DPP v Bamaga [2025] VCC 415

1. The police arrived at the scene and initially you deflected attention elsewhere but a short time later admitted your involvement in the assault. You pleaded guilty at a relatively early opportunity and the matter has proceeded to the

Koori Court jurisdiction where you participated in the sentencing conversation. 2. I am satisfied that you are remorseful for your involvement in this and it was urged by your counsel, Ms Rolfe, that whilst the offence is inherently serious in the context of your life it can be viewed as an aberration. It was advanced that it arose in a context of struggling with profound grief and loss and in that context your descent into significant alcohol abuse played a role. 3. Despite the disadvantages and difficulties of your early life and quite significant loss and trauma and grief in the past six or seven years you have shown resilience and shown you have been able to be free from any offending and to be a productive member of society at times and in that context this is an aberration. Ms Rolfe urged that in this case because of that background, because of your remorse and because of other factors a community corrections order which the courts have recognised since Boulton, can be a sentence that is appropriate for even serious offending such as yours.[1]

1. I will not go into great detail about your personal life. It is set out in Ms Rolfe's helpful outline of submissions. It is also set out in the psychological report of Mr Campbell and a lot of detail and colour and life to your background is brought out in the references from your Aunt Margaret and your brother, both of which I found very useful in understanding you as an individual.
2. I will mention the disadvantage. You were brought up in a loving environment and your aunt's letter is testament to that and that is something you have stated yourself during the sentencing conversation. But it also has to be acknowledged that your parents separated when you were young. There was violence in that relationship, I am satisfied and you were exposed to that but your mother greatly struggled. I was told she was a long-grasser in the Darwin area and struggled with health issues, was transient and tragically she passed in 2019 due to cirrhosis of the liver. Understandably you experienced a significant growth reaction to that.
3. During your childhood you had contact with your mother. You did not have any contact or relationship with your father until you were 18 and this was because your mother's family, who were bringing you up, did not allow that due to their knowledge of the violence that he had perpetrated on your mother.
4. When you arrived at the age of 18 your aunt asked whether you wanted to see your father and you did develop a relationship with him at that time. Tragically your father also passed away suddenly.
5. I will not go into fine detail in relation to the very significant series of loss and trauma but in summary form your mother passed away in 2019. Things started to fall apart for you at that time. In the same year a younger cousin, who you were very close to given your family circumstances, passed away due to an undiagnosed heart condition and your brother's reference provides some context to the impact of that loss upon you and the shock of it. At the same time your father passed from a sudden heart attack.
6. In 2020 your grandmother passed away and you were very close to her and in 2022 you lost your older sister to pancreatitis and I was provided more detail in relation to her struggles and the great difficulties she faced, including amputation and how her circumstances created trauma and profound grief for you.
7. You had moved to Melbourne, in part I am satisfied, to distance yourself from some of those traumas and the atmosphere and experience for you in Darwin at that time and the context of those series of losses. That had other difficulties in that when you moved down here in 2019 the following year, of course, the pandemic hit and there was significant lockdowns and restrictions on travel and that made life very difficult for you. In 2022 you spent time in Darwin when your sister passed and then return to Melbourne.
8. You have had housing help from Salvation Army but at times you have lived in a caravan park and also in a tent.
9. Moving back to your early life. Your schooling was reasonable in that you completed Year 11 at Casuarina. You had a difficult year in Year 10 when you went to Centralian Senior College in Alice Springs and the isolation there resulted in you having some significant mental health difficulties and were suicidal at the time. That was perhaps an early marker of vulnerability to the mental health difficulties that you have experienced since that time and up to the present. These have manifested themselves at times as panic attacks which have seen you go to hospital because you are concerned for your life, which is not uncommon when panic attacks occur. Your aunt also spoke about this in her reference. That you would contact her fearing that you were dying.

1. Mr Campbell's report goes into some detail about your mental health challenges. I do accept that the alcohol abuse, which was central to what occurred on 13 July last year, has been a feature of your life that is an inappropriate way to deal with the grief and the depression that you are experiencing as a result of grief but it is something that you have descended into and you were indeed in a very low place in July last year.
2. Your mental health deteriorated during the loss of your mother but then was impacted and compounded with the loss that followed. Mr Campbell found that you are a person who has developed an avoidant approach to the mental health issues and that is something that this Court, with the sentence that it will impose, has in part designed a sentence that will provide you with the supports to endeavour to address those mental health challenges and to arrest the decline that, in your case, has been apparent at least since 2019 and potentially might have its roots back in your experiences in Year 10 at Centralian. Unresolved grief is something that you also need to address in order to rehabilitate from alcohol dependency.
3. You have struggled with symptoms of depression for an extended period of time. That much is clear. Mr Austin finds that you have symptoms of alcohol use disorder, severe levels of anxiety and stress, severe levels of depression and diagnoses you with major depressive disorder.
4. None of those matters excuse the very serious offending that occurred on 13 July and they are cold comfort to your victim and his family for the significant injury that was occasioned to him. But it does put it in some context and it does support the ultimate submission of Ms Rolfe, that this was an aberration in the context of your life.
5. I also accept what Ms Rolfe advanced in relation to your resilience and I take that further in the sense that it is to your credit that notwithstanding some difficulties and instability and disadvantage in your early life, in your childhood and notwithstanding exposures to some negative influences and then significant loss and grief that your criminal history is one which, as I noted at the outset, is of little relevance to the sentencing exercise in this case. Since the offence your response has been appropriate. There has been no further offending. You have exhibited remorse. You have shown some insight in relation to the need to address alcohol use and to address grief and to address your mental health more widely in respect of anxiety and depression.

1. You participated in the sentencing conversation and you participated fully and your participation in the sentencing conversation has mitigatory effect in this sentencing exercise.
2. It is acknowledged that participation in the sentencing conversation makes for a more difficult process and for the generalities of a plea of guilty you had to be accountable, you had to face the Elders and speak about some very difficult issues. It was not an easy process. You are a proud Torres Strait Islander man. A Meriam man from Murray Island and you spoke about your culture to Uncle Rod and Auntie Jackie but you also spoke about your plans for the future.
3. You are someone who has shown that you have ability to work and particularly warehouse work is something you are looking at pursuing and you are more than capable of engaging in that. You have got your forklift licence. You have worked in warehousing in the past. That was something that Uncle Rod, in particular, encouraged you to pursue because as you know yourself and I think you touched on in the sentencing conversation, your background in the church and your family's connection to that and that is an important connection with your Torres Strait Island culture as well, that you know the importance of being productive and what idle hands can do.
4. The prosecution made submissions and relied upon a written outline for the summary jurisdiction application in the Magistrates' Court but nonetheless it had relevance for a sentencing submission in this court given the cases that were referred to. The prosecution quite rightly pointed out the very serious of aspects of this case. Notwithstanding at the outset this was a stand-off of two individuals, perhaps both affected, you were certainly affected by alcohol. A stand-off where on one view the initial instigator might not be seen to be your victim initially but things quickly changed. You were completely in control of the situation, he was not, and the last blow you inflicted, as I said, was a sickening one.
5. The community is rightly concerned and deeply concerned about these sorts of offences. The one punch law was discussed during the sentencing conversation. Actions such as yours so often lead to catastrophic lifelong injury, permanent disability or death.
6. I am satisfied that you understand that and you are extremely regretful of your actions. I have read your letter of apology to the victim filed today and the sentiments that you express therein are consistent with what I observed of you during the sentencing conversation. I am satisfied you have genuine remorse and insight and you are quite shocked and ashamed at what you did.
7. I also accept what you say in that letter about how you know how his family would feel if they lost him because of your actions and I take that they are a reference in part to your experience of family loss in the past several years.
8. This is a case where a number of factors have to be balanced. You do have available to you some mitigation in the form of what is often referred to as the Bugmy principle.[2]
9. As I have pointed out, you did have a loving home and you went through school well and you have shown that you can be free of offending but it must be acknowledged also that your early childhood, particularly in relation to both your parents, was one of disadvantage.
10. I accept, and this is based on the report of Mr Campbell, that your experience of custody would be harsher than it would be for someone that was not suffering major depressive disorder or the background of anxiety that you have and that, in fact, those conditions might deteriorate if you were to experience custody. I also accept that the one day of custody you did experience was a salutary lesson for you. Having come this far in life, despite some difficulties in your upbringing, having come this far without experiencing that is something that no doubt would have affected you deeply.
11. I do accept that this is an aberration. It is an aberration in the context of your life and mental health deteriorating over several years in the context of trauma loss and grief but a descent also into alcohol and possibly other substances.
12. The person in the footage perpetrating this heinous and callous assault is not the person you are. I am satisfied of that. I have had the advantage of observing you during the sentencing conversation, the testimonials of your

Aunt Margaret and your brother, the contents of the report and the apology letter you have written and the submissions of your counsel which all support that conclusion. 13. Courts do need to denounce conduct such as this. Courts also need to deter others from engaging in this dangerous and devastating type of action. People who perpetrate actions such as yours should expect gaol terms. In the ordinary course of events that is what one would ordinarily expect. 14. I have imposed sentences for this offence of reckless cause serious injury of more than six years for that offence alone but each case does turn on its circumstances. I have had to balance a number of factors in your case, all of which I have mentioned. 15. When I am assessing all of the circumstances of the offence, the circumstances of the offending and your personal circumstances, the history in those mitigatory matters I have referred to, I consider that a CCO of considerable length and with the imposition of punitive conditions, would serve those important sentencing factors of denunciation and general deterrence. 16. I had you assessed for a community corrections order and you were assessed as suitable. I also received a mental health assessment report in that process which has also been useful in arriving at the appropriate sentence in your case. 17. Balancing all of the competing sentencing factors as best I am able, including your prospects of rehabilitation and the community's interests in rehabilitating you, I sentence you as follows, Mr Bamaga.

1. On Charge 1, recklessly causing serious injury, you are sentenced to a three year community corrections order. There will be 250 hours of unpaid community work as a special condition of that community corrections order. That corrections order is with conviction. You are to submit for alcohol assessment and treatment as directed. Drug assessment and treatment as directed. You are also to submit for mental health assessment and treatment as directed. Up to 50 hours of therapeutic conditions can be credited against the work conditions.
2. On Charge 2, possess cannabis, you are convicted and discharged.
3. I declare that you have served one day of pre-sentence detention in relation to this matter.
4. Pursuant to s6AAA of the Sentencing Act were it not for your pleas of guilty I would have sentenced you to two years' gaol with a non-parole period of 12 months.
5. Now are there any other orders sought? No? All right. Well Mr Bamaga, do you consent to the community corrections order?
6. OFFENDER: Yeah.
7. HIS HONOUR: Yes. All right. Well that's going to be prepared now. I'll sign it and then you'll be asked to sign it. I have to tell you that if you breach that order, if you contravene the order by either not doing the conditions that are ordered or by further offending you can be brought back before me for re-sentence. Understand that?
8. OFFENDER: Yes, Your Honour.
9. HIS HONOUR: All right. We'll prepare that now. Do you want me to stand down? No.
10. MS ROLFE: Might I approach to assist Mr Bamaga, Your Honour?
11. HIS HONOUR: Yes. Sure, Ms Rolfe.
12. MS ROLFE: Thank you, Your Honour. That's been signed.
13. HIS HONOUR: All right. Well we'll get a copy of that prepared for Mr Bamaga and for both of you at the Bar table. Thank you everyone and we'll adjourn the court.

[1] Boulton v The Queen [2014] VSCA 342