Thurlow v R - [2022] NSWCCA 20

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Thurlow v R [2022] NSWCCA 20
Hearing dates: 4 February 2022
Date of orders: 14 February 2022
Decision date: 14 February 2022
Before: Johnson J at [1]
Davies J at [2]
Bellew J at [3]
Decision:
1. Leave to appeal granted;
2. Appeal dismissed

Catchwords:
CRIMINAL LAW – Offences – Sentence – Appeal – Where applicant convicted of two counts of perverting the course of justice – Where applicant submitted on sentence that the matter could appropriately be dealt with by the imposition of an Intensive Correction Order – Where the sentencing judge concluded that the objective seriousness of the offending was such that the only appropriate sentence was one of full-time custody – Whether the sentencing judge erred in failing to appropriately consider s 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) – No error established – No further decision to be made once the sentencing judge had determined that the only appropriate sentence was one of full time custody – Leave to appeal granted – Appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:
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

Category: Principal judgment
Parties: Jesse Robert Thurlow – Applicant
Regina – Respondent
Representation:
Counsel:
J Trevallion and T O’Rourke – Applicant
E Jones – Respondent
Solicitors:
Tully & Chiper Lawyers – Applicant
Solicitor for Public Prosecutions NSW – Respondent

File Number(s): 2017/134143
Publication restriction: There is to be no publication of the name of the complainant
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

[2020] NSWDC 871

Date of Decision:

17 December 2020

Before:

Her Honour Judge Syme

File Number(s):

2017/00134143

Judgment

JOHNSON J: I agree with the orders proposed by Bellew J and with his Honour’s reasons.
DAVIES J: I agree with Bellew J.
BELLEW J: Jesse Robert Thurlow (the applicant) was indicted in the District Court of NSW in respect of the following offences:

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);

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Thurlow v R

Details

AGLC: Thurlow v R [2022] NSWCCA 20
Case: [2022] NSWCCA 20
Decision Date: 14 February 2022

CaseChat Overview and Summary

In the case of Thurlow v R, the applicant, Thurlow, appealed against his conviction and sentence. Thurlow had been found guilty of two counts of perverting the course of justice. At the sentencing phase, Thurlow suggested that the matter could be appropriately dealt with by the imposition of an Intensive Correction Order. However, the sentencing judge determined that the objective seriousness of the offending warranted a sentence of full-time custody. Thurlow appealed the decision, arguing that the sentencing judge erred in failing to appropriately consider section 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The court considered whether the sentencing judge erred in not appropriately considering section 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). This section provides that a court must not impose a custodial sentence unless it is satisfied that the circumstances of the case are such that a non-custodial sentence would be inadequate. The court noted that the sentencing judge had made findings that the only appropriate sentence was one of full-time custody and that there was no error in this conclusion. The court found that once the sentencing judge had determined that the only appropriate sentence was one of full-time custody, no further decision was to be made.

The appeal was dismissed, and leave to appeal was granted. The court found that the sentencing judge did not err in concluding that the only appropriate sentence was one of full-time custody. The court determined that the objective seriousness of the offending warranted a sentence of this nature, and that there was no error in the sentencing judge's decision. The court also found that the applicant's argument that the sentencing judge had failed to appropriately consider section 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) was without merit. The appeal was dismissed, and the conviction and sentence of the applicant remained unchanged.

Orders