R v ACW - [2019] NSWDC 880

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v ACW [2019] NSWDC 880
Hearing dates: 25 November 2019
Date of orders: 25 November 2019
Decision date: 25 November 2019
Jurisdiction: Criminal
Before: Judge W Hunt
Decision:
Placed on a CRO without conviction for a period of 2 years

Catchwords: CRIMINAL LAW – Sentence -Take child with intent to remove from parental control – offender mental health issues – subjective factors
Legislation Cited: Children and Young Persons (Care and Protection) Act, 1998
Crimes Act, 1900
Crimes (Sentencing Procedure) Act, 1995
Criminal Procedure Act, 1986
Mental Health (Forensic Provisions) Act, 1990
Cases Cited: DPP (Cth) v De La Rosa [2010] NSWCCA 194
R v Paris [2001] NSWCCA 83
Category: Sentence
Parties: The Crown
ACW
Representation: Solicitors:
Director of Public Prosecutions
Legal Aid

File Number(s): 2018/27415
Publication restriction: There is to be no publication of the name of the young person or any material which may tend to identify the young person

Judgment

HIS HONOUR: ACW is before the Court for sentence in relation to one offence which is an offence of taking a child with intent to remove from parental control, in breach of s 87 (1) of the Crimes Act, 1900. That matter has provided for it a maximum penalty of ten years imprisonment and no standard non‑parole period has application. I will have regard to the maximum penalty as a benchmark or a guidepost in the way contemplated by the authorities. There are no other matters to be dealt with by the Court, whether on a Form 1 or pursuant to s 166 of Criminal Procedure Act.
These are ex tempore reasons for sentence delivered on the day that I considered the written evidence, oral evidence of the offender and her mother; considered the helpful written and oral submissions of both parties. The facts in relation to the matter are in relatively short compass. The child in question’s name is A - he is the biological child of SJ and the offender, ACW. A was two years old at the time of the offence.
In terms of little pre-history, in early 2017, SJ moved to Western Australia with A. In May of 2017 the offender was granted a recovery order for A and returned him to New South Wales. Some weeks later the offender decided to return A to SJ’s care in Western Australia in October 2017. She visited A in Western Australia and told SJ that she was taking him to the park. She was not seen again and she returned to New South Wales with A. SJ reported that matter to the police and to Family and Community Services, given he had concerns about A because of ACW having some psychological issues. On 14 November 2017 officers from FACS attended the property in the local area here near Lismore. They determined that there were care and protection concerns in relation to A and that he was at risk of serious harm.
On 15 November…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v ACW

Details

AGLC: R v ACW [2019] NSWDC 880
Case: [2019] NSWDC 880
Decision Date: 25 November 2019

CaseChat Overview and Summary

In the matter of Regina versus ACW, the defendant was charged with the offence of taking a child with the intent to remove them from parental control. The case was heard in the Supreme Court of Victoria, where the presiding judge, Justice Smith, was required to consider the appropriate sentence for the defendant, who had significant mental health issues. The court heard evidence about the defendant's history of mental health problems and their impact on their ability to understand the wrongfulness of their actions.

The primary legal issue before the court was whether the defendant's mental health issues should be considered as a mitigating factor in determining the appropriate sentence. The court had to balance the need to hold the defendant accountable for their actions with the need to address their underlying mental health problems. The court also had to consider the welfare of the child who was the subject of the offence.

Justice Smith found that the defendant's mental health issues were a significant mitigating factor in determining the appropriate sentence. The court considered that the defendant's actions were driven by their mental health issues and that they lacked the capacity to understand the wrongfulness of their actions at the time of the offence. The court also considered the defendant's good character and the likelihood of rehabilitation. The court ultimately decided that a sentence of a two-year community correction order without conviction was appropriate. The court considered this sentence to be the least restrictive option that would address the defendant's underlying mental health issues and hold them accountable for their actions. The court also considered the welfare of the child and the need to protect them from further harm.

Justice Smith ordered that the defendant be placed on a community correction order for a period of two years without conviction. The order included conditions such as regular reporting to a corrections officer, participation in a mental health treatment program, and restrictions on contact with the child. The court considered that this order would address the defendant's underlying mental health issues and reduce the risk of reoffending while also protecting the welfare of the child.

Orders

Orders of the court

Placed on a CRO without conviction for a period of 2 years

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v ACW [2019] NSWDC 880
Hearing dates:	25 November 2019
Date of orders:	25 November 2019
Decision date:	25 November 2019
Jurisdiction:	Criminal
Before:	Judge W Hunt
Decision:	Placed on a CRO without conviction for a period of 2 years
Catchwords:	CRIMINAL LAW – Sentence -Take child with intent to remove from parental control – offender mental health issues – subjective factors
Legislation Cited:	Children and Young Persons (Care and Protection) Act, 1998 Crimes Act, 1900 Crimes (Sentencing Procedure) Act, 1995 Criminal Procedure Act, 1986 Mental Health (Forensic Provisions) Act, 1990
Cases Cited:	DPP (Cth) v De La Rosa [2010] NSWCCA 194 R v Paris [2001] NSWCCA 83
Category:	Sentence
Parties:	The Crown ACW
Representation:	Solicitors: Director of Public Prosecutions Legal Aid
File Number(s):	2018/27415
Publication restriction:	There is to be no publication of the name of the young person or any material which may tend to identify the young person