica submitted that she should be granted bail in order to care for her mother and brother who were ill.³⁴³ She was not granted bail as she was unable to establish exceptional circumstances to justify the grant of bail,³⁴⁴ and she was remanded in custody at the Dame Phyllis Frost Centre.³⁴⁵

Veronica suffered from opioid dependence and while in custody went into withdrawal after being prescribed a standard withdrawal pack by a doctor at the medical centre.³⁴⁶ While being very unwell, she was transferred from the medical centre cell to a mainstream accommodation unit.³⁴⁷ Veronica was repeatedly ignored despite using the intercom 49 times over 36 hours, reporting severe cramps, vomiting and distress.³⁴⁸ On 2 January 2020, between 2am and 4am, she used the intercom 11 times to request help for her worsening cramps and continued vomiting, and the medical staff and prison officers were dismissive of the state she was in.³⁴⁹ She was found dead on the floor of her cell later that morning due to complications of withdrawal from chronic opiate use.³⁵⁰

The Coroner raised the fact that the prosecutor did not bring his attention to s 3A of the Bail Act which provides that a bail decision-maker must take into account any issues that arise in regard to the person’s Aboriginality when granting bail.³⁵¹ This provision was described as a special measure to redress the historical and continuing disadvantage faced by Aboriginal people in the criminal justice system.³⁵² Section 3A should centre Aboriginality in the determination of an application for bail, and proper weight should have been given to Veronica’s ‘kinship ties, the significance of her mother and brother’s ill health, her cultural connection to Country and community, and the unique disadvantages she experienced as an Aboriginal woman in the criminal justice system’.³⁵³ The prosecutor had information that Veronica was Aboriginal and would have known that s 3A of the Bail Act was a mandatory consideration, but he did not alert the bail decision-maker of this,³⁵⁴ and therefore ‘failed to properly consider Veronica’s Charter rights’.³⁵⁵

The Coroner discussed how the 2018 Bail Act amendments have resulted in low level, non-violent and objectively not serious offences (including repeated bail offences which present no risk to community safety) routinely resulting in remand as these offences attract the ‘exceptional circumstance’ test.³⁵⁶ Even if exceptional circumstances are met, it must be shown that the person does not present an unacceptable risk to the community.³⁵⁷ The unacceptable risk is not confined to risks of safety but also to the risk of failing to meet bail, and this means that non-violent and objectively not serious offences that don’t have potential to endanger the community are captured.³⁵⁸ The Coroner determined that this has discriminatory effects for socially disadvantaged groups, stating:

The fact that Veronica was legally unrepresented affected her bail application outcome, and the six minutes she had to meet with the barrister, Mr Antos, was not enough time for him to perform the necessary tasks to appropriately advise her.³⁵⁹ His conduct fell short of the standard expected of a legal practitioner,³⁶⁰ and suggests that he was not alert to her vulnerability as an Aboriginal woman in custody.³⁶¹

The discriminatory operation of the bail laws, as well as the failure to take into consideration that Veronica was an Aboriginal woman when determining the bail application, meant she was placed in an environment of state control that failed in its obligation to protect her life. The inquest found that Veronica’s death was preventable as there was a ‘very high change’ she would have survived if she had been transferred to a hospital for proper medical care.³⁶²

Bail — Where the applicant is a 33-year-old Aboriginal woman with mental health issues — Where unlikely that a term of full-time imprisonment would be imposed if convicted — Reference to the Bugmy Bar Book chapter ‘Impacts of Imprisonment and Remand in Custody’

An Aboriginal woman with a history of mental health and substance abuse issues was granted bail after being charged with stalk and intimidate and being armed with intent to commit an indictable offence. It was found that she did not pose an ‘unacceptable risk’ under s 19(1) of the Bail Act 2013 (NSW) (‘Bail Act’) and that her underlying issues would be better treated outside the custodial system.

The applicant, a 33-year-old Aboriginal woman, pleaded not guilty to offences of stalking and intimidating contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), and being armed with intent to commit an indictable offence, contrary to s 114(1)(a) of the Crimes Act 1900 (NSW).³⁶³ The applicant made a bail application to the Court.³⁶⁴ The Crown opposed this application for release on bail on the basis that the applicant posed an unacceptable risk of non-appearance and that she would commit another serious offence.³⁶⁵

The applicant had breached bail in the past on four occasions and had a history of non-compliance with court orders.³⁶⁶ The applicant was involved in an incident where without provocation, she chased the complainant down a stairwell while being armed with a knife that was being thrust towards the complainant.³⁶⁷ Following the incident, the police put the applicant in hospital and she was later admitted to Dubbo Mental Health Unit as an inpatient.³⁶⁸

Under s 19(1) of the Bail Act, bail must be refused if there is an unacceptable risk.³⁶⁹ Section 18(1) of the Bail Act provides an exhaustive list of mandatory factors that must be taken into account when assessing bail.³⁷⁰

Yehia J affirmed that no grant of bail is ‘risk free’ and that ‘as the offender’s liberty is at stake, a tenuous suspicion or fear of the worst possibility if the offender is released will not be sufficient’.³⁷¹

Yehia J considered the matters pursuant to s 18(1) of the Bail Act and noted that the applicant, from a young age, had been a victim of domestic violence and had suffered from mental health issues and substance abuse.³⁷² The Justice Health Report outlined that there was a significant risk that the applicant was at risk of relapse of substance abuse if she did not receive proper treatment and recommended that she re-engage with the Dubbo Aboriginal Medical Service and the Dubbo Community Mental Health Drug and Alcohol Service.³⁷³ It was considered that the applicant had a lengthy criminal record which demonstrated non-compliance with court orders, and she had one prior offence of being armed with intent from 15 years ago.³⁷⁴

Yehia J noted that an assessment of whether a risk is unacceptable includes consideration of whether the risk can be mitigated by bail conditions.³⁷⁵ Her Honour referred to research in the Bugmy Bar Book and NSW Inmate Health Surveys on the effect that imprisonment has on the physical and mental health of incarcerated individuals and how incarceration can increase the risk of further reoffending:

It was affirmed that the impact of incarceration on First Nations women should never be under-estimated.³⁸¹ Bail was granted as ‘[the] applicant’s underlying issues will be better treated and managed outside of the custodial environment. Such treatment and care will better serve the protection of the community’.³⁸²

Bail application — Youth justice — Institutionalisation risk — Cultural support — Therapeutic sentencing — Rehabilitation — Indigenous offender — Supervision — Conditions — Special circumstances — Young offender

The applicant sought bail after breaching his conditions following a sentence for multiple offences.³⁸³ The prosecution opposed bail, citing a history of reoffending, while the applicant’s legal team argued special circumstances, including the risk of institutionalisation, his cultural and community support, and his willingness to engage in rehabilitation.³⁸⁴ The Court found that the applicant’s background and proposed support plan, which included 24/7 supervision and additional assistance, mitigated the risk of reoffending, and the circumstances were deemed exceptional enough to justify granting bail.³⁸⁵ Bail was granted on the condition that the applicant appear at court weekly for a bail progress report.³⁸⁶

The present matter involved an applicant, a young person, seeking bail while awaiting sentencing for multiple offences, including vehicle theft and aggravated robbery.³⁸⁷ After being released on bail in June 2024, the applicant breached his bail conditions and faced additional charges, leading to his detention.³⁸⁸ The prosecution opposed bail, citing the applicant’s history of reoffending and the risk he posed to the community. However, the applicant argued that factors such as his risk of institutionalisation due to long-term care and detention, his cultural and community support, and his willingness to engage in rehabilitation programs such as the Supreme Court Pilot Circle Sentencing Program should be considered.³⁸⁹ The Court needed to determine whether these factors, including the proposed support and supervision plan, constituted special or exceptional circumstances to justify granting bail.

The applicant applied for bail after breaching bail conditions in June 2024, following his sentence in January 2024 for multiple offences. The court adjourned the application for assessment by the Elders Panel for the Supreme Court Pilot Circle Sentencing Program, with sentencing scheduled for 2025.³⁹⁰ The prosecution opposed bail, citing reoffending risks, while the applicant’s legal team argued special circumstances.³⁹¹

The Court found several factors that supported granting bail to the applicant, including the risk of institutionalisation, which was deemed a significant concern, especially for young offenders.³⁹² Despite the breach of bail, the Court recognised the applicant’s difficult background and the potential for rehabilitation through cultural and community support programs.³⁹³ The proposed bail plan, which included 24/7 supervision at Narrabundah House and additional support from Keystone Australia, was seen as a structured environment to aid his transition into adulthood. While the applicant’s history of offending was serious, the Court determined that the proposed support system could mitigate the risk of further criminal behaviour, making the circumstances special or exceptional enough to grant bail.³⁹⁴ Bail was granted on the condition that the applicant report to court weekly for a bail progress report.³⁹⁵

On the need to carefully select bail conditions which are conducive to rehabilitation (Taylor J at [14]):

Systemic failings operate to reduce moral culpability (at [9]):

On recognition of the systemic failures that contribute to young people moving from the care system into the youth justice system and, ultimately, the criminal justice system (at [14]):

On institutionalisation as a systemic failing (at [9]):

Criminal law — Jurisdiction, practice and procedure — Judgment and punishment — Sentence — Offender completed first stages of residential rehabilitation program — Offender offered extension of time with rehabilitation program — Substantive sentence proceedings already adjourned once — Whether adjournment of sentence until after completion of program is appropriate — Crimes (Sentencing) Act 2005 (ACT) s 27 — Griffiths remand — Whether s 27 displaced common law power to impose Griffiths remand — Griffiths remand imposed

Dean Ivan Welsh pleaded guilty to multiple offences, including aggravated burglary, burglary, and vehicle theft, committed on the night of 10 June 2022.³⁹⁶ He and two co-offenders entered three homes, taking personal items and vehicles.³⁹⁷ Welsh was later apprehended driving one of the stolen vehicles.³⁹⁸ At the time of sentencing, Welsh was participating in a rehabilitation program for drug and alcohol issues at The Glen, a rehabilitation centre.³⁹⁹ The Court adjourned sentencing to 13 May 2024, allowing him time to complete the program.⁴⁰⁰ The decision emphasises the importance of rehabilitation and cultural healing, providing a possible model for others to follow where sentences could be influenced by an offender’s rehabilitation progress, particularly if it addresses underlying causes of criminality.

Mr Welsh had numerous sentencing hearings, with the first on 14 July 2023. At that time, Welsh was in custody for unrelated offences, and his non-parole period expired on 25 August 2023.⁴⁰¹ On 3 August 2023, Welsh’s counsel requested an adjournment to allow him to participate in a 12-week rehabilitation program at The Glen, scheduled to begin on 25 August 2023. The Court granted the adjournment.⁴⁰² Following this, Welsh was granted parole on 22 August 2023, and the Court allowed him to be released on bail and attend the rehabilitation program.⁴⁰³ On 10 November 2023, Welsh appeared before the Court again, presenting positive reports on his progress in the program. The Court, acknowledging his rehabilitation efforts, adjourned the sentencing proceedings to 13 May 2024, continuing his bail with conditions that he reside at the rehabilitation centre.⁴⁰⁴

Mr Welsh pleaded guilty to several offences, including aggravated burglary, burglary, taking a motor vehicle without consent, and driving a motor vehicle without consent, all under the Criminal Code 2002 (ACT).⁴⁰⁵ These crimes occurred on the night of 10 June 2022, during a series of burglaries in which Welsh and two co-offenders entered three homes between 3:30am and 5:00am, stealing personal items and car keys, which they used to steal vehicles.⁴⁰⁶ One of the offenders was armed with a handgun during the first burglary; in subsequent offences, entry was gained by cutting security doors or kicking open external doors. Welsh was later apprehended driving one of the stolen vehicles.⁴⁰⁷

The offender had been granted parole for unrelated offences and was participating in a rehabilitation program at The Glen, focusing on drug and alcohol issues and cultural healing.⁴⁰⁸ His counsel requested an adjournment to allow him to complete the program before sentencing. The prosecution supported this request, acknowledging that full-time imprisonment would undermine his rehabilitation progress.⁴⁰⁹ As a result, the Court adjourned the proceedings to 13 May 2024, continuing Welsh’s bail and rehabilitation program.⁴¹⁰

The Court adjourned Welsh’s sentencing to 13 May 2024, allowing him to complete his rehabilitation program at The Glen. It noted that he had made positive progress in addressing issues related to addiction, anger management and cultural healing.⁴¹¹ The Court considered that full-time imprisonment would hinder his rehabilitation and opted for a Griffiths remand, continuing Welsh’s bail under conditions that required his residence at the centre.⁴¹² If Welsh complied with the conditions, the Court could consider a more lenient sentence; otherwise, a harsher sentence would be imposed.⁴¹³

Acknowledging re-connection with Country as a form of healing and rehabilitation (Baker J at [10]):

Criminal law — Sentencing — Dishonesty offences — Aggravated burglary; Burglary; Taking motor vehicles without consent; Drive motor vehicle without consent; Damage property; Drive while disqualified Criminal Code 2002 (ACT) ss 312, 45A, 318; Crimes Act 1900 (ACT) s 116(3); Road Transport (Driver Licensing) Act 1999 (ACT) ss 32(1)(a), 22(1)(a)

Dean Ivan Welsh pleaded guilty to multiple offences, including aggravated burglary and vehicle theft, committed in June 2022.⁴¹⁴ Despite a lengthy criminal history and breach of conditional liberty, Welsh demonstrated significant rehabilitation by completing a residential program, securing employment, and seeking counselling.⁴¹⁵ The key issue was whether his rehabilitation efforts warranted a suspended sentence rather than full-time custody. The Court recognised his progress, particularly through culturally sensitive rehabilitation, and imposed a suspended sentence with strict conditions, emphasising that any future offences would likely lead to full-time custody.⁴¹⁶ This decision followed a previous case, Director of Public Prosecutions (ACT) v Welsh (No 2).⁴¹⁷

The matter was first listed for sentencing while Mr Welsh was in custody for unrelated offences (14 July 2023).⁴¹⁸ His counsel sought an adjournment to allow completion of a rehabilitation program, which was granted after parole was approved (22 August 2023).⁴¹⁹ Further hearings were held to assess his progress in the program; following positive reports, the Court adjourned the proceedings for Mr Welsh to complete the program before sentencing (10 November 2023).⁴²⁰

Mr Welsh pleaded guilty to multiple offences, including aggravated burglary, burglary, taking and driving motor vehicles without consent, and damage to property.⁴²¹ These offences were committed in the early hours of 10 June 2022, when Welsh, along with two accomplices, engaged in a series of burglaries and thefts from residences in the Australian Capital Territory. During these offences, the offenders stole wallets, car keys and vehicles, including a silver Mercedes Benz and a white Volkswagen. Some of the offences were captured on CCTV, and Welsh was later arrested in June 2022 after the stolen vehicles were tracked.⁴²²

At the time of the offending, Welsh was on conditional liberty for previous criminal offences.⁴²³ He had a lengthy criminal history, including breaches of court orders, such as an intensive correction order imposed in 2021 for property-related offences.⁴²⁴ Despite this, Welsh showed significant rehabilitation efforts after being accepted into a residential rehabilitation program, The Glen, in New South Wales.⁴²⁵ He completed the program, secured employment, and proactively sought counselling.⁴²⁶ The prosecution did not oppose a suspended sentence, recognising Welsh’s commitment to rehabilitation, which the court acknowledged as a key factor in sentencing.⁴²⁷

The issue in contention in the current case was whether Welsh should be sentenced to full-time custody given his prior criminal history and breach of conditional liberty, or whether a suspended sentence should be imposed considering his demonstrated rehabilitation.⁴²⁸

Baker J acknowledged Mr Welsh’s significant progress in rehabilitation, particularly through his participation in the Glen program, which played a crucial role in his journey.⁴²⁹ The judge emphasised the importance of culturally sensitive programs for Indigenous offenders and highlighted the support Mr Welsh received from his family and community services.⁴³⁰ Despite his past criminal history, Baker J noted that Mr Welsh’s continued rehabilitation would be ensured through suspended sentences, which would be subject to strict conditions.⁴³¹ The Court ultimately imposed a combination of custodial sentences, all of which were suspended on the condition of good behaviour.⁴³²

Baker J also stated that any future offences would likely result in full-time custody, but Mr Welsh’s demonstrated commitment to change provided confidence in his ability to continue on his rehabilitative path.⁴³³

On the need for culturally sensitive rehabilitation programs:

Sentence — Crown — Appeal — Plea of guilty — Plea accepted by judge — Accused remanded for sentence in 12 months on good behaviour bond — Whether convicted — Whether sentenced — Bond — Power to grant — Competence of appeal — Powers of court on appeal — Whether court in error — Justices Act 1902 (NSW) s 51A — Crimes Act 1900 (NSW) ss 556A, 558 — Criminal Appeal Act 1912 (NSW) ss 2, 5D

The applicant was initially placed on probation with sentencing deferred for 12 months after pleading guilty to three offences. The Attorney-General appealed, arguing that the deferment constituted an inadequate sentence. The Court of Criminal Appeal subsequently imposed a six-year prison term with a three-year non-parole period. The applicant sought special leave to appeal, contending that no formal sentence had been pronounced and that the Attorney-General lacked the right to appeal a sentencing deferral.

The High Court considered the legitimacy of deferring sentencing to assess rehabilitation and affirmed that such deferrals are a valid exercise of judicial discretion. It held that deferrals allow courts to evaluate an offender’s rehabilitation progress before imposing a final sentence, ensuring a more tailored and just approach. The Court clarified that deferrals must be grounded in clear evidence of an offender’s potential for rehabilitation and must align with sentencing objectives such as proportionality, deterrence and justice. This case established the principle of the Griffiths remand, which has since become an important mechanism in Australian sentencing jurisprudence.

The applicant pleaded guilty to three separate offences, including two counts of breaking, entering and stealing, and one count of being an accessory after the fact, and was committed to the District Court for sentencing (20 September 1974). The judge deferred sentencing for 12 months, placing the applicant under the supervision of Probation and Parole (20 September 1974). The Attorney-General subsequently appealed, arguing the sentence was inadequate. The Court of Criminal Appeal ruled the deferment was effectively a sentence, which could be appealed. It found the sentencing process was improper and imposed a six-year prison sentence with a three-year non-parole period. The applicant sought special leave to appeal the Court of Criminal Appeal’s decision.

The applicant was charged with three offences under the Crimes Act 1900 (NSW): two counts of breaking and entering with intent to steal and one count of being an accessory after the fact.⁴³⁵ He pleaded guilty to all charges and was committed to the District Court for sentencing.⁴³⁶ On 20 September 1974, the District Court heard evidence about the applicant’s criminal history, and the applicant entered into a recognisance agreement to be of good behaviour until 19 September 1975.⁴³⁷ Afterward, the applicant was released but later returned to custody.⁴³⁸ The Attorney-General appealed the sentence, and the Court of Criminal Appeal intervened, imposing a six-year sentence with a three-year non-parole period.⁴³⁹

The applicant contended that no sentence had been pronounced, and thus the Attorney-General had no right to appeal.⁴⁴⁰ He also argued that the trial judge had not properly convicted him, and that the Court of Criminal Appeal had overstepped its jurisdiction by imposing a new sentence without error or departure from principle by the trial judge.⁴⁴¹

The applicant sought special leave to appeal the orders of the Court of Criminal Appeal, arguing that remanding him for sentencing was not equivalent to a conviction and that the Attorney-General could not appeal a remand.⁴⁴²

The High Court delivered five separate judgments, all in agreement that that sentencing could be deferred to allow an offender the opportunity to demonstrate rehabilitation.

The practice of deferring sentencing to assess an offender’s rehabilitation prospects was recognised as a legitimate exercise of judicial discretion. It was emphasised that such deferrals must be used judiciously, ensuring they do not undermine the gravity of the offence or public confidence in the sentencing process. Deferring sentencing for rehabilitation purposes was considered beneficial, as it allows the court to gather evidence of the offender’s rehabilitation, which can inform the final sentence. The deferral provides practical insight into the success of an offender’s rehabilitation efforts, enabling a more tailored and appropriate sentence. However, it was cautioned that such adjournments should only occur where there is clear evidence of a likelihood of successful rehabilitation, relevant to the achievement of sentencing objectives. This approach, commonly referred to as a Griffiths remand, enables courts to balance considerations of justice, deterrence and rehabilitation effectively.

The High Court also considered broader sentencing principles, including the need for consistency in sentencing to ensure equal justice, the proper exercise of judicial discretion, and the circumstances under which appellate courts may intervene in sentencing decisions. The Court underscored the necessity of balancing proportionality, deterrence and rehabilitation in sentencing, while ensuring that manifest injustice or inconsistency does not arise, as such outcomes could undermine public confidence in the legal system.

Bail application — Applicant charged with drug trafficking offences — Addiction — Exceptional circumstances test — Whether unacceptable risk — Applicant identifies as Aboriginal — Bail Act 1977 (Vic) s 3A — Bail reform.

The applicant was charged with multiple drug trafficking and possession offences. After being denied bail in the Magistrates’ Court, she applied to the Supreme Court, arguing exceptional circumstances.⁴⁴³ The Supreme Court considered her role as the primary caregiver for five children, potential delays in the complex case, and the availability of culturally appropriate support services.⁴⁴⁴ The Court also applied s 3A of the Bail Act 1977 (Vic) (‘Bail Act’), addressing the systemic overrepresentation of Aboriginal people in the criminal justice system.⁴⁴⁵ Ultimately, Incerti J granted bail, finding that these factors, particularly in light of the applicant’s Aboriginality and limited criminal history, established exceptional circumstances justifying release.⁴⁴⁶

Kellyenne Males was charged with multiple offences between February 2021 and July 2024.⁴⁴⁷ She was initially charged and granted bail on 4 July and 23 July 2024.⁴⁴⁸ However, on 30 September 2024, bail was refused by a magistrate at Bendigo due to a failure to demonstrate exceptional circumstances.⁴⁴⁹ Subsequently, she applied for bail in the Supreme Court of Victoria, where the application was heard on 12 December, and bail granted.⁴⁵⁰

The applicant, Kellyenne Males, a 40-year-old Aboriginal woman, faces multiple charges including trafficking a drug of dependence in a commercial quantity, possessing prohibited substances, and dealing with property suspected of being the proceeds of crime.⁴⁵¹ The alleged offences occurred between February 2021 and July 2024, with evidence derived from the applicant’s seized mobile phone indicating her involvement in distributing illicit substances.⁴⁵² Further, her brother was implicated as a driver, and police searches of her residence uncovered substantial quantities of controlled substances.⁴⁵³ The applicant sought bail, asserting exceptional circumstances based on her role as a primary caregiver for five children, the systemic disadvantages impacting Aboriginal individuals within the criminal justice system as outlined in s 3A of the Bail Act, and her limited prior criminal history.⁴⁵⁴

Incerti J found that the applicant had established exceptional circumstances justifying the grant of bail.⁴⁵⁵ This determination was based on a combination of factors, including her role as the primary caregiver for her five children, the inherent delays associated with complex legal matters, the availability of culturally appropriate support services, and her limited criminal history.⁴⁵⁶ The Court emphasised the application of s 3A of the Bail Act, requiring consideration of systemic factors impacting Aboriginal people within the criminal justice system, and considered Ms Males’ circumstances through this lens.⁴⁵⁷ While acknowledging the seriousness of the charges, the Judge determined that these combined factors, particularly when viewed in the context of the applicant’s Aboriginality, warranted a finding of exceptional circumstances.⁴⁵⁸

Incerti J acknowledged the consideration of keeping families together and accounting for the offender’s care-giving duties (at [45]):

The offender’s separation from family was considered in the context of the systemic removal of Aboriginal children from their homes (at [45]):

Bail application — Conditional bail — Indictable offence — Indigenous applicant — Aggravated entering someone’s dwelling — Show cause requirement — Lengthy period on remand if detained — Applicant had a three-month old child — Factors relevant in granting bail — Cycle of disadvantage in Indigenous communities

The applicant, a First Nations man who had a three-month old child, was granted bail for an indictable offence of entering someone’s dwelling, as it was reasoned that the separation of First Nations families through detainment of family members in prison can cause further disadvantage in First Nations communities. Risks associated with bail were mitigated through bail conditions requiring the applicant to engage with family life and continue medical treatment with the Aboriginal Medical Service.

A First Nations man, 32 years of age, was facing a series of charges and was refused bail for an indictable offence of aggravated entering a dwelling knowing there were people there.⁴⁵⁹ If detained, the applicant would likely have a lengthy period on remand awaiting a trial date in the District Court.⁴⁶⁰

The applicant was facing a ‘show cause’ requirement and was required to show why his detention was not justified.⁴⁶¹ A matter raised by the applicant to support the finding of shown cause was the birth of the applicant’s first child, who was three months old, as detainment would cause separation with his child.⁴⁶²

McCallum J found that if bail was refused, the applicant would likely see very little of the child.⁴⁶³ This child was considered to be a motivator for him to comply with conditional bail.⁴⁶⁴ Her Honour highlighted how the separation of the Indigenous applicant from his child through detainment would likely perpetuate the cycle of disadvantage and deprivation in Indigenous communities (at [3]):

While there was a risk identified that the applicant could commit a serious offence if released on bail due to ‘matters in his history’, this could be mitigated through requirements that the applicant engage with family life and continue to engage with medical treatment through the Aboriginal Medical Service.⁴⁶⁵ Conditional bail was granted.⁴⁶⁶

Criminal law — Bail application — Applicant charged with violent offending — Addiction — Access to Koori Court — Show compelling reason test — Whether unacceptable risk — Applicant identifies as Aboriginal — Bail Act 1977 (Vic) s 3A — Bail reform

An Aboriginal woman was granted bail after committing an assault on two occasions, as her disadvantage as an Aboriginal person who had mental health problems and had suffered trauma satisfied the ‘compelling reason’ to grant bail test under s 4AA of the Bail Act 1977 (Vic) (‘Bail Act’). There was found to be no ‘unacceptable risk’ to the safety of other persons, as any risk caused by the applicant’s mental health conditions could be mitigated to an acceptable level by ensuring that the applicant engaged with mental health services and the Aboriginal Medical Service.

The applicant, a 35-year-old Aboriginal woman with Yorta Yorta and Yolgnu heritage,⁴⁶⁷ was charged with offences including recklessly causing injury, contravening an Interim Personal Safety Intervention Order, committing an unlawful assault, assaulting a police officer, attempting armed robbery, and assaulting with weapon.⁴⁶⁸ The charges were from two incidents. On one occasion, the applicant threw a glass bottle and brick at the victim, ran at them with a metal pole, and hit an officer with a garment.⁴⁶⁹ On another occasion, the applicant accosted someone on the street by asking for money and striking them with a metal pole.⁴⁷⁰ The applicant had been separated from her mother as a child, was a victim of sexual abuse as a child, and struggled with substance abuse and mental health problems.⁴⁷¹ The applicant had a criminal history of offending for 10 years; however, most of her earlier charges were dismissed or resolved without conviction.⁴⁷²

As the applicant was charged with armed robbery, according to s 4AA of the Bail Act she had to show that there was a ‘compelling reason’ for the grant of bail.⁴⁷³ Even if there is a compelling reason shown for the grant of bail, the Court must still refuse bail if there is an ‘unacceptable risk’ of granting bail.⁴⁷⁴ In determining whether there is an ‘unacceptable risk’ in granting bail, s 3A of the Bail Act requires the Court to ‘take into account issues that arise due to a person’s Aboriginality’ which involves taking into account the systemic over-representation of Indigenous people in the criminal justice system, the risk of custody to the welfare of Indigenous people, and the importance of maintaining cultural connection and kindship.⁴⁷⁵ The specific circumstances of the applicant must also be considered, including their mental health and their experiences in childhood.⁴⁷⁶ The availability of support and whether there are culturally appropriate programs to reduce the risk are also relevant considerations.⁴⁷⁷

The applicant was refused bail in the Melbourne Magistrates’ Court on the basis that she posed an unacceptable risk of endangering the safety or welfare of any person, despite successfully demonstrating compelling reasons for the grant of bail.⁴⁷⁸

On appeal, Incerti J in the Supreme Court of Victoria granted the applicant bail with conditions. The applicant’s background as an Indigenous person who had grown up with trauma and mental health issues, as well as being a descendent of the Stolen Generations which had ‘lasting impacts’, meant that the ‘compelling reason’ test was satisfied (at [49]):

The applicant had never served an imprisonment term and had no recorded convictions, which was another compelling factor in granting bail.⁴⁷⁹

In determining whether the applicant posed an unacceptable risk of endangering the safety of a person, Incerti J found that a significant contributor to the risk posed by the applicant was her mental health.⁴⁸⁰ However, it was identified that the provision of support services can be a ‘circuit-breaker’ and ‘protective force’, reducing the risk to an acceptable degree.⁴⁸¹ It was found that this risk could be mitigated by including a bail condition to attend an appointment with a mental health clinician at her local neighbourhood justice centre and attend a medical appointment with the Victorian Aboriginal Health Service.⁴⁸² In granting bail, it was reasoned that the provision of services which addressed the applicant’s mental health would protect the applicant and community more than incarceration (at [56]):

Bail — Application for review — Exceptional circumstances — Presumptions — Protection of alleged victim — Exceptional circumstances did not justify grant of bail — Bail refused

The respondent, an Aboriginal man, was refused bail for the serious indictable offence of committing an indecent assault of a child, as he did not meet the ‘exceptional circumstances’ test under s 9D of the Bail Act 1978 (NSW) (‘Bail Act’). There was only slight consideration of his background as an Aboriginal person and while the potential option for culturally appropriate supervision was contemplated, there was no availability. Weight was placed on the lack of police supervision to monitor the respondent’s behaviour if he stayed on house arrest, and the risks to the safety of the victim meant that exceptional circumstances were not made out.

The respondent was charged with a serious indictable offence which was aggravated breaking, entering and committing an indecent sexual assault of a child, aged 14.⁴⁸³ As the respondent, at the time of the alleged offence, was subject to a good behaviour bond and had been previously convicted of a serious personal violence offence, under s 9D of the Bail Act, the Court was required to refuse bail unless exceptional circumstances justified a grant of bail.⁴⁸⁴

The Director of Public Prosecutions, on behalf of the Crown, sought a review of bail granted by a single judge of the Court of Criminal Appeal of New South Wales.⁴⁸⁵

The Court (Rothman, Fullerton and Beech-Jones JJ) delivered very short reasons, reserving full reasons.⁴⁸⁶

Exceptional circumstances may arise by ‘a combination of factors or a particular factor which takes the circumstances of the offender and the grant of bail out of the ordinary’.⁴⁸⁷ The person seeking bail bears the evidential burden to establish that there are exceptional circumstances.⁴⁸⁸

For consideration of possible exceptional circumstances, weight was given to the fact that the conditions of bail proposed in the hearing would have the effect of placing the respondent under house arrest at a location that was significantly distant from the victim’s residence.⁴⁸⁹ The respondent did not have a driver’s licence allowing him to legally travel to the victim;⁴⁹⁰ however, he did have a history of illegal driving.⁴⁹¹

The respondent’s background as an Aboriginal person with traditional ties to his community also warranted consideration as an exceptional circumstance, yet there was no substantial consideration or reasons given as to why or why not his cultural background would form an exceptional circumstance.⁴⁹² Consideration of connection to his community was framed as meaning that he would be less likely to escape from the area. The Court stated at [34]:

The possibly of culturally appropriate supervision as an alternative to remand in custody was mentioned as a potential option; however, this was dismissed as an option as there was no culturally appropriate supervision proposed or available.⁴⁹³ The Court stated at [35]:

There was significant weight placed on the fact that the circumstances of the offence involved the abuse of alcohol and/or drugs, indicating that alcohol consumption remained a part of the respondent’s life, and this had risk factors for the protection of the victim.⁴⁹⁴ Attention was given to the location of the respondent’s residence and how it would not allow for law enforcement to monitor the respondent’s abstention from alcohol or the possibility of the respondent travelling to the victim’s location.⁴⁹⁵

These considerations meant that there were not exceptional circumstances under 9D of the Bail Act to justify the grant of bail and bail was refused.⁴⁹⁶

Criminal law — Procedure — Bail — Revocation, variation, review and appeal

John Trevor Webb was charged with threatening a person involved in a criminal investigation and possessing cannabis plants and initially had his bail application denied by the Magistrates Court.⁴⁹⁷ As a ‘prescribed applicant’ under the Bail Act 1985 (SA) (‘Bail Act’), he was required to show ‘special circumstances’.⁴⁹⁸ On appeal, the Supreme Court granted Mr Webb bail, recognising the seriousness of the charges but determining that the combination of factors, particularly the delay before trial and family impact, constituted ‘special circumstances’.⁴⁹⁹ The Court stressed the need to assess whether denying bail would cause consequences beyond what Parliament intended, particularly regarding the over-representation of Aboriginal people in custody.⁵⁰⁰ This case highlights the importance of considering personal and family circumstances in bail decisions, reinforcing that ‘special circumstances’ can include factors such as trial delays and the impact on vulnerable family members.⁵⁰¹

At first instance, a bail application was made in the Magistrates Court of South Australia (December 2018). This application was denied. The current hearing was an appeal for review of that application in the Supreme Court of South Australia.

Mr Webb was charged with threatening a person involved in a criminal investigation and possession of cannabis plants.⁵⁰² Due to the nature of the threatening charge, he was classified as a ‘prescribed applicant’ under the Bail Act, requiring him to demonstrate ‘special circumstances’ to be granted bail.⁵⁰³ A magistrate initially refused bail, and Mr Webb sought a review.⁵⁰⁴

Mr Webb sought to demonstrate numerous ‘special circumstances’, including the potential 18-month delay before trial, his minimal prior criminal history, his responsibility as the primary caregiver for his two young children, and the strain his incarceration placed on his grandparents, who help with the children’s care.⁵⁰⁵ His grandfather, Mulla Sumner, testified about the difficulties he and his wife faced in caring for the children while also managing their own health issues and financial burdens.⁵⁰⁶ Additionally, it was also considered favourably that Mr Webb had ongoing employment. Finally, the Court considered the over-representation of Aboriginal people in custody, noting that Mr Webb is a Ngarrindjeri man.⁵⁰⁷

The Court ultimately granted Mr Webb’s application for bail.

While acknowledging the seriousness of the charges, the Court determined that the combination of factors, particularly the significant delay before trial and the impact of his incarceration on his young children and elderly grandparents, constituted ‘special circumstances’ sufficient to warrant his release on bail.⁵⁰⁸ In making this determination, the Court acknowledged the need to assess whether Mr Webb’s circumstances placed him ‘outside of the contemplated risk to the community’ and whether the denial of bail would result in consequences beyond the contemplation of Parliament.⁵⁰⁹

On the relevance of Aboriginality to bail decisions and the need to contextualise Indigenous status within the broader context of over-incarceration of First Nations people (Hinten J at [30]):

On the primacy of a consideration of care-giving responsibilities in bail applications (at [31]):

On cultural ties and bail conditions (especially flight risk) (at [32]):

Appeal — Sentence — Relevance of deprived background — Application of R v Fernando (1992) 76 A Crim R 58 — Mitigatory effect of social deprivation — Aboriginality

Appeal from a decision of the Court of Criminal Appeal of New South Wales (Hoeben JA, Johnson and Schmidt JJ)

On 7 January 2011 at the Broken Hill Correctional Centre, the appellant, William Bugmy, who was on remand, became agitated when told that his visitors might not arrive before visiting hours ended. After Senior Correctional Officer Gould declined to extend visiting hours, Mr Bugmy threatened, ‘I’ll split you open, you cunt’, and continued making threats. When two other officers arrived, he threw pool balls at them, and then at Mr Gould, striking him twice in the back and once in the left eye. The last blow caused permanent blindness in Mr Gould’s left eye and serious facial injuries. Mr Bugmy then climbed onto the roof and continued throwing pool balls. He later surrendered, and expressed satisfaction at having injured the officer.

Mr Bugmy pleaded guilty in the District Court of New South Wales to two counts of assaulting a correctional officer under s 60A(1) and one count of causing grievous bodily harm with intent under s 33(1)(b) of the Crimes Act 1900 (NSW). He was sentenced to concurrent terms of eight months’ imprisonment for the s 60A offences, and six years for the s 33(1)(b) offence, with a non-parole period of four years, commencing 8 April 2011. The judge ordered supervised parole including possible residential treatment for substance abuse.

The Director of Public Prosecutions appealed to the Court of Criminal Appeal, arguing that the sentence was manifestly inadequate. The Court allowed the appeal, and increased the sentence for the s 33(1)(b) offence to a non-parole period of five years and a total term of seven and a half years. It did so without determining whether the sentence was manifestly inadequate or considering the residual discretion to dismiss the appeal.

Mr Bugmy’s background was marked by extreme social deprivation in Wilcannia, exposure to alcohol abuse and violence from a young age, minimal education, early onset of alcohol and drug use, and a long history of violent offending. Psychiatric evidence showed auditory hallucinations, probable primary psychotic symptoms, reactive depression, and risk of self-harm.

The appeal to the High Court raised two main issues. The first was whether the Court of Criminal Appeal was entitled to vary the sentence imposed by the District Court without first finding that the sentence was manifestly inadequate, and whether it was required to consider the ‘residual discretion’ to dismiss the Crown’s appeal even if error was established. The second issue was whether the Court of Criminal Appeal was correct in suggesting that the relevance of an Aboriginal offender’s background of social deprivation diminishes with time and repeated offending, and whether such background should continue to mitigate moral culpability irrespective of age or criminal history.

The appeal was upheld unanimously. The High Court set aside the orders of the Court of Criminal Appeal and remitted the Director’s appeal to that Court.

The High Court held that the Court of Criminal Appeal erred in re-sentencing without first determining that the sentence was manifestly inadequate. The power to substitute a new sentence under s 5D of the Criminal Appeal Act 1912 (NSW) is only enlivened where the appellate court finds either specific error or manifest inadequacy in the sentence, and the Court failed to do so. The Court also failed to consider the residual discretion to dismiss the Director’s appeal even if error were shown.

On the second issue, the High Court reaffirmed that an offender’s background of social deprivation, including that experienced by Aboriginal offenders, does not lose its mitigating force with time or repeated incarceration. Such deprivation may permanently affect an offender’s capacity to control violent impulses and remains relevant to moral culpability, although it may increase the need for community protection. However, the Court rejected the argument that Australian courts should adopt the approach of the Canadian cases R v Gladue⁵¹⁰ and R v Ipeelee,⁵¹¹ or take into account the general rate of Aboriginal incarceration. Sentencing must remain an individualised process, applying the same principles to all offenders while recognising personal circumstances as part of the factual matrix. As the majority (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) explained:

Gageler J emphasised (at [56]) that sentencing requires an individualised assessment of how an offender’s experience of social deprivation affects their culpability:

Appeal — Sentence — Murder — Rape — Aboriginality — Profound childhood deprivation and trauma — Personality disorder — Reduced moral culpability — Causal link between deprived background and offending

Crown appeal from a decision of the Supreme Court of Victoria (Hollingworth J)

On 16 January 2019, Codey Herrmann, aged 20, violently attacked, raped and murdered Aiia Maasarwe, a 21-year-old international student, in Bundoora, Melbourne. Mr Herrmann struck her on the head with a metal pipe, dragged her from the footpath, raped her, then struck her repeatedly, causing fatal head injuries. He later set fire to her body and clothing to destroy evidence. The attack was random, unprovoked, and extremely brutal, committed against a stranger late at night. Herrmann pleaded guilty to murder and rape. He had no prior convictions or history of violence. The sentencing judge, Hollingworth J, described the crimes as ‘very serious examples of offences which are themselves extremely serious’, finding that Herrmann acted with a clear intention to kill. Herrmann was sentenced to 36 years’ imprisonment, with a non-parole period of 30 years. Expert evidence from Dr Andrew Carroll, a forensic psychiatrist, showed Herrmann suffered from a severe personality disorder caused by profound childhood deprivation and trauma, including neglect, substance abuse in the home, and abandonment. Dr Carroll found a causal link between these factors and the offending, describing the killing as an ‘angry type of sexual homicide’ driven by suppressed rage. Although his moral culpability was reduced, the judge noted the seriousness of the crimes and the continuing need for community protection.

Three issues were considered. The first was whether the sentence of 36 years’ imprisonment with a 30-year non-parole period for the rape and murder counts was manifestly inadequate, given the extreme brutality of the offences and the need for denunciation, deterrence and protection of the community. The second issue was whether the sentencing judge gave excessive weight to Herrmann’s childhood deprivation, Aboriginal heritage, and personality disorder, resulting in an unduly lenient assessment of moral culpability. The third was whether the judge double-counted mitigation by applying the principles of both Bugmy v The Queen⁵¹² and R v Verdins⁵¹³ to reduce culpability.

The Crown appeal was dismissed unanimously. The Victorian Court of Appeal held that the sentence imposed by Hollingworth J was within the range reasonably open to the sentencing judge.

The Court (Maxwell P, Kaye, Niall, T Forrest and Emerton JJA) considered that the sentence represented severe punishment in light of the assessment of the offender’s reduced moral culpability (at [17]–[19]):

In the issue of double-counted mitigation by applying Bugmy and Verdins, the Court found (at [83]–[84]):

Sentencing — Malicious wounding — Use of knife — Relevance of Aboriginality — Socio-economic factors — Alcohol — Competing aggravating and mitigating factors

Sentence in the Supreme Court of New South Wales (Wood J)

In February 1991, Mr Fernando, a 48-year-old Aboriginal man, pleaded guilty to a charge of malicious wounding after stabbing Ms Kennedy, a long-time friend and sometime de facto partner a number of times. When Ms Kennedy entered the bedroom at around 6am, Mr Fernando shouted words to the effect of ‘I’m going to kill you’ and wounded her with a knife. He later claimed he had no recollection of his actions and pleaded guilty to malicious wounding with a knife. Mr Fernando lived in Walgett and was born on the Namoi Reserve at Walgett. He had low levels of education and had experienced separation from family and exposure to alcohol during childhood. He had an extensive criminal record, including a number of offences involving alcohol. He had assaulted the same victim previously and was on a good behaviour bond at the time of the offence. Expert reports revealed indications of organic brain damage from chronic alcohol abuse, together with indications of an unstable personality with reduced impulse control.

There were three issues before the Court. The first was whether and to what extent the offender’s Aboriginality, socio-economic disadvantage, alcohol dependence and possible organic brain injury mitigate culpability at sentence. The second issue was whether the aggravating factors, such as prior assaults on the same victim and offending while on a good behaviour bond, outweigh the mitigating factors. The third was whether the sentence should be structured per R v Moffitt (1990) 20 NSWLR 114 — with a substantially reduced minimum term and an extended additional (parole) term — to balance the needs of denunciation, community protection, and rehabilitation.

Wood J sentenced Mr Fernando to four years of imprisonment, with a non-parole period of nine months.

His Honour held that, although the offence was objectively serious due to the use of a knife, prior assaults on the same victim and breach of a good behaviour bond, it was also impulsive and unpremeditated, committed under heavy intoxication. His Honour emphasised that Aboriginality does not excuse or automatically reduce punishment, but it may explain the offender’s background, environment, and limited moral culpability.

Wood J affirmed that, while imprisonment was necessary to mark the seriousness of domestic violence and deter similar conduct, the sentence must reflect powerful subjective factors such as deprivation, alcoholism, remorse and the offender’s wish to rehabilitate.

His Honour, at 62–3, enunciated the following principles in relation to the sentencing of Aboriginal offenders:

Sentence — Serious offender — Rape and related offences — Prior convictions — Aboriginal offender who spent childhood in care and suffered abuse

Appeal from an order of the County Court at Ballarat (Judge Forrest)

Clem Fuller-Cust, an Aboriginal man, pleaded guilty in the County Court at Ballarat to nine sexual and violent offences arising from two separate incidents involving two women. Across the two episodes, he admitted five counts of rape, two counts of indecent assault, one count of false imprisonment, and one count of recklessly causing injury. Mr Fuller-Cust had spent much of his childhood in institutional and foster care, during which he experienced abuse. He also had prior convictions for similar sexual offences. In sentencing, the County Court judge acknowledged but gave limited weight to the applicant’s history of disadvantage and abuse. The sentence focused on the gravity of the offences and the need for community protection. The judge treated the two episodes as distinct criminal enterprises and ordered that the sentences operate cumulatively to reflect their separate nature. The applicant was sentenced to a total of 20 years’ imprisonment with a non-parole period of 17 years. Mr Fuller-Cust made an appeal against the severity of the sentence.

There were three main issues on appeal. The first was whether the sentencing judge wrongly treated every count as a ‘relevant offence’ so as to invoke the serious-offender provisions in ss 6D and 6E of the Sentencing Act 1991 (Vic) (‘Sentencing Act’) by including counts for false imprisonment and recklessly causing injury, and indecent assaults without the required findings. The second issue was whether the sentencing judge misstated and misapplied the law of concurrency or cumulation by treating total cumulation between episodes as the ‘normal rule’ rather than starting from the prima facie rule of concurrency and the totality principle. The third issue was, given those errors and the insufficient evaluation of mitigating factors, whether the sentencing judge imposed an aggregate period and non-parole period that were excessive or ‘crushing’.

The appeal was upheld unanimously. The applicant was re-sentenced to 17 years and three months’ imprisonment with a non-parole period of 14 years.

Batt JA (O’Bryan AJA agreeing) held that the sentencing judge erred in two ways. First, the judge erred by treating every count as a ‘relevant offence’ and applying the serious-offender regime in ss 6D and 6E of the Sentencing Act to all counts, although false imprisonment and recklessly causing injury are not sch 1 offences and indecent assault is only ‘relevant’ if the statutory aggravating factors are proved to the s 6C(2) standard. Second, the judge misstated the law by describing total cumulation between episodes as the ‘normal rule’. The prima facie position is concurrency under s 16(1), with only such cumulation as reflects distinct criminality and totality.

Batt JA also considered Mr Fuller-Cust’s background in re-sentencing. As his Honour commented at [60]:

Eames JA concurred with Batt JA on the appeal and added that a lower non-parole period is appropriate. His Honour considered that greater weight should be given to Mr Fuller-Cust’s subjective circumstances as they were legitimately relevant to moral culpability, to the weight to be given to general and specific deterrence, and to prospects of rehabilitation. As his Honour explained at [78]–[80]:

His Honour further clarified the role of Aboriginality in sentencing at [86]–[88]:

Crown appeal — Sexual intercourse with a 10-year-old child — Sentence was manifestly inadequate — Specific deterrence, protection of society and denunciation — Judicial Information Research System (‘JIRS’) statistics — Residual discretion — Causal link between deprived background and offending

Crown appeal from a decision of the District Court of New South Wales (Grant DCJ)

On 19 May 2023, the respondent, MJ, was sentenced in the District Court to three years’ imprisonment, with a non-parole period of two years, for one count of sexual intercourse with a child aged 10, contrary to s 66C(1) of the Crimes Act 1900 (NSW) (‘Crimes Act’). A further offence under s 66DD(a) of the Crimes Act was taken into account on a Form 1. The sentence incorporated a 25% reduction to reflect the respondent’s early guilty plea and was ordered to commence on 11 September 2022. The offending took place on 21 February 2022 and involved the 10-year-old daughter of the respondent’s partner. On the same day, the respondent was arrested for unrelated domestic violence offences against his partner. For those offences, he had already been sentenced in the Local Court to 40 months’ imprisonment with a non-parole period of 22 months, commencing on 21 February 2022. The Director of Public Prosecutions, acting under s 5D of the Criminal Appeal Act 1912 (NSW), appealed the sentence on the ground that it was manifestly inadequate. Counsel for the respondent conceded that the sentence was manifestly inadequate in terms of its degree of concurrency with the domestic violence sentences but did not accept that the sentence itself was manifestly inadequate.

There were three issues on appeal. The first was whether the sentence of three years’ imprisonment (non-parole period two years) for sexual intercourse with a 10-year-old child was manifestly inadequate, both in quantum and in its degree of concurrency with existing sentences for unrelated domestic violence offences. The second issue was whether the sentencing judge failed to give sufficient weight to specific deterrence, denunciation and protection of the community, contrary to the requirement that the sentence reflect the gravity of the offence. The third issue was whether the respondent’s deprived background and mental health issues could properly be linked to the offending, and whether a causal connection must be established before such background is given weight in mitigation

The Crown appeal was upheld unanimously. The sentence ordered by the District Court was quashed. The respondent was re-sentenced to six years’ imprisonment with a non-parole period of four years.

Price J (Simpson AJA and Davies J agreeing) explained at [81]:

In considering the principle of totality, the sentencing judge overlooked the fundamental obligation of ensuring that the sentence imposed was ‘a just and appropriate measure of the criminality involved’. Before accepting the respondent’s counsel’s submission as to the commencement date of the sentence, the sentencing judge should have stepped back and taken time to review what would be the total effective sentence.

Price J (Simpson AJA and Davies J agreeing) commented at [95]–[96]:

On re-sentencing, the Court assessed the offence as above mid-range in seriousness. Specific deterrence and retribution were given greater weight due to the Form 1 offence. A causal link was found between the respondent’s deprived background and the offending, reducing his moral culpability. His mental health further moderated general deterrence. Price J explained:

The question of whether a link needs to be established between childhood deprivation and disadvantage and the commission of the offence is apt to mislead, as Simpson AJA explained at [2]–[3]:

Simpson AJA further noted at [15]:

Aggravated break and enter — Sentence — Aboriginality — Intoxication

Sentence in the District Court of New South Wales (Yehia DCJ)

Brett Sharpley, a 19-year-old Aboriginal man from the Namoi Mission near Walgett, grew up amid entrenched social and economic disadvantage. His upbringing was marked by alcohol abuse, domestic violence, poor schooling, and limited access to opportunities. Both his parents were alcoholics, and he began drinking at 13 and using cannabis at 16. He was expelled from school and had poor literacy and numeracy skills. On 11 December 2013, Mr Sharpley and his cousin Brandon Sharpley broke into the Gourmet Food Takeaway Shop in Walgett around 12:40am, kicking open the storeroom door and stealing a carton of Lift soft drink worth $18. About an hour later, they returned with two juveniles, MH and JT, and stole several cartons of Powerade drinks valued at about $40 each. The offences were recorded on CCTV, and a subsequent police search found matching clothing and a Powerade box at Sharpley’s home. He later attended the Walgett Police Station voluntarily, admitted his involvement, and confirmed the identities of his co-offenders. At the time, he was intoxicated, having consumed Bundaberg rum since 10am, and remained under a good behaviour bond from the Children’s Court for an earlier assault on his father.

There were two central issues before the Court. The first was whether, in light of the offender’s youth, Aboriginal background, intoxication, and deprived upbringing, a term of imprisonment was the only appropriate sentence for two counts of aggravated break, enter and steal under s 112(2) of the Crimes Act 1900 (NSW). The second issue was whether the principles in R v Fernando⁵¹⁵ and Bugmy v The Queen⁵¹⁶ should apply to mitigate the offender’s sentence. The Court also needed to determine how considerations of rehabilitation, general and specific deterrence, and moral culpability should be balanced, given the offender’s personal circumstances and the low objective seriousness of the offences.

Judge Yehia SC held that, while the offences of aggravated break, enter and steal carry serious maximum penalties and ordinarily warrant imprisonment, the particular circumstances of this case placed the offending at the very low end of objective seriousness. Her Honour found that the offender’s background of profound social deprivation, youth, intoxication, remorse and good prospects of rehabilitation significantly reduced his moral culpability. Applying the Fernando and Bugmy principles, her Honour recognised that the offender’s disadvantaged upbringing and exposure to entrenched alcohol abuse and violence justified giving less weight to general deterrence and greater emphasis to rehabilitation.

Her Honour also found that s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (‘Sentencing Act’) requires imprisonment to be a last resort, and was not satisfied that no penalty other than imprisonment was appropriate. Accordingly, the offender was convicted on both counts. On the first count, he was sentenced to a two-year good behaviour bond under s 9 of the Sentencing Act, subject to supervision and reporting conditions. On the second count, he was ordered to perform 100 hours of community service work under s 86 of the same Act.

Her Honour concluded that rehabilitation, not incarceration, best served both the offender’s interests and the protection of the community, stating (at [72]) that ‘the protection and advancement of the community is met by the successful rehabilitation of this offender’.

This book provides an accessible resource for conducting culturally safe and trauma-informed practice with First Nation’s peoples in Australia. Designed by and for Australian Indigenous peoples, it explores psychological trauma and healing, and the clinical and cultural implications of the impacts of colonisation, through an Indigenous lens. It has been described as essential reading for Indigenous practitioners and service providers to Aboriginal and Torres Strait Islander people.

Nicole Tujague and Kelleigh Ryan are both Kabi Kabi women who, through this book, aim to provide practical support and actionable insights for practitioners in health and social sciences, fostering a deeper understanding of the effects of trauma on First Nations Peoples. See page 54 for a discussion on the need for adopting a trauma lens to ensuring cultural safety, particularly given the gap in the extant literature.

This report was tabled in Parliament by the Attorney-General on 28 March 2018. It contains 35 recommendations designed to reduce the disproportionate rate of incarceration of Aboriginal and Torres Strait Islander peoples and to improve community safety.

Recommendation 7-1 deals with community-based sentences. It advocates for community-based sentencing options to be developed in collaboration with relevant Aboriginal and Torres Strait Islander organisations by

Page 23 discusses the importance of achieving substantive equality before the law, as distinct from formal equality. Substantive equality recognises that ‘rights, entitlements, opportunities and access are not equally distributed throughout society and that a one size fits all approach will not achieve equality’. This involves considering unique systemic factors faced by Aboriginal and Torres Strait Islander offenders, and ensuring that sentencing, diversion and support programs are consistent nationwide and culturally appropriate.

Professor Helen Milroy, a Palyku woman, Professor Pat Dudgeon, a Bardi woman, and Roz Walker explain the impact of trauma and intergenerational trauma on First Nations people.⁵²¹

The Bugmy Bar Book Committee commissioned this report ‘to collate research regarding the significance of culture to Aboriginal and Torres Strait Islander people and the significant benefits of connecting to culture, family and community as part of culturally appropriate treatment and care to promote wellbeing, rehabilitation and healing’.⁵²²

The report outlines the importance of culture to rehabilitation and healing. It explores meanings of social and emotional wellbeing of Aboriginal and Torres Strait Islander people; explains the relationship between healing and culture, including in relation to recidivism and recovery, and in terms of cultural safety in service provision; and identifies the impacts of imprisonment on individuals with cognitive or psychiatric disabilities, and on imprisoned people’s children and families.

Edwige, a Ngarabal woman, and Gray, a Wiradjuri man, refer to Australian Health Practitioner Regulation Agency guidance which provides that, to ensure culturally safe and respectful practice, health practitioners must:

These guidelines are equally applicable to the provision of legal services by legal professionals and judicial officers.

The Judicial Commission of New South Wales has developed an essential guide for judicial officers to provide insight into the unique traumas that may be experienced by vulnerable groups required to engage in court processes. The guide provides trauma-informed information in relation to victims of domestic and family violence, First Nations people, and people with disabilities. The guide asserts that trauma-informed practice in the courts can provide the following benefits: ‘defuse the stressful courtroom environment’, ‘minimise the risk of participants being re-traumatised’, ‘recognise the effects of overwhelming stress [on traumatised witnesses’, and ‘enhance the likelihood that fair processes and justice will be achieved’.⁵²⁴ The guide goes on to consider the six core principles of properly employing trauma-informed practices: safety; trustworthiness and transparency; peer support; collaboration and mutuality; empowerment, voice and choice; cultural, historic and gender issues.⁵²⁵

The Royal Commission into Aboriginal Deaths in Custody examined 99 deaths of Aboriginal people that occurred in custody between January 1980 and May 1989. The Commission investigated and reported on the manner and circumstances of each death, as well as conducting broader investigations into the social, cultural and legal factors that may have contributed to the deaths.

The Final Report, released in April 1991, concluded that First Nations peoples had a higher chance of dying in custody simply because they had a higher chance of being in custody. A central finding was that continuing conditions of over-representation of First Nations peoples in prisons had their ‘origins in structural, systemic injustice to a disadvantaged minority rather than in a propensity in this group to increased criminality’. In other words, what differs is not the behaviour of First Nations peoples compared to non-Indigenous people, but the discriminatory and violent ways in which they are treated. The Commission’s 339 recommendations fall into two main categories:

Chapter 1.6 in vol 1 deals with reducing the number of Aboriginal people in custody and diversion from custody.

The Bugmy Bar Book is an evidence-based resource tailored to judicial officers, legal practitioners, health professionals and services, that publishes chapters informed by multi-disciplinary research drawn from Law Reform Commission reports, parliamentary and other government reports, discipline-specific reports (including First Nations opinion and research) about the impact(s) of adverse experiences including trauma, socio-economic inequality and structural disadvantage, and strengths-based resources. These research chapters provide an evidence base for lawyers and courts to inform themselves of the experiences of people who come into contact with the criminal justice system.⁵²⁶

The publications include information that is specific to First Nations people, including experiences of the Stolen Generations, cultural dispossession and the significance of funeral attendance and Sorry Business.

The Bugmy Bar Book also publishes expert opinions and research relating to strengths-based approaches to rehabilitation and wellbeing.⁵²⁷

Professor Felicity Gerry’s article discusses the importance of being trauma informed in a broader sense and the impact on court integrity. Recognising that trauma is present not only in victims and witnesses but also in court users, defendants and lawyers poses unique challenges to court processes. Professor Gerry calls for ‘further reform as a whole of justice approach as a question of integrity’.

The Healing Foundation provides accessible resources concerning intergenerational trauma and healing from First Nations perspectives. The Foundation explains the experience of intergenerational trauma as follows:

This bench book was developed in response to a recommendation by the Australian Law Reform Commission,⁵²⁹ and is complementary to efforts under the National Plan to End Violence against Women and Children 2022–2032.⁵³⁰ It serves as a ‘central resource for judicial officers considering legal issues relevant to domestic and family violence related cases’,⁵³¹ which aims to improve consistency in judicial decision-making processes and improve court experiences for victims of cases involving domestic and family violence. By providing background research, links to related resources and practical guidelines, the bench book ‘[harmonises] the treatment of [domestic and family violence related cases] across jurisdictions along broad principles’.⁵³²

Chapter 3.1.11 discusses methods of systems abuse and litigation tactics that perpetrators of domestic and family violence may adopt to ‘gain an advantage over or to harass, intimidate, discredit or otherwise control the other party’.⁵³³ One such tactic is termed ‘burning off’ and occurs where the perpetrator makes multiple applications under different systems with the goal of depleting the victim’s financial resources and emotional wellbeing, and diminishing their capacity to maintain employment or to care for children.

Chapter 4.4.10 highlights the social and cultural backdrop in understanding why ‘Aboriginal and Torres Strait women are at a greater risk of all forms of violence and related death than other Australian women’.⁵³⁴ Kinship structures and community histories can inform the distinct manifestation of abusive behaviours in Aboriginal and Torres Strait Islander communities. They also inform the reasons why Aboriginal and Torres Strait Islander women may hesitate to seek help. These reasons may include fear of retribution, fear of their child being removed, distrust of police, fear that the perpetrator will die in custody, or fear of shaming by other members in their local community.

The Equal Treatment Benchbook is a judicial resource to inform judges of the diverse and unique challenges faced by vulnerable groups with a view of achieving equal treatment of all court users. It emphasises that:

Page 109 discusses the ways incidences of family and intimate partner violence can be compounded by cultural factors for First Nations women. This section refers to R v Kina for the Queensland Court of Appeal’s recognition of complex factors which hindered the defendant’s ability to effectively communicate with her legal representatives:

In this book, Professor Cunneen, Dr Terri Libesman and Distinguished Professor Larissa Behrendt, a Eualayai/Gamilaroi woman, discuss the major issues faced by Aboriginal and Torres Strait Islander people under the Anglo-Australian legal system.

This chapter by Professor Cunneen focuses on how criminalisation processes of policing and the criminal law affect Indigenous Australians and reflects on contemporary Indigenous policing and governance. It highlights key issues including policing responses to minor offences, barriers in complying with bail conditions, use of excessive force by police, and high levels of deaths in custody. Professor Cunneen also provides an overview of community patrols and Aboriginal community justice mechanisms, arguing that the success of these programs is hindered by the struggle for Indigenous autonomy.

In this book, Professor Cunneen, Dr Terri Libesman and Distinguished Professor Larissa Behrendt, a Eualayai/Gamilaroi woman, discuss the major issues faced by Aboriginal and Torres Strait Islander people under the Anglo-Australian legal system.

The chapter by Terri Libesman, ‘Dispossession and Colonisation’, discusses how Aboriginal and Torres Strait Islander people have been treated under law while being denied norms under the rule of law as a consequence of the ‘Protection’ era. This includes frontier war evidence, the role of police, and the failure of the courts to recognise Aboriginal laws and customs. Australian colonial governments’ response to Aboriginal resistance, including Governor Hunter’s orders to send out armed parties and Governor Macquarie’s ban on Aboriginal meetings, reveals further breaches of the rule of law.

The chapter goes on to discuss the 1789 smallpox outbreak in Port Jackson, declarations of martial law, and dispersal of Aboriginal people by police as ‘[indicators] of the level of fear generated among the colonists by conflict over land’. Case studies of the massacre at Waterloo Creek in New South Wales and the lethal use of force by the Queensland Mounted Police against Aboriginal people, reveal further instances of frontier violence. Relevantly, the involvement of police is described as follows:

Night patrols are a uniquely Indigenous Australian form of community self-policing. Patrols do not fit neatly into established paradigms of ‘policing’ emanating from the Global North. They are not part of the apparatus of the state police. Nor do they offer commodified private security services and, unlike mainstream police, they cannot legitimately call on a reservoir of coercive powers to ensure compliance.

In this article, Professors Blagg and Anthony sketch out what they describe as the ‘contested space’ of Indigenous self-policing, as represented by patrols, through a postcolonial lens, paying particular attention to the role of Indigenous women’s agency in creating, nurturing and sustaining night patrol work within an Indigenous ethics of care and notions of wellbeing.

This paper summarises the key evidence in support of community patrols. It also summarises some of the evidence on best practices for effective integration of community patrols alongside police in crime prevention

This paper argues that community patrols have the potential to increase Indigenous community safety. They can assist in reducing crime rates and alcohol-related harm and empower the local community. The most successful community patrols tend to enjoy community involvement and ownership and strong collaboration with police and a network of community services.

This report was tabled in Parliament by the Attorney-General on 28 March 2018. It contains 35 recommendations designed to reduce the disproportionate rate of incarceration of Aboriginal and Torres Strait Islander peoples and improve community safety.

This report, commissioned by the Commonwealth Attorney-General’s Department, reviewed the Safe Aboriginal Youth Patrol programs in New South Wales and the Northbridge Policy project in Western Australia. These were both designed to deliver community and night patrol services for young people. The report examined whether the programs should be replicated and outlined evidence of each program’s outcomes.

The report found that the patrols were highly valued by young people and the Indigenous community, and this offered opportunities to strengthen youth work and community development. It was also concluded that the strengths and weaknesses of the two models are complementary to some extent, which may support the development of a new model for community and night patrols.

The Bringing Them Home Report examines the laws, practices and policies which resulted in the forcible removal of Indigenous children from their families, exploring both the officially authorised use of force and illegal use of force. Chapter 2 of the report details the role of police officers in the enforcement of ‘protection’ legislation of the early 20th century.

These reports, each of them focusing on one state or territory, highlight evidence-based alternatives to incarceration which aim to mitigate individuals’ contact with the criminal justice system in the first place or reduce rates of recidivism. These alternatives include:

In all states except Queensland, the Justice Reform Initiative recommends that the government establish a ‘Breaking the Cycle’ fund committed to implementing the alternative programs listed above and boosting any existing ones. It also recommends that a proportion of each state’s fund should be dedicated to funding First Nations–led organisations, citing the need to address the overrepresentation of First Nations people in the justice system. The percentage of this minimum allocation should be determined according to what is needed to reach each state’s Closing the Gap Implementation Plan.⁵³⁸ Though the report for Queensland does not refer to a dedicated fund, it recognises the need for a ‘significant funding shift’⁵³⁹ in support of community-led programs outside the justice system, noting that ‘[w]e cannot imprison our way to a safer society’.⁵⁴⁰

The Royal Commission into Aboriginal Deaths in Custody (‘RCIADIC’) examined 99 deaths of Aboriginal people that occurred in custody between January 1980 and May 1989. The Commission investigated and reported on the manner and circumstances of each death, as well as broader investigations into the social, cultural and legal factors that may have contributed to the deaths.

The Final Report, released in April 1991, concluded that First Nations peoples had a higher chance of dying in custody simply because they had a higher chance of being in custody. A central finding was that continuing conditions of over-representation of First Nations peoples in prisons had their ‘origins in structural, systemic injustice to a disadvantaged minority rather than in a propensity in this group to increased criminality’. In other words, what differs is not the behaviour of First Nations peoples compared to non-Indigenous people, but the discriminatory and violent ways in which they are treated. The report’s 339 recommendations fall into two main categories:

Paragraphs [1.4.14] to [1.5.2] of the report discuss the historical context and consequent relationship between Aboriginal people and the police, describing it as one of ‘deep animosity and often hatred’.⁵⁴¹

The Royal Commission was established in 2015 after a number of family violence–related deaths in Victoria, most notably, the death of Luke Batty. The role of the Commission was to find ways to:

The Commission investigated criminal law, corrections and courts, the role of support services, the health system and alcohol and drug treatment services, as well as those of refuges, housing and education, and tools available to police. It made a total of 227 recommendations.

The issue of misidentification of the primary aggressor in police practice in cases involving family violence in discussed in vol 3 on pages 37–8 of the report. Recommendation 41 is:

The Yoorrook Justice Commission, set up by agreement between the First Peoples’ Assembly of Victoria and the Victoria Government, operates as the first and only truth-telling commission in Australia. The Commission was established to share and record evidence of the ongoing impact of colonisation and injustices committed against First Peoples in Victoria across all areas of life.

The report, Victoria’s Children Protection and Criminal Justice Systems, defined over-policing as ‘the unjustified, disproportionate and unreasonable use of police powers against First Peoples or other racial groups’.⁵⁴³ The report identified a number of ways that over-policing affects Aboriginal and Torres Strait Islander people, including:

The report identified various ways that over-policing affects Aboriginal and Torres Strait Islander people:

The report identifies and evaluates factors which may increase an individual’s risk of arrest, with a view of outlining a preliminary theory of Indigenous arrest. The report contemplates universal risk factors (e.g. age, gender) and risk factors which disproportionately affect the Indigenous population compared to the non-Indigenous population (e.g. post-traumatic stress). For young Aboriginal men, the adverse impacts of age and gender as universal risk factors are exacerbated by the ‘shared oral history of indiscriminate murder, forced removal, abduction, harassment and police brutality’.⁵⁴⁵ This highlights the centrality of the historic context in properly understanding the relationship between police and Aboriginal people.

The Bugmy Bar Book is an evidence-based resource tailored to judicial officers, legal practitioners, health professionals and services, that publishes chapters informed by multi-disciplinary research drawn from Law Reform Commission reports, parliamentary and other government reports, discipline-specific reports (including First Nations opinion and research) about the impact(s) of adverse experiences including trauma, socio-economic inequality and structural disadvantage, and strengths-based resources. These research chapters provide an evidence base for lawyers and courts to inform themselves of the experiences of people who come into contact with the criminal justice system.⁵⁴⁶

Chapters of note include:

The Aboriginal Benchbook for Western Australian Courts was commissioned by the National Indigenous Cultural Awareness Committee of the Australasian Institute of Judicial Administration. It was developed in response to concerns about the over-representation of Aboriginal people in the Australian criminal justice system. The bench book relates to judicial officers presiding over criminal matters involving Aboriginal people in Western Australia. Its discussion of pre-trial, criminal proceeding and sentencing matters makes it a practical resource for judicial officers, and it aims to be a template for adaptation in other Australian jurisdictions. Chapter 6.1 discusses bail issues.

The Equality before the Law Bench Book outlines practical considerations in relation to bail for Aboriginal and Torres Strait Islander people, including that they must not be subject to more stringent tests in relation to bail, or more stringent bail conditions than would be applied for non-Indigenous people, and that paternalism is not appropriate.⁵⁵⁴ It recommends that bail should be assessed in the following way:

Chapter 24 of the Queensland Magistrates Court’s Bail Benchbook (titled ‘Indigenous Defendants’) provides guidance for decision-makers about ss 15, 16 and 34C of the Bail Act 1980 (Qld). Those sections provide that the Court may take into account submissions from community justice groups (‘CJGs’) in relation to the applicant and any risk factors, and may allow the CJGs to inspect the Court file.⁵⁵⁶

The Equal Justice Bench Book provides guidance to judicial officers in Western Australia in fulfilling their professional obligation to administer the law with respect and courtesy, and without bias or paternalistic attitudes. It is premised on the recognition that equal justice requires an understanding that different people are affected by the law in different ways. Identifying the unique circumstances that are experienced by groups of different backgrounds — whether this be on the basis of gender, culture, disability, etc — is a crucial step. Chapter 11 discusses considerations relevant to Aboriginal people and relevant services for judicial officers.

This guide outlines the practical steps and considerations for bail decision-makers in applying s 3A of the Bail Act 1977 (Vic). It details the steps to follow:

Page 8 gives a detailed explanation of each of the mandatory, but non-exhaustive, considerations listed in s 3A(1). The resource also provides a flowchart of steps to be followed (on page 9), and a summary table of possible sources of information and/or evidence on s 3A matters (on page 10).

This resource is intended to assist legal practitioners acting for Aboriginal and Torres Strait Islander clients to fulfil their professional obligations and to facilitate effective communication. The practical advice contained in the resource highlights the importance of providing culturally safe and trauma-informed services, as well as the need to coordinate with Aboriginal community service providers. Particular cultural practices highlighted in the resource include Sorry Business, men’s business and women’s business, and kinship relationships.

In this piece, Professor Longman and Gomeroi legal researcher Alison Whittaker discuss First Nations deaths in custody, particularly highlighting the role of coroner’s courts and inquests into deaths in custody. The authors call for lawyers to ‘remain self-aware that the experience that First Nation families have in living under a colonial legal system gives them a greater understanding and expertise in how the law actually ‘works’ upon First Nation communities than their lawyer’.⁵⁵⁸

This report examined the Department of Corrective Services’ policies and practices on funeral attendance, which revealed a further issue in regard to the Department’s financial accountability. It was concluded that the Department’s analysis of the changes to funeral attendance policies was inadequate and failed to consider the impacts on Aboriginal people. Paragraphs [1.4]–[1.5] recognise the centrality of funeral attendance and participation in the mourning process in Aboriginal culture, which is closely tied to their cultural and social wellbeing.

The Royal Commission into Aboriginal Deaths in Custody (RCIADIC) examined 99 deaths of Aboriginal people that occurred in custody between January 1980 and May 1989. The Commission investigated and reported on the manner and circumstances of each death, as well as broader investigations into the social, cultural and legal factors that may have contributed to the deaths.

The Final Report, released in April 1991, concluded that First Nations peoples had a higher chance of dying in custody simply because they had a higher chance of being in custody. A central finding was that continuing conditions of over-representation of First Nations peoples in prisons had their ‘origins in structural, systemic injustice to a disadvantaged minority rather than in a propensity in this group to increased criminality’. In other words, what differs is not the behaviour of First Nations peoples compared to non-Indigenous people, but the discriminatory and violent ways in which they are treated. The report’s 339 recommendations fall into two main categories:

Volume 1 ch 5 addresses the disproportionate numbers of Aboriginal people in custody which led to the establishment of the Royal Commission. The chapter draws comparisons between Aboriginal and non-Aboriginal deaths in custody and concludes with recommendation 41:

Sentencing of Federal Offenders in Australia provides helpful guidance for judicial officers and legal practitioners. It summarises the key Commonwealth legislative provisions and leading authorities on sentencing offenders at the federal level.

States and territories have the benefit of sentencing bench books to guide judicial decision-making:

This guide contains a paper (‘Sentencing Aboriginal Offenders’) by Justice Yehia of the Supreme Court of New South Wales with a comprehensive summary of cases relevant to sentencing Aboriginal offenders.

In this paper, Judge Beckett discusses the issues involved in presenting evidence of an offender’s disadvantage and evidence on the significance of culture in sentencing matters. In recognising the relationship between an individual’s background of disadvantage and sentencing principles, her Honour discusses practical constraints on the application of Bugmy v The Queen⁵⁶⁰ (see pages 11–16). For practitioners, her Honour urges the need to exercise caution when presenting evidence of an offender’s disadvantage. Her Honour also provides an overview of the aims, content and application of two key resources: the Bugmy Bar Book⁵⁶¹ and the Significance of Culture to Wellbeing, Healing and Rehabilitation report.⁵⁶²

This paper includes a comprehensive analysis of NSW cases that followed R v Fernando⁵⁶³ and observes that a reason for the uneven application of the principles in New South Wales was that the principles were being applied in the context of the very different objective and subjective circumstances of each offender.

This paper by Judge Haesler provides an appraisal of the state of incarceration in Australia and how the principles in Bugmy v The Queen⁵⁶⁴ should be applied in sentencing proceedings. His Honour gives practical advice to practitioners about the content and quality of material that should be adduced before the court (see pages 21–4). Regarding the role of sentencing judges, his Honour notes the following: ‘A sentencing court needs to have some idea about the offender’s subjective circumstances. If it is to be submitted that their moral culpability is to be diminished that submission must be given content in the material before the court’.⁵⁶⁵

Justice Macaulay’s speech provides commentary on the intersection between ‘social disadvantage’ of offenders as a sentencing consideration, referring to the state of the law before and after the landmark case Bugmy v The Queen.⁵⁶⁶ His Honour provides a brief overview of the purposes and philosophies behind sentencing, commenting that the observed evolution of sentencing approaches is primarily led by judges, rather than something prescribed by the legislature. The speech highlights outstanding issues and challenges in the practical application of Bugmy that it is helpful for judges to be aware of, such as the ambiguous threshold for ‘profound’ deprivation.

Judge Norrish’s conference paper is addressed to lawyers and primarily discusses how advocates can support judicial officers in achieving just sentencing outcomes for Indigenous offenders (see pages 13–14). His Honour describes the role of judicial officers in the sentencing exercise, including the discretion involved, the multitude and complexity of factors to be considered, and concepts of ‘equal justice’ and ‘individualised justice’ (see pages 3–6). See pages 11–12 for an overview of other mechanisms which can support judges in achieving equal treatment for Indigenous offenders.

In this conference paper, Judge Norrish discusses the importance of taking judicial notice of the individual facts of a sentencing case, referring to Bugmy v The Queen⁵⁶⁷ and Munda v Western Australia.⁵⁶⁸ His Honour’s thorough discussion of judicial notice in sentencing Aboriginal offenders provides guidance on why and how the doctrine can be applied. This is central to recognising the issues specifically faced by Aboriginal people (see pages 28–34) and achieving ‘equal justice’ outcomes (see pages 23–25). Judicial officers should also take note of the limitations that may arise in practice (see pages 40–45) and the mechanisms available to assist them in sentencing exercises (see pages 45–56).

In this speech, Justice Rothman discusses how principles in Bugmy v The Queen⁵⁶⁹ and Munda v Western Australia⁵⁷⁰ should inform practitioners and judicial officers in sentencing matters involving Aboriginal defendants. His Honour provides an overview of the principles of equal justice and psychological perspectives on discrimination and social exclusion. This theoretical discussion supports his Honour’s practical advice in the conclusion of the speech, summarised as follows:

This judicial note by Judge Beckett provides an overview of the expert report by Vanessa Edwige and Dr Paul Gray,⁵⁷¹ which is a supplementary resource to the Bugmy Bar Book. The report discusses the relationship between First Nations offenders’ connection to culture and reduced recidivism. Her Honour concludes that the report demonstrates the importance of developing culturally appropriate, trauma-informed and community-connected rehabilitation programs for First Nations offenders.

The Bugmy Bar Book is an evidence-based resource tailored to judicial officers, legal practitioners, health professionals and services, that publishes chapters informed by multi-disciplinary research drawn from Law Reform Commission reports, parliamentary and other government reports, discipline-specific reports (including First Nations opinion and research) about the impact(s) of adverse experiences including trauma, socio-economic inequality and structural disadvantage, and strengths-based resources. These research chapters provide an evidence base for lawyers and courts to inform themselves of the experiences of people who come into contact with the criminal justice system.⁵⁷²

The publications include information that is specific to First Nations people, including experiences of the Stolen Generations, cultural dispossession and the significance of funeral attendance and Sorry Business.

The Bugmy Bar Book also publishes expert opinions and research relating to strengths-based approaches to rehabilitation and wellbeing.⁵⁷³

The Bugmy Bar Book resources provide an educative function through the chapters specifically about Aboriginal and Torres Strait Islander peoples, and expert reports about issues which commonly arise in the context of criminal proceedings:

This guide published by the Coroners Court of Queensland provides a framework for identifying and addressing issues that may arise when the death of an Aboriginal or Torres Strait Islander person falls within the jurisdiction of the Coroners Act 2003 (Qld). It highlights the significance of death in Aboriginal communities and in Torres Strait Islander communities. It identifies relevant cultural considerations in regard to conducting autopsy examinations and handling the deceased person’s body and belongings. The guide also provides practical guidance on the conduct of the coronial inquest and the preparation of findings.

Please note the link takes the reader to the Inquest into the deaths of Master Carr and Jaylen. The Guide is published at Annexure B of the Findings.

Professor Felicity Gerry’s article discusses the importance of being trauma informed in a broader sense and the impact on court integrity. Recognising that trauma is present not only in victims and witnesses but also in court users, defendants and lawyers poses unique challenges to court processes. Professor Gerry calls for ‘further reform as a whole of justice approach as a question of integrity’.

The Judicial College of Victoria has developed resources intended to inform judicial officers about Aboriginal and Torres Strait Islander culture, and legal issues concerning community. See in particular:

This report provides a neurodevelopmental overview of the ages 18 to 25 years, a period referred to as ‘young adulthood’. This period has unique psychosocial considerations that are distinct from the teenage and adult years. The report highlights the importance of sustained effort to provide a safe, relational and enriching environment into young adulthood, particularly in the context of the adverse childhood experiences and cumulative disadvantage that shape brain development and function. The authors emphasise the importance of nurturing care, and highlight the negative impacts of physical containment and control as it relates to incarceration.

This perspective is relevant to all young adults, but the authors particularly note the unique social, cultural, political and historical context of Aboriginal and Torres Strait Islander peoples, and the ongoing impacts of colonisation, including over-representation in justice systems.

This paper provides an overview of the Bugmy Bar Book resource. It guides practitioners in how the resource can be used in everyday practice with a focus on sentence and applications pursuant to s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW).

This report was commissioned by the Bugmy Bar Book Project Committee. It is a psychiatric report about institutionalisation and its impacts, addressing detention and custodial as well as out-of-home care settings. The report includes reference to research and opinion about particular impacts on First Nations peoples.

To prepare this report, the authors conducted a thorough review of the institutionalisation literature as it applies in the context of detention, custodial and out-of-home care settings. They used this in conjunction with their combined training, study and experiences of working in institutions, including psychiatric hospitals for adults and children, adult prisons and youth detention facilities, and working with people subject to community restrictions.

Bench books of particular relevance are set out in Table 11.

Best practice guidelines of particular relevance are set out in Table 12.

This article examines all 149 sentences delivered in the Supreme Court of the Australian Capital Territory between 2009 and 2019 in which the defendant’s Indigenous status was identifiable. The authors consider the extent and nature of Courts’ engagement with Indigenous experience, finding a prevailing silence and limited evidence of strengths-based approaches. The authors argue that listening to First Nations voices in sentencing can provide a counterpoint to deficit discourses and a holistic understanding of the individual and their background, including the ongoing relevance of colonisation in their lives. The use of Indigenous Experience Reports to enable this listening may also promote strengths-based considerations and challenge the efficacy of carceral options.

This report is by Vanessa Edwige, a Ngarabal woman and registered psychologist, and Dr Paul Gray, a Wiradjuri man and Associate Professor at the UTS Jumbunna Institute of Indigenous Education and Research. Both authors are directors of the Australian Indigenous Psychologists Association (AIPA).

The report builds upon the work of the Bugmy Bar Book to date in establishing the link between experiences of disadvantage and contact with the criminal justice process, and citing recognised roads to rehabilitation and healing. The authors express their expert opinions and present a significant body of evidence which establishes that, for Aboriginal and Torres Strait Islander peoples, rehabilitation approaches which are culturally appropriate and connected to community are more effective in building both individual and community resilience, which, over time, can reduce repeated contact with the criminal process.

The evidence cited indicates that rehabilitation programs delivered by those who understand and acknowledge the experiences of First Nations communities — in particular, Indigenous-led and Indigenous-delivered initiatives, consistent with the principle of self-determination — are best suited for this purpose. See also the Summary of Judgments Referring to the Significance of Culture to Wellbeing, Healing and Rehabilitation Report (2024).

This preliminary report reflects the state of the Aboriginal Community Justice Reports (‘ACJR’) program as at 14 November 2023. The ACJR program is the first evaluated Aboriginal report initiative in Australia. This preliminary report constitutes the initial phase of the evaluation in order to build on the lessons and strengths established over the program’s first two years.