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District Court 25 November 2019

R v ACW

[2019] NSWDC 880

Public order & justice offences
CRIMINAL LAW SENTENCE OFFENDER MENTAL HEALTH ISSUES SUBJECTIVE FACTORS

Citation: R v ACW [2019] NSWDC 880
Court: District Court of New South Wales
Date: 25 November 2019
Judge: Judge W Hunt

Background

The offender, ACW, faced a single charge of taking a child with intent to remove from parental control, contrary to section 87(1) of the Crimes Act 1900. The child, A, was her biological son, aged two at the time of the offence. The maximum penalty for the offence is ten years imprisonment, with no standard non-parole period.

A had been placed under an interim care order in December 2017, vesting parental responsibility in the Minister for Family and Community Services. As part of that arrangement, ACW was granted one hour of supervised contact per week at the local Family and Community Services (FACS) office. On 25 January 2018, during a scheduled contact visit, she picked A up, grabbed her keys, and ran from the building. FACS staff chased her but she drove away with A. Later that day, police tracked her to nearby scrub where she was found holding A and refusing to release him. Police eventually removed A, who was returned to FACS care in good health.

The offence had a specific context. ACW had a history of serious mental illness, including depression with schizoaffective features and possible schizophrenia. Evidence at sentence established that she was in a florid psychotic state at the time of the offence and was experiencing delusions about A's safety in FACS care.

  • Whether the objective seriousness of the offending warranted a term of full-time imprisonment under section 5 of the Crimes (Sentencing Procedure) Act 1995
  • The weight to be given to the causal connection between the offender's mental illness and the offending conduct
  • The significance of the offender's rehabilitation, remorse, and ongoing compliance with treatment as subjective mitigating factors
  • The appropriate sentencing disposition in light of all objective and subjective circumstances

Decision

Judge Hunt found that the objective seriousness of the offending fell towards the lower end for this type of offence. There was no actual harm to A, no malign intent toward the child, and A was with the offender for only a short period before being returned safely to FACS care. The Crown conceded, and the Court accepted, that the section 5 threshold for full-time imprisonment had not been crossed.

The Court was satisfied on the balance of probabilities that a direct causal connection existed between ACW's delusional state and the offending. Judge Hunt found that ACW would not have acted as she did but for her then florid psychosis. The Court also noted that her belief, while distorted by illness, that she had a natural parental entitlement to take A was explicable given her disorganised mental state at the time.

The subjective case in ACW's favour was strong. She had no prior criminal convictions. She had complied assiduously with treatment, become medication-compliant, developed genuine insight into her illness, and maintained her recovery while based interstate. Her ex-partner had progressively increased her contact with A in response to her compliance and improved mental health. She had secured stable employment as a support worker with autistic children. Judge Hunt found her evidence credible and her remorse genuine, expressing satisfaction that she would not repeat the conduct if faced with the same circumstances now, while properly medicated.

The Court imposed a Community Release Order, attaching four conditions designed to maintain the offender's stability and allow monitoring of her mental health and sobriety going forward.

Orders Made

  • ACW was placed on a Community Release Order
  • Conditions attached to the order included:
  • Good behaviour (no breach of the law)
  • No use of prohibited drugs
  • Monthly urine analysis between the 1st and 10th of each month, with the certificate to be forwarded to the Registrar of the District Court at Lismore (with copies to Legal Aid NSW and the Office of the Director of Public Prosecutions)
  • Compliance with treatment and medication as recommended by the Osborne Community Mental Health Clinic

Key Takeaways

  • A clear causal connection between an offender's psychotic state and the offending conduct is a significant mitigating consideration at sentence, capable of substantially reducing the weight given to general deterrence.
  • The District Court confirmed that the objective seriousness of a section 87(1) offence is reduced where there is no harm to the child, no malign intent, and only a brief period of removal.
  • Where the prosecution concedes that the section 5 threshold for full-time imprisonment has not been crossed, a court sentencing for a serious indictable offence may nonetheless impose a non-custodial disposition supported by appropriate conditions.
  • Sustained post-offence rehabilitation, including demonstrated medication compliance, development of insight into mental illness, and vocational and relational stabilisation, carried substantial mitigating weight in this sentencing exercise.
  • Conditions attached to a Community Release Order can be structured to provide ongoing court oversight of an offender's mental health management, including regular reporting mechanisms tied to treatment compliance.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 87(1)
- Crimes (Sentencing Procedure) Act 1995 (NSW), ss 5, 166
- Children and Young Persons (Care and Protection) Act 1998 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32

Cases
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- R v Paris [2001] NSWCCA 83