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District Court 11 April 2022

R v Rush

[2022] NSWDC 107

Domestic & family violencePublic order & justice offences
SENTENCING TAKE AND DETAIN FOR ADVANTAGE DOMESTIC VIOLENCE OFFENCE VICTIM IS THE CHILD OF THE OFFENDER VICTIM IN FOSTER CARE NO THREATENED OR ACTUAL USE OF VIOLENCE

Citation: R v Rush [2022] NSWDC 107
Court: District Court of New South Wales
Date: 11 April 2022
Judge(s): Grant DCJ

Background

The offender, a 37-year-old woman, pleaded guilty to one charge of taking and detaining a person with the intention of obtaining an advantage under s 86(1)(b) of the Crimes Act 1900 (NSW). The victim was her 13-year-old biological son, who had been placed in out-of-home care under the parental responsibility of the Minister for Family and Community Services.

In March 2021, the offender arranged for the child to leave school and travel by train from Culcairn to Sydney Central, providing him with a ticket purchased under a false name. She collected him from Central Station and took him to an acquaintance's address at Windale. When contacted by an Anglicare case worker, she initially concealed the child's whereabouts and later barricaded herself and the child in a bedroom when police arrived.

Police located and arrested the offender the following evening, approximately 24 hours after the child had left school. The offender had been in out-of-home care before being granted bail by the Supreme Court roughly five months after her arrest.

  • What is the appropriate sentence for a take and detain offence where the victim is the offender's own child, no violence was used, and the detention was brief?
  • How should the court weigh general deterrence where the offence is classified as a domestic violence offence but sits at the lower end of objective seriousness?
  • What effect do the offender's subjective circumstances, including deteriorating mental health and reduced moral culpability, have on the sentence?
  • Does the pre-sentence custody already served affect the sentencing outcome, and is a non-custodial penalty available?

Decision

Objective seriousness: Grant DCJ assessed the offending as falling at the lower end of the range of objective seriousness. Applying the framework from R v Newell [2004] NSWCCA 183, His Honour considered the short duration of the detention (approximately 24 hours), the absence of any threatened or actual violence, and the child's voluntary participation in travelling to Sydney. The advantage sought was to prevent the child's lawful return to his foster carers, rather than any financial or predatory purpose.

Domestic violence classification and general deterrence: The offence constituted a domestic violence offence within the meaning of s 11 of the Crimes (Domestic and Personal Violence) Act 2007, engaging the sentencing principle of general deterrence. However, His Honour gave that consideration reduced weight, noting the unusual circumstances that reduced the objective gravity of the conduct.

Subjective circumstances: Grant DCJ accepted that the offender's moral culpability was reduced by a deterioration in her mental health at the time of the offending, supported by a general practitioner's mental health care plan and a sentencing assessment report. His Honour characterised the conduct as a misguided maternal intervention driven by genuine concern for the child's welfare, rather than any criminogenic disposition. The court also noted the child's own circumstances: his foster bedroom was bare and carried a strong smell of urine, and he had expressed that he did not feel cared for. The offender's prospects of rehabilitation were assessed as reasonable, supported by ongoing psychological treatment, and she was found to demonstrate genuine remorse.

Penalty: Given the low objective seriousness, the strong subjective circumstances, and the 4 months and 25 days already served in pre-sentence custody (the offender's first time in custody), His Honour was satisfied that a non-custodial penalty was appropriate notwithstanding that the custodial threshold under s 5 of the Crimes (Sentencing Procedure) Act 1999 had technically been crossed. The offender received a 25% discount for her early guilty plea entered at the committal stage.

Orders Made

  • Convicted and sentenced to a Community Correction Order for 18 months (reduced from a 2-year base term by a 25% early-plea discount)
  • Standard conditions: no further offences; must appear before the court if called upon
  • Additional conditions:
  • Supervision by Community Corrections (Lake Macquarie) for the duration of the order
  • Ongoing psychological treatment with Dr Vlado Svigir (or delegate) for as long as considered necessary
  • 150 hours of community service work
  • Report by telephone to Lake Macquarie Community Corrections within 7 days

Key Takeaways

  • The District Court confirmed that objective seriousness in kidnapping and detention offences is assessed by reference to the duration and circumstances of detention, the identity and vulnerability of the person detained, and the purpose of the detention, following R v Newell [2004] NSWCCA 183.
  • Where a take and detain offence involves no violence, a brief detention, and a purpose falling well short of the paradigm case of kidnapping, the offending may be placed at the lower end of the objective seriousness range even though the maximum penalty is 14 years imprisonment.
  • Classification of an offence as a domestic violence offence does not automatically attract full weight to the general deterrence principle; the unusual facts reducing objective gravity can warrant a corresponding reduction in that weight.
  • Reduced moral culpability arising from a diagnosed mental health condition, combined with reasonable prospects of rehabilitation and an early guilty plea, can collectively support a non-custodial sentence even where the custodial threshold under s 5 of the Crimes (Sentencing Procedure) Act 1999 has been crossed.
  • Pre-sentence custody served prior to the grant of bail is a relevant factor in the sentencing exercise, particularly where it represents the offender's first experience of incarceration.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 86(1)(b)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 11
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 25D(2)(a)

Cases
- R v Newell [2004] NSWCCA 183