AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 23 August 2019

R v Curran

[2019] NSWDC 460

Sexual offences
SENTENCING PRINCIPLE OF LEGALITY HISTORICAL OFFENCES SPECIAL CIRCUMSTANCES EFFECT OF DELAY HARDSHIP IN CUSTODY

Citation: R v Curran [2019] NSWDC 460
Court: District Court of New South Wales
Date: 23 August 2019
Judge(s): Rafter SC ADCJ

Background

The offender, a former judicial officer, was convicted by jury of seven counts of indecent assault on a male contrary to s 81 of the Crimes Act 1900 (NSW). The offences were committed against the complainant over a number of years during the complainant's childhood and adolescence, beginning when the complainant was approximately 11 or 12 years old. The offender had cultivated a close, quasi-paternal relationship with the complainant, whose father had died when the complainant was four years old.

The offences were historical in nature, having occurred decades before the proceedings commenced. A court attendance notice was issued on 31 October 2017, and the jury delivered its verdict on 5 April 2019. The offender was acquitted on two of the nine counts charged.

At sentencing, the court was asked to resolve several contested issues about the applicable sentencing framework, including whether a relatively new statutory provision applied to proceedings already on foot, and whether various personal and situational factors warranted a departure from the standard statutory sentencing ratio.

  • Whether s 25AA of the Crimes (Sentencing Procedure) Act 1999 (NSW), which requires courts to apply contemporary sentencing patterns when sentencing for child sexual offences, applied to proceedings that had already commenced before the provision came into force on 31 August 2018.
  • Whether s 25AA applied only to those counts where the complainant was proven to have been under 16 years of age at the time of the offence.
  • Whether special circumstances existed justifying a variation to the otherwise applicable statutory non-parole period ratio, specifically by reason of: the significant delay between the commission of the offences and sentencing; the offender's former status as a judicial officer (making custody particularly burdensome); and the likelihood the offender would serve his sentence in protective custody.

Decision

Application of s 25AA

The court found that s 25AA was plainly intended to operate retrospectively, given its express application to historical offences and its requirement that courts sentence in accordance with contemporary sentencing patterns rather than those prevailing at the time of the offence. The offender's argument that the provision could not apply because proceedings had commenced before 31 August 2018 was rejected. The court analysed the scope and purpose of the provision and concluded that legislative intention extended to extant proceedings, not merely to proceedings commenced after the section's commencement.

On the subsidiary argument, the court examined the factual record to determine which counts involved a complainant under the age of 16. It found that the evidence established, beyond reasonable doubt, that the complainant was under 16 at the time of counts 1 and 3, and resolved any remaining uncertainty about the age question in relation to the other counts in accordance with applicable principles.

Special Circumstances

The court found that special circumstances existed, justifying a variation to the standard statutory ratio between the non-parole period and the balance of sentence. The delay between offending and sentencing was significant. Although the offender bore some responsibility for that delay, the court accepted it as a relevant consideration. The offender's status as a former judicial officer meant that his experience of custody would be more onerous than for an ordinary prisoner, and the likelihood of serving the sentence in protective custody reinforced that finding. Together, these factors satisfied the court that a departure from the ordinary statutory ratio was warranted.

Indicative and Aggregate Sentence

The court worked through indicative sentences for each count before imposing an aggregate sentence. The offender received an aggregate term of two years and four months imprisonment, with a non-parole period of 16 months. The court was satisfied this represented the minimum period consistent with the objectives of sentencing and proper reflection of the objective gravity of the offences alongside the offender's personal circumstances.

Orders Made

  • The offender was convicted on counts 1, 3, 4, 5, 6 and 7.
  • An aggregate sentence of imprisonment of two years and four months was imposed, commencing 23 August 2019 and expiring 22 December 2021.
  • A non-parole period of 16 months was fixed, commencing 23 August 2019 and expiring 22 December 2020.

Key Takeaways

  • Section 25AA of the Crimes (Sentencing Procedure) Act 1999, which requires sentencing for child sexual offences to accord with contemporary sentencing patterns, was held to apply to proceedings that were already on foot when the provision commenced on 31 August 2018. The legislative intention, derived from the section's scope and purpose, extended to extant proceedings.
  • Under s 25AA(1), courts sentencing for historical child sexual offences must apply current sentencing patterns and practices rather than those in place at the time of the offending, subject to the preservation of any standard non-parole period applicable at the time of the offence under s 25AA(2).
  • A former judicial officer's heightened vulnerability in custody, including the substantial likelihood of serving a sentence in protective custody, can constitute a special circumstance justifying variation of the statutory parole period ratio.
  • Delay between the commission of historical offences and the imposition of sentence may support a finding of special circumstances, even where the offender contributed to that delay.
  • The instinctive synthesis approach to sentencing requires the court to make an overall value judgment weighing objective seriousness, subjective circumstances, and all other relevant factors, rather than treating the exercise as a mechanical calculation.

Legislation and Cases Referenced

Legislation

  • Crimes Act 1900 (NSW), s 81 (indecent assault on a male)
  • Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 19, 25AA; Schedule 1A
  • Criminal Legislation Amendment (Child Sexual Abuse) Act 2018 No 33 (NSW)

Cases