R v Pearce

1. [1]

   THE COURT: On 18 March 2020, after the conclusion of submissions, the Court dismissed the Crown’s appeal, brought pursuant to s 5D of the Criminal Appeal Act 1912 (NSW), against the sentence imposed on Mr Brenton Luke Pearce by the District Court following his guilty plea to one count of doing an act with intent to pervert the course of justice, contrary to Crimes Act 1900 (NSW), s 319. These are our reasons for that order.

2. [2]

   We should say immediately that we regard the sentence, which was 18 months imprisonment to be served by way of an intensive correction order, accompanied by 100 hours of community service, as one which would have been manifestly inadequate if the primary case which the Crown sought to make out in the District Court and in this Court had in fact been established. The Crown case was that the offender had instigated the idea of giving a false statement to police which gave a complete defence to a friend who was the subject of a complaint of aggravated sexual assault. The Crown accepted in writing that this “would have had a significant impact on the assessment of the objective criminality of the offence” and in oral submissions said:

3. [3]

   A large part of this appeal involved a complaint that the sentencing judge had erred in declining to make such a finding, which, so it was said, had been implicitly agreed or else followed naturally from the agreed facts. As we shall explain, there was no such error. The Crown had not established beyond reasonable doubt that the offender was the instigator, and he was not to be sentenced on that basis.

4. [4]

   This point, which is central to ground 1(iii) of the appeal, goes far to explaining why the appeal was dismissed. However, we should also say at the outset that save for the fact that the offender’s subjective case is exceptionally strong, we would intervene and resentence the offender to a full-time custodial sentence. The offender voluntarily provided a statement to investigating police officers with a view to providing a false defence to a man accused of a serious criminal offence (aggravated sexual assault). The statement was provided with a view to it being tendered in evidence. Men or women who provide false statements to police, even if it is with a view to protecting a friend or family member from prosecution, commit a serious crime, which carries a maximum penalty of 14 years imprisonment. A wide spectrum of conduct falls within this offence, but much of it warrants a full-time custodial sentence. As this Court has repeatedly said, an offence of this nature “strikes at the very heart of the justice system”, and the sentences imposed for such offending have not always reflected the seriousness of the conduct: Khoury v R [2011] NSWCCA 118 at [88]; R v Reid [2016] NSWCCA 151 at [45].

The offending conduct

1. [5]

   A complaint of non-consensual sexual intercourse was made to police in mid-2016. The complainant was a young woman, who said she had been sexually assaulted by two men at a party in April 2015 at a house near a university in which the two men lived. At least one of the men, Mr Jesse Thurlow, had been a friend of the offender since early high school. The other had located the complainant using social media, and brought her to the house party. The allegation was one of aggravated sexual assault, contrary to s 61J of the Crimes Act 1900 (NSW), the circumstance of aggravation being that the assault was committed in company.

2. [6]

   Mr Thurlow participated in an electronically recorded interview with police on 20 April 2017. The offender made a voluntary statement to police the following week, on 26 April 2017.

3. [7]

   The offender’s statement described the party, and the arrival of a young woman. He could not remember her name, and said, “The only thing I remember talking to her about was her bag”. He said that she had a big bag, and when he asked her whether it contained alcohol, she said “No” and “she looked at me as though I had asked some really intrusive question”. He said that he didn’t really talk to her for the rest of the night but said that “[h]er bag was shaped like a handbag and was soft cotton with a single strap”.

4. [8]

   The offender’s statement said that he was drinking beer and “was mildly drunk but it wasn’t a big night”. The statement said that the young woman was being affectionate with the two men “in that she was sitting on their laps. But nothing more was happening”.

5. [9]

   The gist of the offender’s statement was that he had been in the presence of Mr Thurlow for much of the rest of the evening, save for a short period when, after trying to sleep on the couch, he tried to sleep in Mr Thurlow’s room for about 10-15 minutes, after which both he and Mr Thurlow returned to the offender’s house, made some food, and went to sleep. The purpose of the statement was to provide the offender’s friend with a complete defence to the allegation of aggravated sexual assault.

6. [10]

   In the course of the police investigations following the complainant’s report to police, a warrant was granted for the interception of Mr Thurlow’s mobile phone. On 13 April 2017, police spoke to Mr Thurlow to arrange a time for him to be interviewed about the alleged sexual assault. The Statement of Agreed Facts stated that immediately after that phone call, Mr Thurlow phoned the offender and told him he was going to see the police next Thursday morning, following which the offender repeatedly offered to provide an alibi.

7. [11]

   It was agreed that the offender said:

8. [12]

   It was also agreed that on 20 April 2017, after Mr Thurlow had participated in his interview, he again phoned the offender. During the conversation, the offender said

9. [13]

   It will be seen that none of the three accounts mentioned above (can’t remember, presence throughout the night, absence from Sydney) was in fact the falsehood advanced in the offender’s statement to police. That is found in a conversation on 26 April 2017, hours before the offender made his statement, which was also reproduced in the Statement of Agreed Facts:

10. [14]

    In the same conversation, there are references which reflect another aspect of the offender’s statement to police later that afternoon. It was agreed that:

11. [15]

    A critical integer of the offending in this case for which the Crown contended at first instance and on appeal was that the offender had instigated the conduct. Such an inference readily flows from the agreed facts. But, as will be elaborated below, that is not sufficient for the offender to be sentenced on the basis that he instigated an attempt to pervert the course of justice, in circumstances where:

    1. (1)

       the proposition that the offender had instigated the conduct was absent from the agreed facts;

    2. (2)

       the proposition was not put to the offender during his cross-examination, and

    3. (3)

       it was not disputed that he had had conversations relating to the allegations of sexual assault prior to that intercepted call on 13 April 2017.

Procedural history

1. [16]

   The procedural history of this prosecution is important, because it is the cause of some of the grounds of appeal, and helps to explain the result reached by the primary judge.

2. [17]

   The offender was arrested on 7 November 2018. There is virtually no evidence as to what occurred between April 2017 and November 2018. It was accepted that the offender pleaded guilty to the offence at the earliest possible occasion.

3. [18]

   Agreement had been reached between the Crown and the offender as to the facts on which he was to be sentenced by September 2019. It was a short document of just over three pages. Most of the document contained verbatim extracts of statements made by the offender to Mr Thurlow, obtained pursuant to the warrant. The most important passages have been reproduced above. No doubt agreement had been reached because sound recordings of those conversations intercepted pursuant to the warrant had been made available to the offender and his lawyers in fulfilment of the prosecutor’s obligations of disclosure.

4. [19]

   Under the heading “Disputed facts”, the document provided:

5. [20]

   Thus there was no dispute that the offender had provided a statement to police which contained false information concerning the offender and Mr Thurlow going back to the offender’s house (paragraphs 12 c and 12 f) and his going to sleep on the lounge (part of paragraph 12 e). That was sufficient to satisfy the elements of the offence.

6. [21]

   It was also clear that there was a dispute as to whether the offender’s statement was false in other respects, including whether in fact the complainant had been sitting on the two men’s laps and being affectionate (paragraph 12 d), and whether the offender had gone to sleep in Mr Thurlow’s bedroom (part of paragraph 12 e). It may fairly be said that the latter of these points in issue was relatively peripheral, given that the elements of the offence were established. However, to the extent that the Crown established that the statement contained additional elements which were knowingly false, it is at least arguable that it would have an impact upon the objective seriousness of the offending.

7. [22]

   Those matters were expressly in dispute, and went to the extent to which the offender’s statement to the police was knowingly false. But what was neither expressly agreed nor expressly in dispute according to the Statement of Agreed Facts was something much more important: whether the offender had instigated the attempt to pervert the course of justice.

8. [23]

   The record does not reveal when the date of 8 November 2019 was fixed for sentencing. No doubt it was some weeks before the listing.

9. [24]

   The Crown provided short (3 page) written submissions, signed by the solicitor who appeared on that day, and dated 8 November 2019. The submissions were handed to the sentencing judge after the conclusion of the testimonial evidence given on that day by the offender. Mr Boulten SC, who appeared in this Court as well as in the proceedings below, stated without objection that he had received the Crown’s submissions on the morning of the hearing.

10. [25]

    Three aspects of those submissions need to be summarised in order to expose the issues at first instance.

    1. (1)

       The Crown submissions commenced with the proposition that “[t]he offender is the instigator of the offence” and “enthusiastically” made suggestions as to providing an alibi for Mr Thurlow. It was said that “[t]he offender played a greater role than the co-accused Mr Thurlow”.

    2. (2)

       On objective seriousness, the Crown submitted that the offence “was well above the lower range of seriousness and falls in the mid-range of seriousness”.

    3. (3)

       The Crown made it quite plain that it submitted that the only appropriate sentence was one of full-time imprisonment.

11. [26]

    Before the sentencing judge on 8 November 2019, there were, not unusually for sentence proceedings, no openings. The Evidence Act 1995 (NSW) does not apply unless an order issues from the sentencing court: s 4(2). Both sides tendered bundles of material without objection, and the offender was thereupon called, and gave evidence in chief that he had had earlier conversations with Mr Thurlow concerning the police investigation, saying that he had spoken to Mr Thurlow several days before the 13th of April, although he didn’t remember the exact date. In cross-examination, he explained this:

12. [27]

    It will be seen that when, during cross-examination, the offender confirmed his evidence that there had been previous conversations, this was accepted by the Crown, as was the frequency of the face to face meetings between the offender and Mr Thurlow. It seems likely that the “first few sentences” in the conversation to which the offender referred had not been included in the Statement of Agreed Facts, and thus were not before the sentencing judge (or this Court). Rather, they were part of the Crown brief to which the offender had referred in giving evidence in chief.

13. [28]

    At no stage during the cross-examination was it put that the offender had instigated the offence.

14. [29]

    There was no other oral evidence. The Crown moved to submissions, provided its written submissions to the sentencing judge, and spoke to them. The Crown contended that “one important aspect that your Honour would bear in mind is that the offender is the instigator of the offence, and that’s borne out by the agreed statement of facts”. This suggests that the absence of cross-examination on the point was not inadvertent, but based on a belief that that was the agreed basis on which the offender was to be sentenced.

15. [30]

    Mr Boulten commenced with the submission that this was a serious offence, which warranted a term of imprisonment, but that that nonetheless left open that sentence being served by way of an intensive correction order. He then turned to the submissions about the offender being the instigator:

16. [31]

    Mr Boulten then addressed the various matters in dispute from the statement of agreed facts, contending that the court should accept his client’s evidence on those matters.

17. [32]

    Turning to objective seriousness, Mr Boulten reminded the Court that the offence was the provision of the statement, and that it was “always necessary to determine where on the scale of seriousness this type of offending falls by reference to what stage of the course of justice the step that was taken constituting the offence falls”. He said that actually giving false evidence leading to a false verdict was at the end of the continuum, “especially if it concerned somebody who was intrinsically involved in the administration of justice, such as a lawyer, or a police officer or in the rare case a judicial officer. Mr Einfeld is a primary example” (an obvious reference to Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1). Later, it was submitted that:

18. [33]

    In placing the offending conduct on the scale of objective seriousness, the parties were not far apart. Mr Boulten expressly accepted that it was a serious case, that it was “not at the lowest level offending”, and that “it’s an example of substantial offending”. However, he submitted that “it is not yet at the mid-range”. Mr Boulten added “we are not far apart from my learned friend’s submission, but we say not yet mid-range”.

19. [34]

    We do not suggest that the expressions of opinion on objective seriousness by either or both the Crown and Mr Boulten set the bounds of the conclusion to be reached by the sentencing judge. It is trite that it is for the prosecutor alone to determine the charge to be preferred; it is for the accused alone to determine the plea to be entered; and it is for the sentencing judge alone to fix the appropriate sentence: GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22; reaffirmed by the High Court in Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2.

20. [35]

    Nevertheless, the submissions put to the sentencing judge were not “far apart” and no error is disclosed in the acceptance of objective seriousness within that ambit.

21. [36]

    There was an adjournment for the provision of a sentence assessment report, the sentencing judge indicating that an intensive correction order was a possible outcome. Both on 8 November, and on 20 December when the matter was resumed, the Crown submitted that an intensive correction order would be manifestly inadequate. This is not a case where the Crown’s appeal to this Court should be refused because of the way in which the Crown had approached the hearing at first instance: cf R v Khoury [2018] NSWCCA 223 at [56]-[60].

22. [37]

    However, on neither occasion did the (same) solicitor who appeared for the Crown respond to what had been put about the court not being able to conclude that the offender was the instigator.

The reasons for sentence

1. [38]

   The sentence assessment report was provided to the sentencing judge shortly before the resumed hearing on 20 December 2019. The report supported an intensive correction order, and the imposition of a community service condition.

2. [39]

   After hearing short submissions based on the report, the sentencing judge gave oral reasons and imposed the sentence from which the Crown brings this appeal. The reasons reproduced part (although far from all) of the repetitive and inane profanity in the conversations which had been recorded and have been reproduced above, and summarised the events in the statement of agreed facts in the second half of April 2017.

3. [40]

   The primary judge then dealt with four elements in the statement the offender made at the police station which the Crown asserted had been false, namely:

   1. (1)

      that the offender did not know what the police were investigating when Mr Thurlow first called him,

   2. (2)

      that Mr Thurlow had told the offender he was going to the offender’s place,

   3. (3)

      that the complainant had been sitting on the laps of Mr Thurlow and his housemate and being affectionate, and

   4. (4)

      that the offender was sleeping in Mr Thurlow’s room.

4. [41]

   Of this aspect of the case, the sentencing judge said:

5. [42]

   No challenge was made to that aspect of the factual findings of the primary judge. That includes an absence of challenge to the rejection of the Crown’s claims that the offender lied when his statement said that the complainant had behaved affectionately sitting in the two men’s laps. It may be noted that the Crown never contended that the offender had lied when he described – giving details that might not readily be remembered more than two years after the event – that she had a big bag made of soft cotton with a single strap.

6. [43]

   Considerable criticism was addressed to a short passage in his Honour’s reasons which were directed to objective seriousness:

7. [44]

   The sentencing judge then referred to the offender’s age (of 29), his absence of any relevant prior convictions, his long-term relationship (more than a decade), his remorse and shame, the impact of his offending upon his career as a town planner, each of which was accepted without hesitation by the sentencing judge, “in particular his expression of remorse”. The sentencing judge accepted that, in accordance with a psychologist’s opinion, he had a very low risk of reoffending, and noted that he had undertaken counselling with a clinical psychologist in order to assist his rehabilitation.

8. [45]

   In many cases, those matters alone would be summarised by statements such as the offender had a “powerful” or “very strong” subjective case. This offender’s subjective case was exceptional, for reasons which have not as yet been exposed fully, but which were well appreciated by the sentencing judge.

9. [46]

   The sentencing judge first observed that:

10. [47]

    It was not said that there was any error in that passage.

11. [48]

    The sentencing judge then referred to the extent and level of support in the written references. It is clear that some of the 16 referees attended court. All the references made it clear that they had seen the police Facts Sheet. They contain personalised nuanced accounts of their extensive knowledge of the offender, how he had contributed to their lives, and how shocked they were, both at his offending and its details. There was indeed a deal of understatement in his Honour’s summary of those references as follows:

12. [49]

    We will return to this when dealing with the ground that the sentence was manifestly inadequate.

13. [50]

    After the reduction for his early plea, the sentencing judge found that there ought to be a sentence of imprisonment for 18 months, to be served by way of an intensive correction order, with a condition that he perform 100 hours of community service under the direction and supervision of the Community Corrections Service. The preconditions to the making of such an order in ss 17D(4) and 89(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) were made out.

The Crown’s appeal to this Court

1. [51]

   The Crown’s appeal pursuant to s 5D is as of right. However, it was necessary, as the joint judgment noted in Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [28], for the Crown to establish either specific error or manifest inadequacy.

2. [52]

   The sole ground in the notice of appeal as filed on 22 January 2020, and served shortly thereafter, was that the sentence was manifestly inadequate. It was not suggested that there had been any relevant delay in communicating the decision to bring an appeal.

3. [53]

   A ground of manifest inadequacy falls within the last category of case identified in a familiar passage in House v The King (1936) 55 CLR 499 at 505; [1936] HCA 40; and may be contrasted with an allegation of specific error, as was noted in Carroll v The Queen [2009] HCA 13; 83 ALJR 579 at [8]. However, by an amended notice of appeal filed with the leave of this Court at the hearing, the Crown relied upon two grounds:

4. [54]

   The sub-grounds within ground 1 as amended had been reflected in the Crown’s submissions as specific errors which might assist to explain why the sentence was said to be manifestly inadequate, in accordance with what had been said in R v Harris [2015] NSWCCA 81 at [46] and R v AB [2017] NSWCCA 88 at [58]. It will be convenient to deal with each of those sub-grounds first, before turning to the ground of manifest inadequacy, which is, after all, a “conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6].

Ground 1(i)

1. [55]

   The passage in the reasons for sentence upon which ground 1(i) is based has been reproduced above at [43]. It must be borne in mind that the assessment of objective seriousness in every case involves ascertaining where along some notional range of seriousness the particular objective elements of criminality lie, and that in order to do so, it will be relevant to have regard to other ways in which the elements of the offence may be made out. On a fair reading of the reasons for sentence, that was all the primary judge was doing.

2. [56]

   It was necessary that his Honour identify the objective seriousness, and it was an important element of the sentencing process, but it is to be borne in mind, notwithstanding the comments at [34] and [35] above, that the issue as to objective sentence was a very narrow one, between the Crown’s submission that it was “in the mid-range of seriousness”, and Mr Pearce’s submission that it was “not yet at the mid-range”.

3. [57]

   There were many matters of primary fact in issue, and no doubt the Crown’s position reflected the findings for which it contended.

4. [58]

   Further, the issue arising from the parties’ submissions is poorly defined. How wide was the band of offending which comprised “mid-range”? Was it, say, 10% of all offending, or 50% of all offending, or something in between? It is perfectly possible that the offender had a narrow concept of what constituted “mid-range”, the Crown had a broader concept, and the judge had a concept which was intermediate between the two. Further, plainly enough the offender and the sentencing judge delineated an area of offending which was above “low range” yet below “mid-range”; how much offending fell within that twilight zone is utterly unclear, and was not made any clearer on appeal. (We mean to convey no criticism of Ms Curtis, who capably and concisely argued the appeal for the Crown; we doubt that anything more could be said.)

5. [59]

   We are of course conscious that terms like “low range” and “mid-range” are commonplace in performing the intuitive synthesis involved in the exercise of the sentencing discretion, even where, as here, there is no standard non-parole period, and they perform a useful role. The point is that it is difficult to identify a material error when the only difference between the parties on objective seriousness was whether the offending fell within the mid-range, or above the low range but short of the mid-range, when neither term is well-defined, especially given the wide range of conduct capable of giving rise to the offence.

6. [60]

   Returning to the reasons for sentence, the Crown’s main point turned upon two conjunctions. It was said that the use of the words “however” and “nevertheless” tended to confirm the fact that the offending was not committed by a police officer, lawyer or judge, in contradistinction to the planning, the timing and the number of people involved, such that the sentencing judge had relied upon the absence of an aggravating feature in order to determine objective seriousness.

7. [61]

   Exchanges during a hearing are not part of a judge’s reasons (unless they have been incorporated as such): see Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197 at [121] and the authorities there cited. However, where, as here, the reasons for sentence are ambiguous, and inferences are sought to be drawn from details in the language, it can be helpful to consider the submissions to which they related. An example may be seen in Voronov v R [2017] NSWCCA 241 at [25].

8. [62]

   The paragraph in the reasons for sentence reflects a submission made by Mr Boulten which was that giving false evidence on oath leading to a false verdict was at the very upper end of the continuum of seriousness, particularly when it involved someone “intrinsically involved in the administration of justice”. There was no error in recording that submission as informing his Honour’s assessment of objective seriousness, for the reasons exposed in exchanges in this Court:

9. [63]

   We do not consider that the Crown’s reading of this passage, and in particular the words “however” and “nevertheless”, is correct. We do not accept that this ground has been established.

Ground 1(ii)

1. [64]

   Ground 1(ii) requires an inference to be drawn that the sentencing judge failed to take into account that Mr Pearce had intended to give evidence in accordance with his false statement, with the consequence that Mr Thurlow would thereby be provided with a complete defence. That inference cannot be sustained.

2. [65]

   The statement itself commences with the conventional proposition that it accurately sets out the evidence that “I would be prepared, if necessary, to give in court as a witness”, and that Mr Pearce would be liable to prosecution if it contained matters known to be false or not believed to be true. The submission made on behalf of the offender was characteristically candid: the statement “had the potential to cause not just the diversion of the police investigation on to a false issue, but also it had the potential to cause a miscarriage of justice inside a courtroom if the accused had given evidence in accordance with his statement”. The primary judge found that Mr Pearce had been motivated to lie by a “misguided sense of loyalty to his friend”, and there is no reason to doubt that that finding encompassed with it the lie intended to be made in the future should the sexual assault allegation go to court. The extract in which Mr Pearce said he would “sit in front of a Court full of fucken priests and tell them you were on the Central Coast” was reproduced by the sentencing judge. It speaks unambiguously of an intention to commit perjury in court.

3. [66]

   In short, there is no sound basis to infer that the sentencing judge somehow overlooked the full extent of the perversion of justice intended.

Ground 1(iii)

1. [67]

   Ground 1 (iii) is the most serious ground alleging patent error, and it seemingly reflects different understandings of the history of the prosecution.

2. [68]

   The matter proceeded by way of agreed facts. Plainly enough, there was more, quite probably considerably more, in the uncontroversial background than appeared in the agreed facts. That unstated information fell into at least four categories:

   1. (1)

      The first was the timing and circumstances of interactions between police and Mr Thurlow, both before and after a warrant issued for the interception of his mobile phone.

   2. (2)

      The second was the full context of the intercepted conversations between Mr Thurlow and the offender.

   3. (3)

      The third was what had occurred between April 2017 when the police statement was made, and November 2018 when the offender was charged.

   4. (4)

      The fourth was the complainant’s account of what occurred. It might be inferred from the cross-examination that the complainant disputed that she had been sitting on the laps of the two men and behaving affectionately. It might also be inferred from the absence of cross-examination that there was no dispute about the offender’s precise recollection of details of the complainant’s bag. But these are matters of speculation; the point is that the offender’s sentencing proceeded on a highly circumscribed selection of facts.

3. [69]

   It is plain from the Crown’s written submissions supplied on the morning of the sentencing hearing that the Crown contended that Mr Pearce instigated the idea that a false statement be given to the police. However, no such fact is explicitly alleged in what had been agreed, and it is no small thing for such an inference to be drawn from the facts that had been agreed. It would be necessary for the sentencing judge (or this Court on appeal exercising a discretion) to make such a finding beyond reasonable doubt.

4. [70]

   As was said in Cowling v R [2015] NSWCCA 213 at [13], inferences flowing from the statement of agreed facts, if unfavourable to the offender, are required to be established beyond reasonable doubt. The first decision cited is R v Kirkland [2005] NSWCCA 130, where Hunt AJA said at [16], with the agreement of Grove and Hall JJ:

5. [71]

   The proposition that Mr Pearce instigated the idea of providing a false statement to police was not in the agreed facts and it was not put to him in cross-examination by the solicitor appearing for the Crown. Such a finding is far from inevitable once it be accepted that there were earlier conversations between the offender and Mr Thurlow. What is more, there was uncontroversial and plausible evidence that Mr Thurlow and the offender met regularly, on most days. There seems no reason to doubt that the police would have contacted Mr Thurlow prior to the conversation on 13 April 2017 which arranged a time for his interview. It seems unlikely that a warrant would have been granted for the interception of his mobile phone without there having been some earlier contact. If police contacted Mr Thurlow, even if they did not state the purpose of their inquiry with precision, it would have been a noteworthy event, and a natural one to discuss with the offender. It is entirely on the cards that there would have been a conversation prior to 13 April 2017 between Mr Thurlow and the offender after he was first contacted by the police.

6. [72]

   To return to this ground, the complaint was that the sentencing judge did not decide this part of the case:

7. [73]

   We do not think this error is made out. The Crown did not discharge its onus of establishing beyond reasonable doubt that the offender instigated the lies to the police. We do agree that this was a “very significant part of the Crown case”, and had a large consequence on the objective seriousness of the offending, and the sentence which was imposed.

Ground 2: Manifestly inadequate

1. [74]

   The principles were recently summarised in R v Kennedy [2019] NSWCCA 242 at [80]-[84]:

2. [75]

   The offending conduct was serious, planned, and reflected an attempt to strike at the heart of the justice system, enthusiastically participated in by the offender, although not for his own benefit. The recorded conversations disclose a sadly misguided bravado in an attempt to protect a friend. Fortunately, it has not in fact deflected the police investigation.

3. [76]

   However, the offender falls to be sentenced on the basis of such adverse matters as have been agreed or established to the criminal standard, and for the reasons which have already been given, that is significantly less than the criminality alleged by the Crown. The offender’s sentence must also reflect his subjective case, and on any view that is one which is unusually powerful.

4. [77]

   The offender is a young man of otherwise good character, who has already made “substantial contributions to the community”, to use the language of Bathurst CJ in concluding that a sentence of full-time imprisonment for a similar public justice offence (concealing a serious indictable offence) was manifestly excessive and resentencing to impose an intensive correction order, in Casella v R [2019] NSWCCA 201 at [92].

5. [78]

   The offender’s subjective case was summarised by counsel before the sentencing judge thus:

6. [79]

   Very few offenders are able to present anything like such a case.

7. [80]

   Moreover, there is a deal of understatement in that advocacy. The reference from the James family describes how when their son, jumping from a rope swing into a river knocked himself out on a gum tree and fell unconscious into the water, it was the offender, then a young teenager, who organised the search, himself extracted the child from the river, ran home to alert a rescue, and then returned to direct a rescue helicopter to the site. After describing the serious injuries suffered by the child, and that another 1 or 2 minutes under water would have been fatal, the reference continues:

8. [81]

   The pattern continues in reference after reference: organising a motorbike ride to raise funds for St Vincent’s Hospital’s Motor Accident Rehabilitation, a lead guide for the UNSW Outdoors Club, a scout, a volunteer who raised money to build housing in Cambodia and then travelled there to help build six homes in that country. His final thesis for his degree in planning detailed the benefits of planning for bicycle tourism in rural and regional towns.

9. [82]

   We reiterate that the offence is a serious one and, but for the extraordinary subjective circumstances, one that would ordinarily warrant a full-time custodial sentence. While specific deterrence, in this case, has no significant role, general deterrence does. Society must realise that serious offences, particularly sexual offences, which often depend on word against word, cannot be swept under the carpet for reasons of loyalty or friendship.

10. [83]

    Ultimately, the conclusion that a sentence is, or is not, manifestly inadequate is not one which admits of much amplification. We are not satisfied that the Crown has demonstrated that the offender’s sentence is manifestly inadequate.

11. [84]

    None of the grounds of appeal has been made out. It was not necessary to attend to the residual discretion in order to conclude that the Crown’s appeal should be dismissed.