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Court of Criminal Appeal 8 July 2024

Curle v R

[2024] NSWCCA 117

Sexual offences
CRIME APPEALS APPEAL AGAINST SENTENCE APPEALS APPEAL AGAINST SENTENCE WHERE CUSTODIAL SENTENCE IMPOSED

Citation: Curle v R [2024] NSWCCA 117
Court: NSW Court of Criminal Appeal
Date: 8 July 2024
Judges: Bell CJ, Stern JA, Button J

Background

The applicant pleaded guilty to three federal offences involving child abuse material: possessing such material obtained via a carriage service, accessing it via a carriage service, and transmitting it via a carriage service, each carrying a maximum penalty of 15 years' imprisonment. The offending occurred across a period of approximately seven weeks in early 2022 and involved a substantial volume of material, including category one material classified by Interpol.

On 9 June 2023, the applicant was sentenced to a total effective custodial term of 29 months' imprisonment, expiring 8 November 2025. The sentencing judge also imposed a recognizance release order (an order releasing the offender on conditions, broadly equivalent to a parole-like supervision arrangement) commencing 8 March 2025 for a period of 18 months, expiring 7 September 2026.

The applicant sought leave to appeal against the sentence on three grounds, challenging the structural construction of the sentence, the treatment of rehabilitation under the relevant federal provision, and the overall length of the sentence as manifestly excessive.

  • Whether, under s 19AC(1) of the Crimes Act 1914 (Cth), the period of a recognizance release order must be included when determining whether the sentence or sentences imposed exceed three years (the threshold that triggers the obligation to impose such an order)
  • Whether the sentencing judge properly applied s 16A(2AAA) of the Crimes Act 1914 (Cth), which requires a court to consider the rehabilitation of the offender when determining the sentence to be imposed
  • Whether the total sentence was manifestly excessive

Decision

Ground 1: Construction of s 19AC(1)

Stern JA (Bell CJ and Button J agreeing) held that the period of a recognizance release order does not form part of the "sentence or sentences" for the purposes of the three-year threshold in s 19AC(1). The Court identified three reasons for this construction. First, the section requires a judge to determine whether the sentence exceeds three years before deciding whether to impose a recognizance release order, meaning the order cannot logically form part of what is assessed. Second, the statutory language draws a clear distinction between a custodial sentence and a recognizance release order. Third, s 19AC(1)(b) directs attention to the aggregate sentence of imprisonment as defined in s 16(1), which refers to imprisonment only, not to recognizance conditions.

The Court distinguished cases arising under s 6(1) of the Crimes (High Risk Offenders) Act 2006 (NSW), where courts had treated the period of a recognizance release order as part of the period of "custody or supervision" for different statutory purposes. Those decisions were found to have no bearing on the construction of s 19AC(1).

Ground 2: Application of s 16A(2AAA)

Section 16A(2AAA) requires a court to consider the objective of rehabilitating the offender when passing sentence. The Court held this provision does not require the judge to articulate how the specific period of imprisonment reflects that objective, nor does it preclude imposing a custodial sentence where that sentence may have some adverse impact on rehabilitation. The sentencing judge had expressly engaged with s 16A(2AAA) and clearly factored rehabilitation into the overall sentencing exercise. No error was established.

Ground 3: Manifest excess

The Court found the sentences were well within the available sentencing discretion. The sentencing judge's factual findings, none of which were challenged on appeal, supported the degree of accumulation between the three sequences of offending, which reflected distinct criminality. The Court also noted that sentencing statistics relied upon by the applicant largely pre-dated significant 2020 amendments to the relevant Commonwealth legislation, limiting their utility as comparators.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • Under s 19AC(1) of the Crimes Act 1914 (Cth), the three-year threshold is assessed by reference to the custodial sentence or sentences alone; the period of any recognizance release order is not included in that calculation.
  • A logical sequencing point underpins the construction: the three-year threshold must be assessed before a recognizance release order can be considered, so the order cannot itself be part of the measure.
  • Section 16A(2AAA) does not impose a requirement on a sentencing court to explain how the length of imprisonment accounts for rehabilitation, nor does it bar a custodial sentence where rehabilitation might be adversely affected.
  • Sentencing statistics drawn from periods before the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) may carry limited weight in manifest excess arguments, given the substantive changes that legislation introduced.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the degree of accumulation between federal offences reflecting distinct criminality remains a matter for the sentencing judge's broadly based discretion, subject to appellate restraint.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16(1), 16A, 16A(2AAA), 19AC, 20(1)(b)
- Criminal Code Act 1995 (Cth), ss 474.22(1), 474.22A(1)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes (High Risk Offenders) Act 2006 (NSW), s 6(1)
- Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth)

Cases
- Xu v R [2023] NSWCCA 93
- State of NSW v NW [2019] NSWSC 415 (distinguished)
- New South Wales v Cornwall [2023] NSWSC 278; (2023) 375 FLR 459 (distinguished)
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 (considered)
- He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 (considered)
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 (considered)
- Mulato v R [2006] NSWCCA 282
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39