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Court of Criminal Appeal 14 February 2022

Thurlow v R

[2022] NSWCCA 20

Public order & justice offences
CRIMINAL LAW OFFENCES SENTENCE APPEAL TIME CUSTODY NO ERROR ESTABLISHED

Citation: Thurlow v R [2022] NSWCCA 20
Court: NSW Court of Criminal Appeal
Date: 14 February 2022
Judges: Johnson J, Davies J, Bellew J

Background

The applicant was convicted of two counts of perverting the course of justice contrary to s 319 of the Crimes Act 1900 (NSW), an offence carrying a maximum penalty of 14 years imprisonment. The convictions arose from his conduct in April 2017, when he procured two individuals to provide false information to police in connection with a sexual assault investigation. He had pleaded guilty to one count and was found guilty of the other following a judge-alone trial.

In the District Court, Judge Syme sentenced the applicant to an aggregate term of 2 years and 10 months imprisonment, with a non-parole period of 20 months, commencing 17 December 2020. The sentencing judge assessed the offending as being of around mid-range seriousness and concluded that the only appropriate sentence was one of full-time custody.

The applicant sought leave to appeal, arguing that the sentencing judge had failed to properly engage with the statutory framework governing Intensive Correction Orders (ICOs) under the Crimes (Sentencing Procedure) Act 1999 (NSW), and had erred in declining to impose such an order.

  • Whether the sentencing judge erred in failing to appropriately apply the test in s 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) when determining whether the sentence should be served by way of an Intensive Correction Order rather than full-time custody.
  • Whether, once a sentencing judge determines that the only appropriate sentence is full-time imprisonment, there remains any obligation to consider the s 66(2) criteria.

Decision

The Court of Criminal Appeal, in reasons delivered by Bellew J (with Johnson and Davies JJ agreeing), dismissed both grounds of appeal and confirmed no error in the approach taken below.

On the first ground, the Court found that the sentencing judge had in fact engaged with the relevant material before concluding that full-time custody was the only appropriate sentence. The objective seriousness of the offending, assessed as mid-range, was the determinative factor. The applicant's conduct involved significant planning, a purely selfish motivation, and direct efforts to subvert a police investigation into serious sexual assault allegations.

On the second and more significant ground, the Court held that the criteria in ss 66(1) and 66(2) operate at the end of the sentencing process, not at the beginning. Relying on the NSW Court of Appeal's observations in Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCA 294, the Court confirmed that once a sentencing judge determines the seriousness of the conduct precludes any sentence other than full-time imprisonment, there is simply no further decision to be made about an ICO. The community safety consideration under s 66(1) only becomes operative when a court is actually deciding whether to make an ICO.

The Court also rejected the submission that the sentencing judge had adopted an impermissibly "restrictive" approach to s 66(2). Having reached the threshold conclusion that full-time custody was necessary, no obligation arose to go further and consider the s 66(2) factors.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the ICO assessment criteria under ss 66(1) and 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) come into play at the end of the sentencing process, not at the outset.
  • Where a sentencing court concludes that the seriousness of the offending makes full-time custody the only appropriate sentence, no obligation arises to consider whether an ICO is appropriate. There is, in those circumstances, no further decision to be made.
  • No error was established in the sentencing judge's characterisation of the offending as mid-range in seriousness, given findings of significant planning, sole instigation of one count, and purely selfish motivation.
  • Under s 66(1), community safety operates as a paramount consideration only when a court is actively deciding whether to make an ICO. That stage is not reached if seriousness has already foreclosed the option.
  • In dismissing the appeal, the Court affirmed the approach in Quinn and drew a clear procedural sequence: objective seriousness is assessed first, and only if it does not preclude a non-custodial alternative does the detailed ICO framework require consideration.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 319
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 66(1), 66(2)

Cases:
- Mandranis v R (2021) 289 A Crim R 260; [2021] NSWCCA 97
- Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCA 294
- R v Fangaloka [2019] NSWCCA 173
- R v Jesse Robert Thurlow [2020] NSWDC 850
- R v Jesse Robert Thurlow [2020] NSWDC 871
- Wany v Director of Public Prosecutions (NSW) (2020) 103 NSWLR 620; [2020] NSWCA 318