R v JB; R v Norris - [2022] NSWDC 13

District Court

New South Wales

Medium Neutral Citation: R v JB; R v Norris [2022] NSWDC 13
Hearing dates: 25 November 2021
Date of orders: 11 February 2022
Decision date: 11 February 2022
Jurisdiction: Criminal
Before: Whitford SC DCJ
Decision:
See [104]

Legislation Cited:
Children’s (Criminal Proceedings) Act 1987
Crimes Act s 86(2)(a)

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571
Hoskins v R [2021] NSWCCA 169
Lloyd v R [2022] NSWCCA 18
Mustafa v R [2021] NSWCCA 164
R v Colgan [1999] NSWCCA 292
R v Fernando (1192) 76 ACrim R 58
R v Wong [2003] NSWCCA 247

Category: Sentence
Parties: Regina - Crown
JB – Offender
Brittany Michelle Norris - Offender
Representation: Counsel:
Mr K Alder – Crown
Ms E McLaughlin - JB
Ms M Fernandez - Norris

File Number(s): 2020/118383
2020/120447

REMARKS ON SENTENCE

On Thursday 25 November 2021, a young woman, JB, and Ms Brittany Norris appeared before me for sentence, following the entry of pleas of guilty by each of them to one count each of detain person in company with intent to obtain an advantage [contrary to Crimes Act s 86(2)(a)]. That is patently a serious offence, as indicated by the maximum penalty fixed for it by Parliament of 20 years imprisonment.
In Ms Norris’ matter, there is also before the court, on a s 166 Certificate, a single count of dishonestly obtain a financial advantage by deception which arises out of the same facts as the principal offence for sentence. Ms Norris has acknowledged her guilt in relation to that offence and must also be sentenced in respect of it. Dealt with on indictment, that offence carries a maximum penalty of 10 years imprisonment. Here, of course, it is subject to the summary jurisdictional limit of 2 years imprisonment.
Prior to the hearing on 25 November comprehensive written submissions were provided by all parties. Those submissions have been marked for identification and placed on the respective files. At the conclusion of the hearing on 25 November I reserved my decision and the matters were adjourned to today, for sentence. In the meantime, additional written submissions have been provided on behalf of JB and the prosecution.
Two male co-accused, Leroy Sparks and James Yates, are to be dealt with, and will be, separately, at another time.
JB was born in May 2002. She is presently aged 19 years and 8 months. She was aged 17 years and 11 months at the time of the offending. Having been a child at the time of the offending, JB was, and is, subject to the Children’s (Criminal Proceedings) Act 1987 (the Act). She was committed for trial in this court from the Children’s Court at Woy Woy on 7 May 2021.
The offence for which she is to be sentenced is not a “serious children’s indictable offence” and therefore is not automatically to be dealt with “according to law”. However, the prosecution submitted that JB should be dealt with “according to law”. There is, accordingly, a jurisdictional question in her case, which must be determined in accordance with section 18 of the Act. That section outlines the matters to be taken into account when making a determination whether the offence should be dealt with according to law or in accordance with the relevant provisions of the Act.
That question, which was described as a threshold question, is in truth a penultimate question, given the need to consider in its determination, among other matters, both objective and subjective features of and relevant to the offending and the offender. I will return to that question after considering both the objective gravity of the offending, to be considered by reference to a lengthy Statement of Agreed Facts tendered with the prosecution materials, and also JB’s subjective circumstances. Both those matters sensibly inform the determination of the jurisdictional question.
Ms Norris was born in January 2002. She is now 20 years of age. She was aged 18 years and 3 months at the time of the offending. She was committed for trial in this court from the Local Court at Wyong on 16 February 2021.
It is common ground that having regard to the timing of their pleas, entered in the context of a super call over of Gosford trial matters, both young women are entitled to a discount of 10% on sentence for the detain offence, which I will allow. Ms Norris is also entitled to, and I will allow, a discount of 25% for the utilitarian and other value of the plea to the s 166 matter.
JB has spent three months and 16 days in custody referable solely to these offences. She has also spent 3 months in residential rehabilitation.
Referable solely to this offending, Ms Norris has spent 2 months and 19 days in custody.
Both women have otherwise been subject to stringent bail conditions. In each case that time already served, and the other matters I have mentioned will be taken into account on sentence along with the discount for the plea.
Without distinguishing the individual roles of the two young women, the prosecution submitted that the entire episode of offending revealed by the Statement of Agreed Facts was “within the broad mid-range (or indeed at the midpoint) for offences of this type”. That characterisation, it was submitted, is supported by the following 13 features:

A degree of planning to rent the room.

The luring of the victim to a motel room at midnight on the pretext of going for a drive. Norris asked the victim to park his car around the corner in Gosford Avenue away from the motel’s front entrance. Norris knew there were CCTV cameras at the motel. She didn’t want the victim’s car to be depicted in any CCTV subsequent footage.

There was a breach of trust by Norris towards the victim. The victim thought she was “like a sister”.

There were four co-accused involved in the detention (in company only requires 2 persons).

The period of detention was 4 ¼ hours (it was not momentary or for a brief period).

The repeated use of force and threats of violence upon the victim (although not inflicting actual bodily harm).

Sparks and Yates were armed with a knife. At times Sparks held the knife to the victim’s face.

The threat or belief a sexual assault was going to be committed upon the victim.

The motive for the detention was to obtain a confession. The law enforcement authorities should have been further contacted. This was vigilante conduct.

The victim’s phone was taken from him thus preventing him calling for assistance after he was liberated. Ms Norris had wiped the phone’s memory.

Norris and Yates removed items of the victim’s property from his car. They then had possession of his identification and bank cards which would have assisted in withdrawing the victim’s money.

The victim was liberated on the condition he paid a sum of money by 5pm that day.

The victim’s bank account was accessed and money transferred to “B. Norris”.

Some of the matters relied upon by the prosecution are the subject of reasonable debate (for example, the state of Ms Norris’ knowledge of CCTV at the motel and the asserted breach of trust on her part), and will form no part of my findings. However, the entire episode of offending represents a plainly serious incident and in my view a generic characterisation of the episode as approaching the broad mid-range is not unreasonable in all the circumstances when viewed without regard to the specific roles of individual offenders.
That is so having regard, in particular, to the following matters. First, the period of the detention, being in the vicinity of four hours. Second, the force of numbers represented by the fact there were four participants in the joint criminal enterprise. Third, the circumstances of the detention, including some vulnerability on the part of the victim, having been lured into the motel room under false pretences, and, not insignificantly, the terror that he must have experienced whilst detained, particularly by reason of the presence of two males who were armed at times. Fourth, the purpose of the detention, which appears to have been directed, at least ultimately, if not also in its conception, to attempting to obtain some retribution or compensation from the victim in respect of JB’s allegations of having been sexually assaulted by the victim when they were in a relationship some years prior.
As is reflected in submissions on behalf of Ms Norris, the offending reflects a number of statutory aggravating features. They are represented by the facts that the two men were armed from time to time, actual violence was inflicted, sexual violence was threatened, property was taken, and the victim was forced to ingest a substance.
However, all of the foregoing notwithstanding, and notwithstanding that they have liability as participants in a joint criminal enterprise each one with the others, the objective gravity of the individual offending of these young women, and ultimately also their moral culpability, must for present purposes be assessed not only by reference to the features of the offending generally but must also be informed by reference to the role each of them played in the relevant events, insofar as that is capable of determination to the requisite standard from the agreed facts.
The incident appears, as I have indicated, to have its genesis in a belief or understanding on the part of some or all of the perpetrators of unlawful sexual conduct on the part of the victim towards JB and an apparent desire, again on the part of some or all of the perpetrators, to extract a corresponding confession and ultimately compensation from him, in circumstances where a complaint by JB to the police had not resulted in any charges being laid.
Beyond that, which is more or less implicit, at least, in the articulation of the facts in the agreed statement, the facts are silent as to the nature or degree of any planning and the involvement, if any, of individual offenders in its formulation or inception, as distinct from its execution.
Some planning is evident in the invitation to the victim to attend the motel and the arming and possibly also the positioning of co-offenders in the motel room. However, such planning as was evident is unsophisticated and does not by its nature aggravate the offending. There is no evidence of when the motel room was rented, such as might enable a conclusion that it was rented for the purpose of facilitating the offending. It is not possible on the facts to conclude to the requisite standard that either of these young women was a participant to any substantial degree in the planning of the enterprise. Ordinary human experience, and indeed the experience of the courts, suggests at least as a realistic possibility, that these young women were carried along and influenced in their involvement by their older, and at least in the case of Sparks, more historically criminally inclined, male companions. Having regard to the facts and the respective roles of the individual participants I have concluded that that was more likely than not the case.
The objective criminality of Ms Norris’ involvement in the execution of the enterprise exceeds that of JB in my assessment, at least insofar as one is capable of discerning from the statement of facts.
The victim, aged 22 at the time of the offence, was personally known to these two female offenders. He knew Ms Norris through her older brother and the pair had interacted on half a dozen previous occasions, including the victim having given Ms Norris a lift some weeks prior to the offending. It was she who had the then current connection with the victim that provided the basis for the invitation that facilitated this offending. The victim, as I have noted, had been in a relationship with JB some years prior, a relationship which he terminated when he learned she was 14, not 17 as she had told him. It appears to have been after the termination of that relationship that JB made the allegations of having been sexually assaulted by the victim during the period of that relationship.
JB was not in the main motel room when the victim arrived. She only appeared from the adjacent bathroom after he had entered the motel room. The facts record JB as saying to the victim at one point “… I was going to stab you the minute you walked in the door”. This at least suggests the possibility of some foreknowledge on her part, however there is insufficient in the facts to admit of a conclusion to the requisite standard that she knew the victim was being lured to the motel, much less that she was a participant in any degree, directly or indirectly, in any planning or in the communications which brought him to the room.
Ms Norris, by contrast, appears to have been the one to communicate with the victim, or at least to have allowed her device to be used for that purpose, and by that means to have lured him, or participated in luring him, to the motel room under false pretences. I consider it is going beyond what the facts permit to characterise the deception as a breach of trust, in the way that expression might ordinarily apply in aggravation of the offending. I also do not consider that the instruction to the victim to park around the corner from the motel is capable, beyond reasonable doubt, of supporting the conclusion the prosecution submissions, which I outlined earlier, suggest arises from it.
In terms of their conduct once the victim was in the room, the roles respectively of each of the women was quite different in their nature and scope.
JB’s conduct appears to have had four discrete aspects. Firstly, she accused the victim of having raped her four years earlier. Second, together with Sparks, she demanded that the victim empty his pockets. Third, seemingly on each occasion again with Sparks, she threatened or inflicted some violence, none of which resulted in any actual bodily harm. Fourth, again with Sparks, as well as Ms Norris and Yates, she demanded he pay compensation otherwise he would not be released. In each aspect of her conduct JB appears to have acted closely in concert with Sparks, in particular, and, I infer, likely substantially under his influence.
Ms Norris’ appears to have been uninvolved in the infliction or explicit threatening of any violence. Indeed, she made attempts at one point to calm other co-offenders in the face of their violence towards the victim. Nonetheless, her specific conduct in the execution of the enterprise had numerous significant aspects to it.
First, was her participation, directly or indirectly, in deceptively luring the victim to the motel room by way of messages sent to him from her phone and then letting him into the room.
Second, she grabbed the victim’s phone from him and demanded his passcode.
Third, she accessed the victim’s phone with the passcode he gave her, and she deleted the messages she had sent to him, presumably in a conscious, albeit it likely futile, attempt to avoid detection.
Next, she purported to steal the phone from the victim, evidenced by telling him it was now hers, telling him to write down any contacts he wanted to keep, and then purportedly erasing the phone’s memory entirely. I note as an aside that the purported erasure seems likely to be inconsistent with subsequent conduct accessing the victim’s bank account, including by arranging for the issue of a substitute password.
Fifth, she produced some strips of what she claimed were buprenorphine and threatened the victim she was going to turn him into a junkie.
Sixth, with Yates, she left the room for a short period of time and returned with items of the victim’s property which they had taken from the victim’s car.
Seventh, she sought the victim’s internet banking identification and, when he was unable to give it, told him she could access his account anyway because she had his bank card.
Eighth, with the other three, she demanded that the victim pay them three weeks of his work pay to compensate for the conduct the subject of JB’s allegations.
Finally, she appears to have withdrawn $917 from the victim’s bank account by electronic transfer to an account in her name. This last aspect of her conduct is the culmination of the offence on the s 166 Certificate.
There are some aspects of the facts which attribute particular conduct to “the offenders” without identifying which of them specifically might have been responsible. It is not possible sensibly to attribute that conduct, beyond reasonable doubt, to one or other of these offenders.
JB’s individual participation in the events appears to be relatively limited compared to that of her co-offenders. The fact that the episode may have its genesis in her allegations of having been sexually assaulted by the victim, does not seem to me to elevate her objective criminality in any way beyond what can be discerned from an assessment of what she actually did on the night.
In respect of that, as I have already indicated, I infer, on account of the nature of their relationship, the disparity in their ages and their individual criminal histories, as well as, connectedly, what I anticipate was the reality of the dynamics between them, that she was more likely than not very much under Sparks influence in every aspect of her participation in the events on the night.
In terms of Ms Norris’ individual participation on the night, perhaps the most serious aspects of her objective criminality reside in her participation in luring the victim to the motel room and in her dealings with the victim’s phone, leading eventually to accessing the victim’s bank account and transferring funds to her own benefit. The latter, though the subject of the s 166 offence, is closely aligned to key aspects of her conduct in the principal offending and it is important to avoid any double counting in the imposition of appropriate penalties.
Having regard to their respective ages and the roles the facts reveal the two male offenders played, which is reasonably eloquent it seems to me in terms of the power dynamics on the night, I also consider it more likely than not that Ms Norris too was influenced in significant aspects of her conduct by the older male co-offenders, although she does appear to have taken greater individual initiative in relation to the offence of taking financial advantage and the conduct connected directly or indirectly with it. That offending involved a not insignificant sum - $917 – but the fraud on the bank was not at all sophisticated and I accept was likely relatively spontaneous and opportunistic.
Taking all the objective circumstances of the enterprise into account and aligning them with the particular individual conduct of these two young women and their roles respectively on the night, it seems to me that Ms Norris’ offending falls below a notional mid-range on the broad spectrum of conduct that might be caught by this very serious offence provision and JB’s offending lower again on that same spectrum.
None of that is said to diminish in any way the sheer terror that must have been, on any reasonable objective view, experienced by the victim on the night, particularly in the face of the nature and extent of the specific actions of and threats made by Sparks as reflected in the agreed facts. That terror has had unsurprising enduring consequences for the victim, as is reflected in his victim impact statement tendered with the prosecution materials. That statement reflects precisely the sort of harm that one might reasonably expect might flow from being subjected to this sort of offending. That is an expectation which doubtless informs, at least partially, the very severe maximum penalty that is applied to offending of this character.
The only subjective material relied upon by JB was two background reports provided by Juvenile Justice.
The first, dated June 2018, related to a period of offending behaviour engaged in over a relatively short period in late 2017 and early 2018. During some or all of that time, so far as I can discern from the material, it appears that JB was transient and aged about 15.

The second report was prepared for the purposes of this exercise and is dated 24 November 2021.
Both reports reflect a range of comprehensive enquiries made by the respective Youth Justice Caseworkers responsible for their compilation. They are both articulate as to JB’s background and as to her personal qualities, attitudes, ambitions and circumstances as they pertain to this exercise.
It is not necessary to parse publicly in these reasons the details concerning JB’s developmental background that are explored in the background reports. Anyone who might be called upon to review these reasons will be able to review that material for themselves. Suffice to say for present purposes, the background reports represent a powerful articulation both of developmental disadvantage as understood by the relevant authorities and of inter-generational trauma and its very real and enduring consequences, practically, behaviourally, emotionally and psychologically for JB.
Significant features represented in the material include a disrupted home life, exposure to criminal activity, parental drug use and domestic violence and a profound normalisation of a range of anti-social conduct. Consequently, as a young teenager JB disconnected from her family, engaged in drug use , lived a transient lifestyle for parts of her adolescence and formed intense but negative peer associations. She also has a history of undiagnosed anxiety, depression, and self-harm.
JB has previously been made subject to several supervised orders with Youth Justice in the form of suspended Control Orders of varying lengths, up to 12 months, imposed in respect of the period of earlier offending to which I have already referred.
JB's attitudes and behaviour towards supervision during that period was satisfactory. She participated in supervision and Youth Justice programmes, she also accepted external referrals to the PCYC and the Indigenous Justice Programme (IJP) where she worked closely with a caseworker with the goal of acquiring independent accommodation.
I am satisfied that there is a clear connection between JB’s background and her offending, both the earlier offending and the present. Consistently with the relevant authorities, her moral culpability is reduced accordingly and less weight need be given to general deterrence.
JB has spent a not insignificant amount of time in custody and quasi-custody as a consequence of this offence: 106 days in full-time detention and 90 days in full-time residential rehabilitation. She has also been subject to strict bail conditions for approximately 18 months (since her release from custody on 4 August 2020). These have included a curfew and daily reporting conditions.
There is persuasive evidence that JB feels significant shame and genuine remorse for her role in the offending.
There are a multitude of matters that enable me to conclude with some confidence that JB has excellent prospects of rehabilitation.
In no particular order, those matters include the following. She has been on bail, without breach, since 4 August 2020. She has stopped using drugs and there has been no further offending. She completed as many certificates and qualifications as she was able during her time in custody and residential rehabilitation. Her successful and commendable completion of a three -month residential rehabilitation program followed by a three-month after-care program was accompanied by reports from the relevant institution that were glowing in respect of her application to the program and the fortitude and leadership she displayed throughout. She has deliberately, and apparently effectively, severed ties with the negative peer group she associated with at the time of the offending. Since her release on bail, she has gained employment, and is waiting to hear about other applications for additional employment in respect of which she appears to enjoy some prospect.
All of these matters reflect notable development of maturity, which was not present at the time of the earlier or this offending, and corresponding personal growth, as is recorded in the most recent background report.
There was a wealth of material tendered in articulation of Ms Norris’ subjective circumstances. It comprises a Sentencing Assessment Report tendered with the prosecution materials, the report of a forensic psychologist prepared for the purposes of this exercise, and affidavits of her mother and maternal grandmother.
As I similarly observed in the case of JB, that material too is eloquent as to Ms Norris’ complex, at times tragic and in many respects deprived developmental background, as well as the consequences for her of that deprivation and its associated disadvantage. The impact on Ms Norris’ youth and young adulthood of that deprivation and disadvantage has been profound and it endures. In this case too nothing is particularly served by parsing and exposing the detail of that background.
It is instructive, however, by reference to some observations from the psychologist’s report in particular, to expose at least some of the consequences for her of that background and its deprivation and trauma. They are instructive, particularly as they relate to the present and Ms Norris’ earlier offending, in their demonstration of the appalling, and seemingly self-perpetuating, practical consequences of deprivation and disadvantage of the kind she has experienced.
Without descending into the detail, it is plain that despite the positive influence of a loving and supportive mother and maternal grandmother Ms Norris’ was exposed to dysfunction in the home on numerous significant levels. These, experiences, frequently traumatic, undoubtedly shaped Ms Norris’ character and temperament. The distress she has experienced has been overwhelming for her at times, and she has not been equipped with skills to manage that distress. This has progressively led, since her early teens, to reliance by her on substances to help manage the distress. As a result of the violence to which she has been exposed, she has developed a view of the world as hostile and aggressive, ultimately resulting in the dysregulation evident in her offending history from her early teenage years. Without adequate healthy social connections or adaptive skills to manage life stressors, Ms Norris’ mental health declined and her reliance on drugs became her prominent manner of coping and regulating herself. The psychologist observed that Ms Norris’ significant drug use from her earlier teenage years would have impacted her neurocognitive development at a critical time in brain development for reasoning, judgment and planning skills.
As Ms Norris’ became more reliant on substances to manage her trauma and mental health her consequent social connections inevitably endorsed and reinforced broader anti-social attitudes and perpetuated in her the view that in order to keep herself and others safe, violence is a legitimate and effective tool for conflict resolution. The present offending, according to the psychologist, whom there is no reason to doubt, occurred in the context of continued dysfunction relating to substance use, mental health management, anti-social peers and deficiencies in adaptive skills and regulation.
In terms of her earlier offending, Ms Norris has been dealt with in the Children’s Court for four offences of stalk/intimidate, attempt stalk/intimidate and two common assaults. These offences date between July 2015 and February 2017. Since then, she has been convicted of driving with an illicit drug present, driving while licence cancelled and larceny (shoplifting). The larceny was committed close in time to the present offence but was not charged until Ms Norris was in custody for the present offences.
Given Ms Norris’ age at the time of the intimidation and assault offences and the complexity of the background which is plainly associated with it, I do not consider that her record is an aggravating feature in the present offences. I have concluded, given both that this is her first adult offending, and that the consequences of her background endure even to the present day, that she should, in spite of that limited juvenile offending, be entitled to leniency in this exercise. I will say more about this shortly.
Ms Norris spent over two and a half months in custody on remand. This was her first time in custody. She was in custody at the beginning of the COVID-19 pandemic and was unable to receive physical visits. Her experience of custody during that time would have been more onerous due to the necessary and now notorious pandemic responses in that environment.
Ms Norris’ background of social disadvantage and her exposure to domestic violence, trauma and instability necessarily diminishes her moral culpability. The weight otherwise properly to be accorded general deterrence is also moderated in favour of other purposes of punishment, in particular rehabilitation. Ms Norris is still a very young woman. Her age further reinforces the weight that ought to be given to rehabilitation in this exercise.
It is clear from what I have already outlined that Ms Norris’ offending conduct is intertwined with her drug abuse, which itself is intimately connected to the trauma and disadvantage of her background. Given that context, her drug use cannot properly be attributed the description of being a matter of informed personal choice. As was submitted on Ms Norris’ behalf, while drug use is not in and of itself a matter in mitigation, it serves to put the offending in its proper context and is also highly relevant to an assessment of Ms Norris’ prospects of rehabilitation and recidivism.
Ms Norris’ future risk is largely connected with her continued ability to remain disengaged from a drug using community and to make pro-social life choices. Her history both whilst remanded in custody and on bail augers well for her capacity to do both those things and to achieve her goals of a pro-social future.
Incarceration, pregnancy, and now motherhood have contributed to Ms Norris stopping completely her former drug use. She gave birth on 15 January 2021 and has an almost 13-month-old baby boy. She is his primary carer, and a single parent. As the SAR author also acknowledged, Ms Norris has a network of close family support that provides a strong positive influence. She has expressed what I accept is a genuine willingness to engage in treatment. Further, the psychologist has provided a range of recommendations to address her complex history of trauma and emotional dysregulation.
In my assessment, the combination of the strong positive family support she enjoys, the focus which her young son brings to her life, the maturity she has plainly developed in the time since this offending, the concrete steps she has taken to address her situation in that time, her appreciation of the need for, and her willingness to receive, appropriate treatment and supervision and her demonstrated remorse and insight into her offending all point to Ms Norris having genuinely strong positive prospects of rehabilitation.
Returning to the jurisdictional question in JB’s case, the section of the Act relevant to its determination is section 18, which sets out those matters to which the Court must and may have regard.
As earlier outlined, the prosecution submitted that JB should be dealt with according to law. The following seven matters were relied upon in support of that submission:

JB’s age at the time of the offence;

JB’s age at the time of sentencing;

what was characterised, without development of the characterisation, as “the adult nature of the serious offending”;

JB’s antecedents which include a number of offences of violence and her history of being subject to various suspended Control Orders in the Children’s Court jurisdiction;

The co-accused are being dealt with “according to law” in the same proceedings;

The limited sentencing options available if the matter was finalised in the Children’s Court (the length of any sentence of imprisonment or bond) for such a serious matter;

The maximum penalty of the index offence.

As I identified for the parties at the commencement of the hearing, for reasons that aligned closely with the matters relied upon by the prosecution, my initial, but by no means concluded, view, uninformed at that stage by all of the evidence or submissions from the parties, was that it would likely be appropriate to deal with JB according to law, rather than under the Act.
However, submissions made by Ms McLaughlin on JB’s behalf persuaded me that there were some inappropriate assumptions informing my expressed initial view and caused me to reconsider that initial view. The wish to give deeper consideration to this question constituted the principal reason it was necessary for me to reserve these matters before imposing sentence. There was an allied, also difficult, question as to whether, if JB were dealt with under the Act, the discretion not to record a conviction should be exercised in JB’s favour. This latter question was the subject of the submissions received since 25 November 2021.
Ms McLaughlin submitted that it was appropriate to deal with JB under the Act for nine reasons articulated at paragraph 6 of her written submissions dated 23 November 2021.
Principal among my earlier assumptions was a misapprehension as to the gravity of JB’s individual offending and the culpability attaching to it, relative to that of the others and a failure to consider fully the consequences of her background.
There is a significant additional matter which also caused me to pause. That factor is her indigeneity and some of the corresponding familial, social and other factors, and their enduring consequences, reflected in or arising from her developmental background.
In that connection, and also equally pertinent to the approach I consider appropriate in Ms Norris’ case, there may be value in exposing my thinking in relation to a number of matters representative of some commonality between JB and Ms Norris. These matters are important, to my mind, in the resolution of both matters.
The vernacular of an earlier time would have described these young women, had they been male, as having been barely out of short pants at the time of this offending. I’m not aware of a corresponding expression for young females, but whatever the apt equivalent, the sentiment I think is likely widely understood.
The point is, these women were both effectively what would be described in common parlance as “kids” at the relevant time. Standing on the brink of life as adults for sure, but kids in every sensible understanding of that common usage. Yes, Ms Norris was an adult, as the law would have it, and had been for a whole 3 months at the time of the offending. Yes JB had almost joined her; having been not much more than a month off statutory majority at the time. But the reality is, as the evidence reveals, they were effectively just kids. Disadvantaged, misguided, lost and immature kids.
Their backgrounds had denied each of them the education, the opportunities, the resources, the skills, the agency, the support and the guidance which any civilised society would wish, indeed should demand, for its young people on the threshold of adulthood.
Those denials have been compounded by a corresponding normalisation of anti-social behaviour in various expressions and have been a fetter on the acquisition of the maturity, judgment and circumspection that might otherwise have been theirs individually to consult and which likely would have kept them from involvement in this offending.
Accordingly, theirs was not “adult offending” in any meaningful use of that expression. Despite some limited earlier indiscretions, neither of them was of a settled criminal inclination. I am satisfied, as I have already observed, that they were more likely than not caught up in this offending and carried along under the influence of the male co-offenders who were considerably older and, in the case of one of them at least, of a settled criminal disposition. By that association, rather than by determined criminal design, they found themselves caught up in a serious criminal episode.
The evidence in each case discloses that the developmental backgrounds of both offenders is patently one of disadvantage and deprivation. Those deprivations, or at least their profound consequences, endure for both women. Disadvantage and deprivation do not conform readily to labels or expectations derived from perspectives of advantage and privilege. Even less so as they continue to be amplified, or at least reproduced, across generations. Trauma building upon or begetting more trauma. Disadvantage and deprivation the same. This has practical exposition in the case of JB who has experienced being unfairly targeted and judged in her local area by peers, police and the community given her family name and a negative reputation derived from past criminal behaviours of other family members.
Though as a matter of theory and principle it is endowed with broad discretions, the law of sentencing, or at least its practical application too frequently, is formulaic and mechanical. Too much weight is often accorded an apparent obsession with objective gravity in sentencing. It is obviously not unimportant, but so often, in a context where culpability should more often sensibly be the touchstone, do we hear the injunction that subjective matters must not be permitted to overwhelm the objective features of particular offending. This attitude seems, at least in part, to be a creature of the arguably barely intellectually defensible regime of statuary non-parole periods and the jurisprudence that has sprung out of it and spread its tentacles where there is no cause for them to be.
If culpability is a sensible guide to formulation of appropriate penalty under a broad discretion directed to individualised justice, then there must necessarily be occasions when the injunction must be upended; the objective circumstances must not overwhelm compelling and salient subjective matters. A failure so to do risks the characterisation of a form of institutional racism or oppression which serves to compound the disadvantage which has been the lived experience of first nations communities in this country. The criminal justice system must strive to ensure that it does not become, any more than it already may have been, wittingly or unwittingly, an instrument for the entrenchment of disadvantage. If more than lip service is to be paid to addressing the problems of disproportionate aboriginal incarceration then, where the circumstances of an individual case permit, the principles and processes which the law embodies should be applied diligently to addressing disadvantage by creating opportunities for redemption and growth. There can be no more appropriate occasion for that than in respect of offenders who are juvenile, or who should effectively be so regarded for want of maturity and prior opportunity.
All the circumstances of the offender and the offending must be weighed and synthesised, an offender’s culpability assessed and a suitable penalty structured accordingly. This must be done, of course, having regard to all the objects of sentencing, but with none necessarily predominating, save as the particular circumstances of the individual case demand.
The efforts to date of the law to recognise and address disadvantage and discrimination are pointless, if not also meaningless, if there is no capacity, in the circumstances revealed in the evidence in the present case, to extend leniency and mercy sufficient to address the extent of the disadvantage these women have endured and to support them, in the community’s best interests, in continuing the concrete and commendable steps they have respectively made towards rehabilitation since participating in this offending.

In the circumstances revealed by the evidence in these cases, the law should be capable of ensuring that the misguided youthful deviation represented by this offending, which appears in both cases to be unlikely ever to be repeated, does not unnecessarily preclude these young women from full participation in a productive, law abiding and fulfilling life in the community as adults. I discern that the law has that capacity through appropriate application of the principles derived from the line of cases of which Fernando, Bugmy, Hoskins v R [2021] NSWCCA 169 and Lloyd v R [2022] NSWCCA 18 are part. Only in that way can these women be assisted to be as free as might realistically be possible of some of the shackles of the intergenerational disadvantage and trauma that for too long has kept them from the education, the opportunities, the resources, the skills, the agency, the support and the guidance that should be an important part of society’s function, if not aspiration, to facilitate for them.
These various observations and remarks are intended to expose an important aspect of my reasoning to the conclusion that it is appropriate in all the circumstances, both objective and subjective, of the respective cases, to extend leniency to both these young women and to do so in an extent greater than the prosecution submissions would deem appropriate, particularly in the case of JB, where the circumstances, by the operation of the Act, admit of greater scope in that regard.
Supplemented only by these additional matters, which have some implicit expression in the submissions on behalf of JB in any event, for precisely the reasons articulated by Ms McLaughlin in her submissions, and with express advertence also to the authorities and principles referred to in those submissions, I am satisfied that the interests of justice in this case are appropriately served by sentencing JB in accordance with the provisions of the Act and not according to law.
A sentence must be structured which simultaneously recognises the gravity of the offending and her culpability, no matter how diminished the latter might be by reason of external factors, and which provides with appropriate sanction, by way of specific deterrence, inherent incentives to her against any relapse from her present positive trajectory. As an incident of the interests of justice in the instant case and in the community’s best interest, it also must promote her prospects for a fulfilling and productive life as an adult, to the fullest extent there is capacity to do so under the Act.
In my view, taking into account all the matters I have already outlined, these compound results are best achieved in the case of JB by the combination of a suspended control order and the exercise of the discretion not to record a conviction. I do not consider that there is any appropriate alternative to a control order in all the circumstances, however the various mitigatory considerations I have outlined favour its suspension.
The submissions put on behalf of JB put a compelling case in my view for the exercise of the discretion not to convict. To withhold a conviction for the time being provides a limited way in which the law can recognise JB’s developmental disadvantage and ensure that her future, particularly but not solely in terms of employment advantage, is not unnecessarily marred as a result of juvenile offending inevitably connected to that disadvantage. Of course, as Ms McLaughlin’s submissions highlight, should JB disappoint my expectations of her and breach a suspended control order, there exists as a matter of specific deterrence, among other things, the capacity for her to be resentenced and a conviction then recorded.
The prosecution submitted that considerations of parity as between JB and Ms Norris, or indeed between her and any of the co-offenders, do not arise if JB is dealt with under the Act. I think that is fundamentally right, from a practical point of view.
However, it was submitted on behalf of Ms Norris that if JB is dealt with under the Act, as I have indicated she will be, the sentence is still relevant from a parity perspective and an adult may have a justifiable sense of grievance with respect to the young person’s sentence despite the different nature of the sentencing regime: see R v Wong [2003] NSWCCA 247 at [35]; R v Colgan [1999] NSWCCA 292 at [15].
As my observations in respect of their subjective situations demonstrates, there are points of similarity between JB and Ms Norris. Their age difference is just four months. Both are young aboriginal women enduring the consequences of developmental disadvantage. Neither was subject to conditional liberty, and both appear to have developed drug problems at a young age, arguably at a time and in circumstances where a question of conscious, informed deliberation cannot reasonably have been expected of them.
For these reasons, notwithstanding my assessment of the differences in the objective gravity of their individual offending and correspondingly of their culpability, I am satisfied that Ms Norris is in her culpability far more comparable with JB than she is with Mr Sparks. The fact that Ms Norris cannot be dealt with under the Act narrows the scope and significance of any question of parity. Certainly, in fashioning a sentence for the adult it is relevant to have regard to the sentence imposed (or in this case to be imposed) under the Act. However, the worth of that comparison will necessarily be limited. Given the similarities in their circumstances as I have outlined and their reasonable correspondence in age, I consider it is appropriate to give as much analogous account as is practically possible in Ms Norris’ case to the matters outlined at s 6 of the Act and to give greater weight than otherwise might be appropriate to considerations of rehabilitation.
In Ms Norris’ case it was conceded that in all the circumstances there is no penalty appropriate other than imprisonment. I paused before agreeing with that proposition, particularly having regard to s 6 considerations, the matters deriving from disadvantage that I earlier explored and the sentence I have determined is appropriate in JB’s case. Ultimately, however, I have accepted, albeit with some hesitation, that the proper conclusion is that in all the circumstances the section 5 threshold has been crossed in Ms Norris’ case.
As was submitted on Ms Norris’ behalf, it seems to me the length of the appropriate sentence is one that permits the Court to consider an alternative to full-time imprisonment. An aggregate sentence of up to 3 years imprisonment could be served by way of an intensive correction order. This is so even if my conclusion as to the appropriate indicative sentence for the detain offence were to exceed 2 years, provided the total appropriate aggregate sentence does not exceed 3 years: see Mustafa v R [2021] NSWCCA 164. As was also put on her behalf, having regard to Ms Norris’ role in the offence, her age, the impact of social deprivation on moral culpability and general deterrence and the significant steps she has taken towards rehabilitation, the appropriate disposition of her matter is, in my assessment, by way of an intensive corrections order.
The criminality attaching to the financial advantage offence is in considerable measure embraced by the criminality in the detain offence. There should in that case be only limited notional accumulation between the two offences in structuring the aggregate sentence.
An alternative to full-time imprisonment will have the result of addressing the various purposes of sentencing including denouncing the conduct, making the offender accountable and recognising the harm done to the victim. It will also provide adequate punishment in the circumstances, with the incentive, by way of practical specific deterrence, that any departure from the present trajectory might risk a period of further full time custody. Such a sentence will have the added benefit of allowing Ms Norris to continue the rehabilitation she has commenced. In making an assessment of the appropriateness of an alternative to full-time custody, the hardship, perhaps even irretrievable damage, that would necessarily flow from the separation of a young mother and her baby is a matter of legitimate concern to the Court.
Community safety does not loom as an issue in Ms Norris’ case. She has complied with strict bail conditions for well over one year. Pregnancy and motherhood appear to have motivated her and assisted in her ability to address her drug problems and she is now well engaged in pro-social activities. None of that should be disturbed in the way it inevitably, and presently unnecessarily, would be by the imposition of a full-time custodial sentence.

Orders

Norris

For both the offence of detain person in company and the offence of dishonestly obtain a financial advantage by deception the offender Ms Norris is convicted.

I intend to impose an aggregate sentence of imprisonment for both offences. Had I not, in each case taking into account all the matters I have identified, including the discounts for the pleas of guilty and the pre-sentence custody served, the sentences that would have been imposed for each offence are:

For the detain offence – 2 years imprisonment.

For the obtain financial advantage offence – 3 months imprisonment

The aggregate sentence I impose is a term of imprisonment of 2 years 1 month.

Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an intensive correction order.

The conditions of the order are that Ms Norris must:

not commit any offence;
submit to supervision by a Community Corrections officer;
participate and maintain her participation in any programs and treatment required and/or facilitated by the Community Corrections Service, for so long during the term of the order as that service deems necessary.
provide to the Community Corrections a copy of the report of Dr Mamta Sidhu dated 24 November 2021, Exhibit 1 in her proceedings.

If the offender fails to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or it may include revocation of this order. If the order is revoked, the offender may be required to serve all or some of the period of the sentence in fulltime custody.

Finally, I direct that within 7 days the offender report, in the first instance by telephone, to the Community Corrections Office at Wyong, as specified in the Sentencing Assessment Report.

For the offence of detain person in company, pursuant to s 33(1)(g) of the Children (Criminal Proceedings) Act, JB is committed to the control of the Minister administering the Children (Detention Centres) Act 1987 for a term of 1 year and 9 months commencing today and expiring 10 November 2023.

Pursuant to s 33(1B) of the Children (Criminal Proceedings) Act the execution of the committal is suspended for the period of 1 year and 9 months, and she is released on the condition that she enters into a good behaviour bond for that specified period.

The conditions of the bond are that JB must:

Be of good behaviour.
Appear before the Court if called upon to do so at any time during its term.
Submit to supervision by a Community Corrections officer.
Participate and maintain her participation in any programs and treatment required and/or facilitated by the Community Corrections Service for her, for so long during the term of the order as that service deems necessary.

A conviction will not be recorded.

**********

Decision last updated: 11 February 2022

Medium Neutral Citation:	R v JB; R v Norris [2022] NSWDC 13
Hearing dates:	25 November 2021
Date of orders:	11 February 2022
Decision date:	11 February 2022
Jurisdiction:	Criminal
Before:	Whitford SC DCJ
Decision:	See [104]
Legislation Cited:	Children’s (Criminal Proceedings) Act 1987 Crimes Act s 86(2)(a)
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Hoskins v R [2021] NSWCCA 169 Lloyd v R [2022] NSWCCA 18 Mustafa v R [2021] NSWCCA 164 R v Colgan [1999] NSWCCA 292 R v Fernando (1192) 76 ACrim R 58 R v Wong [2003] NSWCCA 247
Category:	Sentence
Parties:	Regina - Crown JB – Offender Brittany Michelle Norris - Offender
Representation:	Counsel: Mr K Alder – Crown Ms E McLaughlin - JB Ms M Fernandez - Norris
File Number(s):	2020/118383 2020/120447