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

1. 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.

2. 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.

3. 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.

4. On 15 November FACS met with the offender and A but she ran from them on two occasions. In due course police located the offender and A and took them to Nimbin Police Station where officers served her with removal paperwork and took custody of A. On 7 December 2017 an interim order was made under the Children and Young Persons (Care and Protection) Act giving parental responsibility for A to the Minister of Family and Community Services. That order was in force at that time until 6 February 2018. In due course the offender was granted supervised contact with A for an hour a week at the Lismore FACS office.

5. At 10.30 in the morning on 25 January 2018 the offender attended that office for purposes of contact with A. A and two caseworkers were in the family room, the offender entered, hugged A and they sat on the floor. She spoke to him but he was quiet and not engaging with her. She asked A if he wanted to leave, she repeated that a couple of times, she then asked if she could go outside but was told that she could not. The offender became more upset and began to cry. She was told that A was tired and she should not take it personally that he was not communicating well with her.

6. The offender then picked A up to give him a hug, she bent over and picked her keys up off the floor and with A still in her arms ran out the door, up the hallway to the exit door. She was chased by FACS staff, saying “Stop [ACW], this is not going to look good for you.” In due course she left the building and ran to her vehicle which was parked nearby and drove away.

7. Later that day police located the offender’s vehicle at a particular address, she and the child were not with the vehicle, a police dog tracked her to nearby scrub where the offender was found standing in a clearing with A. She began arguing with police, saying, “He’s mine, he’s my child”, and words to that effect. A police officer attempted to negotiate with the offender but she would not release A. Eventually a different police officer took hold of A and removed him from the situation.

8. The offender was arrested and conveyed to Lismore Police Station. A was returned to FACS’ care in good health. Effectively the offender relied on her right to silence when police sought to interview her.

9. The Crown concedes and I find that the objective seriousness of the offending in all the circumstances is towards the lower end of objective seriousness for an offence of this kind. There was no actual harm to the child. There might have been some stress on him at the time of his removal back into FACS’ care by the police officer, it was not any; as will sometimes be the case in some of the other reported cases, there was not any malign intention in relation to the child.

10. On all of the material before me it is clear that there was a causal connection between the offender’s delusional state at the relevant time and the offending. Having heard her evidence today and read the various psychiatric reports, I am persuaded that the offender would not have behaved in the way that she did but for her then florid psychotic state. It is clear that she was suffering from delusions, that she considered at the time that there were genuine concerns about A’s wellbeing in FACS’ care. At earlier times there had been concerns, once again consequent upon her mental illness, of the care that A was receiving in SJ’s family in Western Australia.

11. I also take into account the relatively short period that A was with the offender and although the reality was that parental responsibility had been transferred by way of interim order of the Children’s Court to the Minister for Family and Community Services, it is explicable in her disorganised and delusional state that the offender thought that her claim as the natural parent of A, entitled her to behave in the way that she did.

12. It is conceded by the prosecution that ACW has no criminal convictions. The material before the Court makes it clear that in relation to a different matter she was dealt with by a conditional discharge under s 32 of the Mental Health (Forensic Provisions) Act, the six-month conditional discharge period is at an end but all the evidence suggests that ACW continues to apply herself to a similar regime even though not at the Court’s instigation. There is a bundle of material that satisfies me of the balance of probabilities that ACW has applied herself assiduously to her recovery from her diagnosed conditions which effectively are depression with schizo-effective artefacts, or schizophrenia as the case may be. She is well-managed by medication. It is impressive to my mind that she managed to make good her recovery whilst bailed to her native State, Tasmania, and living between the residences of her father and her mother. Clearly, she has been able to make sufficient gains, that several beneficial changes have happened in her life from that stable place for her to commence her therapeutic work in Tasmania, she has been able to move to Western Australia against the backdrop of her ex‑partner, the father of A affording her increasing levels of contact with A because of her compliance with a drug-free regime and gains within her mental health. She has been able to acquire employment which has been momentarily suspended pending resolution of this matter, that is because her Working with Children’s Check has been not progressed until this case is resolved. She is working usefully as a support worker with autistic children. She is employed for the longest period of time that she has ever been in her life.

13. The reports from treating personnel both in Tasmania and in Western Australia paint a picture of somebody who has developed insight in relation to her illness and has become compliant with taking medication. Additionally, I am fortified in terms of the steps that ACW has taken towards her rehabilitation, that she has commenced working with a psychologist that is quite separate to the other matters that have been put into place initially as a result of the Court order.

14. The offender and her mother both gave sworn evidence before me and were tested on relevant areas by Mr Clark for the Crown. ACW impresses as somebody who has a great commitment to her child but also to her own wellbeing and she understands the links between those two issues. Although it took her a little while to articulate it, I am persuaded that she is remorseful and would not have behaved in that same way if presented with the same situation now, medicated and in better control of her illness. Her mother has been a force for good in her life. They had a difficult relationship which was largely borne out of the suspicion and distrust that ACW’s condition raises in her. She was suspicious of her mother’s motivations in trying to help her develop some insight awareness of the compliance with medication. Happily, all of that now seems to be in abeyance.

15. Mr Clark for the prosecution, to my mind took a very responsible attitude to the matter. He conceded because of the low objective seriousness of the offending itself, that the s 5 threshold had not been crossed in this particular instance of this type of offending. I have seen some cases obviously where other people who offended against this section in a much more profound way, have been subject to periods of imprisonment.

16. The question-mark that Mr Clark raised for the Court’s consideration was the issue of future dangerousness. It is accepted that all the other De La Rosa conditions are made out in this case; that is that there is a reduction in this offender’s moral culpability because of the link between her mental illness and the offending, and there is less weight to be given to both personal and general deterrents in the circumstances of the matter.

17. It is not posited by Mr Clark that ACW would intentionally present a danger to her child and to the community generally, his concern is whether there would be a relapse into either drug-taking or a failure of insight in relation to the need to take antipsychotic medication that may lead to further problems. He proposed, responsibly in my view, that the Court might consider remanding the matter with ACW bound over under a s 11 bond to test her resolve and recovery moving forward.

18. In a different case that would have been a welcome submission but here when I understand that one of the protective factors for ACW in her rehabilitation is her continued meaningful vocational employment, which is currently denied her until this Court case is resolved, I am persuaded that the oversight of the Court can operate in a different fashion.

19. Mr Clark also conceded that this case was on the borderline as to whether the Court could properly deal with the matter without proceeding to a conviction. On the papers itself I agree with that position. However, having heard ACW’s heartfelt and insightful evidence, which I find to be entirely truthful and similar evidence from her mother, I am persuaded that it is appropriate to deal with the matters without recording a conviction. That is not because the offence is trivial, but consequent upon what Simpson J said in Paris’s case, it is clear that triviality is not a requirement. Here, it is the extenuating circumstances in this case that persuade me that the matter should be dealt with without proceeding to conviction. It would be a great shame if somebody with the gifts of this offender were denied a Working with Children’s Check because of this particular matter, when it is put in its proper context.

20. Similarly I take the view, consonant really with Mr Clark’s expressed concerns, that because the offender realises that she has much to lose if there is a breach of the Community Release orrections order that I will place her on. I see the failure to record a conviction as another motivation for her to stay the course in terms of the rehabilitation and insight that she has gained.

21. I accept her mother’s evidence that that rehabilitation has happened, although consequent on Court orders, for a different reason. That is because ACW is committed to her health and to growing the time that she shares so productively with her son.

22. Without proceeding to a conviction I place the offender on a Community Release order. The length of the order will be for two years. The conditions of the order are that ACW is of good behaviour; second, that she not take prohibited drugs; thirdly, that she undertake urinanalysis once-monthly, not later than the tenth day of each month during the currency of the Community Release order and that when she has a result she forwards that to the Registrar of the District Court at Lismore by mail or email (Registrar to provide copies to Legal Aid New South Wales and the Office of the Director of Public Prosecutions.) Fourthly, she is to comply with treatment and take medication as recommended by the Osborne Community Mental Health Clinic.

23. They are the four conditions. I think you know what they are. Good behaviour means not breaching the law MCW. Not taking prohibited drugs, I am sure you understand that one. The mechanism I have set is that you, not later than the tenth day of any month - I do not want to be prescriptive because of weekdays - but sometime between the first of December 2019 and the tenth of December 2019 you will submit yourself to urine analysis and then send the certificate off to the Court, and do that in that same time period throughout the currency of the Community Release order.

24. I applaud you for the work you have done. It is hard when you have got a condition that is organic, that it takes some insight and some trust to understand that you need to accept treatment. I take the view that you are well out the other side. People in your position always remain vulnerable and that is why the issue in the case is about future dangerousness comes up, it is when you start to slip that sometimes those old issues about lack of trust come up. I do not know if it is any utility in your case but sometimes when things are going wrong it is hard to hear the people who most support you. I have a relative who has chosen to write out in his own handwriting how things go wrong when he slips into a manic phase of his bipolar condition, and reminds himself in his handwriting to trust the people that are telling him when the wheels are falling off. Because it is in his own handwriting he tends to accept it. So that might be an idea for you just as a failsafe so that your mum can fax you a copy of the letter and say, “A, I think you need to go back to the clinic.”

25. All right, good luck. You are going to have to sign the Community Release order then you are free to go.

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Amendments

30 April 2020 - Non publication restriction added

30 April 2020 - Correction to both cover page and judgment to reflect the offender was place d on CRO

05 May 2020 - paragraph [6] - replaced name with [ACW]

Decision last updated: 05 May 2020