Citation: R v Jesse Robert Thurlow [2020] NSWDC 871
Court: District Court of NSW
Date: 17 December 2020
Judge(s): H. L. Syme DCJ
Background
The offender, a chiropractor in his mid-twenties at the time of the offending, was the subject of a police investigation into a sexual assault alleged to have occurred in April 2015. When police made contact with him in April 2017, he had already been interviewed and believed his interview had not gone well.
Over the eight days following that interview, the offender organised a meeting with two associates and a cousin, directed the fabrication of a false account to discredit the complainant, and then pressed those individuals to repeat that account to police. Two of them did so. The offender was subsequently charged with two counts of doing an act intending to pervert the course of justice: one relating to his co-offender Pearce (count 3), and one relating to his cousin Kate Thurlow (count 4).
The offender pleaded guilty to count 3 at the commencement of the trial and was found guilty of count 4 at the conclusion of a judge-alone trial. The proceeding reported here is the sentencing hearing.
Legal Issues
- What were the offender's factual role and degree of instigation in each offence, particularly in comparison with the co-offender Pearce?
- Whether a psychological diagnosis of adjustment disorder reduced the offender's moral culpability at the time of the offending.
- What discount, if any, applied to count 3 for the guilty plea.
- Whether the sentence should be served by way of full-time imprisonment or in the community.
- What aggregate term and non-parole period were appropriate, having regard to objective seriousness, subjective circumstances, general deterrence, and parity with Pearce's sentence.
Decision
Issue 1: Factual role and instigation
The court rejected the defence submission that the April 2017 meeting was called to recall the truth of events. Syme DCJ found that the offender called the meeting to canvas assistance in exonerating himself of criminality, that a false story was manufactured as a result, and that he then pressed Kate Thurlow to deliver that version to police (at [4]). The court found that intercepted telephone calls showed the offender directed Pearce on the specific details to include in his false statement, including characterising the complainant's behaviour in a particular way (at [11]-[12]).
On the question of instigation, the court departed from findings made in earlier proceedings concerning Pearce. Syme DCJ noted that she had the advantage of all evidence from each participant, and found that the offender and Pearce were equally responsible for instigating count 3, while the offender was the sole instigator of count 4 (at [22]). The court found his motivation was purely selfish and that he gave no thought to the consequences for those he encouraged to lie (at [22]-[23]).
Issue 2: Psychological evidence and moral culpability
The court received a report from a registered psychologist concluding that the offender met the criteria for adjustment disorder at the time of the offending and would not have committed the offences but for that condition (at [38]). Syme DCJ rejected the report as superficial and unsupported by evidence or reasoning (at [43]-[44]). The court noted the diagnosis was based largely on self-report gathered more than three years after the relevant period, that the causal reasoning was circular (essentially that because the offender had no prior convictions, the offence must have resulted from a mental condition), and that the psychologist himself conceded a rational alternative explanation was available (at [42]-[44]). The report did not support a finding that moral culpability was reduced.
Issue 3: Plea discount and parity
The court allowed a 15% discount for the guilty plea to count 3, noting it had been indicated in a reasonably timely manner but that a factual dispute still had to be argued, which diminished its utilitarian value (at [28], [66]). No discount applied to count 4 (at [29]). The court used Pearce's sentence of 18 months on an Intensive Corrections Order as a guide, finding the offender's criminality was greater than Pearce's because the offence was committed for his own benefit and he was at least a joint instigator (at [65]).
Issue 4: Mode of service
The court declined to impose an Intensive Corrections Order. Syme DCJ found that a community-based sentence would not adequately punish the offender for what was characterised as a serious assault on the justice system (at [74]). Allowances were made for matters in the offender's favour, including prior good character, community support, prospects of rehabilitation, delay in proceedings, and the temporary loss of his professional registration. The court found special circumstances given that this was his first time in custody, his mental health issues, and his history of substance abuse vulnerability, and applied a 60/40 proportion between the non-parole period and the balance of sentence (at [75]).
Orders Made
- Aggregate term of imprisonment of 2 years and 10 months, commencing 17 December 2020 and expiring 16 October 2023.
- Non-parole period of 20 months; the offender to be released to parole on 16 August 2022.
- Indicative term for count 3: 2 years (inclusive of 15% plea discount).
- Indicative term for count 4: 2 years and 4 months.
Key Takeaways
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The District Court confirmed that the act of encouraging others to lie to police, with intent to pervert the course of justice, is sufficient for conviction regardless of whether the conduct actually brought about a miscarriage of justice (at [30]).
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A psychological report based substantially on self-report gathered years after the relevant period, lacking independent reasoning on causation, and admitting an alternative rational explanation, will carry little weight in reducing a finding of moral culpability at sentencing (at [43]-[44]).
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Where a co-offender has already been sentenced, a court is not bound by factual findings made in those earlier proceedings; a sentencing judge with access to the full evidentiary record from a subsequent trial is in a better position to make independent findings about instigation and relative culpability (at [20]).
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General deterrence carries significant weight in sentencing for perverting the course of justice offences, and courts have consistently held that such offences require strong deterrent sentences because they strike at the integrity of the criminal justice system (at [60]-[62]).
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Parity with a co-offender's sentence is a relevant guide, but an offender who instigated the conduct for their own personal benefit occupies a more serious position than one who acted out of misguided loyalty without personal gain (at [63]-[65]).
Legislation and Cases Referenced
Legislation
- Crimes (Sentencing Procedure) ACT 1999
- Mental Health (Forensic Provisions) Act
Cases
- R v Pearce [2020] NSWCCA 61
- Rogerson v R [1992] HCA 25
- R v Marinellis (NSWCCA 307
- R v Taouk (1992) 65 A Crim R 387
- Harrigan v R [2005] NSWCCA 449
- R v Giang [2001] NSWCCA 276
- R v Purtell (2001) 120 A Crim R 317
- R v Fangaloka [2019] NSWCCA 173
- Wany v DPP [2020] NSWCA 318