R v Rush [2022] NSWDC 107

District Court New South Wales

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 1. 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.