Curro v The Queen (No. 2) - [2021] NSWDC 773

District Court

New South Wales

Medium Neutral Citation: Curro v R (No. 2) [2021] NSWDC 773
Hearing dates: 17 September 2021, 21 - 23 September 2021
Date of orders: 23 September 2021
Decision date: 23 September 2021
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
(1) The appeal concerning the failure of the Local Court to make any order under s 32 of the Mental Health (Forensic Provisions) Act 1990 is dismissed; and
(2) The sentence imposed by the Local Court at Burwood on 15 March 2021 for State offences is set aside. In lieu of that sentence, the offender is sentenced to a non-parole period of one year and six months commencing on 7 October 2020 and expiring on 6 April 2022. I impose a further period of imprisonment of one year and six months to commence upon the expiration of the non-parole period and expiring on 6 October 2023. The total sentence is therefore three years comprising the non-parole period and the balance of the sentence. I have found special circumstances and the appellant is eligible to be considered for release to parole at the expiration of the non-parole period; and
(3) I confirm the sentence imposed by the Local Court at Burwood on 15 March 2021 for Commonwealth offences.

Catchwords:
CRIME – APPEAL – APPAL FROM LOCAL COURT – APPEAL FROM REFUSAL OF APPLICATION UNDER S 32 MENTAL HEALTH (FORENSIC PROVISIONS) ACT 1990 (NSW) – APPEAL DISMISSED.
SENTENCE – APPEAL – SEVERITY – APPEAL ALLOWED IN PART.

Legislation Cited:
Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases Cited:
DPP v El Mawas [2006] NSWCA 154; (2006) 66 NSWLR 93

Texts Cited:
Nil

Category: Principal judgment
Parties: Appellant – Andrew Curro
R – Crown
Representation: Appellant
Bowe
Crown
Dando

File Number(s): 2018/00257234; 2018/00293539; 2019/00154180; 2019/00154191; 2017/00333674; 2017/00333679; 2018/00141150; 2018/00257220; 2019/00245585; 2019/00290198.
Publication restriction: Nil

Judgment

HIS HONOUR: The appellant, Andrew Curro, brings a number of appeals from decisions made in the Local Court. In particular, he brings an appeal arising from a sentence passed by Magistrate Viney sitting in the Local Court at Burwood on 15 March 2021. The appellant had appeared before her Honour on a number of fresh charges. They resulted from pleas of guilty or findings of guilt in contested matters. The fresh matters for which her Honour dealt with the appellant bear a number of H numbers, the first of which ends in 953. The next set of H numbers ends in 603. Another offence bears an H number ending in 526 and the final set of fresh charges bears an H number ending 129. All told the offender was standing for sentence for 16 offences.
Because the commission of a number of those offences involved a breach of a Community Corrections Order (“CCO”), her Honour determined that the offender should be called up for the breach of that CCO, that the CCO should be set aside and that sentences should be passed in respect to the matters that were previously dealt with…

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 Curro v The Queen (No. 2)

Details

AGLC: Curro v The Queen (No. 2) [2021] NSWDC 773
Case: [2021] NSWDC 773
Decision Date: 23 September 2021

CaseChat Overview and Summary

Curro has appealed against the decision of the Local Court, seeking a review of their refusal to make an order under section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), and also challenging the severity of the sentence imposed. The appeal has been heard in the Supreme Court. The primary legal issues that the court was required to decide were whether the Local Court was correct in its refusal to make an order under section 32 of the Act, and whether the sentence imposed was excessive.

In relation to the first issue, the court found that the Local Court was correct in its assessment that Curro did not satisfy the criteria for an order under section 32. The court found that Curro's mental health issues, while serious, did not meet the threshold for a forensic order under the Act. In relation to the second issue, the court found that the sentence imposed was excessive and varied it to a non-parole period of one year and six months, with a total sentence of three years. The court found that special circumstances existed, and Curro is eligible to be considered for release to parole at the expiration of the non-parole period.

The court dismissed the appeal concerning the Local Court's refusal to make an order under section 32 of the Act. However, the court allowed the appeal in part concerning the severity of the sentence. The sentence imposed by the Local Court was set aside, and a new sentence was imposed by the Supreme Court. The court also confirmed the sentence imposed by the Local Court for the Commonwealth offences.

Orders

Orders of the court

(1) The appeal concerning the failure of the Local Court to make any order under s 32 of the Mental Health (Forensic Provisions) Act 1990 is dismissed; and

(2) The sentence imposed by the Local Court at Burwood on 15 March 2021 for State offences is set aside. In lieu of that sentence, the offender is sentenced to a non-parole period of one year and six months commencing on 7 October 2020 and expiring on 6 April 2022. I impose a further period of imprisonment of one year and six months to commence upon the expiration of the non-parole period and expiring on 6 October 2023. The total sentence is therefore three years comprising the non-parole period and the balance of the sentence. I have found special circumstances and the appellant is eligible to be considered for release to parole at the expiration of the non-parole period; and

(3) I confirm the sentence imposed by the Local Court at Burwood on 15 March 2021 for Commonwealth offences.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Curro v R (No. 2) [2021] NSWDC 773
Hearing dates:	17 September 2021, 21 - 23 September 2021
Date of orders:	23 September 2021
Decision date:	23 September 2021
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	(1) The appeal concerning the failure of the Local Court to make any order under s 32 of the Mental Health (Forensic Provisions) Act 1990 is dismissed; and (2) The sentence imposed by the Local Court at Burwood on 15 March 2021 for State offences is set aside. In lieu of that sentence, the offender is sentenced to a non-parole period of one year and six months commencing on 7 October 2020 and expiring on 6 April 2022. I impose a further period of imprisonment of one year and six months to commence upon the expiration of the non-parole period and expiring on 6 October 2023. The total sentence is therefore three years comprising the non-parole period and the balance of the sentence. I have found special circumstances and the appellant is eligible to be considered for release to parole at the expiration of the non-parole period; and (3) I confirm the sentence imposed by the Local Court at Burwood on 15 March 2021 for Commonwealth offences.
Catchwords:	CRIME – APPEAL – APPAL FROM LOCAL COURT – APPEAL FROM REFUSAL OF APPLICATION UNDER S 32 MENTAL HEALTH (FORENSIC PROVISIONS) ACT 1990 (NSW) – APPEAL DISMISSED. SENTENCE – APPEAL – SEVERITY – APPEAL ALLOWED IN PART.
Legislation Cited:	Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited:	DPP v El Mawas [2006] NSWCA 154; (2006) 66 NSWLR 93
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Appellant – Andrew Curro R – Crown
Representation:	Appellant Bowe Crown Dando
File Number(s):	2018/00257234; 2018/00293539; 2019/00154180; 2019/00154191; 2017/00333674; 2017/00333679; 2018/00141150; 2018/00257220; 2019/00245585; 2019/00290198.
Publication restriction:	Nil