R v Rush

District Court of NSW|2022-04-11|Before: Ms J

Introduction

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).
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

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.

Objective seriousness

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].
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.
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.
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.
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.
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

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

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.
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.
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.
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.
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

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

Contrition/remorse

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

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

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.
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: 1. 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. 2. 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. 3. You are to perform 150 hours of community service work. 4. You are to report by telephone to the Lake Macquarie Community Corrections office within 7 days.

Amendments 11 April 2022 - Community Corrections location amended DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 April 2022

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