Pervert the Course of JusticeConvincing others to liePsychological report conclusions
Judgment (2 paragraphs)
[1]
Judgment
Mr Thurlow was found guilty by this court at the completion of a judge alone trial that:
1. Between the 20th and 26th of April 2017 he engaged in a course of conduct, procuring Brenton Pearce to provide false information with respect to sexual assault allegations with intent to pervert the course of justice. He pleaded guilty to this charge;
2. and Between the 20th and 28th of April 2017 he engaged in a course of conduct, procuring Kate Thurlow to provide false information with respect to sexual assault allegations with intent to pervert the course of justice. He pleaded not guilty to this charge and was found guilty after a judge alone trial.
The maximum penalty for each offence is 14 years imprisonment. He was acquitted of other charges which are relevant to the extent they were the sexual assault allegations referred to in the pervert offences.
FACTS
The facts are as summarised in my reasons for decision of 18 September 2020. Notwithstanding a plea being entered for Count 3, factual issues are still in dispute relating to the instigation of and responsibility for Pearce giving a false statement to police. The Crown have provided proposed facts (exhibit 1 on sentence) much of which references my reasons and accords with my findings.
In my findings (paragraphs 193 to 199 of the verdict) I did not find and still do not find that at any time the offender believed the meeting on the 20th April 2017, was for the housemates to come to a conclusion as to the truth of the events of the 15th April 2015. He called the meeting to canvas assistance that would help in exonerating him of any criminality. There was no evidence that before the meeting Kate Thurlow knew she was going to asked to manufacture false evidence, but it is very clear from subsequent phone calls that a false story was manufactured, and this offender pressed her to tell that version to police.
FACTUAL FINDINGS OF THE OFFENDER'S INVOLVEMENT
R v Jesse Robert Thurlow [2020] NSWDC 871 | Case summary | Zoe
MFI 5, which contains transcripts of telephone calls between the offender and others is instructive as to the course of events, the state of mind and contribution of the offender to the series of events. I am aware that where inferences are to be drawn which increase the seriousness of his involvement, those conclusions must be the only rational conclusion based on all of the evidence.
Before the 13th of April 2017 police left a card at his home. The offender telephoned them to enquire what it was about. A lawful telephone intercept had been placed on his phone. Later he telephoned the co offender Pearce. In this call this offender related the conversation with the police officer. He said "..she said there was another male involved". Pearce replied "oh, so it was that chick". This statement confirms that two had spoken about the reason for the call from police prior to this and this offender had correctly assumed the reason for the police interest was the event in April 2015. This is evidence of a consciousness by the offender that a bad event had occurred that evening.
Pearce sympathised with this offender's predicament and observed what he had been told by this offender (p 9 MFI 5 13/04/2017) that the sexual event was a threesome and that it had been "a bit rough". Pearce was not in the room at the time the sexual activity occurred, therefore this information must have come from this offender.
Pearce gave advice on how to deal with the police interview. This offender impressed on Pearce the personal consequences if he was charged or convicted and Pearce consoled him by suggesting he would lie to a courtroom full of priests to avoid that possibility. This extravagant gesture may have been the beginning of the idea that eventually took hold, but there is no evidence that either took the situation seriously until after the offender's interview with police on the 20th April 2017. Without this offender's encouragement the matter would have gone no further.
From the commencement of the planning for both offences it was this offender who reached out to Pearce and sought his advice and assistance. There is no evidence as suggested by Counsel for the offender that Pearce complied and enthusiastically assisted in order to "to reap the benefits of some debts of sorts in the future" (para 25 submissions). Pearce assisted when asked for assistance I find, out of loyalty to his friend. All this offender had to say to avoid Pearce committing an offence was that he did not do anything wrong that night and intended to tell police that.
After Thurlow's police interview on the 20th April 2017 he contacted Pearce again and told him he thought his interview had not gone well. The decision for Pearce to support his friend by lying to police was made in this phone call (p 20 MFI 5 20/04/2017 at 12.03).
It was this offender who arranged for the 20th April meeting with Stefan Arabadzhiynski, Kate Thurlow and Pearce. The purpose of the meeting was to come up with a version of events that would support the version given by Thurlow to police and to discredit the complainant.
On the 26th April 2017, immediately prior to Pearce's police interview this offender and Pearce discussed what needed to be said. It is irrelevant that Pearce instituted the call. It was this offender who asked for "the low down". Pearce than asked "is there anything else?" This conversation signifies that the two were acting in concert for Pearce to give the false information to police. The narrative of the falsity was to accord with the version given by Thurlow to police, some of which had been previously discussed. This offender pointed out the basic requirements for Pearce's interview must include him sleeping at Pearce's house and the activities of the complainant earlier in the evening. It is obvious that this offender was retelling Pearce of the salient parts of his police interview that he thought needed corroboration and reminding him of the story invented about the complainant on the 20th April. He directed Pearce to "paint a pretty good picture ….sitting on all out laps and getting her tits out…." (MFI 5 26/04/2017; 12.21). I found none of this was true. There is no doubt that Pearce was an enthusiastic participant, but it was this offender who directed the detail required for his support.
After Pearce's interview he had an understanding of the seriousness of the investigation, and that the planning undertaken could have been better. ["we should have t'd for T (sic)] (MFI 5 26/04/2017 20.34).
It was submitted on behalf of the offender that the purpose of the meeting on the 20th April 2017 was to remember the truth of the evening. This is contrary to the findings I made at the trial (para 197 verdict). Thurlow had already lied to police, so the purpose of the meeting was to invent a version of events to discredit the complainant, and to convince Pearce and Kate Thurlow to assist in the telling of that story.
Pearce and Kate Thurlow did as requested by this offender and told lies in their interviews. The lies were invented on the 20th April. The purpose of the lies was to assist the offender.
In his conversation with Stefan Arabadzhiysky on the 24th April, Thurlow expressed confidence that "Brent (Pearce) would be a good mate". On the 26th April, Pearce was a good mate and lied to police. In his evidence before this court during the trial, Pearce finally conceded that he no longer recalled what was truth and what was made up. I find both offenders made it up, and for whatever reason Pearce told that lie to police.
On the same day, 26th April, Pearce reminded this offender to tell Kate to go to police for her interview. This is again confirmation of the purpose of the meeting on the 20th April. This offender indicated that he had already done so and that he considered her perspective to be "vital".
This conversation is direct evidence of this offender's insistence that Kate (Thurlow) tell police the invented version of events. His motivation was purely personal and selfish. I have set out in my verdict why Kate's statement to police was not capable of acceptance at any level.
I observe that in sentence proceedings for Pearce, the Crown submitted to the court that Pearce was the instigator of the pervert offence that he committed. The evidence relied upon was largely to do with his enthusiasm in proclaiming to this offender that he would lie in front of a number of priests on the 13th April 2017. In the context of all of the information available to me I accept that this bravado was both important and stupid, however Pearce did not commit to assisting Thurlow by lying until just before his interview when he checked his story with this offender. By that time this offender had already lied to police and admitted same to Pearce.
The finding of Smith SC DCJ and the CCA (R v Pearce [2020] NSWCCA 61) that Pearce was not the instigator was based on evidence and information before that court. I had the advantage of all of the evidence from each participant, of all of the telephone calls, and personal evidence from Pearce, this offender, Kate Thurlow and Stefan. With due respect to the other courts, I am in a far better position to make factual findings on who was the instigator and why certain actions were taken.
On the 28th April this offender spoke to Kate Thurlow and urged Kate to tell police the version created on the 20th of April 2017. He knew it was false. Detailed reasons are contained in my reasons of 18th September 2020. It matters little if the original idea for each lie came from Pearce or Arabadzhiysky. There is no evidence that Kate knew the true purpose of the meeting was to manufacture a version of events that would assist the offender. It does not matter at all that ultimately she did not pursue all of the lies he asked her to tell (verdict para 197-199). It is an indication of her loyalty to him that she, as apparently also a person of prior good character would be so misled or manipulated by her cousin to tell falsehoods to police.
ROLE OF OFFENDER
I find that Pearce and this offender were equally responsible in the instigation of the offence, count 3. Kate was prevailed upon by this offender to participate, therefore he was the sole instigator of Count 4. The person to benefit from both offences was this offender. He was aware of a sexual event that was rough and was worried about police investigating it. Both of his co-conspirators told lies to police out of a misguided sense of loyalty to him.
This offender's motivation was purely selfish. He gave no thought to the consequences for the two he encouraged to lie to police. The submission that he was the lucky beneficiary of planning by others is rejected.
Both offences effectively were part of a course of conduct engaged in by the offender over 8 days, but with consequences for his co-conspirators and the criminal justice system extending to years.
The offender drew his cousin into the web of deceit by requesting she attend a meeting at Pearce's home on the 20th April 2017, where the invented version of events was fleshed out. In my reasons I found that his concern that he had done something wrong was real as he did not recall a great deal of the events of that evening, but obviously recalled a rough sexual event involving he and his alleged co offender and a female who had visited that evening, and who left hurriedly.
The offender's statement to Mr Costello and the Sentencing Assessment Report writer that the intention of the meeting on the 20th April was to "recall the truth of the events" is specifically rejected as being false. The maintenance of this fantasy in November 2020 throws doubt on his claim of acceptance of responsibility. His telephone call with Pearce on the 20th April anticipated that lying to police would be required. This offender organised the attendance of others, including his cousin to the meeting. He urged her to tell the story created. This is not evidence of "a plan devised with friends" where Kate Thurlow is concerned. The story required her to pretend that things had happened say that the complainant was sitting on laps, was being flirtish and sitting with legs intertwined. None of this was true, as I have found the offender well knew.
The offender's Counsel submitted that this offender believed that these events were accurate as Brenton had told him at the meeting. It was submitted that the request that Kate tell police recollections of another is a more benign form of the offence because the offender did not know at the time the statements were not true. These submissions are without any cogent evidence to support them. This offender knew that Pearce had no recollections of that evening. This offender was more worried that Stefan had told police that he was having sex with the complainant and this offender assaulted her. It was after the meeting of the 20th April 2017 that the story characterising the complainant as "wanting it" was crystallised. Counsel's submissions are rejected.
PLEA
Both Counts 3 and 4 were ex-officio indictments laid in November 2018. The offender pleaded guilty to count 3 at the commencement of the trial, but that plea was indicated to police in July 2020. The factual dispute still existed, and I have found that facts were largely as presented by the Crown. The offender is entitled to a discount of 15% on a sentence that would have otherwise been appropriate.
He was found guilty of count 4 by this court at the conclusion of related proceedings. No discount is appropriate.
OBJECTIVE SERIOUSNESS
It is the doing of the act, (in this case encouraging Kate and Pearce to lie to police) intending to pervert the course of justice that is decisive [Rogerson v R [1992] HCA]; R v Marinellis (NSWCCA 307). It does not matter whether the offending conduct brought about a miscarriage of justice. Kate gave evidence in the proceedings. I found it to be untrue. Pearce admitted the version he helped create was untrue.
There is no possible interpretation to be put on the Accused's words other than he intended to bring about a diversion of the police investigation. He invited Kate to Pearce's home and spoke to her shortly prior to her police interview. His later conversations underline the intention in the previous phone calls.
The fact that Kate did not tell all of the lies he tried to remind her about is immaterial.
The Accused's explanation that he only urged Kate to tell what he believed to be the truth was contradicted by his own words, as I detailed in my reasons for decision. His evidence that he would not expect her to say something untrue was specifically rejected. He took advantage of her affection and personal closeness to him.
In relation to count 3, the defense submission that the idea was Mr Pearce's is specifically rejected although I found he was an enthusiastic participant.
There was significant planning. Conversations with those relevant to the evening were held. A meeting occurred so they could get their stories straight. Mr Thurlow continued to encourage and pursue those who had agreed to assist. The fact that each participant told slightly different versions, or that Kate's version ultimately could not sit with other evidence is simply evidence of lack of care, not lack of planning.
It is no excuse that the people he convinced to lie to police did not think he was guilty. Neither of them had independent knowledge and were trying to assist him because he was worried that he had done something wrong. The imposition by a friend on another to lie on their behalf is an unfair request. Mr Thurlow had no difficulty in placing a real burden on his friends and family.
MORAL CULPABILITY
In considering this offender's moral culpability for the offences I have noted with interest the report by psychologist Michael Costello, and the evidence he gave in Court. Mr Costello is, according to his report, a registered psychologist of 18 years standing. He prepared his report after one 2 hour meeting with the offender in November 2020. His 14 page report largely repeats what Mr Thurlow told him. He had access to other reports, prepared perhaps for other court proceedings in November 2018 and September 2019. This court did not have access to them, nor did the psychologist enlighten the court as to their substance, other than that they confirmed that the offender was in receipt of some psychological assistance since mid-2018.
Mr Costello's report concludes: "At the time of the offending Mr Thurlow met the criteria for adjustment disorder …..and if not for the mental health issues, combined with fear and shock on his situation Mr Thurlow would not have committed these offences". This observation is not a diagnosis, but an observation that his presentation as told to him by the offender, if true would satisfy the definitional criteria for a disorder. There is little reasoning on the issue of causation.
Mr Costello told the court that an adjustment disorder "occurs when an individual has significant difficulty adjusting to or coping with significant psychosocial stressors." It is in effect a maladaptive response to stressors, including otherwise normal emotional and behavioural reactions that manifest more intensely than usual. According to observation the stressor was fearing he would be charged with a criminal offence.
I accept that if the finding is accepted on balance it may have some effect on any finding as to Thurlow's moral culpability and therefore a sentence consideration. The fact that this disorder is described in the DSM V does not automatically mean that a person suffering from such symptoms is less culpable for criminal offending. Much depends on the circumstances of the offending and the offender, and whether the symptomology can be accepted as a diagnosis relevant at the time.
The observation and apparent diagnosis of a condition said to be existing more than 3 years prior to an interview and based largely on self-report is not inherently convincing. In addition to this observation I have noted some inconsistencies and errors in the report. In no particular order they are:
1. Mr Costello's report contained the observation that he had been told by Thurlow that since he commenced treatment in mid-2018, he had been drug free. This seems to be contradicted by reference to a charge laid in May 2019 for possession of drugs and related matters. Mr Costello knew about this, but did not comment on it. The apparent positive response to previous counselling is used to support a finding that he has good prospects of rehabilitation.
2. Mr Costello had access to a number of mental health treatment plans. He did not disclose the dates or content of those plans, or the treatments proposed. One of the reports was for the 2019 court proceedings. The compliance with these plans is unknown.
3. He took note of 10 personal references as to the offender's good character. I have some similar documents. I do not know what weight or conclusions he drew from those references and why.
4. He said he had a copy of "the police facts". I do not know what this document contained with respect to the pervert offences. Mr Costello was not provided with and apparently did not seek my reasons for decision in relation to the dismissal of the sexual assault offences and finding of guilt for the pervert offences. If he had, he may have been in a better position to challenge Mr Thurlow on some of the self-serving statements in his 2 hour interview and/ or to understand the context of the "conspiracy" as he called it with his friends. For example, Mr Thurlow told him that "one of his friends suggested a story and he went along with it". This is the offender's version of events, but is not what I found occurred, nor does it conform with the contents of the series of telephone calls (MFI 5). Mr Costello formed a view as to the offender's state of mind and motivation based on this self-report, not the finding I made. If Mr Costelllo had made himself aware of the accuracy of the circumstances of the offending he may have formed a different conclusion as to both the offender's motivation and state of mind.
5. Mr Costello said that the offender told him that within a few days of the allegations being made, he was "feeling a sense of hopelessness and helplessness". This is not the impression gained from listening to the conversations between the 13th and 28th April 2017. It was not until after the 20th April 2017 that Mr Thurlow really anticipated that he might be charged. Prior to that he believed that his friend Stefan had told police a version of events. By the 20th April he was aware that this was not accurate.
6. Contrary to what he told Mr Costello, the offender had significant trust in his friends and apparently shared his troubles with Kate Thurlow, Pearce, Isaac and Ben. He sought comfort and support from all of them. The context of the calls show they supported him. This offender's enthusiasm about the arrangements is reflected in his phone calls to Ben Goodwin (p 10 MFI 5) and Isaac (p 51 MFI 5). These calls are evidence of the offender's intention and state of mind at that time. He was confident of the plan hatched with Pearce and Kate Thurlow. These conversations evidence a state of mind that contradict this offender's self-report he was exhibiting any of the symptoms listed on page 6 of Mr Costello's report. Specifically, in those conversations the offender appears to be upbeat, and confident. He trusted his friends to support him. There is no hint of hopelessness, although he is appropriately aware of the consequences of a bad result for him. It is also noted that this offender told others of a sexual event which was rough, but accepted no responsibility for anything going wrong. In all the conversations his affect appears on the face of it, to be confident.
7. His actions as evidenced in the series of telephone calls was methodical. The fact that decisions reached after workshopping events with Pearce were criminal does not of itself support the conclusion that he was suffering from an adjustment disorder, especially as there is evidence contradicting the offender's self-report of symptomology at the relevant time. Pearce committed a similar offence with no self interest. He was also of prior good character.
8. Both Pearce and this offender were naïve, but in fairness, if police did not have the warrant for the telephone intercepts, it is a process that might have been more successful. The suggestion in Mr Costello's report that the meeting with friends was to develop a truthful story is frankly nonsense. The purpose of the meeting as I found in my reasons, based on the series of telephone calls was to create a story that would characterise the complainant as a slut. That is exactly the version that emerged from both Kate and Pearce
1. Mr Costello administered the 1 SCL-90 R test, which is a guided self-report questionnaire. The symptoms noted were assisted by further interview. The symptomology assessment was relevant for the date of interview, November 2020. It has little relevance to his presentation in April 2017.
2. Mr Costello was unable to explain how the offender's metal health issues arose spontaneously in April 2017 with no issues having ever presented before that, or no history of anxiety in the past. He did not explore alternative explanations.
3. In his evidence in Court during the trial, Mr Thurlow agreed that he was a plain speaker. His telephone calls as is noted show no indication of anxiousness, irrational statements or similar behaviour that might support a finding that Mr Thurlow was acting irrationally. His behaviour was rational, and illegal. Mr Costello's report assumes that Thurlow was "proven innocent" of any wrongdoing. The reason the charges were dismissed was qualitatively different. As it was a Judge alone trial the reasons were available. The SAR report writers took the trouble to access it. Mr Costello's report is based on a version of events which the offender gave at court, and which was rejected. The offender told Mr Costello that at the time he did not disagree with the course of action. The fact is he drove the course of action, arranged the meeting, told friends about the requirement to get stories together and reminded both Pearce and Kate of the detail required.
4. I had the advantage of observing Mr Costello giving evidence in Court. He did not recall and apparently did not take notes of what he said were genuine expressions of remorse by the offender. He was unable to recall any direct expression of acceptance of responsibility for the offending behaviour, even for the event he pleaded guilty to. He simply repeated that the offender told him he "wished he had not done it".
IN SUMMARY - WEIGHT OF COSTELLO REPORT
The report largely is a report of what Mr Costello was told. There is little if any reasoning as to how and why he came to a conclusion that at the time of the offending he met the "criteria for an adjustment disorder, with mixed disturbances of emotions and conduct". He gave an opinion that the "fear and shock regarding the sexual assault accusation, along with the adjustment disorder, facilitated behaviour that was out of character for Mr Thurlow …… If not for the mental health issues, combined with fear and shock …Mr Thurlow would not have committed these offences". There is no reasoning for this conclusion, apart from the fact the Mr Thurlow had not committed offences prior. The reasoning seems to be that just because he was a person of good character, this offence must have been committed as a result of an adjustment disorder. The reasoning is flawed. As is obvious Mr Pearce committed the same offence at the same time. He was also of prior good character.
In general I find Mr Costello's report is superficial and unsupported by either evidence or reasoning, focusing as it does on a self-report and an indicated diagnosis of what that person's mental state was over 3 years prior. Mr Costello conceded that another explanation for Mr Thurlow's actions was a rational decision to get out of trouble by arranging for others to lie to police for him. His rejection of this scenario is based on nothing other than uncorroborated self-report and that the offender has no prior criminal convictions.
I do not accept the report of Mr Costello, or its conclusions. It is simplistic and superficial. His presentation in court did not assist. The report does not support a conclusion that the offender's moral culpability was reduced at the time of the offending.
DISMISSAL OF PRIMARY CHARGES
As stated in R v Marinellis (above) "the applicant's culpability should not be reduced by reason of the fact that the charges (in that case aggravated sexual assault) were not proceeded with. …. "The fact that the applicant believed it necessary to procure others to (lie) ..suggests a belief in him that unless it was done he risked being convicted". That is exactly the position for Mr Thurlow.
COUNT 4
The submissions that Kate's lies to police were based on Thurlow's belief of the truth of the requests he made is not supported by the evidence in the telephone calls, between Thurlow and Pearce and Thurlow and Ben. The submission that he only asked Kate to consider the observations of Pearce and adopt them is not supported by the evidence. Thurlow knew Pearce had little if any recollection of the evening. As noted above and in my reasons for decision, this offender knew that what he was asking Kate to do was tell a lie to police in order to support the story invented on the 20th April 2017.
Each offence is a separate one. Each offence was committed for the benefit of the offender. He prevailed upon different people. There ought be some notional accumulation.
Objectively these offences are of around mid-range seriousness.
SUBJECTIVE
21A(3) Mitigating factors
Offender is a person of prior good character. I accept this to be the case. The 2019 supply matter on his criminal record was dealt with pursuant to s 32 Mental Health (Forensic Provisions) Act, signifying that at that time the magistrate found that on balance it was more appropriate to dispose of that matter in that way rather than according to law.
The SAR reports that he has a low risk of re-offending.
Good Character. I have read the uncontested character references from friends and family. I accept that this offender has great community support and has in the past been a good and professional worker.
REMORSE
The only expression of remorse is as reported to the SAR report writer and Mr Costello. A wish that "he had not done it" (Costello's oral evidence) is far removed from remorse as meant by the Sentencing Act, nor is it an acceptance of responsibility and recognition of the real and potential consequences for his friends who lied for him, and for the justice system. The SAR report writer was able to draw out a better explanation of the consequences for the community of this type of offence. Mr Costello suggested that at the time he pled guilty to count 3 he understood the wrongfulness of the action. His plea of not guilty for count 4 does not support this stated insight.
This offender did not give evidence so I am unable to further assess his level of remorse. Notwithstanding a risk of re-offending assumes some level of acceptance of responsibility I am prepared to make a generous finding that he has good prospects of rehabilitation, based on his family and community support.
His prior good Character will entitle him to leniency in both the head sentence and support a finding of special circumstances. He is now aged 30 years. He was 26 when the offences were committed. His mother and father endured the trial process and continue to support him financially and emotionally. His extended family and friends also support him.
He is a qualified a chiropractor. It is unknown if that career is still open to him or not. Between 2017 and 2019 he was not entitled to practice as a chiropractor and worked in construction after his license was withdrawn. He apparently was under obligation to advise the registration board of being charged, but did not do so immediately.
He has previously used alcohol to excess, and that appears to have been his presentation in 2015, on his own admission in telephone calls (Ben) 20/04/2017). In 2018 or 2109 he reportedly used significant amounts of cocaine until arrested. He has undergone treatment and now reports he is drug free.
EXTRA CURIAL PUNISHMENT
It was suggested that the offender has suffered as a result of 'salacious newspaper coverage', and as a result of the sexual charges lost his ability to practice as a chiropractor. I do not accept that the newspaper coverage amounts to extra curial punishment. It seems to be accurate reporting. I accept that Mr Thurlow has suffered some fall from grace and ability to practice his profession, at least temporarily. I do not know what effect the conviction for the current offences will have.
His brother provided a reference which noted that "these events had cost him almost everything, personally, professionally, mentally, spiritually and financially". The psychologist report prepared by Mr Costello notes that Mr Thurlow has been in treatment with a psychologist since mid-2018. He reported he had a period of depression, which he reports although now moderately depressed, he reports to feeling much more positive (p 12 Costello report).
I accept there was delay in the charging process for the current offences. I do not know why this was the case, but accept it was not the offender's doing. Similarly the late charging of Arabadzhiysky caused further delay. Either the application to separate the trials or COVID or both resulted in further delay. I accept that this delay has caused stress. I accept that this stress has been significant for him, but it seems has enabled him to further engage in rehabilitation and show the court that he is capable of doing so. Noting his presentation in April 2015, where according to all evidence he was frequently drinking significant amounts of alcohol, it is not the case that the court can find that delay alone resulted in substance abuse, however I accept it may have exacerbated his substance abuse issues and perhaps lead to his current level of depression. He is rightly worried about this process. His need for continued assistance with his past substance abuse should be noted. I am aware relapse prevention programs do exist in custody. This may be requested if he wishes. This is not an issue that the offender raised as necessary when interviewed by Probation and parole.
APPROPRIATE SENTENCE
The Court of Criminal Appeal has consistently held that offences against justice require strong deterrent sentences and must be severely punished whenever detected: Marinellis v R [2006] NSWCCA 307 at [10]; R v Taouk (1992) 65 A Crim R 387.
In Harrigan v R [2005] NSWCCA 449 at [47], the court endorsed the statement of McClellan J (as he then was) in the two-judge bench decision of R v Giang [2001] NSWCCA 276. In relation to an act intending to pervert the course of justice, McClellan J stated at [21]:
"In every case the court has been concerned to emphasise the need to impose a sentence which not only punishes the offender but will deter others from a similar course of action".
I observe that Giles J in the case of R v Purtell (2001) 120 A crim r 317) observed that: "that the maximum penalty for the offence of perverting the course of justice, 14 years, recognises the importance of protecting the integrity of the criminal justice system, and therefore general deterrence is an important sentencing consideration."
PARITY
Pearce pleaded guilty for his role and was ultimately sentenced to 18 months Intensive Corrections Order and 100 hours of community service work. He was afforded a 25% discount for an early plea. An inadequacy appeal was dismissed. The Court of Appeal observed that the sentencing judge's observation "that the offending was carried out as a result of loyalty to a friend, therefore less moral culpability attached to his actions than in cases where the offender seeks to divert the course of justice to protect their own interest" was not one they disapproved of. The CCA confirmed that the lack of a direct association with justice administration was simply a lack of aggravating circumstance.
The CCA observed Pearce's behaviour was "serious, planned and reflected an attempt to strike at the heart of the justice system, enthusiastically participated in ….although not for his own benefit.". The sentence also reflected the offender's subjective circumstances, which the sentencing judge were found to be "unusually powerful". It was apparently a strong factor in the decision that the imprisonment sentence ought be served in the community. The CCA observed that but for his strong subjective case the appeal may have been successful, but ultimately rejected the appeal on the basis of the finding that Pearce was not the instigator of the offence.
This offender does not have that advantage. He was a joint instigator, and the offence was committed for his benefit. The sentence imposed on Pearce is one that can and ought be a guide for the sentence on Count 3. His criminality is greater than Pearce's.
I accept the plea was indicated in a reasonably timely manner and 15 % discount is appropriate, as the factual dispute still had to be argued, thus the utilitarian value is diminished.
The sentence to be imposed must be an imprisonment sentence. The defense rightly do not argue otherwise.
Each offence is an offence of around mid-range objective seriousness, taking into account the moderate planning, the instigation of each offence being in his hands, (solely for count 4) and the commission of the offences being for his benefit only. In this case it is conceded that the section 5 threshold is crossed.
In considering the third stage it is acknowledged that section 3A considerations still apply. General deterrence is an important sentencing consideration. I have found that Mr Thurlow is not suffering from a mental condition, either at the time of the offending or now that would make him an inappropriate vehicle for general deterrence. His depression seems to be related to his current predicament and understandably so. I accept that the offence was not a violent one and therefore the risk to the community was not of that nature. The administration of justice however is a cornerstone of a civilised society. Respect and obedience for its procedures is one of the requirements for an effective justice system.
I propose indicative sentences of:
Count 3: (after discount) 24 months
Count 4: 2 years 4 months
I am aware that for such a sentence consideration must be given to how it is to be served. Pervert the course of justice is one of the very serious offences on the criminal calendar which required consideration of a full time sentence. The case of R v Fangaloka [2019] NSWCCA 173 confirmed in detail the legislative reasoning behind the introduction of the ICO orders as a form of imprisonment and the staged process a sentencing court is required to undertake.
The first purpose of sentencing (para 64 R v Fangaloka) is to ensure that the offender is adequately punished for the offence. The fact that his mild depression might be more easily addressed in the community ought not be an overriding consideration. He has reasonable prospects of not re-offending whatever the result.
Section 66(2) of the Criminal (Sentencing Procedure) Act is a section I have considered, but it is not the only consideration. The recent case of Wany v DPP [2020] NSWCA 318 requires me to consider the issue of rehabilitation among other matters. I do not accept that Mr Thurlow's rehabilitation will be only assisted by a community based orders. All sentencing requirements must be considered.
It is my view that a sentence served in the community, even with a consideration of community service work or home detention would not adequately punish this offender for this serious assault on the justice system. It is acknowledged in many cases, including Fangaloka that the imposition of an ICO confers an additional element of leniency. In Mr Thurlow's case, I have made allowances for all matters that are in his favour. No further leniency is indicated.
I find special circumstances. It is his first time in custody, he has some mental health issues and he has been vulnerable in the past to substance abuse. Perhaps support for relapse prevention while in custody is indicated. There may be some future COVID difficulties. I accept that the delay, which I have made allowance for in fixing the sentence has resulted in some emotional and financial difficulties for him. I have allowed for the extra curial punishment of his job loss in fixing the sentence. I propose a 60 /40 proportion on the sentence to be served.
The offender, JESSE ROBERT THURLOW, is sentenced to an aggregate term of imprisonment of 2 years, 10 months to commence on 17 December 2020 and expiring on 16 October 2023 with a non-parole period of 20 months. The offender is to be released to parole on 16 August 2022.
The Indicative Term for count 3 is 2 years. Sentence discount of 15% is included.
The Indicative Term for count 4 is 2 years, 4 months.
[2]
Amendments
21 March 2021 - Nil
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Decision last updated: 21 March 2021