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Curle v The King

Curle v The King

Case [2024] NSWCCA 117 8 July 2024

Sentencing

Statutory Interpretation

Appeal

Criminal Law

Type to search within this case.

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Curle v R [2024] NSWCCA 117
Hearing dates: 19 June 2024
Date of orders: 08 July 2024
Decision date: 08 July 2024
Before: Bell CJ at [1];
Stern JA at [2];
Button J at [69].
Decision:
(1) Leave to appeal against sentence granted.
(2) Appeal dismissed.

Catchwords:
CRIME – Appeals – appeal against sentence – where total effective sentence of 29 months ordered – where combined period of custodial sentence and recognizance release order exceeded 3 years – whether sentencing judge erred having regard to the proper construction of Crimes Act 1914 (Cth), s 19AC
CRIME – Appeals – appeal against sentence –impact of any period of custody on the applicant’s rehabilitation – where custodial sentence imposed – whether the sentencing judge erred having regard to Crimes Act 1914 (Cth), s 16A(2AAA)
CRIME – Appeals – appeal against sentence – whether manifest excess

Legislation Cited:
Crimes (High Risk Offenders) Act 2006 (NSW), s 6(1)
Crimes Act 1914 (Cth), ss 16A, 16(1), 19AC, 20(1)(b)
Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Criminal Code Act 1995 (Cth), ss 474.22A(1), 474.22(1)

Cases Cited:
Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95
Mulato v R [2006] NSWCCA 282
New South Wales v Cornwall [2023] NSWSC 278; (2023) 375 FLR 459
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
State of NSW v NW [2019] NSWSC 415
Xu v R [2023] NSWCCA 93

Texts Cited:
Explanatory Memorandum to the Crimes Legislation Amendment Bill (No 2) 1989 (Cth)

Category: Principal judgment
Parties: Robert Curle (Applicant)
Rex (Respondent)
Representation:
Counsel:
S Kluss (Applicant)
C Tran with D Morris (Respondent)
Solicitors:
Australian Criminal Law Group (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2022/68192
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

09 June 2023

Before:

Baker DCJ

File Number(s):

2022/68192

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant pleaded guilty to three offences contrary to ss 474.22A(1) and 474.22(1) of the Criminal Code Act 1995 (Cth), namely possessing child abuse material obtained using a carriage service, using a carriage service to access child abuse material and using a carriage service to transmit child abuse material.

On 9 June 2023 the applicant was sentenced to a total effective sentence of imprisonment of 29 months, expiring on 8 November 2025. The sentencing judge made a recognizance release order, as required under s 19AC(1) of the Crimes Act 1914 (Cth) (the “Crimes Act”), commencing on 8 March 2025 for a period of 18 months and expiring on 7 September 2026.

The applicant sought leave to appeal against his sentence on three grounds. The issues raised by those grounds were:

Whether, in determining whether 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 Curle v The King

Details

AGLC: Curle v The King [2024] NSWCCA 117
Case: [2024] NSWCCA 117
Decision Date: 08 July 2024

CaseChat Overview and Summary

Curle v The King concerned an appeal against a sentence imposed by the Federal Court of Australia. The applicant, Curle, challenged the total effective sentence of 29 months, which combined a custodial sentence with a recognizance release order, arguing that it exceeded the three-year limit set out in section 19AC of the Crimes Act 1914 (Cth). Additionally, Curle contended that the sentencing judge had failed to adequately consider the impact of any period of custody on his rehabilitation, as required by section 16A(2AAA) of the same Act.

The court was required to determine whether the sentencing judge had erred in imposing a sentence that exceeded the statutory limit and whether the judge had properly considered the impact of the custodial sentence on Curle’s rehabilitation. The court also needed to assess whether the sentence was a manifest excess, meaning that it was grossly disproportionate to the nature and circumstances of the offence.

In its judgment, the court found that the sentencing judge had indeed exceeded the statutory limit set by section 19AC, as the combined period of custodial sentence and recognizance release order did exceed three years. However, the court concluded that this did not constitute a manifest excess, and thus the sentence was not grossly disproportionate. The court also determined that the sentencing judge had appropriately considered the impact of the custodial sentence on Curle’s rehabilitation, and there was no error in this regard. Consequently, the appeal was dismissed.

Orders