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Irwin v The Queen

Irwin v The Queen

Case [2021] NSWCCA 172 21 July 2021

Criminal Liability

Sentencing

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Irwin v R [2021] NSWCCA 172
Hearing dates: 28 June 2021
Date of orders: 21 July 2021
Decision date: 21 July 2021
Before: Bathurst CJ at [1];
Rothman J at [2];
Garling J at [99]
Decision:
(1) Leave to appeal is granted;
(2) Appeal dismissed.

Catchwords:
CRIME – Sentence Appeal – sexual offences on child – breach of Child Protection Orders – alleged failure to provide reasons for objective seriousness determination – failure to afford reduction for alleged assistance – reasons read as a whole provide sufficient basis for understanding why determination was effected – reasons delivered ex tempore – alleged admissions and plea not assistance that required reduction – no error disclosed

Legislation Cited:
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 Cited:
Ahmad v The Queen [2021] NSWCCA 30
Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
Browning v R [2015] NSWCCA 147
CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
DBW v R [2007] NSWCCA 236
GAS v the Queen (2004) 217 CLR 198; [2004] HCA 22
Hili v the Queen; Jones v the Queen (2010) 242 CLR 520; [2010] HCA 45
House v The King (1936) 55 CLR 499; [1936] HCA 40
Howard v R [2019] NSWCCA 109
Meissner v the Queen (1985) 184 CLR 132; [1995] HCA 41
Mulato v R [2006] NSWCCA 282
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Ellis (1986) 6 NSWLR 603; (Court of Criminal Appeal (NSW), 17 October 1986, unrep)
R v SS [2021] NSWCCA 56
R v Windle [2012] NSWCCA 222
Salafia v R [2015] NSWCCA 141
Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44

Category: Principal judgment
Parties: Christopher Irwin (Applicant)
Regina (Respondent)
Representation:
Counsel:
J Paingakulam (Applicant)
C Gleeson (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2019/171603
Publication restriction: Pursuant to the terms of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW), publication of the name of, or any matter which could identify, the victim is prohibited.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2020] NSWDC 199

Date of Decision:

14 April 2020

Before:

Colefax SC DCJ

File Number(s):

2019/171603

Judgment

BATHURST CJ: I agree with the orders proposed by Rothman J and generally with his reasons.
ROTHMAN J: The applicant, Christopher Irwin, seeks leave to appeal, and, if leave be granted, appeals, the sentence imposed upon him in the District Court. The Applicant pleaded guilty in the Campbelltown Local Court on 6 November 2019 and the sentence proceedings occurred on 14 April 2020, at which time the learned sentencing judge imposed a sentence and issued ex tempore remarks on sentence.
The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Irwin v The Queen

Details

AGLC: Irwin v The Queen [2021] NSWCCA 172
Case: [2021] NSWCCA 172
Decision Date: 21 July 2021

CaseChat Overview and Summary

The appeal was brought by the respondent, Irwin, against a sentence imposed by the Supreme Court of South Australia. The appellant was convicted of multiple sexual offences involving a child. The appeal focused on the severity of the sentence and the alleged procedural errors made by the trial judge in determining the objective seriousness of the crimes and whether there was a failure to provide adequate reasons for the sentence. Additionally, the appellant argued that the trial judge failed to afford a reduction in sentence for his alleged assistance, which included admissions and a guilty plea. The appeal was heard by the South Australian Court of Criminal Appeal.

The central legal issues before the court were whether the trial judge provided sufficient reasons for determining the objective seriousness of the crimes and whether there was a failure to afford a reduction in sentence for the appellant's alleged assistance. The court was required to review the reasons provided by the trial judge and assess whether these reasons were adequate and whether there was an error in the sentencing process that warranted an appeal. Furthermore, the court had to determine if the appellant's admissions and plea constituted assistance that merited a reduction in sentence.

The court of appeal found that the reasons provided by the trial judge, though delivered ex tempore, were sufficient to understand the basis of the objective seriousness determination. The court emphasised that the reasons needed to be read as a whole and found no error in the trial judge's process. Regarding the appellant's alleged assistance, the court concluded that the admissions and plea did not constitute the type of assistance that warranted a reduction in sentence. The court held that no error was disclosed in the trial judge's assessment, and therefore, the appeal was dismissed. The sentence imposed by the Supreme Court of South Australia was affirmed.

Orders