New South Wales District Court CITATION: R v Irwin, Dean [No.1] [2009] NSWDC 400 JUDGMENT DATE: 18 September 2009 JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ DECISION: Aggravated break and enter with intent (2008/2697) & Aggravated break and enter commit serious indictable offence (2008/00007964): Sentence to 2 years imprisonment, suspended pursuant to s.12 C(SP)A CATCHWORDS: Criminal Law - sentencing - break enter and steal - aggravated break, enter and steal - successful completion of s. 11 bail - suspended sentences LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 PARTIES: Regina Dean Harold Irwin FILE NUMBER(S): 2008/2697; 2008/7964 SOLICITORS: Crown: P Bakalidis Defence: W Sandilands JUDGMENT 1. Dean Harold Irwin came before me in July it would seem of last year on two aggravated break enter and steal offences for which he had pleaded guilty before the magistrate. He spent a total of two hundred and something days in custody to that time although - I think it was two hundred and fifty something days of custody but not all of that time was referable solely to the two offences, or either of them that are before me. 2. There was something in the subjective material that indicated to me two matters. Firstly, that his behaviour such as it was may have had an explanation. He has not known his own father and at about the time he began his criminal spree he had made contact with his paternal grandparents and was hoping that from that there would be some communication with his father. That did not occur and he may have been angry about that, he certainly may have been depressed about it. Both the anger and the depression resulted in his consumption of alcohol for which he apparently has a taste. He concedes now that he is an alcoholic. It was inevitably in the course of his being drunk that he would commit the offences, at least the two offences that are before me. 3. As happens often with a lot of us in society the point comes when one realises that one parent or the other, or both, are having nothing to do with the child. 4. In this case it would appear that one parent that is the natural father has made a choice not to make connections with the child. There may be all sorts of reasons for that and it is not appropriate to speculate. There are two ways in which that can be handled it seems to me by a person. One is the relatively immature way in which it was handled, that is to be angry and seek solace in the alcohol. Or the other is to use it to become a stronger person. I would have thought that somebody who has displayed the obvious courage that I have seen from this young man ought to have looked firstly in trying to use it to strengthen himself rather that the other. 5. The second was an indication somewhere in the material that he just might have come to a point where he'd had enough of custody and of the lifestyle. I cannot quite pick that up at the moment. It was for that reason that I, with a good deal of trepidation I might say, decided that I would give him a chance. The trepidation was that my primary responsibility when I do these things is to be concerned for the safety of the community and the rate at which he had been criminally offending was, for a young man, quite alarming. 6. Part of his bail conditions were that he was required to go into full time rehabilitation. During the course of that period he was treated for a disciplinary matter when, doing the best I can to remember, someone or perhaps more than one of his colleagues participating in the rehabilitation had used, or had access to drugs and had used I cannot quite remember that scenario; and it was agreed as a term of his entry that he would disclose those sorts of matters if and when they came about. He did not disclose them and was put out for a week or two, I think it might have been two weeks. 7. He became concerned once he was outside the structure of that organisation. Each day returned to them to ask them to reconsider. After three days they did and took him in. I remember asking him what it was that concerned him. He felt that he was all alone and was, I guess, terrified that he might fall back on to alcohol or drugs. That then raised for me a new problem which was "How would he settle once he had finished the course". It no doubt was a matter that he also was concerned with but to his credit he has looked for and obtained and apprenticeship - sorry, continuing his apprenticeship, but obtained work with a registered qualified plumber, Metro Plumbing Services, as an apprentice. He has plans at the completion of his apprenticeship, and presumably when it is appropriate for him so to do in terms of his experience, to set himself up in his own business as a tradesman; that looks good. 8. As a condition of his bail he was required to do something in respect of community participation. In particular it seems to me the obvious community participation he should do was to participate in some sporting activity. He chose to play with Waverley old Boys in Rugby. Waverley Christian Brothers was a school that he had been at, but had expelled him for drinking and fighting on the football field. I have some experience with sub district rugby and I know them to be a relatively strong club and staffed by, if staffed is the right word, members, being so far as I am aware relatively good people, and some of them actually quite good footballers. He tells me that he may look to participate in under twenty-one rugby with Randwick. I have seen sport as service to the community. 9. The logic of that from my point of view is, and you only have to think about the season we are currently at, we have Australia playing the Maori's tonight; we have the finals of the rugby union; we have the semi-finals of the rugby league; we have just finished watching a friendly soccer game against Korea. Australians have a great love of sport, they use their sporting heroes as role models. Sometimes it's not a good thing to be a sporting hero because there is an extra duty placed upon them of being a role model. Certainly participation in community life and very frequently in my experience with footballers is that it leads to further participation either in connection with the administration of football or in other areas. I see that as a good thing. 10. I said at the time that I dealt with this, I must have because it is just so obvious that it really needs no repeating, when I dealt with this in my initial remarks that the offences were serious. They are bad examples of breaking and entering. The appellant would have been given sentences at least of the order of two years and probably more in respect of each, although it is fair to say he would not have necessarily been given - I cannot say at this distance, would not necessarily have been given a full two year sentence, but he was pretty out of control and rehabilitation was a factor I would have had to take into account. 11. I am far more confident now about the rehabilitation prospects than I was then and in fact Mr Irwin needs to be complemented, I guess, for the immense progress that he has made. My intention in respect of these two offences is now they can be best dealt with by giving him a suspended sentence in respect of each. In a way I have approached this the wrong way because in the normal course of events, I would assess the appropriate penalty and then look at the question of a discount but I have decided to give him the benefit of the discount, one, by giving him the s 11 and two, by suspending the sentence when I ultimately have imposed it. 12. I will note that the Crown initially did dispute but now does not dispute the awarding of a suspended sentence for these offences. I would say that is in part because of the tremendous progress that has been made in the course of the last twelve months. 13. The formal orders I make are that Dean Irwin is convicted of each offence. I should have done that already because I need to do that before I give a s 11. In respect of each he is sentenced to a term of imprisonment of two years. That term will be suspended upon condition that he enter into a bond pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999 to be of good behaviour for a period of two years from today. That Bond will have as its conditions that he continue with AA for the next twelve months at least, and that he continue with private counselling with the gentlemen he described as Derek(?) until such time as Derek says that his counselling is no longer required. And finally I had better make it subject to supervision of Probation and Parole simply to guarantee that those two things are done. 14. There may be a bit of drug and alcohol counselling that they will also recommend for you but I should hope not because you are getting it really. 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