Australia, June 27 -- New South Wales Land and Environment Court issued text of the following judgement on May 26:

1. BALL JA: I agree with Yehia J.

2. FAGAN J: I have had the advantage of reading Yehia J's judgment in draft. I agree with her Honour's conclusion that ground 1 should be upheld and ground 2 rejected. I agree with her Honour's proposed orders. My additional observations, which follow, rest upon Yehia J's summaries of the evidence and the remarks on sentence and the arguments on appeal.

3. As her Honour explains in detail, there were two distinct groups of offences. In mid-2019 at the age of 25 the applicant committed five offences of sexual intercourse with KL, a girl of 15 years, while she was under his authority as a staff member at a home for girls operated by Catholic Care. There were two more offences of sexual intercourse with KL in August 2019, while KL was still under the age of 16, at the applicant's residence after KL had left the care home. Those offences were aggravated by having been committed in company.

4. Over a period of 11 months between June 2020 and May 2021, when the applicant was 26 to 27 years old, he committed against his domestic partner, SK, three assaults, one offence of threatening with a knife with intent to intimidate and one offence of sexual intercourse without consent. SK was about three years younger than the applicant.

5. In ground 1 the applicant asserts that the learned sentencing judge "erred in the application of sentencing law to the evidence concerning the applicant's background of childhood deprivation". The ground refers to sentencing considerations addressed in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. For the purpose of determining ground 1 it is not necessary to survey the very great volume of jurisprudence that has accumulated, in subsequent decisions of intermediate courts of appeal, concerning how the principles stated by the High Court are to be applied. It is sufficient to refer to statements at [43]-[44] in the joint judgment of six of the justices. Their Honours said that the "experience of growing up in an environment surrounded by alcohol abuse and violence" may, among other things, "compromise the person's capacity to mature and to learn from experience". Further, the "effects of [such] profound childhood deprivation do not diminish with the passage of time and repeated offending" and should therefore be given full weight "in every sentencing decision".

6. Their Honours said that an offender's deprived background does not have "the same (mitigatory) relevance for all of the purposes of punishment". It was noted that the extenuating effect of such a background may pull in an opposite direction to other sentencing considerations. The concluding sentences of [44] are as follows:

An offender's childhood exposure to extreme violence and alcohol abuse may explain the offender's recourse to violence when frustrated such that the offender's moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/196f00dafb63c6a5e4fe394e)

Disclaimer: Curated by HT Syndication.