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 and the child were located on a mattress on the floor in one of the bedrooms. Ms Rush was arrested and conveyed to Belmont Police Station.

Objective seriousness

9. In assessing the objective seriousness of a kidnapping offence, a number of factors are relevant including the period of the detention, the circumstances of the detention, the person being detained and the purposes of the detention: R v Newell [2004] NSWCCA 183 at [32].

10. This is an unusual set of facts. The conduct that constitutes the detention is the offender’s actions in refusing to tell Anglicare workers where the child was, and barricading herself and the child in the bedroom of the Windale house when the police arrived. The advantage the offender sought to obtain was to prevent the lawful return of her child to his foster carers. The detention was not for an extended period of time. The child left the school at approximately midday to board the train, and police collected him from the Windale address the following evening, a period just over 24 hours.

11. There was no threatened or actual use of violence. The child voluntarily got on the train to Sydney because he wanted to visit his mother. There was a level of planning involved in that the offender purchased the ticket using a false name and she made arrangements to collect the child from Central railway station.

12. It is submitted by Mr Keller, counsel for the offender, that there are no relevant aggravating factors on sentence. The lack of any aggravating factors does not mitigate the seriousness of the offence.

13. The child told the Anglicare case manager over the phone while he was with his mother that ‘everything was okay’ and that he was safe. He told the worker that prepared the incident report that although the child was upset about seeing his mother arrested, he was okay the following day. I accept that the harm inflicted on the child as a result of the offending is minimal. I am of the view that this offending falls to the lower end of the range of objective seriousness.

14. The present offence is a ‘domestic violence offence’ as defined by section 11 of the Crimes (Domestic and Personal Violence) Act 2007. With domestic violence offences, general deterrence and sending a message to members of the community who might be inclined to commit similar offences are relevant sentencing considerations. However, given the unusual set of circumstances of this offence that reduce the objective seriousness, general deterrence is to be given reduced weight in the sentencing exercise.

Criminal history

15. The offender has a criminal history which includes offences of violence and contraventions of apprehended violence orders, as well as some driving matters. She is not entitled to any leniency.

Subjective circumstances

16. Ms Rush has six children, none of whom are in her care. She maintains regular contact with her other children. An extract from an undated Family and Community Service care plan reveals that restoration of the child victim is not a realistic possibility.

17. I have before me a sentencing assessment report dated 1 February 2022. Ms Rush explained to the community correction officer who prepared the report that her mental health had deteriorated at the time of the offending, and that she had concerns over the child’s welfare. The extract of the Anglicare Incident Report discloses that the child did not feel cared for by his foster carers, that he did not get along with the other foster placements in the house, and that he wanted to be with his family.

18. The observations of the worker who prepared the report were curious; the child’s bedroom in his foster house was bare, had two single beds, and there was a strong smell of urine. Those observations were made when the child was returned.

19. A mental health care plan has been prepared by Dr Smita Umer, General Practitioner. It discloses that the offender has a diagnosis of depression, she cannot see her children and that she misses them. Dr Umer opines that Ms Rush has good insight into her issues and that she is willing to change.

20. I am satisfied on the balance of probabilities that the offender’s mental health condition had deteriorated at the time of the offending, and as a result, Ms Rush’s moral culpability is reduced. I accept the submission of Mr Keller that the offending behaviour was a misguided intervention by a mother concerned for her son’s wellbeing, coupled with a deterioration of her mental health at the time, rather than the result of any criminogenic or antisocial disposition of the offender.

Prospects of rehabilitation

21. Ms Rush has been assessed as having a medium to low risk of reoffending. Dr Umer noted that Ms Rush wants to work towards making her personal situation better for herself and also for her children.

22. Dr Vlado Svigir, psychologist, in his letter dated 7 April 2022, outlines that Ms Rush will be undergoing treatment in order to address her anxiety and depressive symptoms, including fortnightly attendance.

23. I am satisfied that Ms Rush has reasonable prospects of rehabilitation.

Contrition/remorse

24. The sentencing assessment report discloses that Ms Rush initially did not understand why she was in trouble for taking her own son. She later acknowledged that he was now in the care of the Minister, and how this incident would have affected the child. Before the offence, the offender and the victim were able to meet once per month and have contact over the telephone. As a result of the offence and the bail conditions imposed, no communication between them is permitted at all. Her bail conditions were onerous.

25. Ms Rush confesses that she knew her actions would get her into strife, but did not care.

26. I find that Ms Rush demonstrates remorse and recognition for how her actions have impacted others. She has some insight into her offending.

Pre-sentence custody

27. The offender was arrested and refused bail on 11 March 2021. She had spent 4 months and 25 days in custody solely referable to this offence before she was granted bail by the Supreme Court on 4 August 2021. This was her first time in custody. I take this into account when imposing the sentence.

Sentence

28. The Crown’s submission is that the threshold in section 5 of the Crimes (Sentencing Procedure) Act 1999 is crossed, but the sentence could be served by way of an intensive corrections order. Given the low range of objective seriousness for this offence, the strong subjective factors for the offender which I have considered, and the pre-sentence custody Ms Rush has already served, I am satisfied that there are penalties available other than custodial penalties.

29. Tracy Rush, you are convicted and sentenced to a Community Correction Order for a period of 18 months. But for the 25% discount for the early plea, the term would have been for 2 years. It is subject to the following standard conditions:

1. Must not commit any offences

2. Must appear before the court if called to do so during the term of the Community Correction Order.

It is also subject to the following additional conditions:

3. You are subject to the supervision of Community Corrections for the period of the Community Correction Order. The relevant office for the purpose of supervision is Lake Macquarie Community Corrections.

4. You are to undergo treatment/rehabilitation. Specifically, you are to continue in treatment with Dr Vlado Svigir or delegate for as long as they consider necessary.

5. You are to perform 150 hours of community service work.

6. You are to report by telephone to the Lake Macquarie Community Corrections office within 7 days.

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Amendments

11 April 2022 - Community Corrections location amended

Decision last updated: 11 April 2022