Curro v R

Background

1. The appellant has a very interesting background. However, there are certain things which might be described as controversial. Before the Local Court and before me was a report made by Ms Susan Hebblewhite, a clinical nurse consultant in mental health working for Justice Health. She wrote on the stationery of Justice Health and clearly relied upon the records of Justice Health and on a large number of other sources of information available to her.
2. I do know that the appellant was born in May 1970 and is currently 51 years old. Mr Curro was born in Italy and migrated to Australia in 1975 the year in which he turned five years old. The history recorded by Ms Hebblewhite continues in this fashion: "Mr Curro completed year 12 - he reports he was Dux of the school. He attended a mainstream school, is literate and was never suspended/expelled. Mr Curro reports he studied Medicine at a Karolinska Institute in Sweden. He reports he worked as a surgeon in Europe (1989-1995) and then four years in Detroit until 1999. Mr Curro returned to Australia and did not 'feel like working as a surgeon anymore' and so he got a job in a bike shop. His income is reliant on three and a half days work at the bike shop - he claims he can resume the position as a store manager when he returns home." A little later in her history Ms Hebblewhite records this: "Medical records reflect grandiose ideas about personal history: studying at a world famous medical institution; working as a trauma surgeon in Detroit; studying international Law at Berkeley University in America; and claims to have qualifications in psychology, medicine, international law, biomechanics and human rights."
3. The appellant was also interviewed on 9 March 2021 by Dr Olav Nielssen a psychiatrist. Part of Dr Nielssen's history is this: "Mr Curro said that the family settled in Five Dock and he attended St Mary's Catholic Primary School at Concord, Christian Brothers in Burwood for years 7 to 10 and St Mary's Cathedral School for his final two years, where he achieved a top 1% pass in the HSC. He said he enrolled in the undergraduate medicine course at Sydney University and completed the two pre-clinical years, and then transferred to the post-graduate medical degree in Sweden. He said that he worked at Henry Ford Hospital in Detroit for two years, before moving to live with a man in Santa Cruz, south of San Francisco which he described as the hub of the cycling industry, and where he worked for a large bicycle helmet manufacturer. He said that he worked in the bicycle shop in Stanmore on returning to Australia, as he was still racing overseas. He said that he had been in the bicycle industry in some capacity ever since, including with the leading companies in Australia and said that he was considered one of the most knowledgeable people in the local industry because of his range of experience."
4. There is further personal history of the appellant contained in various submissions put to me in writing by his current solicitor, Mr Bowe. One of the submissions in MFI 4 is this: "Mr Curro....attended Christian Brothers Burwood where he left in 1995. He struggled significantly through high school with his identity and sexuality. He now identifies as being gay. At the age of 15 teachers at his school noted that he was different and arranged to have him attend a psychiatrist, who saw him for the last six months of his schooling at the Christian Brothers Burwood. He would see the psychiatrist at school and then at home both one time per week and thus twice a week. It was thought at the time he may have Asperger's Disorder but recent reports did not diagnose that illness. However it does suggest that there was a mental illness occurring at that time. In his two final years of school he moved to St Mary's Cathedral School and as a consequence there was no further psychiatric counselling. He speaks six languages, English, Italian, French, Spanish, German and Dutch. Between 1991 to 1994 he cycled through Europe for a total of ten years [sic]. Following school he attended Sydney University for two years in medicine. He then went to the Karolinska Institute in Stockholm. During this time in Europe he rode with a continental cycling team. He was an extremely talented cyclist and rode in the standard below the pro cyclists in Europe where he raced in Belgium, Germany and Italy. He also represented Australia. He moved to California where he again continued to cycle and attended the University of Berkeley in California. He finally returned to Australia where he continued to cycle and began working in the cycle industry." There is also reference in the material before me to suggest that the appellant has a number of doctorates in various disciplines from universities overseas.
5. I approach the history somewhat cautiously because, for example the appellant between 20 November 2019 and 6 August 2020 was seeing Dr Sukumar Rajendran, a psychiatrist with the Croydon Community Mental Health Service. Amongst the diagnoses made by Dr Rajendran was Narcissistic Personality Disorder. Likewise, the letter from Ms Hebblewhite refers to "grandiose ideas" which implicitly means that those claims were not believed by the doctors at Justice Health and were thought to be overblown. The appellant has not given evidence before me and the correct history can not be ascertained. However, everything points in the direction of the offender's having been well educated and well-read and it appears to be accepted by the psychiatrists who have seen him that he is highly intelligent.

The Offending

1. The appellant's problems relate to a former marriage and the breaking up of that relationship and the appellant's unhappiness in being cut off from his daughter. According to various histories he met his former wife when he came back to Australia in 1998. They married in 2001. They have a daughter who would be either 12 or 13 years old at the current time. They separated on 21 February 2016. On 27 September 2017, just over a year later, an Apprehended Domestic Violence Order ("ADVO") was made preventing the appellant from contacting or approaching his former wife. The order was served on 10 October 2017. On 16 October 2017 the Family Court made orders restricting the appellant from approaching within 100 metres of his former wife's home, that is their former matrimonial home. That, as I understand it, caused the appellant to leave the matrimonial home and to move to live with his parents in Leichhardt.
2. The first offence committed by the appellant was on 5 October 2017. On 17 October 2017 the appellant sent an email to his former wife with this message: "Ya gonna need a better team come the finals." This clearly was a reference to a dispute between the appellant and his former wife where the appellant was bragging that his wife needed to obtain greater assistance than she had in her contest with him. On 3 November 2017 the appellant was charged with the offences of 5 October 2017 and 17 October 2017. He was arrested on 21 December 2017 and was released on bail on 1 February 2018, that is he was kept in gaol over the Christmas/New Year period.
3. On 2 May 2018 the appellant was served with an amended ADVO restricting him from the vicinity of his daughter's sports game after he had turned up to watch her play netball. The obvious applicant for that amended ADVO was his former wife. The appellant on 3 May committed offences of using a carriage service to menace, harass or offend. There was a further offence committed on 4 May 2018. The offences on 3 and 4 May 2018 were against a Senior Constable Davide Isola. He was a domestic violence liaison officer at the Leichhardt Police Area Command located in Glebe. He was a prosecution witness against the appellant. The ADVO prevented the appellant from contacting any prosecution witness. It therefore prevented him from making any contact with Senior Constable Isola. Senior Constable Isola was the owner of a coffee shop known as "The Wedge Espresso" located in Glebe Point Road, Glebe. At 10.20am on Thursday 3 May 2018 Senior Constable Isola received an email from the accused saying this: "Forget something? Seriously, if you put as [much] effort into your job as you did in trying to fuck me over, you might not be pushing pens 9 to 5." The email had attached to it a document named "Retard" and the image was a photo of a section of an Apprehended Violence Order ("AVO") which said "Current Family Law Orders". That had been mistakenly completed as nil which was in fact not the case. Later the Senior Constable replied to the appellant's email saying this: "Thank you for your note I will see the details are adjusted. Attached is the current order made by Burwood Police at Downing Centre Local Court yesterday in relation to your incident on 7 April 2018 at Cintra Park, Five Dock. Please note the changes to condition 9 of the enforceable order." The Senior Constable then attached the current version of the ADVO to his email. At 3.13pm the appellant replied to the Senior Constable in this way: "There was no fucking incident at Cintra Park you stupid cunt". According to the police facts the Senior Constable felt that he was intimidated by that.
4. On the following day, Friday 4 May 2018, the appellant left a message on the Facebook account of the Wedge Espresso coffee shop. The comment made was this: "An absolute shithole. An utter cunt of a place. I give it no stars if it was possible." The Senior Constable as the proprietor of the coffee shop felt threatened by that Facebook comment and made a formal complaint to the New South Wales Police. In a statement that he made Senior Constable Isola said this: "I hold concerns for my safety and my staff's safety. I am worried that Andrew Curro will approach me in public or at my business as I am there daily. Over the last four months I have been witness to a number of accounts of Andrew's intimidation to police and others which are unrelated to the AVO between his ex-wife and I am now in fear that he will now target me."
5. On 14 June 2018 the appellant committed an offence in which the victim was Inspector Naomi Moore, an Inspector of Police attached to the Leichhardt Police Area Command and stationed in Glebe Police Station. The background to that is this: "During May 2018, the accused emailed a number of officers in Leichhardt Police Area Command in relation to various matters, with some of these emails being derogatory in nature and using vulgar and offensive language. Inspector Naomi Moore was one such officer who had been dealing with the accused during the course of her duties, although she had not met or personally spoken with him. Emails previously sent by the accused were sent from email address: andrewcurro@gmail.com to Inspector Moore's NSW police force email address. At 9.53am on 14 June 2018 Inspector Moore received email correspondence from [the appellant] which contained four attachments. The first attachment was entitled 'IsoleBullshit', the second attachment 'wifeBullshit A', the third attachment 'Currymuncher' and the fourth attachment 'wifeBullshit'." I infer in the third attachment Inspector Moore found material which was racially vilifying and offensive, it was this: "As a practising catholic myself, I've got to ask, what exactly were the inquiries made? The Facts were authored by SC Uppal. Correct me if I am wrong, but this officer is of sub-continent descent. I'm also certain he has not studied theology. And given the outlandishly incorrect interpretation, may I ask how the hell it came to be that a curry nigger is allowed to interpret my bible." The reference was to Senior Constable Gurusev Uppal who was a serving member of the NSW police and attached to Leichhardt Police Area Command and was involved in a previous investigation involving the appellant.
6. On 22 June 2018 the appellant committed a further offence using a carriage service to harass Inspector Moore. The appellant sent the inspector an email which contains derogatory remarks and wild allegations but which I shall not cite. It can be found on p 128 of the 209 pages in Exhibit 2.
7. On 15 July 2018 the appellant committed a further offence of contravening the AVO by menacing or harassing or offending Senior Constable Isola again. On 18 July 2018 he used a carriage service to menace both his former wife and LA. LA is a work colleague of his former wife and her best friend. They socialise regularly and holiday together. The facts of the harassment of LA can be found on p 118 of the 209 pages in exhibit 2 and I shall not bother to set it out in detail. Essentially it was an insulting of Ms Atchison and contained these words: "I like my beer like I like my violence: domestic." That caused LA to believe that her profile at work was being utilised by the appellant and caused her to fear for the safety of her friend, his former wife.
8. The appellant was arrested on 21 August 2018 but it appears that he was charged but not kept in custody. A further offence was committed on 20 September 2018. The appellant's former wife is the managing director of Lida Australia which is part of the M&C Saatchi Group in Sydney. She reports directly to Mr James Leggett who is the CEO of M&C Saatchi Sydney. M&C Saatchi Sydney is a subsidiary of M&C Saatchi London. Mr Leggett reports to Mr Moray MacLennan who is the global CEO of M&C Saatchi. Mr MacLennan is the superior of Ms Antonia Harrison who is the network director in charge of new business for M&C Saatchi London.
9. At 10.31am on Thursday 20 September 2018 the accused sent an email addressed to Ms Antonia Harrison of M&C Saatchi London and a number of media outlets and journalists in the United Kingdom. The email was headed "Private and Confidential - sexual harassment - M&C Saatchi Sydney". The substance of the email is this: "I was wondering whether you can give me an update on the concerns I raised some weeks back. In all honesty, it appears that I may be being ignored. But allow me to recap. Within weeks of a grossly spectacular sexist display to celebrate the birthday of your Sydney agency, the CEO James Leggett began sending suggestive and inappropriate texts to his P.A. Laura Hughes. Laura Hughes then made mention to the MD of Lida Australia [former wife] of these goings on. On hearing this morsel of information, the ever ambitious and conniving [former wife] told Ms Hughes to keep copies of the texts in order to blackmail Mr Leggett in the future. It is my understanding that Mr Leggett is married. It is my understanding that Ms Hughes is financially struggling. It is my understanding that [former wife] is a cunt who had once white anted her once boss, [redacted]. She did so in order to gain the same position of MD that [redacted] was occupying at the time. [Former wife] has a history of being ruthless, as she had done the very same thing to two previous managers… [Former wife] has form in disgraceful behaviour. I should know. I was married to the grub for 15 years. During which time she would racially abuse me. This particular apple did not fall far from the tree. Her parents, Australian rednecks of the highest quality, would often refer to me as the wog in‑law. How quaint. You see, it's not all beaches and cricket down here in the Antipodes. I look forward to your reply." Heaven knows what effect such a communication had with the management of M&C Saatchi in London. Inquiries could be made that could harm the appellant's former wife. It clearly was desired to do so. The appellant was charged with that offence on 25 September 2018. He was arrested and remanded in custody.
10. A further charge was added to an earlier set of charges on 2 October 2018.

Earlier disposition

1. On 3 December 2018 a magistrate at the Downing Centre Local Court sentenced the appellant to periods of fulltime custody for a number of earlier offences. On 13 December 2018 the appellant was sentenced by the Local Court at Lithgow for various offences to further fulltime imprisonment. On 17 December 2018 the appellant was sentenced for certain offences by the Downing Centre Local Court to fulltime custody. On 7 February 2019 an appeal to this Court came before her Honour Judge Syme. Her Honour set aside sentences of fulltime imprisonment imposed on 3 December 2018 and 17 December 2018 and sentenced the offender to a CCO for a period of three years in lieu of the sentences of imprisonment. The appellant was released. I do not know how long the sentences of imprisonment were but I do know that prior to being released from custody the appellant had spent four months and 12 days in custody.

Further offending

1. However, the appellant did not take long to breach the CCO. On 27 April 2019 the appellant committed a breach of the AVO by contact with the brother of his former wife. Amongst other things the appellant left a message on his former brother in-law's phone saying this: "Hey bro Yo Yo, the cops are coming to get you, they have finally listened. They found Lisa. You're fucked." It appears that the appellant believed that his brother in-law had committed some offence against an underaged girl, at least that is what it appears from his subsequent allegations. That message was left on 1 May 2019. The message sent on 27 April 2019 was "Information about a crime" which was also sent to numerous members of the NSW Police. The brother was at the time living in Bundaberg.
2. The appellant committed further offences on 9 May, 14 May and 16 May 2019. That was the day on which he was arrested and I discussed the background to that in the judgment that I gave last week. He was granted bail by the Local Court at Burwood on 17 May 2019. On 26 June 2019 the appellant committed a offence of which the victim was Ms Jessica Swain. That led to his arrest on 16 May. Jessica Swain, it will be recalled, was the solicitor acting for the former wife in Family Court proceedings.
3. On 23 August 2019 Ms Swain was informed by a partner of her firm of a complaint that had been lodged against her with the Legal Services Commissioner. The complainant was the appellant. The complaint was investigated by the Legal Services Commissioner and was closed without any findings having been made. It is worthwhile to note what was said by Magistrate Viney about this offence in the judgment which she gave on 17 February 2021. The AVO which was in force at the time identified as a person in need of protection the former wife's solicitor Ms Jessica Swain. Her Honour went on to say this: "On 26 June 2019, Mr Curro sent an email to the Legal Services Commissioner outlining a complaint against Ms Swain. The document is headed: 1 Professional misconduct namely stalling and delaying tactics. 2 Disrespectful behaviour stemming from deep seated racism. 3 Bullying. 4 Involvement in the coverup of child abuse. The documents contain the formal complaint application which includes a section which states, 'How do you want us to resolve your complaint?', to which Mr Curro has written, 'The lawyer must be removed from a law practice and thrown in gaol.' In addition to the application document, the complaint document referred to a ..(not transcribable).. five pages long and contains a series of comments and allegations. In addition a series of emails were sent by Mr Curro with his complaint, directed to a number of persons including Ms Swain's legal firm, an associate a Family Law Court judge, and others. These emails again describe a number of allegations relating to [former wife] being a liar, [former wife]'s brother for having sex with underage girls, and a number of allegations against the police. Although Mr Curro in cross-examination initially denied sending these emails with the complaint, he ultimately conceded that he did. On 23 August 2019, Ms Swain was called into the office of the principal of the firm in which she works and advised that a complaint had been made, that it had been dealt with internally and that the file had now been closed. On 3 September 2019, police interviewed Ms Swain with regard to this correspondence. In her statement, she describes how Mr Curro continued - Mr Curro's continued correspondence, and in particular the unfounded allegations in this complaint relating to her involvement with a paedophile protection ring amongst other statements, are heard in not only her professional career but she fears for her safety and the safety of her friends."
4. The appellant raised a defence that this complaint was directed to the Legal Services Commissioner rather than to Ms Swain and that he had ticked a box on the application and understood that his complaint would not be brought to her attention. Her Honour rejected that defence. Her Honour went on to say this: "It appears in this instance that so little credence was given to the allegations made by Mr Curro, that no response was sought by Ms Swain, except that she was notified that the complaint had been received and that it had been dealt with summarily. I would have thought quite rightly, Ms Swain could and did make inquiries as to the content of the complaint. I do not accept that Mr Curro could possibly expect Ms Swain would not become aware that he had lodged such a complaint and what the terms of the complaint would be. Nowhere on the document provided to me, does it indicate Mr Curro ever stated, indicated in any way that he did not wish the complaint to be forwarded to Ms Swain, or that he complained that in doing so, it may breach an AVO. No one, of course, disputes Mr Curro's right to make legitimate complaints to professional organisations regarding acceptable professional behaviour of one of its members. It does not allow any person to make unfounded allegations regarding involvement in covering up a paedophile ring, the sexual [sic] of his daughter, or the extraordinary offensive remarks such as, 'Swain has decided to go down the path of every Rosy Batty, wannabe, and decided to get the police involved in order to silence me.' I am satisfied based on the material before the Court that the charge is made out."
5. On 21 July 2019 the offender committed an offence by contravening the AVO by contact with Mr Desmond Fox, the principal of St Joan of Arc School in Haberfield which was attended by the appellant's daughter. There was a further offence against Mr Fox on 22 July 2019 and a further offence involving him on 25 July 2019. There was then further offences involving Mr Fox on 30 July and 31 July 2019. Magistrate Viney dealt with these offences in her judgment on 17 February 2021. The text of that judgment can be found at p 61 of the 209 pages contained in Exhibit 2.
6. The offences committed on 4 August 2019 are known as H72518129 sequences 11 and 12. Her Honour said this of those offences: "In regard to sequence 11, a further charge of use carriage service, relates to a further email sent on 4 August, addressed to inquiries@familylawcourt, customer service at the Federal Circuit Court and was copied to Cara Seymour at Sydney Catholic Education. The email quotes a section of the correspondence sent by Catholic Education Organisation to Mr Curro about the Family Law Court orders and correspondence with Mr Fox. He then goes on to ask the Family Court to advise both the school and the Catholic Education Organisation to interpret the orders in a different way. He then states, 'My ex-wife is a child abuser like George Pell, I guess. Perhaps that's why good Catholics have sided with my ex-wife'. Abusive and offensive remarks alleging serious criminal misconduct which could not possibly have been characterised in any other way by anyone receiving this email. I find this offence proven. Sequence 12, a contravene AVO relating to the same email of 4 August, given that the email is directed to two Family Law Court addresses and the organisation which governs the school where Ms Curro sends her daughter, and the email contains allegations of child abuse against her and directs the Courts to intervene on Mr Curro's behalf at the school. I accept it would be entirely foreseeable that either the Courts and/or the school would refer the matter to Ms Curro for her comment or input. Accordingly, I am satisfied that this offence is made out."

S32 Application

1. On 8 August 2018 the appellant was arrested and remanded in custody. On 24 September 2019 he made his application to Magistrate Olischlager, sitting in the Local Court at Burwood, for the offences to be dealt with under s 32 of the Mental Health (Forensic Provisions) Act 1990 which applied at that time.
2. The Crown has sifted through the transcript and has identified that the following material was before his Honour: "(a) Brief material in respect of H-603, including some photographs of the Appellant's injuries sustained during his arrest on 16 May 2021. This material is attached as it overlaps with the evidence put before the Court at the hearing on 11 March 2020. (b) Brief material in relation to H-953, including an email sent from the Appellant to the NSW Police Law Enforcement Conduct Commission, Leichhardt Police Station, and Duncan Carter. (c) Brief material in relation to H-129, including the emails subject of those charges. (d) Brief material in relation to H-526, being correspondence to the Legal Services Commissioner about Jessica Swain, the victim, [former wife]'s solicitor. (e) A Justice Health report of Susan Hebblewhite dated 23 September 2019 (f) Letter from Elizabeth Munro dated 5 August 2019."
3. The Crown submissions then point out that it was not clear from the transcript whether the Local Court had available to it material from Dr Laura Cotiga and Dr Alexei Sidorov both of which pre-dated the application. However they are not mentioned by Magistrate Olischlager and I formed a view that they were not available to him. It is also unclear to me whether the Magistrate had available to him the appellant's criminal history to that date.
4. The first three subsections of s 32 are these: "32 Persons suffering from mental illness or condition or cognitive impairment (1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate: (a) that the defendant is (or was at the time of the alleged commission of the offence to which the proceedings relate): (i) cognitively impaired, or (ii) suffering from mental illness, or (iii) suffering from a mental condition for which treatment is available in a mental health facility, but is not a mentally ill person, and (b) that, on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law, the Magistrate may take the action set out in subsection (2) or (3). (2) The Magistrate may do any one or more of the following: (a) adjourn the proceedings, (b) grant the defendant bail in accordance with the Bail Act 2013, (c) make any other order that the Magistrate considers appropriate. (3) The Magistrate may make an order dismissing the charge and discharge the defendant: (a) into the care of a responsible person, unconditionally or subject to conditions, or (b) on the condition that the defendant attend on a person or at a place specified by the Magistrate: (i) for assessment or treatment (or both) of the defendant's mental condition or cognitive impairment, or (ii) to enable the provision of support in relation to the defendant's cognitive impairment, or (c) unconditionally."
5. In subs (6) of that section there is a definition of cognitive impairment but that is unnecessary to be considered because it appears to be common ground that the offender was at the relevant time suffering from a mental illness. The application of the section was considered in the DPP v El Mawas [2006] NSWCA 154; (2006) 66 NSWLR 93. It was held that the seriousness of the offence was a relevant matter to be taken into account in determining whether to apply the section. It was held that the section entails a discretionary decision in which the Magistrate is permitted latitude as to the decision which might be made, a latitude confined only by the subject matter and object of the Act.
6. There are three decisions to be made under the section. The first step is to determine whether the applicant is eligible to be dealt with under the section, a question of fact. The second step is whether it is more appropriate to deal with the defendant under the section rather than under the general law, a question of discretion, and if so, is it more appropriate to deal with the defendant under the section, and the third step is, if it be more appropriate to deal with the defendant under the section what orders should be made, also a question of discretion. The learned Magistrate was aware of those three matters.
7. The judgment can be found commencing on line 35 of p 8 of the transcript of 24 September 2019. On the following page commencing at line 15 his Honour said this: "Firstly, here I am satisfied based on the material provided by Justice Health, as well as also the report provided by the clinical psychologist Elizabeth Munro, that the defendant does fall within the provision of s 32 in terms of his clinical diagnosis. He has been diagnosed with bi-polar affective disorder. He presents with a disturbance of mood, over-valued ideas, grandiose ideas that is considered to be a mental illness that has been under-treated and poorly managed within the community. It is diagnosis in terms of the Justice Health report which effectively adopts what is said by Dr Elizabeth Munro." There can be no dispute that that was the correct finding.
8. On the evidence currently before me, Dr Alexei Sidorov, a forensic psychiatrist, diagnosed bi-polar II disorder. In March 2019 the appellant came under the care of Dr Laura Cotiga, a psychiatrist, who diagnosed bipolar affective disorder type II A report by Dr Elizabeth Munro of 5 August 2019 addressed to the presiding magistrate at the Local Court at Burwood does not provide a diagnosis but does state that in Ms Munro's professional opinion the appellant was mentally ill at that time and was therefore appropriately dealt with under s 32 of the Mental Health (Forensic Provisions) Act 1990.
9. The report of Ms Hebblewhite on behalf of Justice Health does provide the diagnosis of bi-polar affective disorder as well as the diagnosis of a substance abuse disorder. Before me is also a report made by Dr Sukumar Rajendran, a psychiatrist practising at the Croydon Community Mental Health Service which diagnoses a bi-polar affective disorder and also a narcissistic personality disorder. The most recent medical evidence currently before me is from Dr Olav Nielssen, a psychiatrist, who makes the diagnosis of a bi-polar mood disorder.
10. It was then open to Magistrate Olischlager to decide whether to deal with the appellant under s 32 or to decide that he should be dealt with otherwise according to law. At p 9 commencing at line 27 his Honour said this: "To that extent the Court has regard to the nature of the offences that are before the Court. The Court notes that there are numerous charges against the defendant, seemingly vary related to matters concerning breach of various AVOs that have been in place, and including at least charges involving assault police and resist arrest. The facts presented in relation to the offences I do accept largely do not include actual violence, or at least in majority anything in terms of a direct threat of violence. They certainly raise concerns in terms of the impact upon the persons that are the recipients of those communications and emails in terms of issues of harassment and intimidation, and that is in the context it must be understood of what has been described by the prosecutor as the continuous course of conduct. Indeed it certainly does appear that the Court is not faced with simply an isolated incident but a course of conduct adopted by the defendant over a period of time, which at least raises some concern in the mind of the Court in terms of the responsiveness of Mr Curro to firstly court orders in the form of AVOs and response to supervision by Community Corrections, and therefore raises some at least concern in the mind of the Court in terms of compliance with any community treatment. The Court recognises that it is also balancing the sentencing objectives in terms of general deterrence and personal deterrence, and also protection to victims associated with these types of offences in a domestic violence context, at least in respect to one of the complainants, and in a personal violence context in respect to others. Clearly there is a need to ensure that such persons are protected from the potential of the continued harassment, intimidation, or conduct that may fall foul of AVO orders that have been made specifically for their protection. Here the Court notes that the treatment plan itself can have operation effectively in terms of the Court supervision for a six month period. It is not entirely clear to the Court what might be reasonably achieved by the treatment plan proposed within that time frame. Indeed there are some qualifications on the report in terms of what has occurred in terms of initial treatments, for example, Mr Curro has shown positive but incomplete response to treatment and he has, at least at an earlier time, attended at five sessions of Dr Munro. Ultimately weighing up the matters the Court is of the view that the application should not be granted on the grounds that in terms of the balancing of the concerns for protection of the community and the particular victims, or the complainants of these matters, that also having regard to the sentence purposes of general and specific deterrence in the face of matters which show at least a degree of disregard to orders made by the Court previously in terms of compliance, it simply cannot be satisfied that it is an appropriate course to have the matters dealt with by way of a s 32 order. On that basis the application is dismissed."
11. I again point out that the "new charges" that were before the Court amounted in number to 16. Those offences were committed between 27 April 2019 and 4 August 2019 a period of three months and one week approximately. There was clearly persistent offending and the number of persons concerned by the offences was large. They included the appellant's former wife, her brother, her solicitor Jessica Swain, the principal of the couple's daughter's school and his superiors in the Catholic Education Office for the Archdiocese of Sydney as well as various members of the constabulary. The extent of the offending over such a lengthy period is concerning. The learned Magistrate does not appear to have been aware of offending prior to the appeal to this Court, that was dealt with on 7 February 2019, which involved 15 earlier charges again with a number of persons affected by the appellant's conduct.
12. The imposition of custodial sentences for those offences, the success of an appeal in which a CCO was imposed, but then a relatively swift breach of that Community Corrections by the series of offences that the appellant committed by way of what have been referred to as the new or fresh charges. Court orders by way of AVO and also the CCO have been disregarded and even on the material before the learned Magistrate the appellant's mental health had been under treated and poorly managed while he was in the community. Indeed, according to Miss Hebblewhite's report, Mr Curro's mental health was allowed to deteriorate with sub-therapeutic doses of psychotropic medication and a tendency to misdiagnose major mental illness as a personality disorder. That may be a reference to the diagnosis of a narcissistic personality disorder at the Croydon Community Health Service. It might be alternatively a reference to a suggestion of a personality disorder particularly of the borderline type that is raised in the report of Dr Sidorov which, as I said, I am not persuaded was available to the Magistrate but it may well have been available to the Justice Health team and I note that it was from the first page of Miss Hebblewhite's report. Accordingly, the learned Magistrate was faced with a large number of charges over a short period of time, a large number of persons adversely affected by the offender's conduct, a poor treatment of him in the community and what is more a more proper treatment of him whilst in custody.
13. That raises another issue which was discussed on this appeal. On p 3 of Miss Hebblewhite's report at the top of the page is this matter: "Mr Curro has had access to limited psychiatric review and treatment in custody. He was reviewed by a psychiatrist and he has been provided with medication. On 6 September 2019 Mr Curro was reviewed (in custody) by a Dr Calum Smith, consultant psychiatrist. He was considered to be grandiose - stating that he could speak six languages; had three PhDs, worked as a trauma surgery [sic] at Henry Ford Hospital in Detroit; was a high level bike rider and he is a rich businessman. Mr Curro's medication was altered and increased to parent regime: mood stabilising medication 450mg Lithium Carbonate daily and anti-psychotic medication 200 mg Quetiapine at night." It appeared to me that the introduction of Lithium into the treatment of the appellant commenced when he was in custody. The same is said by Dr Olav Nielssen in his more recent report. The appellant's solicitor submitted that in fact the appellant had been prescribed Lithium prior to his admission to custody when he was being treated at the Croydon Community Mental Health Service, but that is not attested to by Dr Rajendran's report. The solicitor for the appellant referred to his instructions but those instructions are not evidence, nor did the appellant give any evidence on this appeal, nor did he give evidence in the Local Court on the s 32 application and it is quite inconsistent in my view with the actual evidence that is before the Court. Accordingly, his Honour was faced with this picture about treatment that the treatment being afforded to the appellant in custody was much better for the control of his psychiatric condition than was the treatment that he had been prescribed outside of the custodial environment, that is in the community.
14. Looking at the matter independently of the decision of the learned Magistrate, I reached the conclusion that this was an inappropriate matter to be dealt with under s 32 because of the large number of offences over a relatively short period of time, the failure of the offender to observe court orders and the fact that his treatment in the community was poor but he was being better treated whilst in custody. Accordingly, the appeal against the failure of Magistrate Olischlager to make an order under s 32 is unsuccessful. That is, even if I had power to deal with the learned Magistrate's decision I have doubts about that. What is before me is an appeal from the decisions made by the Magistrate Viney and her decisions do not include any ruling under s 32 because she was never asked to make any ruling under s 32. For those reasons the appeal concerning the failure of the Local Court to make any order under s 32 is dismissed.
15. It has been submitted that I, sitting as I am on appeal from the Local Court, can exercise the powers of the Local Court and that I could make an order under s 32. That submission is correct but, again, I am faced with this problem that the offender stood for sentence before Magistrate Viney not merely for the 16 new offences but for the 15 "old offences" that were subsumed in the CCO which was breached by the commission of the 16 new offences so that the offender stood for sentence before her Honour for 31 offences affecting the even greater number of persons than the 16 fresh offences. Furthermore, I will not put my head in the sand. The offender has been in custody now since at least 26 November 2020 and the sentences imposed by her Honour were back-dated to account for pre-sentence custody to 7 October 2020. Theoretically the offender has been in custody for almost 11 months now and to make an order under s 32 would in my view be otiose because it completely ignores the fact that the offender has been in custody for 11 months.

Severity

1. The remaining topic of appeal is against the severity of the sentences passed by the Local Court. As I said, there was an aggregate sentence for New South Wales offences for a period of four years and six months and her Honour fixed a non-parole period of two years and six months. I am well aware that there are a large number of offences and that the indicative sentences imposed by the Local Court amounted, if wholly accumulated, to a period of incarceration of ten years and three months but the Local Court only had power to incarcerate for a maximum of five years. The sentence imposed was four years and six months but that type of sentence is in this Court's experience more appropriate for very serious assaults and woundings, for assault occasioning grievous bodily harm and for very serious sexual offences, including sexual assault. I have formed the view that the sentence imposed was excessive.
2. The matter has been before me now for some considerable time. I had a lot of time to think about it. It appears to me that I should reduce the sentence for State offences imposed by the Local Court by one third. That is in my view the aggregate term of imprisonment should have been three years. The question then becomes what should be the non-parole period? Clearly, there are special circumstances in this case going directly to a very salient issue rehabilitation. The offender is doing well in custody. If I may be so bold, I wish to quote his own words, Exhibit 4 is a letter written by the appellant to me. It commences in this fashion: "Marcel Proust once wrote, 'we don't receive wisdom. We must discover [it] for ourselves after a journey that no one can take for us'. And so it is that I find myself writing this letter to you from the inside of a gaol cell. I was once a well-read, well-travelled and quite frankly, an over-educated man. One would have thought that a man such as myself would have found life's lessons in the words of Marcus Aurelius or Thomas Jefferson, or even the everyday workings from an emergency ward. But no! it has taken ten months inside this very gaol cell to make me realise that acting like a petulant teenager has destroyed my life." I hope that those ten months inside a prison cell have made the appellant realise that acting like a petulant teenager has not destroyed his life but rather interrupted it in an unsatisfactory way and has led him to realise that he must change, that he must adapt, that he must seek treatment in order to resume a worthwhile life.
3. Things have been looking up for the appellant in the sense that there has been a final resolution of his matrimonial dispute with his former wife and there are some arrangements in place that permit the appellant to have contact with his daughter by telephone fortnightly from prison and the circumstances of his contact may well change as soon as he is released from custody.
4. However, at this stage I am considering what should be the non-parole period. Of course, the statutory regime is that the non-parole period should be three quarters of the head sentence. In my view there are reasons to break the statutory nexus, special circumstances, and they are to ensure as well as can be done that the offender stays compliant with the drugs prescribed to him since he has been in custody and that he maintains his resolve to continue treatment by having somebody looking over his shoulder, to ensure that he is compliant with such treatment. The appropriate persons to do that are Probation and Parole officers, officers of Community Corrections. I have formed the view that the appropriate non-parole period should be 18 months such that the appellant will be under the supervision of Community Corrections for the first 18 months when he is released back into the community.
5. Having made that finding it is theoretically necessary for me to adjust all the indicative sentences. This is unfortunate but I shall deal with the matter generally by saying this, the indicative sentences should in general be reduced by one third. If the indicative sentence was six months it should be reduced to four months, if the indicative sentence was four months it should be reduced to three months, if the indicative sentence was eight months it should be reduced to five months, if the indicative sentence was seven months it also should be reduced to five months, if the indicative sentence was five months it should be reduced to three months. The only exception to those indicative sentences is in my view the sentence for the assault upon Constable Kopanja for which her Honour made an indicative sentence of six months in my view that indicative sentence should stand.
6. No one wants any further reasons do they, as distinct from orders? BOWE: No your Honour DANDO: Your Honour I could benefit from a repetition of the non-parole period. I am afraid I missed it. HIS HONOUR: Don't worry I will give that. I am about to make the orders.
7. I decline to interfere with the sentences passed in respect of Commonwealth offences. As I pointed out yesterday the last of the Commonwealth fixed terms of imprisonment expires on 24 November 2021 which will be before the appellant becomes eligible for release to parole under the sentence that I intend to impose. For those reasons the sentence imposed by the Local Court at Burwood on 15 March 2021 for State offences is set aside. In lieu of that sentence, the offender is sentenced to a non-parole period of one year and six months commencing on 7 October 2020 and expiring on 6 April 2022. I impose a further period of imprisonment of one year and six months to commence upon the expiration of the non-parole period and expiring on 6 October 2023. The total sentence is therefore three years comprising the non-parole period and the balance of the sentence. I have found special circumstances. The appellant is eligible to be considered for release to parole at the expiration of the non-parole period. I confirm the sentence imposed by the Local Court at Burwood on 15 March 2021 for Commonwealth offences.
8. What you might do for me Miss Dando and Mr Bowe is if you could make up a schedule of all the indicative sentences and send it to my Associate. DANDO: Yes your Honour I can do that for you. HIS HONOUR: Thank you very much. BOWE: I thank my friend for that. HIS HONOUR: The indicative sentences are of course for keeping BOCSAR happy, the Bureau of Criminal Statistics, and also for keeping the Judicial Commission happy for the keeping of their records, their sentencing records. DANDO: Does your Honour wish the schedule to include the previous indicative sentence as well as the new one to show. HIS HONOUR: Yes you can put the old indicative sentences and new indicative sentences on it, yes and we can put it on the file. Yes do that. Remember everything that goes down, I thought I said what they ought be except for the six months for the assault on the Constable, all right? DANDO: Yes your Honour. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 March 2022