New South Wales Court of Criminal Appeal CITATION: W N B v Regina [2006] NSWCCA 269 HEARING DATE(S): 24/08/06 JUDGMENT DATE: 5 September 2006 JUDGMENT OF: Basten JA; Whealy J; Howie J EX TEMPORE JUDGMENT DATE: 08/24/2006 DECISION: The following orders were made on 24 August 2006. (1) Leave granted to appeal against sentence imposed; (2) Appeal allowed and sentence imposed by Coolahan DCJ quashed ; (3) In place thereof (a) Applicant sentenced to a non-parole period of six months to commence on 27 October 2005 and to expire on 26 April 2006; and (b) the balance of the term be for six months to expire on 26 October 2006. (4) Applicant deemed to have been released to parole on 26 April 2006. LEGISLATION CITED: Crimes Act 1900 PARTIES: W N B v Regina FILE NUMBER(S): CCA 2006/1766 COUNSEL: Ms G. Bashir - Applicant Ms J. Dwyer - Crown/Respondent SOLICITORS: S. Etherington - Applicant S. Kavanagh - Public Prosecutions LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 06/31/0043 LOWER COURT JUDICIAL OFFICER: Coolahan DCJ LOWER COURT DATE OF DECISION: 12/04/06 IN THE COURT OF CRIMINAL APPEAL 2006/1766 BASTEN JA WHEALY J HOWIE J 5 SEPTEMBER 2006 W N B v REGINA REASONS FOR Judgment 1 THE COURT: On 24 August 2006 the Court heard and dealt with an application for leave to appeal against sentence brought by W N B ("the applicant"). The Court gave leave to appeal, allowed the appeal and quashed the sentence imposed by the sentencing Judge. In place of those orders, the Court sentenced the applicant to a non-parole period of six months to commence on 27 October 2005 and to expire on 26 April 2006. The Court ordered that the balance of the term be for six months to expire on 26 October 2006. The applicant was deemed to have been released to parole on 26 April 2006. 2 These are the reasons for the decision of the Court. The applicant is identified by initials because of the need to prevent disclosure of the identity of the child the subject of the offence. 3 On 3 January 2004 parental responsibility for a young child BC had been given to the Minister for Community Services by the Children's Court at Wyong. The applicant was the natural father of the child. So far as can be gleaned from the facts which were placed before the sentencing Court and before us, the placement into care had nothing to do with the behaviour of the applicant, although he was in custody at the time the placement order was made. The Minister subsequently placed the child into the care of foster carers. 4 While these arrangements were in place, members of the family of the applicant made arrangements through the Department of Community Services to access the child. The access date arranged was 12 June 2005. On the morning of that day, the child and her carer were met by a large number of the applicant's family at a public park adjacent to the Morisset Railway Station. Shortly after the gathering commenced, the applicant came over to the group and commenced playing with his daughter. After a brief time, the applicant picked up the child and ran across the park into the business area of Morisset. He disappeared down an alley way and presumably drove or was driven away from the town centre. The matter was reported to local police. It appears the applicant spoke to police officers by telephone and made tentative arrangements to return the child to his own father and thence to the foster carers. This however did not happen. 5 It appears the applicant took the child to Queensland. There he met and lived for a time with the mother of the child and their other children. No harm came to the child during this time and, indeed, the family relationship appears to have been quite normal while the family were in Queensland. 6 The applicant and his family did not live under assumed names. Queensland police officers caught up with the applicant and he was arrested in a toy shop in the Brisbane suburb of Petrie. The child and the natural mother were also taken into custody. The applicant was then extradited to New South Wales and charged at Tweed Heads Police Station. The child was recovered by police at the time of the arrest and returned into the care of the Minister for Community Services. 7 The applicant pleaded guilty on 8 February 2006 at Newcastle Local Court to one count of taking a child from the lawful control of the Minister of the Department of Community Services on 12 June 2005, with the intention of keeping the child from the Minister, contrary to s 87(1) of the Crimes Act 1900. The maximum penalty for this offence is ten years imprisonment. 8 The applicant appeared before the sentencing Judge on 31 March 2006 for sentence. Submissions were made and the matter was adjourned to 12 April 2006. On that date, the sentencing Judge convicted the applicant and sentenced him to a non-parole period of nine months to commence on 27 October 2005 and to expire on 27 July 2006. The balance of the term was fixed at a further nine months to expire on 26 April 2007. 9 The applicant served seven months and four days of the non-parole period. On 31 May 2006, however, he was granted bail in the Supreme Court on the basis, it seems, that his application for leave to appeal against sentence would not be heard prior to the expiry of the non-parole period. 10 Ms Bashir of counsel appeared for the applicant at the hearing of the application for leave to appeal. The one ground of appeal was in the following terms: - "The sentence imposed reveals patent error or alternatively is manifestly excessive in the circumstances of this case". 11 Ms Bashir argued that the sentencing Judge had made a finding of a matter in aggravation of the offence, which was not warranted. At page 4 of the remarks on sentence, his Honour had said: - "When he appeared before me for sentence on 31 March this year the offender gave evidence. He said that at the time of the making of the order relating to the care of the child he was in custody but he was made aware of the existence of the order. After his release from custody, he eventually moved to Queensland and obtained work. He became aware of the arrangements for the access visit and he freely admitted in evidence that he travelled to New South Wales with the intention of taking the child ". (Underlining added). 12 Later, in the remarks on sentence, his Honour noted that, in the course of the submissions made by Mr Kiely on behalf of the applicant, the legal representative had accepted that "some degree of planning must have been involved". 13 As to the finding by the sentencing Judge regarding the evidence given by the applicant, it appears from an examination of the transcript that Ms Bashir's submission is correct. There does not appear to have been any admission either sought of, or made by, the applicant of the kind referred to by his Honour. Moreover, the "concession" ascribed to Mr Kiely appears at no higher level than as suggested in the following passage (page 9 of ROS): - "Your Honour, my friend can address in relation to – there is obviously some degree in planning in that – but it is not – I think there has to be, your Honour, in the course of this kind of matter". 14 Ms Bashir argued that, in the light of the unwarranted finding by his Honour, the Court should intervene and re-sentence the applicant. 15 During the course of argument in this Court, the presiding Judge drew both counsels' attention to a more serious problem in the sentencing process. As might be expected, the sentencing Judge had taken into account the fact that the child had been kept in Queensland for a period of about four months. While the child had come to no harm during this period, and had indeed apparently been well cared for, his Honour appears to have taken the view that these circumstances were matters relevant to the sentencing process. 16 Indeed, the Crown, during the hearing of the present appeal, had argued that the length of time the child was kept in Queensland was a matter which added to the level of culpability and objective seriousness involved in the offence. 17 It is apparent, however, that the offence charged against the applicant had been drawn with some care and circumspection. The court attendance notice specifically limited the "taking" of the child to a period between "11.05am and 11.15am on 12 June 2005 at Morisset". The offence charged was accordingly limited to the taking in the park and did not extend to the circumstances that later eventuated when the child was taken to Queensland. Although it is not entirely clear, it is possible that his Honour regarded the latter circumstances as an aggravating feature. At the very least, it may be said that the remarks on sentence do not make it clear whether the facts, which were taken into account in this regard, were or were not circumstances of aggravation. 18 This Court's view was that these matters raised material which required the Court to intervene and quash the sentence. In those circumstances, it became necessary for this Court to re-sentence the offender. 19 The applicant, as has been noted, had been at liberty on bail since 31 May 2006. He had adhered to his conditions of bail and had not come under notice in the intervening period. 20 So far as these matters are relevant the applicant was given leave to rely upon his own affidavit sworn 4 August 2006. In that document he reveals that his de facto partner has given birth to a child on 24 June 2006. The applicant visits them every day and tries to help with the domestic arrangements regarding the infant. The applicant's father has legal custody of the other daughters (with the exception of the child who was taken at Morisset: she is still being cared for by foster parents). The applicant takes a significant role in looking after the elder daughters in relation to their schooling and education. The applicant said at para 4: - "4. I understand that I have been punished because I disobeyed the orders of the Family Court. I will not disobey those orders again and I will not try to see or talk to BC again until I get permission from the Court. 5. Once my appeal has been resolved and I have got the rest of the family back together, I want to apply to the Family Court to have BC come and live with us again." 21 Other matters favourable to the applicant were dealt with by the sentencing Judge in his remarks on sentence. These included the fact that, although the applicant had a significant criminal history revolving around the abuse of drugs and alcohol, he had taken considerable steps to gain control of his life in this regard. The applicant had taken advantage of his time in custody to complete a number of courses of a beneficial nature within the prison system. The sentencing Judge accepted that the child had not suffered any harm as a result of the offence and that the offence had been committed out of love for the child rather than for any other reason. 22 The sentencing Judge was correct in concluding that a custodial sentence was called for in this matter. However, in the light of the limited nature of the offence charged against the applicant, an overall sentence of 12 months would be sufficient to reflect aspects of both general and personal deterrence. It is necessary to mark out by way of a custodial sentence the need to protect the integrity of the system of child care and the authority of the Minister of Community Services to exercise the control conferred by the order of the Local Court. If a parent seeks to recover control, appropriate steps must be taken to have the Court order revoked or vacated. Furthermore, abuse of access arrangements, often permitted in the interests of the child, must be firmly discouraged. 23 In other respects, the sentencing Judge correctly held that special circumstances existed in the present matter and that it would be in the interests of the applicant and the wider community if he were to have the assistance of probation and parole for a longer period than normal to help him deal with issues surrounding access to the children and to reinforce the inappropriateness of his actions in committing the subject offence. 24 For those reasons, the Court imposed a non-parole period of six months and directed that the applicant be deemed to have been released to parole on 26 April 2006. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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