Curle v The King

Case [2024] NSWCCA 117


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:

  1. Whether, in determining whether the…

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

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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