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District Court 14 April 2020

R v Irwin

[2020] NSWDC 199

Sexual offencesPublic order & justice offences
CRIME SENTENCE FAILING TO REPORT OBLIGATIONS

Citation: R v Irwin [2020] NSWDC 199
Court: District Court of New South Wales
Date: 14 April 2020
Judge(s): Colefax SC DCJ

Background

The offender had a prior conviction from 2014 for using a carriage service to access child pornography, for which he received a term of imprisonment. As a consequence of that offence, he was placed on the Child Protection Register and remained subject to registration obligations until February 2022.

In May 2019, while subject to those obligations, the offender was regularly staying overnight at an unoccupied residential property in Macquarie Fields. On 31 May 2019, he approached a seven-year-old girl who was rollerblading in the street, took her by the hand against her will, led her inside the property, and locked the door. He partially undressed her and removed his own clothing before neighbours, who had observed what was happening, intervened by banging on the door and demanding the child's release. The offender let the child go and was subsequently restrained by neighbours until police arrived.

In addition to the conduct on 31 May 2019, the offender had also failed to report his use of the unoccupied premises as an address to police, and had failed to inform police of his communications with the child on prior occasions. Both failures constituted breaches of his registration obligations under the Child Protection (Offenders Registration) Act 2000 (NSW).

  • What was the objective seriousness of each of the four offences for sentencing purposes?
  • What weight should be given to the offender's subjective circumstances, including his intellectual disability, childhood background, and prior criminal history?
  • What discount applied for guilty pleas entered at the first available opportunity?
  • Whether special circumstances existed to vary the ratio of the non-parole period to the head sentence in the aggregate term.
  • What aggregate sentence and non-parole period was appropriate across all four offences?

Decision

His Honour assessed the objective seriousness of each offence separately. The failure to report the unoccupied address (sequence 3) was rated slightly above mid-range. The failure to report communications with the child (sequence 4) was towards the lower end of the range. The take and detain offence (sequence 5) was assessed as above mid-range and into the upper range, particularly given the offender's own admission to police that penetration may have occurred had he not been interrupted. The touching offence (sequence 6) was assessed as a mid-range offence.

In considering the offender's subjective circumstances, Colefax SC DCJ noted a difficult childhood marked by his mother's absence and his father's absence, as well as the absence of any other concerning family environment. The offender had a low to average range of intelligence and had attended a special school. Importantly, the court found no evidence of meaningful treatment following the 2014 offence, and the psychiatrist's reports contained material the court described as disturbing, including the offender's own account of his attitudes toward children.

The offender received a 25% discount on each indicative sentence for entering guilty pleas at the first available opportunity. However, the court noted those pleas were entered against a strong Crown case. His Honour declined to find special circumstances to alter the standard non-parole period ratio, concluding the offender's rehabilitative needs could be adequately addressed within the non-parole period as fixed. General deterrence was somewhat reduced given the offender's intellectual disability, but specific deterrence and community protection were identified as fully engaged sentencing considerations.

Orders Made

  • Aggregate term of imprisonment of 10 years imposed across all four offences.
  • Non-parole period of 7 years and 6 months, commencing 31 May 2019 and expiring 30 November 2026.
  • Balance of term of 2 years and 6 months, commencing 1 December 2026 and expiring 30 May 2029.
  • The question of parole was left to the parole authority, with the court noting that failure to complete sex offender programs in custody would likely weigh against release on parole.

Key Takeaways

  • The District Court applied a 25% utilitarian discount for early guilty pleas even where those pleas were entered against a strong Crown case, consistent with established sentencing principles.
  • Objective seriousness is assessed offence by offence, even within an aggregate sentencing exercise, with the court required to state indicative sentences for each count underpinning the aggregate.
  • An offender's intellectual disability can reduce the weight given to general deterrence as a sentencing consideration, but specific deterrence and community protection remain fully operative.
  • Special circumstances to vary the non-parole period ratio were not established merely because the offender was serving his first term of full-time custody; the court found the standard ratio sufficiently addressed rehabilitation.
  • Under the Child Protection (Offenders Registration) Act 2000 (NSW), registration obligations extend to reporting both residential addresses used on more than 14 occasions and the identities and details of children with whom the registrant has contact, and breach of either obligation constitutes a separate criminal offence carrying a maximum of five years imprisonment.

Legislation and Cases Referenced

Legislation:
- Child Protection (Offenders Registration) Act 2000 (NSW), s 17(1)
- Crimes Act 1900 (NSW), s 86(1)(a1) (take and detain with intent to commit serious indictable offence)
- Crimes Act 1900 (NSW), s 66DA (intentionally sexually touching a child under 10 years of age)

Cases cited: None stated in the judgment.