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District Court 14 May 2019

R v CG

[2019] NSWDC 291

Traffic & drivingPublic order & justice offences
SENTENCING PARTICULAR OFFENCES DRIVING OFFENCES POLICE PURSUIT SENTENCING PARTICULAR OFFENCES AGGRAVATING FACTORS

Citation: R v CG [2019] NSWDC 291
Court: District Court of New South Wales
Date: 14 May 2019
Judge(s): Payne DCJ

Background

The offender was the uncle of a seven-year-old boy with autism spectrum disorder and an intellectual disability. The child was non-verbal, required assistance with eating and toileting, and attended a special school. In May 2018, the offender was watching the child at a park in Queensland while the child's mother attended a medical appointment with another child.

Rather than returning the child as expected, the offender went incommunicado for the remainder of the day and drove the child from Queensland into New South Wales overnight. The child's mother made repeated, unanswered attempts to contact the offender throughout the day and into the evening. Police were notified and an investigation commenced.

In the early hours of 29 May 2018, police located the offender and the child at a service station near Kempsey, NSW. The offender fled from police on two separate occasions, reaching speeds of up to 160 kilometres per hour in 100 kilometre per hour zones, evading road spikes, and at one point causing a B-double truck to sharply change lanes to avoid a collision. The child was in the back seat throughout. The offender was also found to be driving while disqualified, in possession of methylamphetamine, and using stolen number plates.

  • What aggregate sentence was appropriate for the principal offence of taking and detaining a child with intent to keep the child from the lawful control of a person with parental responsibility, contrary to s 87(1) of the Crimes Act 1900?
  • What weight should be given to aggravating factors, including abuse of a position of trust, breach of conditional liberty, and conduct without regard for public safety?
  • What discount applied for the offender's guilty plea?
  • How should the principle of totality govern the accumulation and concurrence of sentences across seven offences?
  • What licence disqualification periods were appropriate for the police pursuit and drive-while-disqualified offences?

Decision

The court sentenced the offender across seven offences: two counts of failing to stop for police and driving dangerously (s 51B(1), Crimes Act 1900), one count of taking and detaining a child (s 87(1), Crimes Act 1900), possession of a prohibited drug (methylamphetamine), driving whilst disqualified, and two counts of receiving stolen property outside NSW (registration plates).

The court identified several significant aggravating features. The offender had abused a position of trust, having been given care of a highly vulnerable, non-verbal child with complex needs. His conduct demonstrated a complete absence of regard for public safety during the police pursuits, and the child was present and at risk throughout. The court also accepted the Crown's submission that a parent being deprived of knowledge of their child's whereabouts for an extended period is among the most distressing experiences imaginable, and that denunciation of the conduct was required.

A 25 percent discount was applied across all offences, reflecting the utilitarian value of the guilty pleas. The court treated the principal offence of child detention as the most serious, with an indicative sentence of five years before discount. The principle of totality was applied in constructing the aggregate sentence, with the court expressly considering the requirements of general deterrence alongside the offender's subjective circumstances.

The court imposed an aggregate sentence, noting that the effective non-parole period appropriately reflected the objective seriousness of the offending, the need for general deterrence, and the offender's personal circumstances. Special circumstances were found to exist, resulting in a longer-than-standard ratio of parole to non-parole period.

Orders Made

  • Aggregate sentence: 4 years and 6 months, commencing 29 May 2018 and expiring 28 November 2022
  • Aggregate non-parole period: 2 years and 3 months, commencing 28 May 2018 and expiring 28 August 2020 (eligible for parole from that date)
  • Special circumstances allowance: 13.5 months
  • Indicative sentence, Sequence 1 (police pursuit): 2 years, reduced by 25% to 18 months
  • Indicative sentence, Sequence 2 (police pursuit): 2 years, reduced by 25% to 18 months
  • Indicative sentence, Sequence 4 (possess prohibited drug): 4 months, reduced by 25% to 3 months
  • Indicative sentence, Sequence 5 (drive whilst disqualified): 4 months, reduced by 25% to 3 months
  • Indicative sentence, Sequence 7 (receive stolen property): 4 months, reduced by 25% to 3 months
  • Indicative sentence, Sequence 8 (take and detain child): 5 years, reduced by 25% to 3 years and 9 months
  • Licence disqualification: 2 years on each police pursuit offence (Sequences 1 and 2); 6 months for driving whilst disqualified (Sequence 5)

Key Takeaways

  • The District Court treated the taking and detention of a non-verbal, profoundly vulnerable child, in an abuse of a caring relationship, as an offence of substantial objective seriousness warranting an indicative head sentence of five years before any discount.
  • A 25 percent guilty plea discount was applied uniformly across all offences, reflecting the utilitarian value of those pleas to the administration of justice.
  • Where an offender conducts multiple police pursuits at speeds significantly exceeding the limit, evades road spikes, and places members of the public at immediate risk of collision, the court regarded these as matters requiring meaningful denunciation through the sentence.
  • Special circumstances justified a non-parole period that departed from the standard one-third ratio, extending the period available for supervised parole to assist with rehabilitation.
  • Under the aggregate sentencing regime in s 53A of the Crimes (Sentencing Procedure) Act 1999, the court stated indicative sentences for each offence to provide transparency, while the totality principle governed the construction of the final aggregate term.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 51B(1), 87(1), 189A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A, 166
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)
- Road Transport Act 2013 (NSW), s 54(1)(a)

Cases: No cases were cited in the portions of the judgment available.