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Writer's pictureSuzanne Visser

Offender trauma and neurolaw

In the previous chapters, we have seen that factors beyond our conscious control (genetic, social, environmental) shape our behaviour. Trauma changes the brain, and the law is slowly catching up with this fact. However, the Australian Neurolaw database contains only one case where trauma in a young Aboriginal offender is considered. The case R v Hawkins in 2015 concerned the sentencing of an offender for burglary, going equipped

for theft, attempting to take a motor vehicle dishonestly and without the consent of its owner, theft, and possession of stolen property. The offender said at first that he did not remember the offence – but later pleaded guilty. The judge made the following findings, based on the pre-sentence report and a report from the Court Alcohol and Drug Assessment Service: the offender was Aboriginal and 21 years old at the time of the offence. He had been in a foster home. He started drinking alcohol and smoking

cannabis at a very young age, and using other drugs during his teenage years. He had a significant criminal history; he had been found guilty of 68 offences and was found to be at medium-high risk of reoffending. In the sentencing consideration, the judge noted

that “He is still a relatively young man, and neuroscience shows that the male brain is not fully mature and developed until the mid-twenties”. By referring to two other judgements, the court found that even after the age of 18, the youth of the offender should still be taken into consideration. The judge continued: “This is, of course, more so when the youthful offender is a first offender, but even later, particularly with the slow development of maturity, especially in young men, rehabilitation is usually more important than general deterrence.”

While the judge admitted that the offender’s long criminal behaviour indicated a limited opportunity for rehabilitation, he pointed out that the rate at which the brain matures should also be taken into consideration. The court, therefore, after considering the offender’s disadvantaged childhood that led him into drugs and crime, ordered a total sentence of two years and eight months, with a nonparole period of one year and 10 months.

In this case, Neurolaw was clearly being practised. More often than not, offenders suffer from the same symptoms as victims do. Offenders are often victims themselves, and

their offending behaviour stems from trauma. When we look at the trauma that offenders may be carrying, we must first look at cultural trauma, a form of trauma from which most other forms of trauma spring.

In the next blogs we will take a closer look at several kinds of trauma.






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