Thurlow v R

1. [1]

   JOHNSON J: I agree with the orders proposed by Bellew J and with his Honour’s reasons.

2. [2]

   DAVIES J: I agree with Bellew J.

3. [3]

   BELLEW J: Jesse Robert Thurlow (the applicant) was indicted in the District Court of NSW in respect of the following offences:

   1. (1)

      on or about the 15th day of April 2015, at Kingsford in the State of New South Wales, did have sexual intercourse with (MH) without her consent, and knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, namely, the said Jesse Robert Thurlow being at that time in the company of Stefan Nikolaev Arabadzhiyski (count 1);

   2. (2)

      on or about the 15th day of April 2015, at Kingsford in the State of New South Wales, did have sexual intercourse with (MH) without her consent, and knowing that she was not consenting to the sexual intercourse, in circumstances of aggravation, namely, the said Jesse Robert Thurlow being at that time in the company of Stefan Nikolaev Arabadzhiyski (count 2);

   3. (3)

      between the 20th day of April 2017 and the 26th day of April 2017, at Kingsford in the State of New South Wales, did engage in a course of conduct, namely to procure Brenton Pearce to provide false information to police in respect of sexual assault allegations, with intent thereby to pervert the course of justice (count 3); and

   4. (4)

      between the 20th day of April 2017 and 28th day of April 2017, at Kingsford in the State of New South Wales, did engage in a course of conduct, namely to procure Kate Thurlow to provide false information to police in respect of sexual assault allegations, with intent thereby to pervert the course of justice (count 4).

4. [4]

   The applicant pleaded guilty to the offending in count 3, and not guilty to the offending in each of counts 1, 2 and 4.

5. [5]

   Following a trial before her Honour Judge Syme sitting without a jury, the applicant was found not guilty of counts 1 and 2 and guilty of count 4. [1] Consequently, he stood for sentence in respect of counts 3 and 4, each of which was an offence contrary to s 319 of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 14 years imprisonment. No standard non-parole period is prescribed.

6. [6]

   On 17 December 2020 her Honour gave the following indicative sentences:

7. [7]

   Her Honour subsequently sentenced the applicant to an aggregate term of imprisonment of 2 years and 10 months commencing on 17 December 2020 and expiring on 16 October 2023, with a non-parole period of 20 months. Her Honour ordered that the applicant be released to parole on 16 August 2022. [2]

8. [8]

   The applicant now seeks leave to appeal against that sentence on the two grounds set out below.

THE FACTS OF THE OFFENDING

1. [9]

   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. [10]

   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:

3. [11]

   Pearce responded:

4. [12]

   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. [13]

   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. [14]

   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. [15]

   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. [16]

   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. [17]

   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. [18]

   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. [19]

   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. [20]

   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 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. [21]

   These grounds can conveniently be dealt with together.

The reasons of the sentencing judge

1. [22]

   In determining the appropriate sentence the sentencing judge said the following: [19]

2. [23]

   Her Honour then imposed the aggregate sentence previously set out.

3. [24]

   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. [25]

   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. [26]

   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. [27]

   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. [28]

   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. [29]

   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. [30]

   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:

2. [31]

   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. [32]

   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. [33]

   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:

5. [34]

   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. [35]

   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. [36]

   In these circumstances, both grounds of appeal fail.

ORDERS

1. [37]

   I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.