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District Court 11 February 2022

R v JB; R v Norris

[2022] NSWDC 13

Assault & violenceFraud & dishonestyTheft & property

Citation: R v JB; R v Norris [2022] NSWDC 13
Court: District Court of NSW
Date: 11 February 2022
Judge(s): Whitford SC DCJ

Background

Two young women, referred to as JB and Ms Brittany Norris, each pleaded guilty to one count of detaining a person in company with intent to obtain an advantage, contrary to section 86(2)(a) of the Crimes Act. The maximum penalty for that offence is 20 years imprisonment. Ms Norris also faced a further offence of dishonestly obtaining a financial advantage by deception, arising from the same facts and taken into account on a section 166 certificate.

The offending involved luring the victim, a 22-year-old man personally known to both women, to a motel room under false pretences. Once inside, he was detained for approximately four hours by JB, Ms Norris, and two male co-offenders, Leroy Sparks and James Yates. During the detention, the male offenders were armed at times, actual and threatened violence occurred, property was taken, and the victim was ultimately forced to hand over banking details. Ms Norris later transferred $917 from the victim's account to her own.

The offending appears to have originated in JB's allegation that the victim had sexually assaulted her during a prior relationship, and a shared desire among some or all of the participants to extract a confession and compensation from him. JB was aged 17 years and 11 months at the time; Ms Norris had turned 18 only three months earlier. Both women are Aboriginal.

Legal Issues

  • Whether JB should be sentenced under the Children's (Criminal Proceedings) Act 1987 or according to law, given she was a child at the time of the offence
  • Whether the discretion not to record a conviction should be exercised in JB's favour
  • How to assess the objective gravity of the offending and the individual moral culpability of each offender, having regard to their differing roles
  • The appropriate weight to give subjective circumstances, including developmental disadvantage, trauma, indigeneity, and rehabilitation prospects, in structuring sentences
  • Whether parity considerations arose between JB and Ms Norris given the different sentencing regimes applicable to each
  • What form of sentence was appropriate for Ms Norris, including whether an intensive correction order was available and suitable

Decision

Issue 1: Objective gravity and individual roles

The court accepted the prosecution's characterisation that the episode of offending, viewed generically, approached the broad mid-range for offences of this type, having regard to the four-hour detention, the involvement of four participants, the use of weapons by the male offenders, threats of sexual violence, and the terror experienced by the victim (at [15]-[16]). However, the court found that the individual culpability of each woman had to be assessed by reference to her actual role. Ms Norris's objective criminality exceeded JB's, principally because she communicated with the victim to lure him to the motel room and later accessed his bank account, transferring $917 to herself (at [21], [36]). JB's participation, while still serious, was assessed as more limited and conducted substantially under the influence of the older male co-offender Sparks (at [38]-[39]). The court found that both women were more likely than not carried along by the influence of the older male co-offenders, rather than acting from determined criminal design (at [83]).

Issue 2: Subjective circumstances and moral culpability

Both women came from backgrounds of profound developmental disadvantage, intergenerational trauma, exposure to domestic violence, parental drug use, and normalisation of anti-social conduct (at [49], [59]-[62]). The court found a clear connection between each woman's background and her offending, reducing moral culpability and moderating the weight to be given to general deterrence in favour of rehabilitation (at [52], [66]). The court expressly noted JB's indigeneity as a relevant factor and drew on the principles established in Fernando, Bugmy, Hoskins v R, and Lloyd v R in extending leniency to both women (at [77], [89]). The court also observed that the criminal justice system must guard against becoming an instrument for entrenching disadvantage, and that those principles should be applied diligently where an offender's circumstances permit (at [86]).

Issue 3: JB's sentencing jurisdiction and conviction

Having reconsidered its initial view that JB should be sentenced according to law, the court determined that the interests of justice were better served by sentencing JB under the Children's (Criminal Proceedings) Act 1987 (at [91]). The court also exercised the discretion not to record a conviction, finding this appropriate to avoid unnecessarily burdening JB's future, particularly in terms of employment, as a consequence of juvenile offending connected to developmental disadvantage (at [93]-[94]). The court imposed a suspended control order for 1 year and 9 months, accompanied by a good behaviour bond on conditions including supervision and participation in programmes.

Issue 4: Ms Norris's sentence

The court accepted, with some hesitation, that the section 5 threshold for imprisonment was crossed in Ms Norris's case (at [99]). However, it found that the appropriate aggregate sentence was one that permitted an intensive correction order, giving significant weight to Ms Norris's rehabilitation prospects, her role as the primary carer of a then 13-month-old child, her cessation of drug use, and the harm that separation from her infant would cause (at [100]-[103]). The court imposed an aggregate sentence of 2 years and 1 month imprisonment, to be served by way of an intensive correction order (at [100]).

Orders Made

Ms Norris:
- Convicted of detaining a person in company with intent to obtain an advantage and dishonestly obtaining a financial advantage by deception
- Aggregate sentence of 2 years 1 month imprisonment, to be served by way of an intensive correction order
- Indicative sentences (before aggregation): 2 years for the detain offence; 3 months for the financial advantage offence
- Conditions of the intensive correction order include: no further offending; supervision by Community Corrections; participation in programmes and treatment as directed; provision of the psychologist's report to Community Corrections
- Required to report to the Community Corrections Office at Wyong within 7 days

JB:
- No conviction recorded
- Committed to the control of the Minister administering the Children (Detention Centres) Act 1987 for 1 year and 9 months, suspended for that same period
- Released on a good behaviour bond with conditions including: good behaviour; appearing before the court if called upon; supervision by Community Corrections; participation in programmes and treatment as directed

Key Takeaways

  • Where an offender was a child at the time of a serious offence that is not a "serious children's indictable offence," the court retains a discretion under section 18 of the Children's (Criminal Proceedings) Act 1987 to sentence under that Act rather than according to law, and the exercise of that discretion is informed by both objective and subjective features of the offending (at [6]-[7], [91]).

  • The District Court applied the Fernando and Bugmy line of authority to find that profound developmental disadvantage, intergenerational trauma, and indigeneity can significantly reduce moral culpability and the weight accorded to general deterrence, even in serious offences carrying a maximum of 20 years imprisonment (at [52], [66], [89]).

  • Participation in a joint criminal enterprise does not of itself fix each participant with the same level of individual culpability; the court assessed each woman's role separately and found meaningfully different levels of objective criminality despite their shared liability (at [17], [21], [42]).

  • An intensive correction order may be available in New South Wales even where an indicative sentence for a principal offence would exceed 2 years, provided the total aggregate sentence does not exceed 3 years, consistent with Mustafa v R [2021] NSWCCA 164 (at [100]).

  • Parity principles can still be relevant as between an adult offender and a co-offender sentenced under the Children's (Criminal Proceedings) Act 1987, though the different nature of the regimes limits the weight of the comparison; the court may nonetheless give analogous account to considerations such as rehabilitation in structuring the adult sentence (at [96]-[98]).

Legislation and Cases Referenced

Legislation
- C hildren’s (Criminal Proceedings) Act 1987
- Crimes Act s 86(2)(a)

Cases
- 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