R v Irwin [2020] NSWDC 199

District Court New South Wales

Medium Neutral Citation: R v Irwin [2020] NSWDC 199 Hearing dates: 14 April 2020 Decision date: 14 April 2020 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Aggregate term of imprisonment of 10 years with a non parole period of 7 years 6 months. Catchwords: CRIME - SENTENCE - failing to report obligations - take and detain with intent to commit serious indictable offence - intentionally sexually touching a child under 10 years of age. Legislation Cited: Child Protection (Offenders Registration) Act 2000 (NSW), s17(1), Crimes Act 1900 (NSW), ss 86(1)(a1) and 66DA. Category: Sentence Parties: Regina (Crown)

Christopher Irwin (Offender) Representation: Mr Diggins (ODPP Campbelltown)

Mr Townsend (Solicitor for the offender) File Number(s): 2019/171603 Publication restriction: Nil

JUDGMENT 1. Christopher Irwin you appear for sentence today in relation to four offences. 2. Two of those offences are failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act, s 17(1). The maximum penalty for each of those offences is 5 years imprisonment and there is no standard non parole period. 3. One of those offences is that of take and detain with intent to commit a serious indictable offence, namely sexual intercourse with a child under 10 years of age. This offence involves a contravention of s 86(1)(a1) of the Crimes Act. The maximum penalty for that offence is 14 years imprisonment. There is no standard non-parole period. 4. The fourth and final offence is that of intentionally sexually touching a child under 10 years of age. This involves a contravention of s 66DA of the Crimes Act. The maximum penalty for that offence is 16 years imprisonment and there is a standard non-parole period of 8 years imprisonment. 5. The facts surrounding your offending conduct are contained in an agreed statement of facts and other material placed before the Court. 6. Slightly recast by me as to style but not substance, the facts are as follows. 7. On 21 February 2014 you were sentenced by another judge of this Court for using a carriage service to access child pornography. You had used a phone of yours to undertake Google searches of child pornography and disturbingly search items engaged by you included terms such as "kiddie rape porn", "schoolkid rape porn" and "kiddie incest pictures". 8. On the occasion the police searched your phone they found on it a story which fell within category 5 of the Child Exploitation Tracking System (a system which unfortunately is no longer in use; it has been replaced by a less than satisfactory substitute). Category 5 of the CETS scale was concerned with sadism, humiliation or bestiality. I have been given an extract of that story which I have no intention of repeating, except to say that it is a very disturbing piece of material. 9. For that offence you received a term of imprisonment. 10. Because of the nature of that offence, you were placed on the Child Protection Register. As at May 2019 you were to remain on that register until 21 February 2022. 11. In two respects you have breached the conditions of being on the register and I shall come to those fairly shortly. 12. As at May 2019, and whilst subject to the conditions of that register, you were in a personal domestic relationship with an adult woman. You lived together at residential premises in the Sydney suburb of Macquarie Fields. How it came about that you two were living at that address is not quite clear to me. What is important to note is that the lady with whom you were living had her own place somewhere else in Macquarie Fields which, as at 31 May 2019, she had left but not formally given up possession. It was therefore unoccupied. 13. You had worked as a gardener or a landscaper; and you would stay at those unoccupied premises regularly, including overnight stays. You had done that for at least some weeks. 14. Why it was necessary for you to stay overnight at the unoccupied premises, away from your partner, for the purpose of maintaining the gardens given that your partner was residing somewhere else in the same suburb remains a mystery to me. I cannot think of any legitimate reason. But I am not prepared to speculate more than that about why you were there regularly overnight. 15. The unoccupied premises was located in a small cul-de-sac. 16. On 31 May 2019 you were at those premises. 17. At about 4.20pm, a number of small children were playing together in the street. One of these children was 7 years old. I shall refer to her not by her real name but as "the victim". 18. The victim was innocently playing in the street, rollerblading up and down the road. She lived in that street with her grandmother. 19. As the victim was rollerblading, her grandmother was speaking to a neighbour a short distance away. Whether or not the grandmother and the neighbour could be seen by you - or could see you - is not revealed in the material before me. 20. During this time you were sitting outside the unoccupied premises smoking a cigarette, and watching the victim and the other children. 21. You had apparently spoken with the victim a few occasions before this day. On how many occasions and over what period of time is not revealed. 22. But it is your conversations with the victim on those occasions which constitutes one of the breaches of the obligations under the Children Protection Register. The register obliged you to inform police of the name, age and address of any child with whom you came into contact. 23. The other breach of the register was that by staying at those premises, on more than 14 occasions over several weeks, you failed to report that address to police as you were required to do by the conditions of the register. 24. In any event, returning to the narrative, at some point after you saw the victim, you approached her when she was alone and you said to her, "Do you want to see something cool?" She said "no". 25. You then took the victim by the hand and walked her down the driveway towards the house. She didn't want to go with you but you had hold of her hand and you continued to walk her to the house. 26. Once you got her inside the house, you not only closed the door, you locked it. 27. It is the taking of the child in these circumstances which constitutes the taking and detaining with intent to commit a serious indictable offence. (In this context, I note that when you were interviewed by police, you told them that if you hadn't been interrupted there could have been penetration.). 28. When you were inside the house with the victim, you took off her jacket, undid the button on her shorts, pulled them down and put them on the floor. You then removed your own pants and held her. These facts constitute the offence of intentionally sexually touching a child under 10 years of age. 29. Fortunately, your taking of that child into that house had been observed by the neighbour who had been talking to the victim's grandmother and the alarm went out. 30. A group of neighbours came to the rescue of that child, banging on the door, and demanding that she be released. 31. At one point you put your hand over her mouth, telling her to be quiet. You told her that, if she did that and the child's grandmother went away, then you would let her go. 32. In the event, the presence of the neighbours, and their yelling at you, caused you to let the child go. 33. The police were swiftly called. 34. By the time they arrived, you had been restrained by a number of them and you received some injuries in the process. 35. Initially you did not wish to speak to the police and exercised your right of silence. But some months later, in the remand centre, you made fairly frank admissions. 36. The Court is required to make findings as to the objective seriousness of each offence for an offence of its kind. 37. In relation to sequence 3 (failing to inform police as to your correct residence) it is slightly above a mid-range offence. In relation to sequence 4 (failing to inform police about your communications with children) it is towards but not at the bottom of the range. In relation to sequence 5 (the take and detain with intent to commit serious indictable offence namely sexual intercourse with a child under 10) it is above the mid-range and into the upper range. And in relation to sequence 6 (the intentionally touching of a child under 10) it is a mid-range offence. 38. At the time of your offending you were 34 years old. Your family life, and all of your subjective circumstances, have been provided to me through two reports from Dr Diabon. You gave no direct evidence in the sentence hearing. You were raised by your grandparents. Your mother was largely absent during your childhood because of her own mental health issues and you never met your biological father. There is nothing to suggest that your grandparents provided you with anything other than a loving and supportive environment in which to grow up. 39. Your school years were not happy ones. You went to a special school because of your intellectual impairment and you left school at year 10. You have largely worked as a greens keeper for golf courses since that time. 40. There was some suggestion in the material that you may have had Asperger's disorder but that seems not to be a correct diagnosis. But you do have a low to average range of intelligence. 41. Apart from the offence for which you were sentenced in 2014, you have no other criminal offending. 42. What I do not have in front of me, Mr Irwin, is what, if any treatment, you received either during your imprisonment for using a carriage service to access child pornography or afterwards. Clearly if you had had any treatment it was not effective. There is no mention of any such treatment in either of the reports from the psychiatrist. But those reports do contain some rather disturbing material. 43. First, you told the doctor that you have a very poor recollection of the events - which was not consistent with a Justice Health record which noted that you had a recollection of substantive detail. 44. Secondly, you denied having a sexual interest in children and, in explaining your prior offence, you said that you had accidently clicked to a link that had taken you to a child pornography website. 45. Those two matters show either that you have no insight into your offending or that you have sought to deliberately mislead the practitioners and the Court. Given the psychiatrist's conclusion about your intellectual functioning, I suspect it is more likely than not, the former. 46. The fact that you have no insight into your clear sexual interest in children, and that there is no evidence that you have received any treatment or any successful treatment since your last offending, is a matter of very great concern. 47. You have not directly expressed remorse for what you have done. It is second hand to the psychiatrist - but given your lack of insight, that expression of remorse is of reduced significance. 48. Because of your previous offending, and your lack of insight, my view about your prospects of rehabilitation is that they are extremely guarded. Notably, the psychiatrist expresses no opinion of his own as to whether any of the sex offender treatment programs to which he refers is likely to have any beneficial outcome for you. 49. Clearly, no sentence other than one of imprisonment for each of the four offences is appropriate. 50. A submission was made on your behalf that I should have regard to what was described as "extra-curial punishment" meted out to you by the neighbours and to the damage done to your motor vehicle. But I do not regard either of those matters as falling within a proper characterisation of extra-curial punishment as it is to be understood as a mitigating factor. 51. And whilst, because of your intellectual disability, general deterrence is somewhat reduced, it remains relevant - as is specific deterrence, that is, imposing a sentence that will deter you. The protection of the community is also fully engaged as is the need to progress your rehabilitation. 52. You entered a plea of guilty at the first available opportunity and you will receive a 25% discount for the utilitarian value of those pleas. However, they were entered in the face of strong Crown cases. 53. It has been submitted that I should make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period. I decline to do so. Although this is your first time in full time custody, your prospects of rehabilitation will be sufficiently addressed by the non parole period I shall shortly fix. 54. I intend imposing an aggregate sentence and it is therefore necessary for me to state the indicative sentences underpinning that ultimate aggregate sentence. 55. In relation to sequence 3, after the 25% discount, the indicative sentence is 2 years and 3 months imprisonment, sequence 4 (after the discount) is 6 months imprisonment, sequence 5 (after the discount) is 7 years, 6 months and sequence 6 (after the discount) is 3 years 9 months. In relation to that fourth offence, the indicative non-parole period is 2 years and 9 months. 56. Christopher Irwin, for the two offences of failing to report, the offence of take and detain with intent to commit serious indictable offence, and the offence of intentionally sexually touching a child under 10, I sentence you to an aggregate term of imprisonment of 10 years. 57. I fix a non-parole period of 7 years and 6 months to date from 31 May 2019 (when you were arrested) and to expire on 30 November 2026. 58. I fix a balance of 2 years and 6 months to date from 1 December 2026 and which will expire on 30 May 2029. 59. Whether or not Mr Irwin you are admitted to parole will be a matter entirely for the parole authority. I would expect, however, that if you have not satisfactorily completed sex offenders programs whilst in custody, it is unlikely that you would be admitted to parole, but that is not a matter for me. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 May 2020