Regina v Donald Douglas Bugmy

[2007] NSWDC 215

CITATION:	Regina v Donald Douglas Bugmy [2007] NSWDC 215
HEARING DATE(S):	28 August 2007 & 5 September 2007
JUDGMENT DATE:	14 September 2007
EX TEMPORE JUDGMENT DATE:	16 June 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Convicted - sentenced to 12months non-parole; balance of term 2 years.
CATCHWORDS:	Criminal Law - Sentencing - malicious wounding - weapon - broken bottle - female victim known to offender - Aboriginal male offender - causation - gratituous dysfunctional response to rejection - subjective features - early parental neglect and petrol sniffing/ drug abuse from early age.
CASES CITED:	R v Cuthbert [1967] 2 NSWR 329 R v Rushby [1977] NSWLR 597 R v Hayes [1984] 1 NSWLR 740 Fernando (1992) 76 A Crim R 58
PARTIES:	Regina Donald Douglas Bugmy
FILE NUMBER(S):	06/61/0160
COUNSEL:	E. Wilson Public Defender for Offender
SOLICITORS:	Ms R Swift for Crown

SENTENCE

HIS HONOUR:

1. Offences of violence are a major problem in our community. Frequently, as in this case, the victim is an innocent woman who physically bears for life the scars that are symbols of wounds caused by social dysfunction. Many offences of violence are said to be alcohol related. Even though Donald Douglas Bugmy is only twenty-two years old he has a long history of violence. He seems to feel his violence is alcohol related because most of his violence has been committed when he is inebriated. As his personal history shows alcohol is but one of the causes of this violence.

2. Mistakenly, he thinks courses in gaol will solve his problem. True, the gaol rehabilitation courses are designed to give him strategies for dealing with a propensity in his alcohol abuse to violence of others, but those strategies are given in a sterile, artificial environment to prisoners escaping from boredom to the class room where the course is conducted. The prison environment offers little access to alcohol. Such drug use as there is in gaol is surreptitious and of a sedative kind.

3. The reality is not prison but the streets, the front yards and front rooms of homes in Wilcannia, Broken Hill and another dozen other places where there are dysfunctional communities at midnight. Alcohol is but the fuel. The real mustang frenzy of the engine powering violence is to be found in the countless life histories of persons such as Donald Douglas Bugmy, a twenty-two year old offender who is before the courts, yet again for another offence of gratuitous but nonetheless malicious wounding.

4. As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for this offence before this Court, committed by this offender, harming a victim in his community at Broken Hill. My task requires an assessment of the objective criminality of the offence before the Court. I will also have need to regard the matters personal to the offender, because, not only am I sentencing for the offence, but I am sentencing this offender for it. The starting point for such assessment requires a sentencing judge to make findings of fact from the evidence before the Court relating to the offence and to the offender.

5. The offender’s rehabilitation prospects will have to be assessed, even if looking through a glass darkly. Before any sentence can be made there are likely to be technical questions relating to deterrence, discounts, whether special circumstances are to be found, totality, the length of the non parole period and finally of course the ultimate length of the term of imprisonment or other penalty to be imposed. None of these can be commenced until the primary facts are determined. What weight needs to be given to all of those matters against the imperative that all sentencing have, as its primary focus, the protection of the community, in this case the Aborigines in Broken Hill at night, when this offender is around, will also need to be determined, (see R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] NSWLR 597 and R v Hayes [1984] 1 NSWLR 740).

FACTS

6. The best account of this offence is given perhaps through the eyes of the victim. She says she is nineteen years old, at least in March 2006. She has known Donald Bugmy all her life. He was the boyfriend of one of her cousins and he split up with her. “He wanted me to be his girlfriend then, I told him that I didn’t want to, I told him I was going home”. That was on Saturday night. She says she was at Alan Wyman’s place. There were others of her friends who were asking her to go back and have a drink. She sat with them and that’s when the offender walked in. He was in the kitchen arguing and she went out to the front veranda. He followed her out. She said that they were arguing and he said to her “You’re frightened, I’m going to punch you?” She answered, “Yes, I don’t want to have anything to do with you.”

7. “That is when he started getting wild and he starting punching me, hitting me in the face with his fists. He knocked me over and he started kicking me. He kicked me in the arm. Some of the others that were drinking near the front veranda jumped up and pushed him away, pulled me inside and closed the door. They took me to the bathroom to wash my face. We all walked back into the lounge room waiting for the police to come. I went to the kitchen and I could hear him yelling “I’m sorry, I’m sorry.” But someone was also kicking at the front door”.

8. The offender came through the front door. Clarissa Crawford his victim hid in the kitchen. He found her. The offender grabbed her, pulled her into the lounge room. She says she felt him punching into her, “but it did not feel right. One of the others got between Donald and me and I hid behind him, I think it was another cousin, Stephen Bugmy”.

9. What had happened in that situation was that the offender had stabbed the victim with a piece of glass from a broken bottle around the left side of her back and into her left shoulder and left arm. It was at that point that Stephen Bugmy stepped in and pulled her away from the offender. In trying to do that, he accidentally fell on her fracturing her left arm.

10. She went into the nearest bedroom, turned on the light. As she did so the young child in the room screamed and left the room. She closed the door and waited for the police to arrive. She could see and feel blood all over her. I have no doubt that it was the young child seeing the blood on this girl that caused the child to scream.

11. History, as you will see, is repeating itself, only this time you are the bad guy in the picture. A while later the police arrived and then the ambulance.

12. Clarissa Crawford says, in what I think is an understatement, “I didn’t give Donald permission to hit me or fight with me or stab me. I have a broken arm, a slash mark with 20 stitches and a lot of other stitches that are in my back and just above my left ear. I have bruising around my eyes. I got all of these from where Donald punched, kicked or stabbed me.” She says that she will be making a fuller statement when she gets out of hospital.

13. Some photographs were tendered. The photographs show a well nourished, young, Aboriginal, nineteen year old girl lying in a hospital bed. Her face is sombre where there should have been a pleasant smile and gleaming white teeth. She has bruising beneath her right eye radiating from deep in the socket to the outer edges of her cheek bone. High on her left cheek is a lineal laceration which stretches some two to two and a half inches from the eye towards her collarbone. Then there is another lineal laceration commencing a little lower but roughly in the same line, quite possibly caused by the same swing, travelling another two inches to the edge of her jaw line. Her left ear appears to be cut from behind where it joins the skin. There were three suturings on her left shoulder and two further suturing sites on her left elbow. The photographs do not show the suturing that she refers to in her back.

14. The doctor’s report appears blasé by comparison with the picture.

“On examination on arrival at Broken Hill Hospital her Glasgow Coma score was 15, her neurological examination was normal. She had bruising over her right cheek, right temporal region and right back. She had small lacerations to her left eyebrow and to the left cheek. She had multiple small lacerations over her left shoulder, left arm and left elbow. There was bruising, tenderness and pain in her left forearm.”

I note no reference to the laceration at the ear. An x-ray of her left forearm showed a mid-shaft fracture of her ulna. She was hospitalised for four days before release.

15. Donald Bugmy was asked in evidence about this assault. No doubt the crown was seeking reasons why it occurred.

“Q. The victim in this matter was Clarissa Crawford, she’s quite a young woman isn’t she. She would be about, she was nineteen at the time of this offence, she would be about twenty now, is that right?

A. I think so.

Q. You accept from me that she was nineteen at the time of the attack, quite a young woman and you stabbed her several times across her back and over her left arm and shoulder. I know you don’t remember what happened, but is that what happened?

A. Yes.

Q. Did you appreciate that you would have caused some scarring to her and for a young woman, disfiguring with that sort of scar?

A. I’m sorry for what I done.” (p 18-19 transcript).

16. It would seem, if one accepts that evidence, the offender is unable to account for why it was that he committed this offence. I ask myself if he cannot account for why it was he committed this offence, how can he ever get to treating the cause of his offending conduct. It is too simplistic to simply say it is alcohol. Alcohol does not have that affect with ever other person who drinks alcohol, not even with every other indigenous person who drinks alcohol. The reason why one commits offences is important to know.

Objective Criminality.

17. From the facts as he finds them to be the sentencing judge is required to assess the objective criminality of the offence as an essential step in assessing the seriousness of the criminal behaviour for which the offender stands to be sentenced. That is done by comparing, objectively, the criminality exhibited in the instant offence, this is the one I am dealing with, with criminality of other offences of a similar kind. It is in that way that the seriousness of this criminality of this offence can be evaluated. The objective criminality will have an important impact on the sentence that is decided upon.

18. It takes but a little thought to understand why crimes of violence are criminal. In a civilised society each woman and each man is entitled to such good health as nature gives him or her, and to the integrity of his or her body free from threat of physical pain or maiming from another. The rule of law which the courts are here to preserve, as best we can, has at its heart the peace, order and welfare of members of the community. The Court’s task is to hold accountable those who fail to respect that peace and order.

19. This offence seems to have, at its source, an irrational response by the offender to a rejection of him by a young girl, who was in no way obligated or tied to the offender. He could not have held any legitimate grievance to rejection from this lady, with such little connection to him. The offence is demonstrable dysfunction.

20. There is no doubt the acts were willed, intended and deliberate acts, committed by a young man pursuing with vehemence his drunken responses to rejection. Those drunken responses may be better understood when we come to the offender’s life story.

21. Measured objectively, however, this is an offence that is objectively serious. The malicious wound follows an earlier assault upon her, equally gratuitous. The wounding is accomplished with a broken bottle used as a weapon. The use of sharp implements, such as broken glass is regarded by this Court and the courts supervising this court as serious offending conduct. There are several wound sites. The face, left shoulder, left elbow and back.

22. At the shoulder and elbow the various wound sites have numerous wounds there. Many of them required suturing. The overall impact of the assault upon Ms Crawford saw her arm broken at about the time of the wounding. Indeed, it was occasioned as she was being rescued from the wounding. For the offender to think, as I suspect he may, that he was not responsible for the broken arm is to flirt with reality. It may be and I accept the distinct possibility that a cousin, Stephen, broke the arm when he fell and tripped. But that man would not have been near Ms Crawford if he had not been seeking to rescue her from an attack launched by Donald Bugmy.

23. It is clearly an offence of such seriousness that it does require full time imprisonment. In fairness the offender has always approached it thus; as has his counsel.

Subjective factors.

24. I turn now to the subjective factors, I am both entitled and required to do that. Not only am I sentencing for the criminal offence I am, as I said earlier, sentencing this offender for it. Each offender coming before the Court varies from other offenders who stand or who have stood for sentence. Circumstances personal to an offender may offer to the Court some explanation, an insight into the commission of this offence by this offender or some reason why a more or a less sentencing outcome is appropriate.

25. The probation and parole pre-sentence report speaks of the background and some aspects of the offender in these terms.

“At twenty-two years of age and the eldest in a siblingship of three brothers Mr Bugmy reports that he has lived, for the most part, in Broken Hill/Wilcannia area. Department of Juvenile Justice records confirm that as a result of parental alcohol abuse and neglect Mr Bugmy was a regular client of the Department of Community Services during his formative years. He has a lengthy history of alcohol and substance abuse, violence offending and supervision by the Department of Juvenile Justice ... Juvenile records confirm that from a young age Mr Bugmy witnessed and was subjected to familiar and community alcohol abuse and violence.

Mr Bugmy reports that at the age of eight years he was a regular user of cannabis and from the age of eleven he was drinking to inebriation daily. Department of Juvenile Justice reports indicate a period of petrol sniffing between the ages of twelve and fifteen years, with the onset of serious alcohol and cannabis abuse from about thirteen.”

One is not critical of that summary, accurate as it is, but the absence of detail contributes to its absence of impact. The full Donald Bugmy story is far more confronting.

26. The three siblings referred to, I suspect, are Donald, Hayden and Randal Bugmy. Their mother is Ms Patsy Anne Bugmy. Other reports however refer to two older siblings or part siblings Daniel the eldest and Damien full brother.

The Early Years

27. I have access to the DOCS reports, or a summary of them. They reveal this history, it is to be remembered the offender was born in 1985. On 19 May 1989, that is when he is four years old the Department received information, that is DOCS, that Ms Anne Bugmy, the natural mother was too busy being intoxicated to see Donald’s brother, Hayden, in hospital. Further his siblings, Donald and Randal were being neglected while the mother was drunk. The children’s maternal grandmother had been caring for the children while Ms Patsy Anne Bugmy was “on the grog”.

28. When he was five years old the file shows that while previously the maternal grandmother had been caring for the child while Ms Patsy Bugmy was on the grog, she is now settling down and being responsible for the children. Consequently in February 1990 it was thought that DOCS could close the child protection file.

29. At six years of age a District Officer noted that in July 1991, when speaking to both parents, that Hayden had been playing with his siblings, including Donald, and friends in an old car at the back of their home when he was overcome by petrol fumes. They were reluctant to say if he was given any petrol to sniff.

30. When he is nine years old in November 1994 the Department received information that Mrs Bugmy was continually consuming alcohol, unable to supervise the children and unable to provide adequate food. When that was investigated it was found that because of her alcohol problem she had difficulty in handling Donald and his brothers. Two of the boys, not Donald but the other two, appeared healthy and talkative. Donald had been staying with an aunt because he refused to return home because of his mother’s drinking. However, he was not attending school, he was wandering the streets. Damien and Daniel told DOCS that their mother purchased food each fortnight, but in insufficient quantities to last until the next payday. Mrs Bugmy’s response to all this was to ask that Donald continue to reside with his aunt and that she would, with her aunt, try to reduce her alcohol intake.

31. By the age of ten the Department investigated a claim that the parents had gone away and left Donald to be cared for by his siblings, that they would not be returning from 30 September to 3 October and in departing had left no food for the kids. Still at the age of ten, DOCS received information in February 1996, concerning physical abuse of this offender. Donald told workers this his father had pushed him over and he hit his head on the cement. That that had occurred as a result of him petrol sniffing. He had been flogged with a stick on his legs and kicked with steel capped boots on his back. These events happened at different times. Donald further said that that happened lots of times and that his younger brothers also got a hiding with a stick for sniffing petrol.

32. Now at just aged eleven in 1996 police again had been told that the Bugmy boys, including this offender, were sniffing, that they were transported home and that, because their mother was “choked” down from consuming alcohol they had to stay elsewhere that night. Approaches were made to the Wilcannia Hospital in May '96 regarding the children’s admissions and presentations to hospital for petrol sniffing. According to the records they had had many presentations and admissions to hospital over a two year period. That would be from when the offender was eight to when he was ten.

33. In June 1996, by which time he would have been eleven, he was removed from a public place due to petrol sniffing and returned to the care of his parents. In September '96 he and his brothers were placed into temporary care and stayed with relatives at Broken Hill. His parents agreed that while the children were in care [the children] would receive counselling, full paediatric assessments and that [the parents] would have liberal access to their children. The children were to attend public school in Broken Hill and special tutoring arrangements were made for them.

34. In October '96 Donald Bugmy and his brothers were at the police station for stealing pushbikes. They were upset as their foster parents had taken no action. Donald Bugmy was threatening to sniff petrol and was saying to the police that he wished he were dead or that he would be better off dead.

35. In 1996 at the school that he was going to at Broken Hill, bear in mind that by this time he is aged about eleven, that he was functioning at Year 1 to 2 level, that is at the age of a six year old, academically; no doubt, in part, because he had missed so much school.

36. Throughout November 1996 there are three reports of petrol sniffing among he and his brothers. In December 1996 the offender, still eleven years old is picked up by an ACLO (Aboriginal Community Liaison Officer) at 1 in the morning sniffing petrol. He was returned to his home, that is to his parents, both of whom were asleep as a result of the effects of alcohol.

37. In December 1996 the eleven year old was placed in the care of the Director-General. It was said that that care was to last two years. The reality was it lasted three months. In February 1997 he was back with his parents who had relocated to Broken Hill. In March when the house was visited by DOCS a front window was broken, the screen door was damaged, there was a hole in the lounge room wall through to kitchen and there were numerous smashed bottles outside the premises.

38. In March 1997 neighbours were complaining to the Department of Housing about the fighting noise coming from that home. The significance of that is that that was the environment that his boy, as he then was, was growing up in. By April of 1997, his was now twelve years old, he still had not attended school that year. In May 1997 he apparently did attend school and then refused to return. However, his father, Robert Young, said he could not return to the home. There was apparently an AVO out for the protection of the mother. In May '97 again he was sniffing petrol and in that month his parents separated. In June '97 he attended one week of school out of four.

39. Between June and September '97, there are three further reports of sniffing petrol. One, of course, would be a fool to think that it was only when he was reported sniffing petrol that he was doing so. No doubt there were many more occasions he sniffed petrol when he was not detected. In October '97 the offender, with three other boys, was found smashing windows. He was also found with a bottle of petrol. His mother reported that he had not been home for three nights. He told those who had found him that he, with the others, wanted to be sent away. Even so he was bailed to his parents in Broken Hill. Nonetheless the petrol sniffing continued. He was then sent to Frahn’s Farm, a rehabilitation centre for juveniles in Adelaide. He remained there for a month.

40. The DOCS files contain further references to petrol sniffing. In October 1998 the now thirteen year old boy admitted to smoking marijuana. It would seem that he had, in fact, been smoking marijuana long before he was thirteen. He was, at that time, residing in Adelaide. He was refusing to accept guidance or supervision from DOCS and it would seem he had done so for the previous twelve months.

41. In April 2004 his father, Robert Young, wrote a letter. This letter also gives a good insight into the life of young men in Broken Hill and how history repeats itself. The father says

“I was taken away at fourteen years of age. I remember a bit of my life before that. I grew up with my Mum and Dad before that, my life was happy. We had everything we needed. We ate town food and bush food. I lived with Mum, Dad, three sisters, four brothers and an Uncle Dave who was a few years younger than me, we went to school. Old Dad had a bit of a drinking habit, one of the publicans used to send for him all the time to play the guitar ... Mum started to drink a bit then, she thought if it’s good for him it’s good for both. Old Dad didn’t like it, he signed us away for six months to welfare. That was it they never brought us back. I saw Mum and Dad after six years when I came back. Dad didn’t say anything about that but Mum told me he only signed us away for six months.

Old Dad used to be a good worker on the Shire in Wilcannia, when we was taken away. I filled in for the Shire when I came back and they gave me a job straight away. I worked for the Shire for about four to five years ...[it would seem Robert Young actually worked quite a bit otherwise than for the Shire]. I would have been thirty-two when Donald was born ...

Patsy [Donald’s mother] was drinking a lot during her pregnancy with Donald, all the time, about four to five days a week as far as I can remember. She had three children already, she lost her eldest girl, the father of Daniel and the girl was Lenny Briar. I am the father of Damien, Donald, Randal and Hayden.

Housing wasn’t much good then, our house in the Mallee was all right, we tried to get all of the houses renovated. When I first came back everyone was living in tents ... Donald was a good kid, he used to follow his brothers around after school. They started sniffing when they were about ten years. Donald would have been about six years old then. He would have started sniffing about nine years of age. His brothers used to flog him if he came and told me about their sniffing. They made him sniff petrol so he wouldn’t tell.

At that time in Wilcannia there were people in their late teens who used petrol. I think a few fellows that passed on used to sniff when I was young. That’s how petrol sniffing came to Wilcannia, now marijuana has taken its place, marijuana is called yarnie. Donald still sniffed petrol after he came back from [Adelaide rehabilitation centre] he stopped when he started using yarnie. He would have been about fifteen or sixteen years. He used to get it or his mother used to get it for him to get him off the petrol. His cousins used to supply it too.

Donald used to drink rum from about sixteen years. His cousin used to give him a drink of that, yarnie and alcohol together don’t mix. Welfare used to go around the schools at Wilcannia and Broken Hill and give the kids a little card with a name and telephone number and say ‘Here, if your mother or father hit you then tell us’. At that time we used to give the children a little tap if they didn’t go to school or if they were home late. We couldn’t do that.

Donald counted on that, Donald would say ‘Don’t hit me now Dad, I’ll call this number and get the police onto you.’ ... there was a heap of kids breaking and entering in the south Broken Hill ... Donald got a ride in a few cars that were stolen and I told him to stay away from people taking cars.

Growing up as a young Aboriginal boy in Wilcannia the boys used to tell their Mum ‘when are you going to give up drinking’ and their mother used to tell them ‘I’ve been drinking before you were born and I’ll keep on. When are you going to give up sniffing.’ They would reply ‘When you give up drinking, we’ll give up sniffing.’... we used to go hunting when Donald was young, today station owners won’t allow you on the river. You can’t go fishing at your favourite fishing spot, kangaroo and emu you’ve got to get on the side of the road ... Donald has never had a job, I tried to encourage him to find work. He was doing TAFE - skill share, after that he never got any work. I tried to get him onto CDEP, there we no vacancies at the time ... Donald was brought up to respect older people and he does have respect. His problem is yarnie, petrol and alcohol ... most of the time he was out of custody, Donald was staying with me. I don’t know what his intentions are when he gets out, I’d like him to stay with his mother, her health is not good.

We separated when Donald was thirteen I think, she near killed me once, stabbed me in the groin. I didn’t want to charge her, I nearly bled to death from the main artery. Any closer and I wouldn’t be here today, we split up after that. I got them boys, the two youngest, to stay with her to look after her.”

The Teenage Years

42. The narrative is now best picked up through the Juvenile Justice records.

“Records indicate that in November 1997 DOCS referred and assisted Donald to attend Karingani Tumbertin WAAL (Frahn’s Farm) in South Australia. Frahn’s Farm is a youth rehabilitation farm for young people with substance abuse issues. Donald stayed at Frahn’s Farm for four weeks returning to Broken Hill for Christmas and refused to return in the New Year. Donald informed that he enjoyed his time at Frahn’s Farm but did not wish to leave his family again.

Departmental records further show that Donald spent 12 months from October 1998 to October 1999 living in the Murray Bridge and Adelaide with extended family members. During this time it has been reported that Donald did not become involved in any offending behaviour nor was he using any substances. Donald moved back to Broken Hill and back into his father’s care when the family members who he was residing with returned to Wilcannia to live.

Donald advised that he enjoyed living in Adelaide and would not have returned to Broken Hill area if his carers had not moved back to Wilcannia. Records indicate that while in Adelaide Donald attended school and played Rugby League football.

Donald informs that he enjoys playing all forms of football and is considered to have a considerable sporting ability.

Earlier reports indicate that apart from normal childhood illness and ear infections when younger, Donald is generally a healthy person although his mother did advise that Donald was taken to Adelaide Hospital, as a baby, due to convulsions. But she does not remember him having any ongoing health problems from this.

During his recent stay at Baxter Juvenile Justice Centre Donald was told he had an irregular heartbeat ... a nurse who performed the ECG told him there was nothing to worry about, the test was clear.
In regards to his education Donald has a history of poor attendance coupled with poor academic record. Donald attended Wilcannia Central School, Burkewood Primary School and then Broken Hill High dropping out halfway through Year 7. Other than the school he attended in Adelaide and the school he attended when he was in custody Donald has had no further education. Previous psychological testing has confirmed that Donald is illiterate.”

Departmental records also show that a psychological assessment written by a private psychologist, Margaret Johnson, has indicated that Donald suffers from mild depression which has been confirmed by observation of Donald’s behaviour while in custody, where he appears to suffer from withdrawn quiet periods, particularly following court appearances.

Ms Vicki Stangl, Unit Coordinator at Baxter Juvenile Justice Centre informed that Donald is ‘doing really well. He is attending school and doing all the right things while he is in custody and is one of the nicest boys, has a wonderful sense of humour, although he does get a bit down, he misses his family desperately.

Ms Stangl further informed that Donald is attending alcohol and other drug counselling during his stay at Baxter Juvenile Justice Centre.”

43. A report or a letter written by Karen McRlehan has this significant paragraph in it, she is of course a youth worker working at the Juvenile Justice Centre, which may well have been the Riverina Juvenile Justice Centre. She also had a connection with the Turvey Park Rugby League Football Club. She says,

“Donald possesses a very friendly personality and has a great sense of humour. He is very warm and caring and has always showed respect and appreciation for those who came in contact with him. Unfortunately alcohol and various other contributing factors have lead Donald to be in the situation he finds himself in today.

While I certainly do not condone Donald’s behaviour and I am aware of the seriousness of the charges against him I believe this is a young man, who has much to offer our society.”

44. Of less relevance now, but probably of relevance then, was that her husband and she were willing to continue supporting him, to offer him accommodation in those days and would do what they could to ensure that he abided by conditions set down by the court.

45. When Bugmy was aged nineteen, Margaret Johnson, earlier referred to, had produced a report in which she noted that

“Bugmy was born in Broken Hill of Aboriginal heritage. The fourth child in a family of six. Significantly the eldest child was deceased. Donald Bugmy told her that he had grown up in Wilcannia living with his parents until they separated when he was about twelve. He said that his parents drank heavily during his childhood and there were numerous occasions when violence ensued. He advised that for the next several years he lived with numerous relatives in Broken Hill and elsewhere. He had spent a considerable time in Juvenile detention in the past several years prior to being incarcerated. This time he was living with his father in Broken Hill. His eldest brother was previously in prison, (this must be another brother) but is now living in Mildura. One other brother is in Lithgow Gaol and his other two siblings reside with his mother in Broken Hill. He said that he had some contact with the younger brothers before going to gaol on this occasion.”

46.She, in dealing with alcohol and drug issues notes that

“Mr Bugmy admitted that alcohol abuse had caused considerable difficulties for him in the past. He stated that when he drinks he usually become inebriated and when in this state he is usually aggressive and irritable. While in Juvenile Detention he stated that he commenced counselling for his alcohol abuse problems and continued this process with a Drug and Alcohol Counsellor in Broken Hill when he returned to her. He has not accessed Counsel Services whilst in gaol this time but did report that that was his intention. When asked if he believed that his attendance at alcohol rehabilitation centre would be advantageous he reported that he did not think it would. He stated that he preferred to continue his own way maintaining abstinence and gaining assistance through local counsellors.”

47.When she measured global intelligence for the purposes of estimating cognitive capacities where educational disadvantage and cultural diversity or literary deficits are evident, she came to a view that Donald Bugmy obtained a standard score of 71, placing him in the low descriptive category, meaning that 94 percent of people would be expected to score better than he. She described him as moderately, intellectually impaired and probably developmentally delayed. It is against that background then that as I say the effects of alcohol and petrol sniffing should be assessed.

48. The alcohol that I am specifically referring to here is the alcohol his mother consumed whilst she was carrying him. A foetal alcohol syndrome is defined by three criteria. The first is growth deficiency of prenatal origin, that is before birth. The second is a pattern of specific minor abnormalities which can include among other things, facial characteristics and thirdly, the central nervous system dysfunction and that can include delayed development, hyper-attention deficits, learning disabilities, intellectual disabilities, mood disorders.

49. One can accept the very strong likelihood that this offender was born in a situation where there was foetal alcoholic syndrome. To that then needs to be added both the short and long term effects of petrol sniffing.

50. The short term effects of petrol sniffing as opined by Susan Pulman, one of the psychologists then engaged with Duffy Barrier and Robilliard, are these

“The short term effects of petrol sniffing have been attributed to the combined effect of hydrocarbons and tetraethyl lead. While the long term effects are largely considered to be due to the neurotoxic effects of organic lead. The half life of hydrocarbons in the body is less than 24 hours whereas lead components will remain in the body for many years. These lead additives and hydrocarbon components both independently and in combination disrupt neutral networks and consequently cause significant impairment to cognitive function. The severity and permanence of these brain changes is related to the length and chronicity or chronicness of the individuals petrol sniffing history.

During acute petrol intoxification there are increased levels of tetraethyl lead in the blood that decline soon after, although some lead burden persists in the body. Chronic petrol sniffers (and this offender certainly was one) display neurological and cognitive impairments that correlate with blood levels and therefore show behavioural consequences of prevailing lead in the body. This suggests that during subsequent inhalations quantifiably less petrol is required to cause lead toxicity, that is to say, there is a build up.

There is evidence to suggest that individuals who are chronically disposed to toxic substances may develop subtle neuropsychological deficits that precede the more notable physical effects, for example, speed of mental processing. The ability to learn new tasks and store recent memory are often the first neuropsychological functions to decline with lead exposure. The immediate effects of petrol sniffing include euphoria, relaxation, dizziness, increased libido, aggression, hunger and ataxia. These are observed in slurred speech, staggered gait, impulsive and disinhibited behaviour that is similar to drunkenness that occurs without alcohol intoxification.”

51. Put simply this offender was sniffing his brains out for several years before he came to puberty. He continued it on until he was about fifteen. Many of those effects will be long lasting because of the lead.

Character and antecedents

52. What can be seen from some of the reports that I have read is that there have been occasions in his life when the offender has presented with a friendly personality, a great sense of humour, warm and caring, capable of showing respect and appreciation. A person who, his father said, has learnt respect for his elders and a person to whom, notwithstanding the dysfunction within the family has a great regard for and need of his family. On the other hand there is a path of violence that he has begun to walk down. Whether that is to be a life path or simply a point that he will turn and come away from, will be for him to determine.

53. He has, as an adult, that is as a twenty-two year old adult, already a growing record. In 2002 he was in juvenile custody for malicious wounding and was given a non-parole period of 15 months for that.

54. As an adult he has a common assault that occurred in August 2003, another malicious wound that occurred in January 2003 for which he was given a three years with a one year non parole period

55. He was on parole for that offence when this was committed. His parole has been subsequently revoked. His balance of parole was, at the time it was revoked, said to be three years, four months and twenty days. I cannot quite work that out on the figures before me.

56. His revocation of parole was based upon what was said to be condition 3 and condition 4. Condition 3 unable to adapt to normal lawful community life (outstanding charges) and condition 4(b) fail to reside at an address agreed upon. Since he has returned to custody he has served another sentence of six months.

Rehabilitation Prospects

57. Any analysis of Donald Bugmy’s life story must conclude that there is much more than a simple alcohol abuse problem going on here. Yet it would appear the major government resource being used to remedy his situation is the prison system. He has been in adult gaol from eighteen to twenty-two but for a period of less than three months when he was on parole. He appears to be focusing on doing courses whilst in custody. He was asked by his Counsel in Broken Hill

“Q. What can you say to the judge about how you will stop this happening?
A. Just started doing courses, started doing courses and drug and alcohol violence programme to deal with my issues and education. Tried to turn my life around in school at the moment, just turn my life around and get out in the community and look after my mother by working.”

58. He did do a rehabilitation course in July 2006. The alcohol and violence prevention programme. However, in the year following there does not appear to be any evidence of courses done. However, it will be some time before he has an opportunity to put into practise strategies that he may have learnt in the alcohol and violence prevention programme course.

Fernando Applies

59. Both counsel have provided written submissions that are much appreciated, helpful and detailed. This is a case in which all eight well known principles distilled by Wood J in Fernando have a strong resonance. Four in particular are worth referring to here.

(a) The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic group or other group ...

(d) Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal Society or their resort to violence when heavily affected by it, the courts must be careful in their pursuit of their sentencing policies not to deprive thereby Aborigines of the protection which it is assumed punishment provides. In short a belief cannot be allowed to go about that serious violence by drunken persons, within their society are treated by the law as occurrences of little moment.

(e) While drunkenness is not normally an excuse or mitigating factor where the abuse of alcohol by the person standing for sentence reflects socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves a realistic recognition by the courts of the endemic presence of alcohol within Aboriginal communities and the grave social difficulties faced by those communities where poor self image, absence of education and work opportunity and other demoralising factors have placed heavy stresses upon them reinforcing their resort to alcohol and compounding its effects.

(h) That in every sentencing exercise while it’s important to ensure the punishment fits the crime and not lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part.”

60. There can be little doubt that Donald Bugmy is a case where all of the principals but particularly those I have highlighted, call out for attention. What makes his case, particularly one where rehabilitation should be considered is that he is still twenty-two years of age. He has been incarcerated, as I say for all but three months since he was eighteen. He has had little opportunity to mature in the community.

61. The mechanism or device used by Wood J, in the case of Fernando was, in modern sentencing parlance, “special circumstances”. His Honour set a non parole period of nine months and a balance of term of three years and three months. Significantly that sentence, being overall more than three years left to the Parole Board the timing of offender’s release from prison. They being in a better position than he, perhaps, to assess the safety of releasing Stanley Fernando back into the community. In this case I am mindful of the fact that the next review date for this offender before the Parole Board is 21 February 2008. The sentence that I set is set with that fact firmly in mind.

Setting the sentence.

62. Donald Bugmy had pleaded guilty at the earliest opportunity. His plea was entered before the Local Court on 27 November 2006. I intend to give him a discount of 25% to the sentence I otherwise would have set but for his plea of guilty. Such a discount is allowed because of the significance of the plea as an acceptance of responsibility for his offending and for its utilitarian value, aspects of which are well recognised in the law.

Commencement date for sentence.

63. Since returning to custody the offender has served a sentence of six months, it dated from 26 September 2006 to 25 March 2007.

64. There is a difficulty in determining the date of a commencement of sentence when an offender is serving balance of a parole. He has already had the benefit of one sentence running concurrently with his balance of parole, I certainly do not intend that he should have a double benefit in the sense that this sentence will also run concurrently with the six months sentence.

65. Given his youth however, and given the importance that he must ultimately be reintegrated into the community it seems to me that I can make this sentence cumulative upon the six month sentence and date it from 26 March 2007.

Deterrence.

66. Perhaps I am only echoing what Wood J said in his principle D in Fernando, but it is difficult to accept the proposition that deterrence works in communities where drug and alcohol abuse is high, social dysfunction and violence are rampant. Nonetheless I am bound by the authorities of superior courts to give some weighting to the needs for general deterrence and personal deterrence. But as I say I have in mind the remarks of Wood J on that. I acknowledge that I have given weight to these factors.

Totality.

67. While it is true the offender was on parole for little short of three months he has been serving sentences continuously since he was eighteen. In those circumstances the question of totality is being given some weight by me.

68. But for the plea of guilty I would have set a sentence of four years for this offence. A 25 % discount for the early plea brings the penalty back to one of three years.

Overall penalty.

69. I find special circumstances. I find special circumstances for many of the same reasons that Wood J found the equivalent of special circumstances in the case of Stanley Fernando, that is, the offender’s background, his mental health and education problems, the continuous time he has spent in custody, his need for rehabilitation in the community and his need to have time to readjust within a community based setting.

Formal Orders

70.Donald Bugmy I convict you of the offence that you on 26 March 2006 at Broken Hill maliciously wounded Clarissa Crawford. For that offence I sentence you to a non parole period of twelve months to date from 26 March 2007 and to expire on 25 March 2008. You will note that that is about a month after the Parole Board will have considered your parole situation in respect of the parole period. If you are given parole by then you will get the parole that I am about to order for you. On the other hand if you do not cooperate and impress them at the parole hearing with your rehabilitation progress you will end up serving more of this term than you need to. Do you understand all that?

ACCUSED: Yes.

HIS HONOUR: I set a balance of term of two years to expire on 25 March 2010. I strongly recommend to the custodial authorities that have your care, that you be returned to Broken Hill as soon as it can possibly be done. I note that you have family there. I note that you have children who are visiting you there and I note that it is important for your wellbeing in the system to see them.

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