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Court of Criminal Appeal 5 September 2006

W N B v Regina

[2006] NSWCCA 269

Public order & justice offences

Citation: W N B v Regina [2006] NSWCCA 269
Court: New South Wales Court of Criminal Appeal
Date: 5 September 2006
Judge(s): Basten JA, Whealy J, Howie J

Background

The applicant was the natural father of a young child who had been placed in the care of the Minister for Community Services by order of the Children's Court at Wyong in January 2004. The child's placement into care was unrelated to the applicant's conduct. The Minister placed the child with foster carers, and access arrangements were made for members of the applicant's family to visit the child.

On 12 June 2005, during an arranged access visit at a park near Morisset Railway Station, the applicant took the child and fled. He travelled to Queensland, where he lived with the child's natural mother and their other children for approximately four months. The child was not harmed during this period. Queensland police arrested the applicant in a Brisbane toy shop, and he was extradited to New South Wales.

The applicant pleaded guilty in Newcastle Local Court to one count of taking a child from the lawful control of the Minister for Community Services, contrary to s 87(1) of the Crimes Act 1900, which carries a maximum penalty of ten years imprisonment. Coolahan DCJ in the District Court sentenced him to a total term of 18 months, with a non-parole period of nine months. The applicant sought leave to appeal against sentence.

  • Whether the sentencing Judge made an unwarranted finding of fact by attributing to the applicant an admission that he had travelled to New South Wales with the intention of taking the child.
  • Whether the sentencing Judge erroneously treated the period the child spent in Queensland as a circumstance of aggravation, when the offence charged was expressly limited to the taking in the park on 12 June 2005.
  • Whether the sentence of 18 months (with a non-parole period of nine months) was manifestly excessive in all the circumstances.

Decision

The Court of Criminal Appeal identified two distinct problems with the sentencing process. First, the sentencing Judge had attributed to the applicant an admission that he had deliberately travelled to New South Wales with the intention of taking the child. An examination of the transcript did not support that finding. Similarly, a comment made by the applicant's legal representative fell well short of the concession the sentencing Judge had described.

Second, the Court noted that the court attendance notice had specifically and carefully limited the offence to the act of taking the child between 11.05am and 11.15am on 12 June 2005 at Morisset. The Crown's argument that the four-month period in Queensland added to the objective seriousness of the offence could not stand where the charge itself did not extend to that later conduct. The remarks on sentence did not make clear whether the time spent in Queensland had been treated as an aggravating feature, and the ambiguity was itself a problem requiring intervention.

Both errors, taken together, warranted the Court quashing the original sentence and re-sentencing the applicant. The Court accepted that a custodial sentence was appropriate to protect the integrity of child care orders and deter abuse of access arrangements. Taking into account the limited scope of the offence charged, the applicant's genuine steps to address substance abuse, his completion of prison programs, the absence of harm to the child, and the finding of special circumstances, the Court concluded that a total sentence of 12 months was sufficient.

The Court also accepted that special circumstances justified a longer than usual parole period, given the applicant's need for supervision and support in addressing issues surrounding access to his children and reinforcing the inappropriateness of his conduct.

Orders Made

  • Leave granted to appeal against sentence.
  • Appeal allowed and sentence imposed by Coolahan DCJ quashed.
  • Applicant sentenced to a non-parole period of six months, commencing 27 October 2005 and expiring 26 April 2006.
  • Balance of term fixed at six months, expiring 26 October 2006.
  • Applicant deemed to have been released to parole on 26 April 2006.

Key Takeaways

  • A sentencing judge must not attribute admissions or concessions to an accused that are not supported by the transcript; mischaracterising the evidentiary record constitutes an error warranting appellate intervention.
  • Where a charge is expressly limited to a discrete act at a specific time and place, conduct that occurred subsequently cannot be treated as a circumstance of aggravation of that offence without clear and justified reasoning.
  • Under s 87(1) of the Crimes Act 1900, a custodial sentence for removing a child from the lawful control of the Minister for Community Services may be warranted to protect the integrity of care orders and deter abuse of supervised access arrangements, even where the child suffered no harm.
  • In re-sentencing, the Court of Criminal Appeal confirmed that the scope of the offence as charged, rather than the broader surrounding conduct, must define the boundaries of the objective seriousness assessment.
  • A finding of special circumstances permitting an extended parole period was upheld where the offender required longer supervisory support to address underlying personal issues and reinforce compliance with court orders.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 87(1) (taking a child from lawful control with intent to keep from the Minister for Community Services; maximum penalty ten years imprisonment)

Note: No cases were cited in the portions of the judgment provided.