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District Court 23 September 2021

Curro v R (No. 2)

[2021] NSWDC 773

Assault & violencePublic order & justice offences
CRIME APPEAL APPAL FROM LOCAL COURT APPEAL DISMISSED. SENTENCE APPEAL SEVERITY

Citation: Curro v R (No. 2) [2021] NSWDC 773
Court: District Court of New South Wales
Date: 23 September 2021
Judge: Neilson DCJ

Background

The appellant had pleaded guilty or been found guilty of 16 fresh offences in the Local Court at Burwood. Because some of those offences breached an existing Community Corrections Order (CCO), the magistrate also called him up for that breach, set aside the CCO, and re-sentenced the matters previously dealt with under it, bringing the total to 31 offences for sentence.

An earlier application to have the fresh charges diverted under s 32 of the Mental Health (Forensic Provisions) Act 1990 had been refused by a magistrate in September 2019. No further s 32 application was made before Magistrate Viney when she passed sentence on 15 March 2021. Magistrate Viney imposed Federal sentences expiring in November 2021, and an aggregate State sentence of four years and six months with a non-parole period of two years and six months.

A prior appeal to the District Court against the appellant's convictions for resisting arrest and assaulting a police officer had already been dismissed. The present proceedings concerned a further appeal against the refusal of the s 32 application and a severity appeal against the State sentences.

  • Whether the magistrate erred in refusing the s 32 mental health diversion application in September 2019
  • Whether, had diversion been granted, the CCO breach would never have arisen and the subsequent sentences would not have been passed
  • Whether the aggregate State sentence of four years and six months (with a non-parole period of two years and six months) was manifestly excessive

Decision

On the s 32 appeal, Neilson DCJ dismissed the challenge. The court was not persuaded that the magistrate had erred in refusing the diversion application, and the argument that a successful s 32 order would have prevented the entire sentencing exercise was not accepted.

On the severity appeal, however, the court found the non-parole period imposed by Magistrate Viney was excessive in all the circumstances. The court found special circumstances justifying a departure from the standard ratio between the non-parole period and the balance of the sentence. The aggregate State sentence was set aside and replaced with a shorter term.

The court declined to interfere with the Federal sentences, noting that the last fixed term of Commonwealth imprisonment would expire on 24 November 2021, before the appellant would become eligible for parole under the revised State sentence.

Orders Made

  • The appeal against the s 32 refusal is dismissed.
  • The State sentence imposed by the Local Court on 15 March 2021 is set aside.
  • In lieu of that sentence, the appellant is sentenced to a non-parole period of one year and six months, commencing 7 October 2020 and expiring 6 April 2022, with a further period of one year and six months expiring 6 October 2023 (total sentence: three years).
  • Special circumstances found.
  • The appellant is eligible to be considered for release to parole at the expiration of the non-parole period.
  • The Commonwealth sentences imposed by the Local Court on 15 March 2021 are confirmed.

Key Takeaways

  • The District Court dismissed the appeal against the magistrate's refusal to divert the matter under s 32 of the Mental Health (Forensic Provisions) Act 1990, finding no error in that refusal.
  • Where a s 32 diversion application has been refused and no further application is made before the sentencing magistrate, an appellate court will not readily unwind the entire sentencing exercise on the hypothesis that diversion should have been granted.
  • On the severity appeal, the District Court reduced the aggregate State sentence from four years and six months to three years, with the non-parole period halved from two years and six months to one year and six months, after finding special circumstances.
  • Federal sentences running concurrently with State sentences are a relevant factor when fixing a State non-parole period: the court confirmed the Commonwealth terms without alteration, noting the timing of their expiry relative to the revised State parole eligibility date.
  • Indicative sentences for individual offences within an aggregate term serve a recording purpose for bodies such as the Bureau of Crime Statistics and Research and the Judicial Commission, even where the aggregate is significantly less than the total of accumulated individual terms.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 32

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