Children's Court New South Wales Medium Neutral Citation: R v Nerri [2022] NSWChC 2 Hearing dates: 26 August 2022 Date of orders: 26 August 2022 Decision date: 26 August 2022 Jurisdiction: Criminal Before: Children's Magistrate Hayes Decision: Dismissed under section 33 (1)(a). Catchwords: CHILDREN – Criminal Law – Youth Koori Court Legislation Cited: Children (Criminal Proceedings) Act 1987 Cases Cited: Bugmy v R [2013] HCA 37 JT v R [2011] NSWCA RL v R [2015] NSWCCA 106 Texts Cited: Australian Law Reform Commission Report 84 Category: Principal judgment Parties: Young Person New South Wales Police Force Representation: Mr Perry (Prosecutor) Mr Clifford (Young Person) File Number(s): 2019/00146073 2019/00146073 Publication restriction: Pseudonyms have been used to protect the identity of the child. Judgment Background 1. Nerri is proudly Kamilaroi and Yuin. 2. Nerri complied with her Action and Support Plan. 3. Nerri graduates Youth Koori Court (YKC) today. 4. Prior to graduation the Court must finalise all charges. Submissions 1. Mr Clifford prepared a summary of factors that the Court must consider on sentence; and the Court does. 2. Mr Clifford refers to the High Court decision of Bugmy v R [2013] HCA 37, sentencing principles in JT v R [2011] NSWCA and the section 6 principles in the Children (Criminal Proceedings) Act 1987. 3. Mr Clifford submits that the Court should dismiss each offence under section 33 (1)(a). 4. Mr Perry does not wish to be heard. 5. The Court agrees with Mr Clifford. Youth Koori Court suitability 1. Nerri pleaded guilty to all matters. 2. The fact sheet for one set of charges states: The Young Person in this matter has an extensive criminal history with now over 40 charges. The Young Person continues to re-offend despite efforts to curb her criminal behaviour. The Young Person has committed numerous serious criminal offences only to be released on bail to continue re-offending. When previously sentenced the Young Person continues to receive 'Good Behaviour Bonds' which she also breached on numerous occasions. In this incident the Young Person displayed a complete disregard for the welfare and safety of the community, other road users, herself, and her young passenger. Soon after stealing the victim's car in this incident the Young Person was involved in a major car accident. The accident was primarily due to her high-speed driving, not being old enough to obtain a driver's licence and being completely inexperienced in driving motor vehicles…. Following the accident when police attempted to speak to the Young Person, she replied by saying 'Not saying fucking nothing'. Police hold grave concerns that, if again, the Young Person is released into the community with no consequences for her actions she will immediately re-offend and, again place the entire community in danger due to her ruthless behaviour. The Young Person showed absolutely no remorse for her actions on the day of this incident. 1. The offences triggered 18 separate sets of breach offences. 2. Nerri was refused bail. She has had 21 prior admissions into youth detention. 3. Nerri met the YKC eligibility requirements. 4. Nerri was aged 13. Admission into YKC 1. A suitability assessment was held. 2. On 9 August 2019 Nerri was admitted to the YKC. Development of Action and Support Plan 1. An Action and Support Plan was developed. 2. The Action and Support Plan reduces personal risk factors related to re-offending. Darumu, Jarara Indigenous Education Support. Justice Health, Women's Justice Network, Youth Justice and Legal Aid NSW Children's Civil Law Service all committed to the Action and Support Plan. Approval of Action and Support Plan 1. On 16 August 2019 Nerri appeared before the Court. 2. Nerri sat at the bar table. Mr Clifford sat next to her. The Prosecutor, Ms Eshman was next. 3. I sat opposite Nerri. Two Elders, Aunty Pat and Aunty Kerry were either side. 4. Nerri agreed to the Action and Support Plan. She signed the plan. I shook her hand. 5. Nerri was later released on bail. Reviews 1. Nerri participated in 17 reviews. 2. The reviews considered the progress and implementation of her Action and Support Plan. 3. Apart from one set of minor offences Nerri has not offended for 3 years. 4. Some of Nerri's achievements were referred to in Mr Clifford's written submissions: * Nerri's work with Just Reinvest as an NSW Youth Ambassador, including taking a lead in Mounty Yarns. * Meeting with Paul O'Reilly, the Executive Director of Youth Justice NSW regarding Youth Engagement Strategy. * Assisted other young people engage in the meeting and advocated for improvements in the Youth Justice System, including raising issues such as the importance of funeral attendance and participation. * Co-facilitated the Just Reinvest makeup training programme at Kimberwalli. * Co-organised the Just Reinvest music programme in 2021. * Co-organised the Just Reinvest Oz-tag and Confit programs. * Planned a camp with CCAS, Infinite Hope Aboriginal Corporation and JRNSW to Burke. * Engaged with the Australian Nurse Family Partnership Program 1. In additional, the Court noted Nerri's organisational skills, her sporting achievements, her talents in art and dance, motherhood - and more. 2. Nerri has grown to be a powerful and passionate advocate on social justice issues. For example, Nerri presented on a webinar hosted by the Public Interest Advocacy Centre and jointly wrote an opinion piece in the Sydney Morning Herald. 3. I have my own memories: * Nerri organising Mr Clifford's paperwork during a review. * Nerri reminding other young people in her community when they needed to attend court, instilling a confidence in the criminal justice system. * Nerri meeting the New South Wales Attorney General the Hon. Mark Speakman as part of a delegation to make her case for raising the age of criminal responsibility. Decision 1. Rehabilitation is beneficial not only to young offenders, but also to the community by supporting reintegration. 2. Rehabilitation assists crime prevention by reducing further offending: Seen and Heard: Priority for Children in the Legal Process (Australian Law Reform Commission Report 84) 3. The Youth Koori Court postpones sentencing for the purpose of assessing a young person's capacity and prospects for rehabilitation. Sometimes, as in this case, it allows a young person to demonstrate that rehabilitation has taken place. 4. Unlike in RL v R [2015] NSWCCA 106, there is no tension in sentencing after Court allowed delay that of itself required compliance with actions, programs and reviews that equate to punishment, deterrence, denunciation, and recognition of harm done, all in circumstances where there is now no likely risk of reoffending, no need to deter, no need to protect, no need to promote rehabilitation. 5. The Court has considered all relevant matters on sentence. 6. The court acknowledges the dedication and commitment of our Elders, the Aboriginal Legal Service, Youth Justice, Legal Aid NSW Children's Civil Law Service, the Western Sydney Community Legal Centre, the YKC Casework co-ordinator, the Police Prosecutors, the Dharug people, the Children's Court, and others. 7. Most of all the Court acknowledges the tremendous achievements of you Nerri. You not only complied with the action and support plan you beyond exceeded it. ORDERS 1. Each charge is dismissed under section 33 (1)(a). 2. Thank you, Aunty Susan. You are a respected Elder and a relentless leader; and you are now welcome to join Nerri in her graduation. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 September 2022