Citation: R v Irwin, Dean [No.1] [2009] NSWDC 400
Court: District Court of New South Wales
Date: 18 September 2009
Judge(s): Nicholson SC DCJ
Background
The accused, a young man, appeared for sentencing on two charges of aggravated break, enter and steal, to which he had pleaded guilty before a magistrate. He had spent approximately 250 days in custody, though not all of that time related directly to the two offences before the court.
The sentencing judge had previously adjourned proceedings and granted bail under section 11 of the Crimes (Sentencing Procedure) Act 1999 (a provision allowing a court to defer sentencing to assess an offender's rehabilitation). The bail conditions required the accused to complete full-time residential rehabilitation and engage in community participation, including organised sport.
At the original sentencing appearance, the judge described the offending as serious, noting that the accused had been committing offences at an alarming rate and had a significant alcohol problem linked, at least in part, to unresolved personal circumstances involving his absent father.
Legal Issues
- Whether the accused's rehabilitation progress during the section 11 bail period was sufficient to justify departing from what would otherwise have been a custodial sentence of at least two years per offence.
- Whether suspended sentences under section 12 of the Crimes (Sentencing Procedure) Act 1999 were appropriate in the circumstances, having regard to the seriousness of the offending and the community safety considerations.
Decision
The sentencing judge found that the accused had made substantial progress during the section 11 bail period. Despite a short disciplinary setback during residential rehabilitation, the accused had persistently sought re-entry into the program and had resumed attendance after three days. The judge treated this episode as evidence of commitment rather than failure.
The judge placed particular weight on the accused's employment as a plumbing apprentice with a registered tradesperson, his continued participation in organised rugby, and his engagement with private counselling and Alcoholics Anonymous. The judge expressed considerably greater confidence in the accused's rehabilitation prospects than had existed at the time of the initial adjournment.
Noting the original offending was serious and would ordinarily have attracted sentences of at least two years per offence, the judge determined that a suspended sentence was now the appropriate disposition. The Crown, which had initially disputed this outcome, ultimately did not oppose it, in recognition of the progress made over the preceding twelve months.
Orders Made
- The accused was convicted of each offence.
- In respect of each offence, a sentence of two years imprisonment was imposed.
- Each sentence was suspended pursuant to section 12 of the Crimes (Sentencing Procedure) Act 1999, on condition that the accused enter into a good behaviour bond for two years from the date of sentence.
- Conditions of the bond included: continued attendance at Alcoholics Anonymous for at least twelve months; continuation of private counselling until clinically discharged; and supervision by the Probation and Parole Service to ensure compliance with those conditions.
Key Takeaways
- The District Court treated the successful completion of section 11 bail conditions, including residential rehabilitation and stable employment, as a significant factor capable of supporting a suspended sentence even for serious break and enter offences.
- A mid-program disciplinary setback did not disqualify the accused from receiving a suspended sentence, where the evidence showed the accused actively sought reinstatement and demonstrated genuine commitment to rehabilitation.
- Where the Crown's initial opposition to a suspended sentence was later withdrawn in light of demonstrated rehabilitation, the court treated that withdrawal as a reflection of the offender's substantial progress.
- Suspended sentences under section 12 of the Crimes (Sentencing Procedure) Act 1999 remain available for serious indictable offences where rehabilitation prospects are strong, though the sentencing court expressly acknowledged the primary duty to consider community safety.
- Conditions attached to the bond were tailored to the specific risks identified in the offender's profile, including alcohol dependency and the need for ongoing psychological support.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), sections 11 and 12
Cases cited:
No cases were cited in the judgment.