Article An argument for recognising childhood sexual abuse and physical abuse as a mitigating factor in sentencing Mirko Bagaric * and Gabrielle Wolf † In Bugmy v The Queen, the High Court of Australia established that an offender’s experience of social deprivation during childhood can be a mitigating sentencing consideration. Empirical research has confirmed that there can be an extremely strong connection between the experience of childhood sexual abuse and physical abuse and subsequent criminal offending, especially in the case of female and Indigenous offenders. Arguably, the Bugmy principle is broad enough to encompass most instances of childhood sexual abuse and physical abuse. Yet, in many cases, application of the Bugmy principle will not in fact result in a sentencing discount for an offender who has been the victim of childhood sexual and/or physical abuse. The major reasons for this are that the contours of the Bugmy principle have not been clearly defined and its mitigatory impact may be diluted or negated by the operation of aggravating factors, such as pursuit of the sentencing objectives of community protection and specific deterrence. This article argues that it is desirable that an offender’s experience of childhood sexual abuse and/or physical abuse is recognised as a discrete mitigating consideration, as it can diminish his or her moral culpability. I Introduction A number of well-established considerations relating to offenders’ traits and experiences, including mental illness 1 and youth, 2 mitigate penalty severity in the sentencing calculus that is applied throughout Australia. They are mitigating factors for the reason that there can be a strong link between them and criminal offending and, therefore, they are understood to reduce offenders’ moral culpability. 3 Research has established a similarly significant connection between the experience of physical abuse and sexual abuse in childhood and the subsequent commission of criminal offences. Nevertheless, * Professor, Swinburne University Law School. † Associate Professor, Deakin University Law School. 1 See, eg, R v Verdins (2007) 16 VR 269; Charles v The Queen (2011) 34 VR 41; Monfries v The Queen (2014) 68 MVR 385; R v Barratt [2014] QCA 227; Papas v Western Australia [2011] WASCA 3; Melham v The Queen [2011] NSWCCA 121; R v Flentjar [2013] SASCFC 11; McCulloch v Tasmania [2010] TASCCA 21; Groenewege v Tasmania [2013] TASCCA 7; Mack v Western Australia [2014] WASCA 207; Western Australia v Khasay [2014] WASCA 58. 2 See, eg, R v Kuzmanovski; Ex parte A-G (Qld) [2012] QCA 19; R v Mills [1998] 4 VR 235, 241–2 (Batt JA); R v Smith (1988) 33 A Crim R 95, 97; R v Hearne (2001) 124 A Crim R 451; R v Price [1978] Qd R 68; R v Bell (1999) 30 MVR 115; Lee v The Queen [2011] NSWCCA 169; R v Dullroy; Ex parte A-G (Qld) [2005] QCA 219. 3 R v Verdins (n 1); R v Smith (n 2) 97; R v Hearne (n 2). 1