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Court of Criminal Appeal 21 July 2021

Irwin v R

[2021] NSWCCA 172

Sexual offencesPublic order & justice offences
CRIME SENTENCE APPEAL SEXUAL OFFENCES ON CHILD BREACH OF CHILD PROTECTION ORDERS REASONS DELIVERED EX TEMPORE NO ERROR DISCLOSED

Citation: Irwin v R [2021] NSWCCA 172
Court: NSW Court of Criminal Appeal
Date: 21 July 2021
Judge(s): Bathurst CJ; Rothman J; Garling J

Background

The appellant pleaded guilty in Campbelltown Local Court to four offences committed on 31 May 2019. The offences were: two breaches of reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW), taking and detaining a child under ten with intent to commit a sexual offence, and sexually touching a child under ten. The appellant had previously been placed on the Child Protection Register following a 2014 conviction for using a carriage service to access child pornography.

The facts were serious. The appellant watched a seven-year-old girl rollerblading in the street, approached her, took her by the hand into a nearby house against her expressed reluctance, locked the door, removed her shorts, and removed his own pants. Neighbours intervened by banging on the door and threatening to call police; the appellant released the victim after holding his hand over her mouth. He was found seated outside the premises when police arrived.

In the District Court, the sentencing judge imposed an aggregate sentence of ten years' imprisonment with a non-parole period of seven years and six months. The appellant sought leave to appeal on two grounds, arguing the sentencing judge failed to give adequate reasons for the objective seriousness finding, and failed to give credit for admissions made to police some two months after the offending.

  • Whether the sentencing judge's ex tempore remarks provided adequate reasons for the finding as to the objective seriousness of the offences.
  • Whether the sentencing judge erred by failing to afford any sentencing discount for the appellant's admissions to police, either under the principle in R v Ellis (1986) 6 NSWLR 603, under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), or as evidence of remorse.

Decision

Ground 1: Adequacy of reasons

The Court of Criminal Appeal rejected the first ground. Rothman J, with whom Bathurst CJ agreed, held that reasons must be read as a whole, particularly where they are delivered ex tempore. The sentencing judge had recounted the facts at length and had expressly referred to the objective seriousness of the offences at several points in the remarks. Reading the remarks in their entirety, the Court was satisfied that a sufficient basis existed for understanding why the sentencing judge reached the objective seriousness determination he did, and no error was established.

Ground 2: Admissions to police and the Ellis principle

The second ground also failed. The Ellis principle recognises that a plea of guilty, or conduct equivalent to it, may attract a sentencing discount because it saves the community the cost of a trial and may indicate remorse. The Court held that the admissions made by the appellant to police some two months after the offending did not constitute assistance of the kind that attracts an Ellis-type discount. The admissions were not made spontaneously or at an early stage; the appellant had initially denied the offending and refused to be interviewed. The later admissions largely confirmed facts already established by other evidence, including witness accounts and DNA analysis.

The Court also found that the admissions could not ground a discount under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which relates to assistance to authorities, because the admissions did not assist in the investigation or prosecution of other offenders. As for remorse, the Court accepted the sentencing judge's implicit treatment of the admissions but noted the overall context, including the initial denial and the partial and self-serving nature of the admissions, did not compel a greater discount. No error was disclosed in the sentencing judge's approach.

Orders Made

• Leave to appeal be granted
• Appeal be dismissed

Key Takeaways

  • In dismissing both grounds of appeal, the Court of Criminal Appeal confirmed that ex tempore sentencing remarks must be read as a whole when assessing whether adequate reasons have been given for an objective seriousness finding; isolated omissions do not necessarily constitute error.
  • The Ellis principle applies to conduct that is genuinely equivalent to a plea of guilty, such as early and voluntary admissions that assist authorities; admissions made two months after offending, following an initial denial and refusal to be interviewed, do not meet that threshold.
  • Where admissions largely confirm facts already established by independent evidence, they carry limited weight as assistance to the prosecution and do not automatically attract a sentencing discount.
  • Under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing discount for assistance to authorities requires that the assistance bear on the investigation or prosecution of other offenders; admissions about one's own offending do not qualify.
  • No error arose from the sentencing judge's treatment of remorse where the broader picture included denial, selective recollection, and admissions that were at least partly inconsistent with agreed facts.

Legislation and Cases Referenced

Legislation
- Child Protection (Offenders Registration) Act 2000 (NSW), s 17(1)
- Crimes Act 1900 (NSW), ss 66DA(a), 86(1)(a1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 23

Cases
- R v Ellis (1986) 6 NSWLR 603
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22
- CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- Meissner v The Queen (1995) 184 CLR 132; [1995] HCA 41
- Ahmad v The Queen [2021] NSWCCA 30
- R v SS [2021] NSWCCA 56
- DBW v R [2007] NSWCCA 236
- Salafia v R [2015] NSWCCA 141
- Browning v R [2015] NSWCCA 147
- Howard v R [2019] NSWCCA 109
- R v Windle [2012] NSWCCA 222
- Mulato v R [2006] NSWCCA 282
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44