Thurlow v R

THE FACTS OF THE OFFENDING

1. On 15 April 2015 MH (the complainant) attended a party at the applicant's house. Stefan Arabadzhiyski (Arabadzhiyski), Kate Thurlow (Thurlow) and Brenton Pearce (Pearce) were also in attendance. Sexual intercourse took place between the complainant, the applicant and Arabadzhiyski. Pearce was not present during that sexual intercourse and played no part in it. Thurlow had left the party by that time.
2. On 13 April 2017, investigating police contacted the applicant to speak with him about what had taken place at the party. The applicant then called Pearce and recounted to Pearce his (the applicant's) conversation with the police. In the course of doing so the applicant said, apparently in reference to the victim: …she said there was another male involved.
3. Pearce responded: oh, so it was that chick.
4. Pearce recalled that the applicant had told him that the sexual intercourse which had taken place at the party was a "threesome", and that it had been "a bit rough".
5. When the applicant was interviewed by police on 20 April 2017 he told a number of lies. Following that interview he arranged a meeting with Pearce, Arabadzhiyski and Thurlow. The sentencing judge found that the purpose of that meeting was first, to allow the applicant to construct an account of events to support the (false) account he had given to the police, and secondly, to convince Pearce and Thurlow to assist him by providing that same account to police. The sentencing judge rejected a suggestion that the purpose of the meeting was to recall the truth of the events, and found that the applicant had arranged the meeting to garner assistance that would help exonerate him of any criminality. Her Honour also found that a story characterising the complainant "wanting" sexual intercourse had crystallised at this meeting.
6. On 26 April 2017, the applicant spoke with Pearce immediately prior to Pearce being interviewed by police. They discussed the matters that he (Pearce) was to tell the police in order to corroborate the applicant's account of events. Pearce then lied to police in the course of his interview.
7. On 28 April 2017, the applicant spoke with Thurlow and urged her to give police the account of events which had been settled upon at the meeting of 20 April 2017, and which the applicant knew to be false. Thurlow provided some, but not all, of that false account to police when interviewed.

THE OBJECTIVE SERIOUSNESS OF THE OFFENDING

1. The sentencing judge found that the applicant and Pearce were equally responsible for instigating the offending in count 3, that the applicant was the sole instigator of the offending in count 4, and that the applicant stood to benefit from the entirety of the offending. [3] Her Honour found that the applicant's motivation was "purely selfish". [4] Her Honour specifically rejected a submission that the applicant was the fortunate beneficiary of planning which had been carried out by others, and concluded that in lying to police, Pearce and Thurlow had been motivated by a misguided sense of loyalty to the applicant. [5]
2. In assessing the objective seriousness of the offending, her Honour concluded that the applicant's act of encouraging Pearce and Thurlow to lie to police was decisive, and that whether the offending actually brought about a miscarriage of justice was of no consequence. [6] Her Honour found that the only interpretation which could be placed on what the applicant had said to Pearce and Thurlow was that he had intended to divert the police investigation. [7] Her Honour also found that the fact that Thurlow did not tell the entirety of the lies of which the applicant had reminded her was immaterial, and rejected the applicant's submission that he had only urged Thurlow to tell what she believed was the truth. [8] Her Honour also rejected the submission that the offending in count 3 had emanated from Pearce, although she accepted that Pearce was "an enthusiastic participant". [9] Her Honour also found that the applicant had engaged in significant planning, and concluded that the fact that Pearce and Thurlow had formed a view that the applicant was not guilty of any offending did not excuse his conduct. [10]
3. In addressing the issue of the applicant's moral culpability, the sentencing judge engaged in a lengthy analysis of the report of Michael Costello, psychologist, which was tendered in the applicant's case. Having done so, her Honour rejected Mr Costello's opinions, finding that his report was "superficial and unsupported by either evidence or reasoning", [11] and that it did not support a conclusion that the applicant's moral culpability was reduced at the time of the offending. [12] Ultimately, her Honour concluded that the offending was "around mid-range seriousness". [13]

The applicant's subjective case

1. Her Honour found that the applicant was a person of prior good character, that he presented as a low risk of re-offending, that he had "great community support", and that he had a generally positive work history. [14] However, her Honour was not satisfied that the applicant had expressed genuine remorse, in the sense of accepting responsibility for, and recognising the real and potential consequences of, his offending. [15] Based upon the applicant's level of family and community support, her Honour concluded that the applicant had good prospects of rehabilitation [16]
2. Her Honour rejected a submission that the media coverage of the proceedings against the applicant amounted to extra-curial punishment, but accepted that as a consequence of the offending he had lost the ability to practice as a chiropractor, at least in the short term. [17] Whilst her Honour found that the delay in the prosecution of the proceedings had caused the applicant significant stress, she concluded that such delay had provided him with the opportunity to further engage in his rehabilitation. [18]

Ground 1 - The learned sentencing judge erred in failing to appropriately apply the test in s 66(2) of the Crimes Sentencing Procedure Act 1999 (NSW), in not determining whether the sentence would be most appropriately served by way of intensive corrections order or full-time custody.

Ground 2 - The learned sentencing judge erred by adopting a restrictive approach to the application of s 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

1. These grounds can conveniently be dealt with together.

The reasons of the sentencing judge

1. In determining the appropriate sentence the sentencing judge said the following: [19] The sentence to be imposed must be an imprisonment sentence. The defense [sic] 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 [the applicant] 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 [sic] 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 [the applicant's] rehabilitation will be only assisted by a community based orders [sic]. 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 [the applicant'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.
2. Her Honour then imposed the aggregate sentence previously set out.
3. It is relevant to note that the Crown's position on sentence was that the purposes of sentencing could only be achieved by the imposition of a period of full-time custody. It was the applicant's position that in view of a combination of factors, an Intensive Correction Order (ICO) was appropriate.

Submissions of the applicant

1. In terms of ground 1, counsel for the applicant submitted that the assessment and determination required by s 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) was a mandatory step in the application of s 66. It was submitted that her Honour had failed to address the requirements of s 66(2) prior to determining that full-time custodial sentence was appropriate.
2. In terms of ground 2, counsel for the applicant submitted that even if it were found that the sentencing judge had appropriately considered s 66(2) of the Sentencing Act, her Honour had nevertheless erred by adopting a "restrictive approach" to that section. It was submitted, in particular, that her Honour had reached a neutral conclusion, and had not formed a "favourable opinion" that the applicant's risk of re-offending would be best addressed by an ICO. It was submitted that this had, in turn, informed her Honour's determination as to how the sentence should be served. Counsel submitted that by adopting such a restrictive approach, the sentencing judge had given insufficient weight to the issue of whether the applicant's risk of re-offending would be best addressed by an ICO on the one hand, or by full-time custody on the other, and had failed to give primacy to the consideration of community safety.

Submissions of the Crown

1. As to ground 1, the Crown accepted that ss 66(1) and (2) of the Sentencing Act required the sentencing judge to assess whether an ICO, or a full-time custodial sentence, was more likely to address the applicant's re-offending. However, the Crown submitted that it was apparent that her Honour had been aware of the necessity to undertake such enquiry, and had determined that the applicant's risk of re-offending could be equally addressed by way of full-time custody or by way of an ICO. The Crown submitted that this was, in effect, a neutral conclusion which was permitted by s 66(2).
2. As to ground 2, the Crown submitted that the sentencing judge had not adopted a restrictive approach. It was submitted, in particular, that her Honour had not assumed that an ICO should not be imposed because the assessment undertaken pursuant to s 66(2) of the Sentencing Act did not positively favour taking that course.
3. Further, and in answer to both grounds of appeal, the Crown submitted that properly understood, her Honour had determined not to impose an ICO because, after considering the purposes of sentencing set out in s 3A of the Sentencing Act, she had concluded that an ICO would not be an appropriate penalty. It was submitted that such a conclusion was supported by the need for general deterrence, and the need to impose adequate punishment for what her Honour found to be serious offending. The Crown submitted that there will necessarily be cases where it is inappropriate to impose an ICO because it is not an adequate penalty having regard to (inter alia) the purposes of sentencing in s 3A, and that there was no error in her Honour's conclusion that a period of full-time custody was required in the present case to ensure adequate punishment. The Crown emphasised that in reaching her conclusions, her Honour had properly acknowledged that offending of this kind required the imposition of a sentence which would act as a strong deterrent.

Consideration

1. Section 66 of the Sentencing Act is contained within Division 2 of Part 5 which deals with restrictions on the power to make an ICO and is in the following terms: 66 Community safety and other considerations (1) Community safety must be the paramount consideration when the sentencing court is deciding whether to make an intensive correction order in relation to an offender. (2) When considering community safety, the sentencing court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending. (3) When deciding whether to make an intensive correction order, the sentencing court must also consider the provisions of section 3A (Purposes of sentencing) and any relevant common law sentencing principles, and may consider any other matters that the court thinks relevant.
2. The gravamen of the applicant's complaint is that her Honour failed to properly consider s 66 of the Sentencing Act, or that if she did so, she ascribed a restrictive approach to its provisions. In support of that position, the written submissions of counsel for the applicant (as well as the Crown's submissions in response) contained lengthy references to the decisions of this Court in R v Fangaloka, [20] Wany v Director of Public Prosecutions (NSW) [21] and Mandranis v R, [22] in each of which consideration was given to the provisions of s 66. For the reasons that follow, it is unnecessary to make reference to, much less engage in an analysis of, any of those decisions in order to determine the two grounds of appeal in the present case.
3. The sentencing judge concluded, having regard to (inter alia) the purposes of sentencing in s 3A of the Sentencing Act, the objective seriousness of the offending, and what was described as a "serious assault on the justice system", that the applicant should serve a period of full-time custody, and that no other sentence (including an ICO) was appropriate. So much is clear from the penultimate paragraph of her Honour's reasons set out at [21] above.
4. Once her Honour reached that conclusion, any consideration of s 66(1) and (2) of the Sentencing Act became entirely unnecessary. So much is clear from the judgment of Simpson AJA (with whom Johnson J agreed) in Quinn v Commonwealth Director of Public Prosecutions [23] where her Honour said the following: [186] The flaw in the applicant's argument is that it assumes, wrongly, that the criteria stated in sub ss 66(1) and (2) override, or at least precede, all other considerations. The truth is that, logically, the sub ss 66(1) and (2) criteria come into play at the end, not the beginning, of the process. If, in the opinion of the sentencing judge, any of the considerations in s 68, s 4B, or s 3A foreclose making an intensive correction order, sub ss 66(1) and (2) become otiose, and it is unnecessary for the sentencing judge to direct attention to them. [187] In this case, it was the seriousness of the offending that brought the consideration of making an intensive correction order to an end. Once the primary judge concluded that the offending was too serious to be dealt with by way of a sentence served otherwise than by way of full time imprisonment, considerations of community safety (in the context of s 66) did not arise. It may be observed that s 66(1) requires community safety to be taken into account as the paramount consideration when a court is "deciding whether to make an intensive correction order". Where a court has concluded, having regard to the relevant material, that the seriousness of the conduct precludes such an order, there is no further decision to be made.
5. To the extent that it was submitted on behalf of the applicant that her Honour was required to consider s 66(2) of the Sentencing Act before reaching any conclusion as to the necessity to impose a full-time custodial sentence, it is sufficient to make two observations. First, it is evident from a reading of her Honour's reasons that she in fact took that course. Secondly, and more importantly, her Honour was not required to approach the matter in that way. The submission which was advanced ignores the observations of Simpson AJA in Quinn that the criteria in ss 66(1) and (2) come into play at the end of the sentencing process, not at the beginning.
6. Finally, the complaint that the sentencing judge adopted a "restrictive" approach to the application of s 66(2) has no merit. For the reasons I have set out, having concluded that the only appropriate sentence was one of full-time custody, there was no necessity for her Honour to consider s 66(2) at all.
7. In these circumstances, both grounds of appeal fail.

ORDERS

1. I propose the following orders: 1. Leave to appeal granted. 2. Appeal dismissed.

Endnotes

1. R v Jesse Robert Thurlow [2020] NSWDC 850.
2. R v Jesse Robert Thurlow [2020] NSWDC 871 at [76].
3. At [22].
4. At [23].
5. At [22]-[23].
6. At [30].
7. At [31].
8. At [32]-[33].
9. At [34].
10. At [36].
11. At [43].
12. At [44].
13. At [48].
14. At [51].
15. At [52].
16. At [53].
17. At [57].
18. At [59].
19. At [67]-[75].
20. [2019] NSWCCA 173.
21. (2020) 103 NSWLR 620; [2020] NSWCA 318.
22. (2021) 289 A Crim R 260; [2021] NSWCCA 97.
23. [2021] NSWCA 294 at [186] - [187]. 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: 14 February 2022