AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 9 June 2023

R v Curle

[2023] NSWDC 654

Sexual offences

Citation: R v Curle [2023] NSWDC 654
Court: District Court of New South Wales
Date: 9 June 2023
Judge: Baker SC DCJ

Background

The offender pleaded guilty to three Commonwealth offences involving child abuse material, all carrying a maximum penalty of 15 years imprisonment. The charges arose after NSW Police received information that his social media accounts were associated with child abuse material and executed a search warrant at his home on 9 March 2022.

Police seized the offender's Samsung Galaxy S22 mobile phone and desktop computer. Forensic examination uncovered a large volume of child abuse material, all classified as Category 1 under the Interpol Categorisation System (the most serious tier, covering prepubescent victims). The material included hundreds of video files and images depicting children as young as two years old subjected to serious sexual abuse, including depictions of restraint and forced sexual acts.

The offending occurred across three overlapping periods between January and March 2022. The offender had used the Telegram messaging application both to receive and to transmit child abuse material to other users, and had also possessed a substantial collection on his desktop computer. He had no prior criminal history and had spent no time in custody prior to sentencing.

  • How to assess the objective seriousness of each offence, including the volume and category of material and the fact that the offender was both accessing and transmitting material
  • Whether and how the offender's personal background and circumstances (including Bugmy considerations relating to childhood disadvantage and mental health) should moderate the sentence
  • The appropriate weight to give to prospects of rehabilitation, specific deterrence, and protection of the community
  • How to structure the sentences to achieve the purposes of sentencing while allowing for community-based treatment upon release
  • Whether a recognizance release order (a form of supervised release) was appropriate in the circumstances

Decision

Baker SC DCJ assessed the transmission offence (sequence 3) as the most serious of the three, given that actively sending child abuse material to others materially contributes to the distribution and perpetuation of abuse. The possession and access offences were treated as serious but secondary. All three offences were found to sit in the mid-range of objective seriousness, given the large volume of Category 1 material and the nature of the conduct, though the judge noted the offending was not at the most extreme end of the scale.

The court applied the principles from Bugmy v The Queen, which require that a sentencing court give ongoing weight to the effects of profound childhood disadvantage, even where an offender is an adult at the time of offending. The offender's background, mental health history, and absence of prior convictions were accepted as relevant mitigating factors, though they did not displace the need for meaningful punishment and deterrence.

The court identified significant prospects of rehabilitation, supported by evidence that the offender had engaged with treatment and shown genuine remorse. Baker SC DCJ structured the sentences as a partially accumulated series to ensure the offender served a meaningful period in custody while still allowing for community supervision and continued treatment upon release.

A discount was applied to each sentence for the offender's early guilty plea. The resulting structure required the offender to serve approximately 21 months in custody, after which he would be released on a recognizance release order for 18 months with conditions including supervision by Community Corrections, participation in sex offender treatment, and restrictions on phone use and travel.

Orders Made

  • Convictions recorded for all three offences.
  • Sentences reduced for guilty plea.
  • Sequence 3 (transmitting child abuse material): 24 months imprisonment, commencing 9 June 2023, expiring 8 June 2025.
  • Sequence 1 (possessing child abuse material): 20 months imprisonment, commencing 9 December 2023, expiring 8 August 2025.
  • Sequence 2 (accessing child abuse material): 20 months imprisonment, commencing 9 March 2024, expiring 8 November 2025.
  • Recognizance release order of 18 months commencing 8 March 2025, expiring 7 September 2026, in the sum of $1,000, on conditions that the offender:
  • Be of good behaviour
  • Submit to supervision by Community Corrections and obey all reasonable directions
  • Permit inspection of any mobile phone and provide access to data upon direction
  • Attend any sex offender treatment program and accept any mental health treatment as directed
  • Not travel interstate or overseas without written permission from Community Corrections
  • Overall effect: 21 months in custody followed by 18 months on supervised release.
  • Forfeiture order under s 23ZD of the Crimes Act 1914 (Cth): the offender's Samsung Galaxy S22+ mobile phone and desktop computer forfeited to the Commonwealth.

Key Takeaways

  • Transmitting child abuse material to others was treated as more serious than possession or access alone, reflecting the role such conduct plays in perpetuating the distribution and demand for exploitative material.
  • Under the principles in Bugmy v The Queen, a sentencing court must continue to give meaningful weight to the effects of childhood disadvantage on an offender's culpability, even when the offender is an adult at the time of offending.
  • A recognizance release order was used here to bridge the period between custodial punishment and community-based rehabilitation, with strict conditions tailored to the nature of the offending, including mandatory phone inspection and treatment participation.
  • The volume and category of material, and the fact that the offender was both consuming and actively distributing it, placed the offending in the mid-range of objective seriousness under the relevant Commonwealth provisions.
  • Prospects of rehabilitation can influence the structure of a sentence, including the point at which a recognizance release order commences, particularly where ongoing treatment in the community is identified as serving both rehabilitative and community protection purposes.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 474.22(1), 474.22A(1)
- Crimes Act 1914 (Cth), s 23ZD

Cases
- Bugmy v The Queen [2013] HCA 37; 249 CLR 572
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- Dungay v R [2020] NSWCCA 209
- Grange v R [2023] NSWCCA 6
- Lloyd v R [2022] NSWCCA 18
- Minehan v R [2010] NSWCCA 140; (2010) 201 A Crim R 243
- R (Cth) v Nafarette [2022] NSWDC 225
- R v Hutchinson [2018] NSWCCA 152
- R v Porte [2015] NSWCCA 174; 252 A Crim R 294
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31