R v Rush

[2022] NSWDC 107

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Rush [2022] NSWDC 107

Hearing dates:

11 April 2022

Date of orders:

11 April 2022

Decision date:

11 April 2022

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

Orders at [29]

Catchwords:

SENTENCING – take and detain for advantage – domestic violence offence – victim is the child of the offender – victim in foster care – advantage was to prevent lawful return of child to foster parents – no threatened or actual use of violence – lower end of objective seriousness – strong subjective circumstances – non-custodial penalty

Legislation Cited:

Crimes Act 1900

Crimes (Domestic and Personal Violence) Act 2007

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

R v Newell [2004] NSWCCA 183

Category:

Sentence

Parties:

Regina
Tracy Rush

Representation:

Counsel:
Mr Roland Keller (Offender)

Solicitors:
Ms J Dawson (DPP)
Mr D Barron (Offender)

File Number(s):

2021/00068892

Publication restriction:

Nil

Ex Tempore Judgment

Introduction

1. Tracy Rush has pleaded guilty to one charge of take/detain a person with the intention of obtaining an advantage, to wit, access to a child, contrary to section 86(1)(b) of the Crimes Act 1900 (NSW).

2. The offence carries a maximum penalty of 14 years imprisonment. This is an important guidepost in the assessment of sentence. A sentencing judge should steer by the maximum penalty but not aim for it.

Plea of guilty

3. A plea of guilty was accepted by the Local Court Magistrate in committal proceedings for the offence. As such, Ms Rush is entitled to a discount for an early plea of 25% in accordance with section 25D(2)(a) of the Crimes (Sentencing Procedure) Act 1999.

The Facts

4. There is an extensive agreed facts document. In summary, the facts are these:

5. The offender is 37 years of age. The victim is her biological son. He is 13 years old and is in out of home care. Anglicare facilitated visits between the accused and the victim approximately once per month. On 18 October 2020, orders were made allocating all aspects of parental responsibility to the Minister for Family and Community Services.

6. The offender bought a NSW Trainlink ticket to Sydney under a false name and gave it to the victim. On 9 March 2021 while he was at school, the victim asked his teacher to go to the bathroom. He left the school grounds and went to Culcairn railway station. He boarded the train to Sydney. When his absence from class was noticed, the police were contacted and a search ensued.

7. The offender and an acquaintance collected the victim from Sydney Central railway station just before 8:00pm that evening. They drove to the acquaintance’s address in Windale. The offender was contacted by an Anglicare case worker who advised the child was missing. Ms Rush responded and told her that the child was with her.

8. On 10 March 2022, the offender made further contact with the case worker requesting that search efforts for the child be cancelled. Later that day, police attended the address. The offender…