The same sentencing principles are to be applied in

This preview shows page 29 - 31 out of 84 pages.

the same sentencing principles are to be applied in every case irrespective of the identify of a particular offender, but that does not mean that courts should ignore those facts which exist only by reason of membership of a ‘disadvantaged’ group the Aboriginality of an offender may explain and contextualise the particular offence it is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities while drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol reflects the socio-economic circumstances and the environment in which the offender has grown up, that can and should be taken into account the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender Bugmy v The Queen (2013) 249 CLR 571 the submission that courts should take judicial notice of the systematic background of deprivation of Aboriginal offenders cannot be accepted it is antithetical to individualised justice it is right to speak of giving ‘full weight’ to an offender’s deprived background in every sentencing decision but this is not to suggest that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment the inability to control the violent response to frustration may increase the importance of protecting the community from the offender ► The Bugmy Bar Book the chapters summarise key research relating to experiences of disadvantage and deprivation to assist in the preparation and presentation of evidence to establish the application of Bugmy principles fetal alcohol spectrum disorders exposure to domestic and family violence childhood sexual abuse stolen generations and descendants cultural dispossession early exposure to alcohol and other drug abuse incarceration of parents and caregivers out-of-home care hearing impairment acquired brain injury homelessness
Preventive Detention “preventive detention” = the act of incarcerating people, not as punishment for a crime, but to limit the risk of re-offending violates the fundamental principle of civil liberty raises the question of protecting the community Veen v R (1979) 143 CLR 458 the punishment should not exceed the guilt Kable v DPP for NSW (1996) 189 CLR 51 the High Court held that K could not be kept in jail once his sentence had expired as it threats upon the separation of powers it is upto the judiciary, not the parliament, to make that decision Crimes (High Risk Offenders) Act 2006 (NSW) the Supreme Court can make a judgment on the standard of ‘very high probability’ that the offender will reoffend if let out from prison continuing detention order ongoing supervision order Terrorism (High Risk Offenders) Act 2017 (NSW)

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture