Curle v R

1. [1]

   BELL CJ: I agree with Stern JA.

2. [2]

   STERN JA: On 2 December 2022 the applicant, Robert Curle, pleaded guilty to the following offences under the Criminal Code Act 1995 (Cth), each carrying a maximum penalty of 15 years’ imprisonment:

   1. (1)

      Sequence 1: on 9 March 2022 did possess child abuse material obtained using a carriage service contrary to s 474.22A(1).

   2. (2)

      Sequence 2: between 24 February 2022 and 9 March 2022, did use a carriage service to access child abuse material contrary to s 474.22(1).

   3. (3)

      Sequence 3: between 23 January 2022 to 8 March 2022 did use a carriage service to transmit child abuse material contrary to s 474.22(1).

3. [3]

   On 9 June 2023 the applicant was sentenced to a total effective sentence of imprisonment of 29 months, expiring 8 November 2025, comprising the following sentences:

4. [4]

   As required under s 19AC(1) of the Crimes Act 1914 (Cth) (absent satisfaction under s 19AC(4) that it is not appropriate to do so) the sentencing judge also set a recognizance release order. That order commences on 8 March 2025, with the recognizance set in the sum of $1,000 for a period of 18 months expiring on 7 September 2026 with conditions that:

5. [5]

   The applicant seeks leave under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against his sentence on the following proposed grounds:

   1. (1)

      His Honour erred in the structure of the sentence imposed pursuant to s 19AC(1) and s 20(1)(b) of the Crimes Act;

   2. (2)

      His Honour failed to properly consider the provisions of s 16(2AAA) of the Crimes Act; and

   3. (3)

      The sentence imposed was manifestly excessive and another sentence is warranted at law.

6. [6]

   I would dismiss this appeal. However, consistent with the observations of N Adams J in Xu v R [2023] NSWCCA 93 at [40] (Garling and Hamill JJ agreeing), in order to achieve finality, I would grant leave to appeal.

Remarks on sentence

1. [7]

   None of the sentencing judge’s factual findings are challenged on appeal.

2. [8]

   Sequence 1 related to materials found on the applicant’s desktop computer, Telegram messages saved on the applicant’s mobile phone and further materials saved on the SD card of his mobile phone. In an examination of the desktop computer hard drive on 31 March 2022, police located a total of 619 video files and 40 image files all categorised as Interpol category one. The age of the child victims ranged from 2 to 13 years old. They were predominantly female. The image files depicted real prepubescent child victims and the sex acts included penetrative sex. Two examples of the video files included forced penetrative sex acts involving real children, including of a very young child. Also saved on the hard drive of the desktop were two written stories constituting child abuse material involving child victims, which had been accessed and downloaded by the applicant on 28 October 2021.

3. [9]

   As to the Telegram messages the sentencing judge observed:

4. [10]

   The video files included forced penetration of a prepubescent female.

5. [11]

   The files found on the mobile phone SD card were described by the sentencing judge as follows:

6. [12]

   Again, the videos included forced sexual acts on prepubescent females.

7. [13]

   Whilst the sentencing judge referred to Interpol categorisation, it should be noted that the Interpol categorisation system does not give a gradation based upon the gravity of the child abuse depicted.

8. [14]

   As recorded by the sentencing judge:

9. [15]

   As to these materials, the sentencing judge observed:

10. [16]

    Again, some of the videos involved forced sexual acts.

11. [17]

    As described by the sentencing judge, sequence 3 related to:

12. [18]

    The sentencing judge set out the details of each of the “chats”, i.e., the messages, exchanged between the applicant and other individuals on the Telegram application. These included exchanges of sexually explicit and child abuse material and in three of the chats, requests by the applicant for “child pornography” and “forced videos”, including a comment by the applicant: “I love your forced videos”.

13. [19]

    Given the grounds of appeal it is unnecessary to set out the full detail of the applicant’s subjective case, a summary suffices.

14. [20]

    At the time of his offending, the applicant was 53 years old and had been married for over 20 years. He has no children. He was employed operating a charity organisation which had one employee at the time of the sentence proceedings.

15. [21]

    A corrective services assessment report prepared by Brian Pham, a community corrections officer, assessed the applicant as a tier two low risk of reoffending.

16. [22]

    The applicant relied upon a treatment report of Graeme Randall, a psychologist, dated 29 March 2023 and an assessment report of Dr Olav Nielssen, a psychiatrist, dated 29 March 2023. The applicant, his wife, and Mr Randall also gave evidence at the sentence proceedings.

17. [23]

    The applicant’s history included physical abuse at the hands of this stepfather (who also abused his mother) until his stepfather left the home when the applicant was about 12 years old. The sentencing judge noted Mr Randall’s opinion that the applicant’s “use of adult pornography was a coping mechanism that likely further prevented him from engaging and developing deep intimacy with his partners.”

18. [24]

    Dr Nielssen diagnosed the applicant as having a depressive illness in partial remission, and a paraphilic disorder. The latter was in the form of a preference for voyeuristic sexual behaviour and the development of an attraction to prepubescent females. Dr Nielssen’s opinion was that, although having an addiction to child abuse material increases the probability of reoffending, other relevant factors such as the applicant reporting losing interest in the material, having had a positive response to treatment with Mr Randall, and the ongoing support from his wife, were protective against reoffending. Dr Nielssen said that imprisonment would inevitably exacerbate any symptoms of depression and anxiety.

19. [25]

    Mr Randall had been treating the applicant since 18 May 2022. In evidence, Mr Randall said that the program of treatment generally takes between one and two years, and that the applicant “was not even halfway through the program”. He had found the applicant’s engagement in the sessions to be remarkable. His view was that the applicant’s risk of reoffending was very low. As such, Mr Randall reported that he did not believe that the applicant would be able to access treatment in custody. Mr Randall was of the opinion that any interruption to the applicant’s treatment caused by a custodial sentence would likely be detrimental to his long term recovery. He was also of the opinion that any custodial sentence would add to the applicant’s experience of trauma from childhood and reinforce his behaviour of isolation, as well as his previous maladaptive coping mechanisms, such as sexual behaviour.

20. [26]

    The sentencing judge found that the offences in sequences 1 and 2 constituted a particularly serious example of the offending of its type. His Honour found that the offence in sequence 3 was a serious example of offending of this type.

21. [27]

    The sentencing judge noted the applicant’s “somewhat traumatic childhood during which he experienced early exposure to alcohol, domestic violence, interrupted school attendance, and a transient period of homelessness.” As to a causal connection, the sentencing judge found:

22. [28]

    In this context, the sentencing judge also took into account Dr Nielssen’s diagnosis of paraphilic disorder, finding “this diagnosis provides an explanation for his offending and will reduce, to some extent, his moral culpability. However, it heightens the need for specific deterrents [sic]”. The sentencing judge also took into account the applicant’s diagnosis of depression observing “it also remains a relevant consideration, both [to] the offending and making any custodial sentence more onerous.”

23. [29]

    The applicant was of good character with no relevant criminal history.

24. [30]

    The sentencing judge afforded a 25% discount for the plea of guilty in respect of each of the three charges.

25. [31]

    As to remorse and cooperation the sentencing judge observed:

26. [32]

    The sentencing judge was satisfied that the applicant had a low risk of reoffending and reasonable prospects of rehabilitation.

27. [33]

    The sentencing judge then turned to s 16A(2AAA) of the Crimes Act:

28. [34]

    The sentencing judge also took into account hardship caused by the COVID-19 pandemic.

29. [35]

    The sentencing judge was satisfied that no sentence other than imprisonment was appropriate in all the circumstances of the case.

30. [36]

    As to the contention of the applicant’s counsel that, having regard to the damage to the applicant’s treatment which would be caused by a period in custody, immediate release should be ordered as part of a recognizance release order under s 20(1)(b) of the Crimes Act, the sentencing judge reiterated that a sentence of full-time imprisonment was required:

Ground 1: misapplication of s 19AC of the Crimes Act

1. [37]

   The applicant’s contention in ground 1 is that the sentencing judge was not permitted under s 19AC of the Crimes Act to impose a custodial sentence and recognizance release order, the combined period of which exceeded 3 years. In this regard the applicant relies upon the terms of s 19AC(1)(b) set out below, in particular, that the obligation to make a recognizance release order is predicated upon the Court having imposed a federal sentence or sentences that do not (whether alone or in aggregate) exceed 3 years. Given that the effect of the sentencing judge’s determination is that the applicant has to remain in full-time custody for 21 months and is then subject to a recognizance release order for a further 18 months, the applicant submits that the sentencing judge erred in law.

2. [38]

   The resolution of this ground turns on the proper construction of s 19AC of the Crimes Act.

3. [39]

   Subsection 19AC(1) of the Crimes Act provides:

4. [40]

   The language of s 19AC(1) stands strongly against the applicant’s contention in ground 1 for three reasons. First, as a matter of logic, it is clear from s 19AC(1) that the precondition to whether a recognizance release order should be made is the length of sentence, or sentences, imposed for a federal offence or offences. Whether or not the sentence or sentences do not exceed 3 years must be determined before the sentencing judge gets to the point of considering whether or not to impose a recognizance release order. Given that, the operation of s 19AC(1) requires that the question whether the sentence or sentences imposed does or does not exceed 3 years must be determined without regard to the term of any recognizance release order made.

5. [41]

   Second, it is clear from the terms of s 19AC(1) that Parliament has drawn a distinction in that subsection between the sentence or sentences imposed for a federal offence, on the one hand, and the recognizance release order on the other. That is apparent from the phrase at the end of the subsection, directing that the court must make a recognizance release order “in respect of that sentence”. The use of that language is, on its face, inconsistent with the applicant’s proposed construction of s 19AC, according to which the period of the sentence or sentences imposed is construed as including the period of the recognizance release order.

6. [42]

   Third, s 19AC(1)(b) directs attention to the period of the aggregate federal sentence or sentences. Sentence is defined in s 16(1) of the Crimes Act:

7. [43]

   Federal sentence is, in turn, defined as “a sentence imposed for a federal offence”. It is thus clear that it is the sentence or aggregate sentences of imprisonment, not the period of a recognizance release order, that are relevant for the purposes of s 19AC(1)(b).

8. [44]

   In light of the above, ground 1 should be rejected. The period of a recognizance release order is not to be taken into account in determining the question whether the sentence or sentences imposed exceed a period of 3 years in s 19AC(1).

9. [45]

   Whilst I have not relied upon this in reaching my conclusion, I note that my conclusion as to construction is consistent with the Explanatory Memorandum to the Crimes Legislation Amendment Bill (No 2) 1989 (Cth), which introduced s 19AC (then numbered s 19AD). This set out that:

10. [46]

    I would add that my conclusion as to ground 1 is unaffected by authorities considering the relevance of the period of a recognizance release order to the requirement under s 6(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“CHRO Act”) that an application under CHRO Act cannot be made until the last nine months of the offender’s current custody or supervision. In this regard, Harrison J (as his Honour then was), in State of NSW v NW [2019] NSWSC 415 held that the period in s 6(1) was measured by reference to the expiration of the head sentence and not the expiration of the recognizance release order because during the period of the recognizance release order the offender will not be serving a sentence of imprisonment: at [24]. N Adams J disagreed with this conclusion in New South Wales v Cornwall [2023] NSWSC 278; (2023) 375 FLR 459, on the basis that, under s 20A(5)(c)(i) of the Crimes Act an offender on a recognizance release order remained liable to be returned to prison for the remaining period of imprisonment should they breach a condition of the recognizance release order: at [41]. In that context, and for the purposes of considering the timing requirements under the CHRO Act, her Honour held (at [42]) that an offender on a recognizance release order was serving a sentence of imprisonment because:

11. [47]

    As is apparent, these cases consider a question quite different to that before this Court. The conclusion of N Adams J in New South Wales v Cornwall is predicated upon her Honour’s determination that the term of imprisonment, being the head sentence, could not be said to have expired if the offender remained liable to be returned to prison for breach of a condition of a recognizance release order. That says nothing about whether the period of a recognizance release order should be construed as part of the period of the sentence for the purposes of s 19AC(1) of the Crimes Act.

Ground 2: failure to properly consider s 16A(2AAA) of the Crimes Act

1. [48]

   In ground 2 the applicant contends that the sentencing judge erred in having regard to s 16A(2AAA) of the Crimes Act with respect to the terms of the applicant’s release from custody but not in the calculation of the period of custody. The applicant contends that the evidence as to the adverse impact any period in custody would have on him required that the sentencing judge specifically advert to s 16A(2AAA) at the point in the remarks on sentence at which the sentencing judge determined what, if any, period of imprisonment to impose.

2. [49]

   Subsection 16A(2AAA) provides:

3. [50]

   I have already set out at [33] above the sentencing judge’s express consideration of s 16A(2AAA). It is readily apparent that the sentencing judge was aware of the terms of s 16A(2AAA), including that it requires that the court consider the objective of rehabilitating the offender when determining the sentence to be passed or order to be made. The sentencing judge also clearly took that objective into account in the sentencing exercise. In this regard, the sentencing judge:

   1. (1)

      referred expressly to Mr Randall’s evidence that the applicant would be unable to access treatment in custody and as to the progress of the applicant’s treatment, the fact that the applicant’s program of treatment was only partially complete, and the adverse impact of a period of custody on the applicant’s rehabilitation;

   2. (2)

      determined on that account that the conditions of release should include compliance with treatment and counselling conditions including continuing treatment with Mr Randall or another suitably qualified health professional; and

   3. (3)

      at the point of considering whether immediate release should be ordered under s 20(1)(b) of the Crimes Act, had “close regard” to the possible detrimental impact that may be caused by an interruption of his treatment.

4. [51]

   The sentencing judge was satisfied, however, that no sentence other than imprisonment was appropriate in all the circumstances of this case to meet the seriousness and gravity of the offending and having regard to the applicant’s subjective features. His Honour said that the full-time custody component of the sentence reflected the minimum period that the applicant should remain in custody. It is clear that in making this determination the sentencing judge considered the objective of rehabilitating the applicant, observing, as set out at [36] above, that this sentencing outcome would enable the applicant “to renew his community-based treatment after that period of custody, which would best meet the need for rehabilitation”.

5. [52]

   Contrary to the applicant’s contention, as is apparent from the matters set out above, the sentencing judge did not err in applying s 16A(2AAA). Subsection 16A(2AAA) does not require that the court identify how the period of imprisonment imposed takes into account the objective of rehabilitation. Nor is it inconsistent with s 16A(2AAA) to impose a custodial sentence in circumstances where this may have an adverse impact upon an offender’s rehabilitation.

6. [53]

   Ground 2 should be rejected.

Ground 3: manifest excess

1. [54]

   The principles to be applied in determining a ground asserting manifest excess of sentence were collected by R A Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]:

2. [55]

   Further, in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95, Bell P (as the Chief Justice then was) at [42] added to that summary of principles:

3. [56]

   In respect of the question of accumulation or concurrence, as set out by Howie J (Adams and Price JJ agreeing) in Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 at [27]:

4. [57]

   In this case, applying the principles set out above, I am satisfied that the sentence imposed on the applicant was not manifestly excessive.

5. [58]

   The applicant, in his written submissions, identified the various sentencing considerations as set out in s 16A(2) of the Crimes Act, and relied in particular (and without seeking to be comprehensive) on the following matters in support of his contention that the sentence imposed was manifestly excessive:

   1. (1)

      The number of images lay in the lower levels of offending;

   2. (2)

      There was no aspect of payment of financial benefit accruing to the applicant;

   3. (3)

      There was no evidence of proximity between the applicant and the production of the images or videos;

   4. (4)

      There was only unsophisticated planning;

   5. (5)

      The offending occurred over only the limited period from 23 January 2022 to 9 March 2022;

   6. (6)

      The applicant had demonstrated remorse through his admissions, and there was cooperation including provision of passcodes to the police to access his devices, evidence and guilty pleas;

   7. (7)

      The applicant’s prior good character, progress in treatment and positive prospects of rehabilitation;

   8. (8)

      The applicant contends that his offending was explicable by the disorder which he developed during COVID-19;

   9. (9)

      The applicant’s background and mental illnesses; and

   10. (10)

       Judicial Information Research System statistics which indicate that the sentence imposed on the applicant sits well above the mean and in the highest range of penalties.

6. [59]

   These matters must, however, be considered in context. The sentencing judge found that the possession and access offences were particularly serious examples of offending of its type. In this regard, his Honour relied upon multiple matters including:

   1. (1)

      All of the video and file images depicted real prepubescent children;

   2. (2)

      Those children were aged from as young as 2 years to 13 years;

   3. (3)

      Regarding sequence 1, the files had been saved over a period of four to five months, with two stories downloaded on 28 October 2021 and one story saved on 13 February 2022 and that offending involved 1,107 files, a significant proportion of which were video files;

   4. (4)

      Regarding sequence 2, the applicant accessed 1,333 video files over a period of two weeks which suggested an “intense level of interest over that period”;

   5. (5)

      The video files included “highly depraved material”, including very young children being penetrated and forced sex acts being performed on young children, including where the child was crying and struggling whilst being subject to acts of cruelty which must have amounted to physical harm;

   6. (6)

      The applicant was actively seeking such “depraved content”, for example, requesting and accessing “forced videos”; and

   7. (7)

      The applicant’s motive was, in part, his own sexual gratification.

7. [60]

   The sentencing judge, having heard the applicant give oral evidence, also found that at times he attempted to minimise his offending and his interest in child abuse material. Contrary to the applicant’s contention at the sentencing hearing, the sentencing judge rejected his evidence that he had only been viewing child abuse material for one to two years as “disingenuous”.

8. [61]

   The sentencing judge found that the transmission charge was a serious example of offending of this type, including having regard to the ages of the children, that the transmission took place over a period of approximately 7 weeks, there was transmission of 114 files to a total of 11 different users, the nature of the material and that the applicant’s motivation for transmission was to gain access to further material himself.

9. [62]

   Having regard to these findings, none of which are challenged, it is apparent that the sentences imposed were well within the sentencing judge’s discretion, as was the degree of accumulation. As Spigelman CJ (Simpson and Adams JJ agreeing) held in Mulato v R [2006] NSWCCA 282 at [37]:

10. [63]

    That is so notwithstanding that the sentencing judge was satisfied that the applicant’s moral culpability was to some degree reduced having regard to his background, paraphilic disorder and depression, that the applicant was of good character and had demonstrated remorse and cooperation, had reasonable prospects of rehabilitation and that the COVID-19 pandemic continued to cause hardship.

11. [64]

    As to accumulation, the sentencing judge explained the degree of accumulation by reference to the different and distinct criminality involved in the different offences. The sentencing judge’s conclusion as to accumulation, that there be a small amount of accumulation for sequences 1 and 2 and a small but greater degree for sequence 3, was open to his Honour.

12. [65]

    His Honour is also likely to have had regard to the fact that “[t]he maximum penalty for a statutory offence serves as an indication of the relative seriousness of the offence”: Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [31]. As set out above, the maximum penalty for the offending in each of sequences 1, 2 and 3 was 15 years’ imprisonment.

13. [66]

    Finally, as to the applicant’s reliance upon statistics, in addition to the matters set out at [55] above, as the Crown submits some of the data upon which these statistics are based cover sentences imposed before the substantial amendments made by the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth) and thus provide no real support for the contention of manifest excess.

14. [67]

    Ground 3 should be rejected.

Conclusion

1. [68]

   For the reasons set out above I propose the following orders:

   1. (1)

      Leave to appeal against sentence granted.

   2. (2)

      Appeal dismissed.

2. [69]

   BUTTON J: I agree with Stern JA.