R v CG

[2019] NSWDC 291

District Court

New South Wales

Medium Neutral Citation:

R v CG [2019] NSWDC 291

Hearing dates:

14 May 2019

Decision date:

14 May 2019

Jurisdiction:

Criminal

Before:

Payne DCJ

Decision:

Aggregate sentence of four years 6 months with an aggregate non-parole period of two years three months

Catchwords:

SENTENCING – particular offences – driving offences – police pursuit

 

SENTENCING – particular offences – take and detain child with intent to keep child from the lawful control of a person with parental responsibility without consent

  SENTENCING – aggravating factors – abuse of position of trust – breach of conditional liberty – without regard for public safety

Legislation Cited:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985
Road Transport Act 2013

Category:

Sentence

Parties:

Regina (Crown)
CG (offender)

Representation:

Counsel:
Mr B Queenan (Crown)
Mr H White (offender)

  Solicitors:
Office of the Director of Public Prosecutions (Crown)
Barraclough Jones & Associates (offender)

File Number(s):

2018/168248

Judgment

1. In relation to this matter, CG comes before the Court in respect of three offences. The first offence is one of police pursuit not stop and drive dangerously, first offence. This offence is contrary to s 51B(1) Crimes Act 1900. The maximum penalty is imprisonment for three years. There is an automatic disqualification period of three years, with a mandatory minimum of 12 months.

2. Sequence 2 is in identical terms.

3. Sequence 8, take and detain a child with intent to keep child from the lawful control of a person with parental responsibility, without consent. This offence is contrary to s 87(1) of the Crimes Act. The maximum penalty is imprisonment for 10 years.

4. There are also four related offences. Sequence 4, possess prohibited drug, methylamphetamine, s 10(1) Drug Misuse and Trafficking Act 1985. Maximum penalty two years and/or a fine of up to 20 penalty units.

5. Sequence 5, drive whilst disqualified, s 54(1)(a) of the Road Transport Act 2013. Maximum penalty six months imprisonment and/or a fine of up to 30 penalty units. There is an automatic licence disqualification of six months, minimum disqualification three months.

6. Sequence 6, receive stolen property outside New South Wales (registration plates), s 189A(1) of the Crimes Act. Maximum penalty two years imprisonment and/or a fine of up to 20 penalty units.

7. Sequence 7 is in identical terms.

8. I convict him of each of the offences.

9. He was committed for sentence on 8 January 2019 from the Forster Local Court. He has been in custody since 29 May 2018 and the sentence will commence from that date.

10. There are no standard non-parole periods prescribed.

11. The factual circumstances of the offence are found in an agreed facts document as follows:

“1. The seven year old victim is the nephew of the offender. He has Autistic Spectrum Disorder. He has been assessed as low functioning, meaning he requires assistance with eating and toileting. He is non-verbal and unable to communicate effectively, but has some understanding of what is said to him. He also has an intellectual disability, made more complex due to the autism. He attends a special school.

2. In 2018, the victim lived with his mother and older sister in Queensland. The offender had resided with the family from time to time. Five weeks before the offences, the victim’s mother was admitted to hospital. She remained in hospital for a week. During this time, her mother and the offender stayed at her home and cared for the children. The offender remained for a while after she was discharged. There was tension between the offender and the victim’s mother about the level of involvement the offender was to have in the day to day life of the victim. About one week before the offending, the offender collected the victim and his sister early from school without notifying the victim’s mother. Once she located them, she asked the offender to not pick up the children any more.

3. At the time of the offences, the offender was not residing with the family.

4. On Monday 28 May 2018, the victim’s mother needed to take her daughter to the doctor. The victim had been irritable that morning and she had decided not to send him to school. From about 8:30am, the offender watched the victim at a park, and agreed to be available on his mobile phone during that time to allow the victim’s mother to take her daughter to the appointment.

5. At 9:17am and 10:26am, the victim’s mother phoned the offender, but his mobile was switched off. At 10:26am, she sent him a text, ‘Call me’. She again called the offender without success at 10:29am.

6. At about 11:00am, she again phoned the offender, who answered. An argument developed as to where the offender was. She said, ‘Where are you?’ He replied, ‘You know where we are.’ She said, ‘No I don’t. I have [the daughter’s] appointment and I want to know where [the victim] is.’ The offender yelled at her in an aggressive manner. She tried to talk to him, but he hung up. She left home to take her daughter to her medical appointment. In the waiting room, she began receiving calls from the offender. She answered a call and the offender said, ‘Where are you?’ She said, ‘I am at [the daughter’s] appointment. Where are you? Where can I meet you?’ The offender was not satisfied with any location she suggested and the call ended. There were a further two unanswered calls from the victim’s mother to the offender at 11:53am and 11:54am. At 11:55am, she sent the offender a text: ‘Can you please tell me where you are?’ There were further unanswered calls from her to the offender. During that time, the offender was using his mobile phone to send messages to other people, one of which read, ‘[The victim’s mother] left [the victim] with me but didn’t let me have anything for him [he’s] in tracksuit pants that it. She’s cruising around with [her daughter].’ At the same time, she sent the offender a text: ‘Answer your phone please I need to know where to meet you.’

7. There were a number of other unanswered calls from her to the offender.

8. At 12:14pm, she sent the offender a message: ‘Please meet me at home asap.’ Between this time and 1:51pm, she phoned the offender 15 times without an answer. At 1:55pm, she sent him a message: ‘I love my son please please tell me where he is.’ She made further unanswered calls to him. At 3:33pm, she sent the offender a text: ‘For the love of God please give my son back we are so distraught give me my son back.’ At 3:51pm, the offender sent her a text message: ‘Wat the fuck!’

9. At 4:47pm, she sent the offender a text message: ‘Please tell me where you are.’ Between 4:57pm and 5:18pm, she called the offender six times but he did not answer.

10. At 5:20pm, the offender phoned the victim’s mother who said, ‘I had a phone call from police saying I kidnapped [the victim]. Now I am at the Hinterland Hotel with police waiting to arrest me.’ He ended the call.

11. Thinking the return of [the victim] was imminent, the victim’s mother waited at home. After some time passed, she telephoned the Queensland Police and was advised there was no record of the offender being arrested. At 6:18pm and 6:53pm, she called the offender but he did not answer. At 6:57pm, she sent him a text message: ‘This is my son!!! Please tell me where he is.’

12. At 7:00pm, she reported the matter to police who commenced an investigation.

13. At 7:06pm, the offender sent a text message: ‘I have not (sic) [the victim] u told me to spend time together then I get call from cops saying u reports I taken him … we are always safe and fine that’s why you let me I don’t understand why you went to cops now I have to take him into qld to drop back that’s nuts …’

14. There continued to be unanswered calls made by the victim’s mother to the offender all night.

15. At 5:15am on 29 May 2018, Senior Constable Casey was on duty in his fully marked police car. He was in police uniform. He heard a broadcast on police radio in relation to the offender’s car. He saw that car at the Puma Service Station car park near Kempsey on the mid-north coast of New South Wales. He approached the car and saw the offender in the driver’s seat and the victim lying in the back seat. The offender started the engine and drove towards the exit.

16. Senior Constable Casey activated the blue and red lights on his car. The offender stopped his car and Senior Constable Casey got out of his car and approached the offender, saying, ‘C, it’s the police. Turn the car off.’ The offender replied, ‘Who’s C?’ and drove out of the service station and onto the Pacific Highway.

17. Senior Constable Casey got back into his police car and was granted permission to commence a police pursuit. He drove onto the Pacific Highway to follow the offender. The pursuit was terminated a few minutes later.

18. At about 6:45am, Senior Constable Weekes was in her fully marked police car with her partner when they saw the offender’s car just south of Taree. A pursuit was approved. The police car lights and siren were activated and the offender accelerated to 160 kilometres per hour for a short distance before he pulled over his car. Senior Constable Weekes got out of the car and walked towards the offender’s car. She opened the car door and moved to remove the car keys from the ignition. The offender then harshly accelerated and drove back on to the Pacific Highway, driving at speeds of 130 kilometres per hour in the 100 kilometres per hour zone.

19. Just north of Nabiac, police deployed road spikes but the offender evaded them.

20. Once reaching Nabiac, the offender performed a u-turn to hear north. Not long later, he performed another u-turn to head south again. As he did this, a B-double truck had to sharply change lanes to avoid collision with the offender.

21. The offender then stopped his car and Senior Constable Weekes ran to the car with her firearm drawn. The offender again accelerated away in his car, reaching speeds of up to 160 kilometres per hour in the 100 kilometres per hour zone.

22. The offender then took to back roads for some time, with police intermittently sighting his car, which occasionally travelled well above the prescribed speed, but not being able to stop it. The pursuit was terminated at 7:13am.

23. At 8:30am, Detective Wilson saw the offender’s car stopped on the side of Krimbriki Road near the Manning River. Detective Wilson approached the driver’s side window. The offender was on his mobile telephone. Wilson said, ‘Stop. Police. Don’t move. You’re under arrest for a pursuit with police. Everything is okay now, you’re safe, the child is safe. Nobody can get hurt. It’s over.’ The offender replied, ‘I’ll do whatever you want. I’m not going anywhere anymore.’ He arrested the offender. The victim was lying down in the back of the car, wrapped in a quilt. Detective Wilson saw that his eyes were wide, his face red and he was crying and trying to hide his face from view.

24. Police searched the offender’s pockets and located a small resealable plastic bag which contained 0.1 grams methylamphetamine. It was also determined the car’s registration plates had been stolen from another car earlier that month. A second set of stolen registration plates were found in the boot.

25. At the time of the offending, the offender’s licence was disqualified.”

12. Mr White’s submission was each of the offences were below the middle range. In my view, they are below the middle range but only just. Particularly in relation to the police pursuit offences, Mr White commented that these offences were at night, the speed was within a 100 kilometre zone and, on one occasion, it was 160 kilometres an hour and, on another occasion, 130, although, as the facts disclose, when he changed direction a B-double truck had to sharply change lanes to avoid collision with the prisoner.

13. The Crown, on the other hand, in the written submissions, brings to attention the following:

“[The victim] is seven years old. He suffers from autism, has an intellectual disability and is unable to communicate effectively.

The offender abducted [the victim] from his mother and took him from Queensland to Krimbriki Road, approximately 27 kilometres west of Taree. He took him for a period of 24 hours, during which his mother made repeated efforts to communicate with the offender, begging him to return the child.

Further, the offender was involved in a police pursuit on two separate occasions, once at approximately 5:15am and the second time at approximately 6:45am. In relation to the first, the police officer saw the child lying in the rear seat of the vehicle. As such, he could not have been safely restrained.

In relation to the second, the offender travelled at up to 160 kilometres per hour prior to the pulling over, and then up to 130 kilometres per hour when accelerating from police. He avoided road spikes and performed a highly dangerous U-turn in circumstances where a B-double truck had to take evasive action.”

I have already made reference to that.

“The offender stopped again, before accelerating away at up to 160 kilometres per hour”,

and I have also made reference to the speed.

14. The Crown also correctly, in my view, in relation to sequences 1 and 2, there is the new provision found in s 21A(2)(p) Crimes (Sentencing Procedure) Act 1999:

“without limiting paragraph (ea), the offence was a prescribed traffic offence and was committed while a child under 16 years of age was a passenger in the offender’s vehicle”,

and both sides of the bar table accepted that that was present.

15. The offence was committed without regard for public safety. In my view, this should not be elevated to a feature of aggravation in relation to police pursuit offences because they have an element of being committed without regard to public safety.

16. It was accepted he was on conditional liberty at the time and was subject to bail in relation to matters that were subsequently dismissed but he was on bail.

17. It was accepted that he abused a position of trust.

18. In relation to vulnerability, in my view the under age is 16. Here, the victim was seven. That matter, plus the fact that he suffers a form of autism and has an intellectual disability and is unable to communicate effectively, makes the offending somewhat more serious, but I do not elevate this to a feature of aggravation pursuant to s 21A(2)(l) Crimes (Sentencing Procedure) Act.

19. The mitigating features, I accept that it was not planned, it was opportunistic. Defence say the offending was spontaneous and spur of the moment.

20. In addition, I accept he has some prospects for rehabilitation and, in my view, these are reasonable prospects for rehabilitation and also he is entitled to not only a 25 percent reduction for the pleas of guilty but the mitigating feature of remorse found in s 21A(3)(i) Crimes (Sentencing Procedure) Act:

“the remorse shown by the offender for the offence, but only if:

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).”

In my view, remorse is made out in this case.

21. He gave sworn evidence and I accept what he said concerning that.

22. In relation to the offence of taking a child, defence pointed out that it was originally lawful, what he was doing, and then it became unlawful. Having taken into account all of those features, going to objective seriousness, I am still of the view that each of the offences falls just below the middle range.

23. The prisoner is now aged 32. His background is noted in the psychological report. His traffic record in Queensland is extremely poor and he has also a criminal record in Queensland. On the last occasion, which it seems doing one’s best to read the Queensland record, although it was agreed by his counsel, he had been released on 3 September 2017. It was determined that his parole would have finished on 1 May 2018, just prior to the present offending. He is not previously known in New South Wales.

24. Both of his records, the criminal record in relation to sequence 8 and the traffic record in relation to sequences 1 and 2, in my view he is not entitled to leniency from those records. It could not be said he was a person of prior good character.

25. In his sworn evidence he said that he would live, upon his release, with his mother on the Gold Coast. He said he was taking the child to Maitland where his mother’s sister resided and had in his mind that his sister was not attending to the child appropriately. This may be some explanation for what he did, but in my view, it does not mitigate the offending. The mother, of course, did not know this. All she knew was that the child was missing. And, in any event, he should not have turned or changed what was a legality into an illegality.

26. What happened was that he was detaining the child contrary to the will of the mother. He said that he panicked because he was on bail.

27. I do accept, though, that because of the fact that he had not been taking his anxiety medication, Lexapro, and his general history, his psychological state enables some moderation, although I repeat some moderation, some limited moderation of his moral culpability.

28. The child was absent from in the order of 5pm on one day to 7am on the next day.

29. In addition to his mental health concerns, there had been a relationship he had been in and this was recently terminated.

30. He has nearly always been on protection and I accept that because of his sexuality, his conditions of custody have been more onerous. He has also, I accept, been subject to different forms of assault. He also has health concerns. He has a particular health concern and although that is in remission at the moment, still and all he does have it. He still has to take medication for it. He also takes medication for his anxiety.

31. He, on his own behalf, said this was out of character and I accept that.

32. From the report, he has a good work history.

33. I have already referred to what Mr White described as his long term mental health problems and it is of significance that these conditions existed and he was getting assistance for the conditions prior to the present offending.

34. Mr White also argues that there should be some moderation of general deterrence. I accept this submission but again, this is only some limited moderation and general deterrence still must be a feature of this sentencing exercise. Totality is a significant matter. This was an episode of criminality arising from a continuing set of circumstances.

35. Mr White said there was a very strong subjective case. In my view, he somewhat overstated it but there was a significant subjective case brought forward.

36. As the Crown though says correctly, this must have been a very frightening experience for the mother and, as is stated in the agreed facts, when the police eventually found the child the facts at para 23 say,

“The victim was lying down in the back of the car, wrapped in a quilt. Detective Wilson saw that his eyes were wide, his red face and he was crying and trying to hide his face from view.”

That was when they found the methylamphetamine.

37. In my view, there are special circumstances in this case and the aggregate sentence I intend to impose will give a significant allowance in terms of the non-parole period for the special circumstances in the case. The special circumstances are this is the first time he will be in custody for this amount of time, his conditions of custody, the requirement for him to receive treatment upon release and his rehabilitation can be advanced in the community rather than in custody.

38. As the Crown says though, the subjective features must not outweigh the objective seriousness of the offending. I accept the Crown’s submission that for a parent there can be little more terrifying than not knowing the whereabouts of their child. There must be an element of denunciation in respect of this behaviour.

37. The Crown said correctly it is imperative that the prisoner’s subjective considerations do not cause inadequate weight to be given to the objective circumstances of a case.

38. The Court, in every case, must bear in mind the maximum penalties prescribed and the particular facts and circumstances, both objective and subjective, of the case and the requirement for general deterrence. I have already stated my view in relation to general deterrence in this case.

39. The principle of totality must be given consideration to and, in relation to that principle, the mater of concurrence and accumulation.

40. The effective non-parole period imposed in this case is the one which, in my view, appropriately reflects the objective seriousness of the offending, the requirement for general deterrence as I have stated it and the subjective matters.

Orders

43. An aggregate sentence will be imposed in this case. I have given consideration to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act. I state the following indicative sentences for each offence.

Sequence 1, two years, reduced by 25 percent, 18 months.

Sequence 2, two years, reduced by 25 percent, 18 months.

Sequence 4 on the s 166 certificate, four months, reduced by 25 percent, three months.

Sequence 5 on the s 166 certificate, four months, reduced by 25 percent to three months.

Sequence 7 on the s 166 certificate, four months, reduced by 25 percent to three months.

Sequence 8, five years, reduced by 25 percent, three years and nine months.

44. The aggregate sentence is four years, six months, commencing on 29 May 2018 and expiring on 28 November 2022. The aggregate non-parole period is two years and three months, commencing on 28 May 2018 and expiring on 28 August 2020.

45. You will be eligible for consideration for release to parole on 28 August 2020.

46. The allowance for special circumstances is 13.5 months. The special circumstances are those noted in my Remarks on Sentence.

47. In relation to the two offences of police pursuit, sequences 1 and 2, disqualified for a period of two years on each.

48. In relation to the offence of drive whilst disqualified on the s 166 certificate, sequence 5, disqualified for a period of six months.

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Decision last updated: 03 July 2019