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R v Curran

R v Curran

Case [2019] NSWDC 460 23 August 2019

Sentencing

Limitation Periods

Special Circumstances

Mitigation of Sentence

Delay in Sentencing

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Curran [2019] NSWDC 460
Hearing dates: 17 May 2019, 6 June 2019
Decision date: 23 August 2019
Jurisdiction: Criminal
Before: Rafter SC ADCJ
Decision:
Aggregate term of imprisonment of 2 years and 4 months with a non-parole period of 16 months

Catchwords:
SENTENCING – extent of retrospective operation of provision – principle of legality – historical offences – where the offender is convicted of seven historical offences – where s 25AA Crimes (Sentencing Procedure) Act 1999 (NSW) was enacted with retrospective operation – where the provision applies to courts sentencing for historical offences – whether s 25AA cannot operate retrospectively where a proceeding has already commenced prior to the commencement of the section – whether the scope and purpose of the provision reveals a legislative intention for the provision to apply to extant proceedings
SENTENCING – special circumstances – effect of delay – hardship in custody – mitigation of sentence – variation of statutory parole period – where there has been a significant delay between the commission of the offences and the imposition of sentence – where the offender contributed to the delay – whether delay constitutes a special circumstance – where the offender was a judicial officer – where the offender is likely to serve the period of imprisonment in protective custody – whether hardship in custody constitutes a special circumstance
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 No 33
Cases Cited: AH v R [2015] NSWCCA 51
Baker v The Queen (2004) 223 CLR 513
Barbaro v R (2014) 253 CLR 58
Cheung v R (2001) 209 CLR 1
Collier v R [2012] NSWCCA 213
Flaherty v R; R v Flaherty [2016] NSWCCA 188
Greenwood v R [2014] NSWCCA 64
Hili v R (2010) 242 CLR 520
Lodhi v R (2006) 65 NSWLR 573
Markarian v R (2005) 228 CLR 372
Mayall v R [2010] NSWCCA 37
Mill v R (1988) 166 CLR 59
Morgan v R [2017] NSWCCA 269
Pearce v R (1998) 194 CLR 610
Purtill v R [2016] NSWCCA 80
R v D [1996] 1 Qd R 363
R v De Simoni (1981) 147 CLR 383
R v EGC [2005] NSWCCA 392
R v JCW (2000) 112 A Crim R 466
R v MJR (2002) 54 NSWLR 368
R v Nicholson [2018] NSWDC 347
R v Olbrich (1999) 199 CLR 270
R v Todd [1982] 2 NSWLR 517
Stanton v R [2017] NSWCCA 250
Wade v R [2018] NSWCCA 85
Wong v R (2001) 207 CLR 584
Category: Sentence
Parties: Regina (Crown)
Graeme Bryan Curran (Offender)
Representation:
Counsel
M Hobart SC (Crown)
P Boulten SC and G Lewer (Offender)
Solicitors
Office of Director of Public Prosecutions (Crown)
Carroll O’Dea Lawyers Sydney (Offender)

File Number(s): 2017/00328847
Publication restriction: Prohibition on publication of any matter identifying or likely to lead to identification of the complainant pursuant to s 578A Crimes Act (unless publication is…

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 R v Curran

Details

AGLC: R v Curran [2019] NSWDC 460
Case: [2019] NSWDC 460
Decision Date: 23 August 2019

CaseChat Overview and Summary

The case of R v Curran involved a former judicial officer who was convicted of seven historical offences. The Court of Criminal Appeal of New South Wales was tasked with determining the sentence to be imposed on the offender. The appeal centred on two main legal issues: the extent of retrospective operation of section 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW) and the consideration of special circumstances in sentencing, including the effect of delay and hardship in custody. The court was required to decide whether section 25AA could operate retrospectively in the context of a proceeding that had commenced prior to the enactment of the section. Additionally, the court had to assess whether the significant delay between the commission of the offences and the imposition of sentence, along with the offender's contribution to that delay, constituted a special circumstance warranting mitigation of sentence.

The court examined the principle of legality and the scope and purpose of section 25AA, concluding that the provision was intended to apply to extant proceedings. Consequently, the section could operate retrospectively in the case. Regarding special circumstances, the court considered the substantial delay between the offences and the sentence, as well as the offender's role in contributing to that delay. The court also took into account the likelihood of the offender serving the period of imprisonment in protective custody, which constituted hardship in custody. The court found that both the effect of delay and the hardship in custody were special circumstances that warranted consideration in the sentencing process.

In light of the considerations outlined above, the Court of Criminal Appeal varied the statutory parole period for the offender. The aggregate term of imprisonment imposed was 2 years and 4 months, with a non-parole period of 16 months. This decision reflects the court's balanced approach to sentencing, taking into account both the retrospective operation of section 25AA and the special circumstances presented in the case.

Orders

Orders of the court

Aggregate term of imprisonment of 2 years and 4 months with a non-parole period of 16 months

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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Citations

AGLC Citation

R v Curran [2019] NSWDC 460

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 23 of 23 shown

R v Nicholson
[2018] NSWDC 347 Para 27

…A similar argument was rejected by Hatzistergos DCJ in R v Nicholson [2018] NSWDC 347. However the argument in that case did not expressly refer to the decision of the New South Wales Court of Criminal Appeal in Lodhi v R and the specific presumption against retrospectivity for extant proceedings.…
Wade v R
[2018] NSWCCA 85 Para 124

…The Crown referred to Stanton v R [2017] NSWCCA 250, Morgan v R [2017] NSWCCA 269 and Wade v R [2018] NSWCCA 85.…
Morgan v R
[2017] NSWCCA 269 Para 124

…The Crown referred to Stanton v R [2017] NSWCCA 250, Morgan v R [2017] NSWCCA 269 and Wade v R [2018] NSWCCA 85.…
Stanton v R
[2017] NSWCCA 250 Para 124

…The Crown referred to Stanton v R [2017] NSWCCA 250, Morgan v R [2017] NSWCCA 269 and Wade v R [2018] NSWCCA 85.…
Flaherty v R; R v Flaherty
[2016] NSWCCA 188 Para 125

…Counsel for the offender referred to Flaherty v R; R v Flaherty [2016] NSWCCA 188 and also relied on Wade v R , which was referred to by the Crown.…
Purtill v R
[2016] NSWCCA 80 Para 141

…fact that an offender is serving a period of incarceration for the first time is not of itself a basis for finding special circumstances: Purtill v R [2016] NSWCCA 80 at [46]; Collier v R [2012] NSWCCA 213 at [36].…
AH v R
[2015] NSWCCA 51 Para 88

…previous convictions are not to be taken into account if those factors were of assistance to the offender in the commission of the offences: AH v R [2015] NSWCCA 51.…
Greenwood v R
[2014] NSWCCA 64 Para 117

…The loss of employment would almost inevitably follow for many offenders convicted of sexual offences: Greenwood v R [2014] NSWCCA 64 at [35]. Having said that, the offender will not only lose his position as a magistrate, he would be unable to resume practising law. That will undoubtedly have financial and other i…
Barbaro v The Queen
[2014] HCA 2 Para 150

…ved at by application of the relevant principles, having regard to the circumstances of the offences and the offender: Barbaro v R (2014) 253 CLR 58; [2014] HCA 2 at [34].…
Collier v R
[2012] NSWCCA 213 Para 141

…iod of incarceration for the first time is not of itself a basis for finding special circumstances: Purtill v R [2016] NSWCCA 80 at [46]; Collier v R [2012] NSWCCA 213 at [36].…
Hili v The Queen
[2010] HCA 45 Para 121

…iples as they provide guidance and stand “as a yardstick against which to examine a proposed sentence”: Hili v R (2010) 242 CLR 520 at [53]-[54]; [2010] HCA 45. A sentence imposed in a particular case does not establish a binding precedent except to the extent that it involves a statement about the applicable pr…
Mayall v R
[2010] NSWCCA 37 Para 79

…a longer period than others. In any event, the effect of the offending upon a child does not depend upon the length of time of the abuse: Mayall v R [2010] NSWCCA 37 at [44]. Sexual offending committed against children often occurs over a short period of time and concentrating on the duration of such offending has…
R v Lodhi
[2006] NSWSC 691 Para 26

…e time of sentence rather than at the time of the offence. Nevertheless, it is necessary to consider the extent of retrospective operation: Lodhi v R (2006) 65 NSWLR 573 at [23]-[25]. As I have said, counsel for the offender submitted that s 25AA does not apply because proceedings against the offender had commenced be…
R v EGC
[2005] NSWCCA 392 Para 144

…The effect of delay has been regarded as a special circumstance: R v EGC [2005] NSWCCA 392 at [38].…
Markarian v The Queen
[2005] HCA 25 Para 19

…cal “worst case” and the case before the court, and taken with all other relevant factors provides a yardstick: Markarian v R (2005) 228 CLR 372; [2005] HCA 25 at [30]-[31].…
Baker v The Queen
[2004] HCA 45

…9 (NSW) Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 No 33 Cases Cited: AH v R [2015] NSWCCA 51 Baker v The Queen (2004) 223 CLR 513 Barbaro v R (2014) 253 CLR 58 Cheung v R (2001) 209 CLR 1 Collier v R [2012] NSWCCA 213 Flaherty v R; R v Flaherty [2016] NSWCCA 188 Greenwood v R [2014] NSWCCA 64 Hili v R (2…
Cheung v The Queen
[2001] HCA 67 Para 7

…the offender need only be proved on the balance of probabilities: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27], Cheung v R (2001) 209 CLR 1; [2001] HCA 67 at [13]-[14], [49], [167]-[172].…
Wong v The Queen
[2001] HCA 64 Para 121

…he extent that it involves a statement about the applicable principles in the exercise of the sentencing discretion: Wong v R (2001) 207 CLR 584; [2001] HCA 64 at [57].…
R v MJK
[2001] NSWCCA 325 Para 23

…nt the sentencing practice at the date of the commission of an offence in cases where sentencing practice had moved adversely to an offender: R v MJR (2002) 54 NSWLR 368 at [31].…
R v Olbrich
[1999] HCA 54 Para 7

…ng judge proposes to take into account in favour of the offender need only be proved on the balance of probabilities: R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 at [27], Cheung v R (2001) 209 CLR 1; [2001] HCA 67 at [13]-[14], [49], [167]-[172].…
Pearce v The Queen
[1998] HCA 57 Para 133

…Nevertheless I must fix, by way of indicating, an appropriate sentence for each of the offences and then, in accordance with Pearce v R (1998) 194 CLR 610, the overall criminality must be taken into account when considering whether those indicative sentences should be served concurrently or cumulatively upon one anot…
Mill v The Queen
[1988] HCA 70 Para 101

…sition of sentence can be relevant where there is demonstrated rehabilitation in the intervening period: R v Todd [1982] 2 NSWLR 517 at 519; Mill v R (1988) 166 CLR 59 at 64.…
R v De Simoni
[1981] HCA 31 Para 17

…It is a fundamental principle that an offender cannot be punished for an offence of which he has not been convicted: R v De Simoni (1981) 147 CLR 383 at 389; R v D [1996] 1 Qd R 363. The fact that there is evidence of other conduct that revealed the offender’s sexual interest in the complainant cannot aggravate the o…

Legislation cited in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
2 mentions (from Para 2)
Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 (NSW)
2 mentions (from Para 20)
Crimes Act 1900 (ACT)
1 mention (from Para 19)

Medium Neutral Citation:	R v Curran [2019] NSWDC 460
Hearing dates:	17 May 2019, 6 June 2019
Decision date:	23 August 2019
Jurisdiction:	Criminal
Before:	Rafter SC ADCJ
Decision:	Aggregate term of imprisonment of 2 years and 4 months with a non-parole period of 16 months
Catchwords:	SENTENCING – extent of retrospective operation of provision – principle of legality – historical offences – where the offender is convicted of seven historical offences – where s 25AA Crimes (Sentencing Procedure) Act 1999 (NSW) was enacted with retrospective operation – where the provision applies to courts sentencing for historical offences – whether s 25AA cannot operate retrospectively where a proceeding has already commenced prior to the commencement of the section – whether the scope and purpose of the provision reveals a legislative intention for the provision to apply to extant proceedings SENTENCING – special circumstances – effect of delay – hardship in custody – mitigation of sentence – variation of statutory parole period – where there has been a significant delay between the commission of the offences and the imposition of sentence – where the offender contributed to the delay – whether delay constitutes a special circumstance – where the offender was a judicial officer – where the offender is likely to serve the period of imprisonment in protective custody – whether hardship in custody constitutes a special circumstance
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 No 33
Cases Cited:	AH v R [2015] NSWCCA 51 Baker v The Queen (2004) 223 CLR 513 Barbaro v R (2014) 253 CLR 58 Cheung v R (2001) 209 CLR 1 Collier v R [2012] NSWCCA 213 Flaherty v R; R v Flaherty [2016] NSWCCA 188 Greenwood v R [2014] NSWCCA 64 Hili v R (2010) 242 CLR 520 Lodhi v R (2006) 65 NSWLR 573 Markarian v R (2005) 228 CLR 372 Mayall v R [2010] NSWCCA 37 Mill v R (1988) 166 CLR 59 Morgan v R [2017] NSWCCA 269 Pearce v R (1998) 194 CLR 610 Purtill v R [2016] NSWCCA 80 R v D [1996] 1 Qd R 363 R v De Simoni (1981) 147 CLR 383 R v EGC [2005] NSWCCA 392 R v JCW (2000) 112 A Crim R 466 R v MJR (2002) 54 NSWLR 368 R v Nicholson [2018] NSWDC 347 R v Olbrich (1999) 199 CLR 270 R v Todd [1982] 2 NSWLR 517 Stanton v R [2017] NSWCCA 250 Wade v R [2018] NSWCCA 85 Wong v R (2001) 207 CLR 584
Category:	Sentence
Parties:	Regina (Crown) Graeme Bryan Curran (Offender)
Representation:	Counsel M Hobart SC (Crown) P Boulten SC and G Lewer (Offender) Solicitors Office of Director of Public Prosecutions (Crown) Carroll O’Dea Lawyers Sydney (Offender)
File Number(s):	2017/00328847
Publication restriction:	Prohibition on publication of any matter identifying or likely to lead to identification of the complainant pursuant to s 578A Crimes Act (unless publication is…