R v Pearce [2020] NSWCCA 61

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Pearce [2020] NSWCCA 61 Hearing dates: 18 March 2020 Date of orders: 18 March 2020 Decision date: 03 April 2020 Before: Leeming JA; Rothman J; N Adams J Decision: Appeal dismissed. Catchwords: CRIMINAL LAW – Crown appeal against sentence – attempt to pervert course of justice – offender pleaded guilty to making false statement to police – statement gave alibi to friend being investigated for sexual assault – offender sentenced on agreed facts – whether sentencing judge erred in failing to find that offender instigated idea of a false statement – whether error in assessment of objective seriousness – whether sentencing judge failed to have regard to full extent of offender's criminality – whether sentence manifestly inadequate – appeal dismissed Legislation Cited: Crimes Act 1900 (NSW), ss 61J, 319 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 17D(4), 89(4) Criminal Appeal Act 1912 (NSW), s 5D Evidence Act 1995 (NSW), s 4(2) Cases Cited: Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 Carroll v The Queen [2009] HCA 13; 83 ALJR 579 Casella v R [2019] NSWCCA 201 Cowling v R [2015] NSWCCA 213 Craig-Bridges v NSW Trustee and Guardian [2017] NSWCA 197 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1 GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 House v The King (1936) 55 CLR 499; [1936] HCA 40 Khoury v R [2011] NSWCCA 118 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 R v AB [2017] NSWCCA 88 R v Harris [2015] NSWCCA 81 R v Kennedy [2019] NSWCCA 242 R v Khoury [2018] NSWCCA 223 R v Kirkland [2005] NSWCCA 130 R v Reid [2016] NSWCCA 151 Voronov v R [2017] NSWCCA 241 Texts Cited: Nil Category: Principal judgment Parties: Crown (Appellant) Brenton Luke Pearce (Respondent) Representation: Counsel: C Curtis (Appellant) P Boulten SC (Respondent)

Solicitors: Solicitor for Public Prosecutions (Appellant) M Blair (Respondent) File Number(s): 2018/00341974 Publication restriction: Nil Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Citation: Nil Date of Decision: 20 December 2019 Before: Smith SC DCJ File Number(s): 2018/00341974

Judgment 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. 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: "It really is a critical issue in the determination of objective seriousness. It was relied upon to a very significant extent by the Crown in urging the finding of mid-range seriousness ..." 1. 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. 2. 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. 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. 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.

The offender's statement to police 1. 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". 2. 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". 3. 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.

The offender's conversations with Mr Thurlow before making his statement to police 1. 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. 2. It was agreed that the offender said: "You need to be able to walk in there next week and say, 'Look, I've racked my brains I don't know what you're talking about'" and later: "But mate, look I was there that night, I was there the whole fucken night, as far as I'm concerned I never even went home. I heard everything. I'll fucking, I'll be alibi for everything like everything like who went into what room" and: "whatever she and Steve may have said, fuck thank fuck I was there that night because it's just another set of eyes. I'll sit in front of a court full of fucken priests and tell them you were on the Central Coast. I won't even flinch. It does not bother me." 1. 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 "… talk about it with me at the same time so we can get our fucking stories straight. And then all three of us go in and all three of us say the exact same thing. Mate I'll fucking sit behind the witness stand and fucking lie through my teeth if I have to. It doesn't bother me. We all just need to just have the same story and then it's three against one, instead of, you know." 1. 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: "The Offender said he was going to see the police in the afternoon. THURLOW asked what he was going to say and the Offender replied, 'basically just what we went through the other night ... the key thing is am I saying you, you came back to my house, aren't I?' THURLOW agreed." 1. 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: "THURLOW later said, 'I suppose like, like paint a pretty good picture that she came over with a fucking overnight bag, she was going to stay and shit. She was fucking sitting on all our laps and she was getting her tits out, stuff like that. Fuck her.' The Offender replied, 'Nah, I will mate. I'll be making sure that ... I'm just going to say I assume she came over for sex ... I'm going to be pretty harsh about it.'" 1. 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. the proposition that the offender had instigated the conduct was absent from the agreed facts; 2. the proposition was not put to the offender during his cross-examination, and 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. 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. 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.

The Statement of Agreed Facts 1. 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. 2. Under the heading "Disputed facts", the document provided: "12. In relation to the statement to Police by the Offender dated 26 April 2017, the Crown contends that the offender provided the following false information that constitutes the particulars of the offence: a. When he first got a phone call from Jesse he did not know what the police were investigating (paragraphs 4 and 5) when in fact he knew it was about an alleged sexual assault b. Jesse told him he was going to come round to his place (paragraph 6) when in fact the offender told Jesse to come over c. He remembered the night because they went back to his place (paragraph 9) d. The references to the complainant sitting on Jesse and Stav's lap and being affectionate (paragraphs 19 and 20) e. The references to sleeping on the lounge and Jesse's bedroom (paragraphs 24, 28, 29 and 30) f. The circumstances in which he told Jesse he was going home and Jesse going home with him (paragraphs 30 and 31). 13. The Offender agrees with the particulars in paragraph 12 c, 12 e (in relation to the reference to sleeping on the lounge) and 12 f above. 14. The Offender disputes the particulars in paragraph 12 a,12 b,12 d and 12 e (in relation to the reference to sleeping in Jesse's bedroom) above." 1. 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. 2. 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. 3. 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.

The Crown's written submissions on sentence 1. 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. 2. 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. 3. Three aspects of those submissions need to be summarised in order to expose the issues at first instance. 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. 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. The Crown made it quite plain that it submitted that the only appropriate sentence was one of full-time imprisonment.

The sentencing hearing 1. 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: "…the very first conversation that there is no transcript of – if you read the transcript of the 13th you can tell. It is very clear in the first few sentences that that is not the first instance we had discussed this. That is the telephone transcript I think where I say I – it was the girl. On the 13th, but that wasn't the first time we had spoken. Q: Because you meet him most days around that time, I think your evidence was? A: I did. Correct. Q: You spoke to him in person? A: I did. I saw him almost every day." 1. 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. 2. At no stage during the cross-examination was it put that the offender had instigated the offence. 3. 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. 4. 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: "The offender agreed to support a friend, we accept, without too much encouragement. He agreed to provide a statement to the police which assisted Mr Thurlow's defence to a very serious sexual assault charge. We accept what my learned friend says; that the background evidence shows some degree of bravado and a high degree of support for the idea of misleading the police. We accept that that is an unsatisfactory aspect of what my client did. Yet the idea that there be a false alibi can't be sheeted home to my client as being the source. Mr Thurlow went to the police and gave the false alibi well in advance of my client going to the police, and there is no evidence to suggest that it was my client who thought up the idea of the false alibi. Sure he agreed, without much encouragement, to go along with it." (emphasis added) 1. 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. 2. 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: "[t]here is a body of cases which specifically deals with the relevance of the role of the participant. I made a submission a short time ago about police officers and lawyers and judges. It is clearly understood that they stand in a different position than people who are not involved in the administration of justice, and that their participation in an offence is more serious. In an assessment of where all of this falls on a scale, we submit that it's a serious case." 1. 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". 2. 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. 3. 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. 4. 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]. 5. 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. 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. 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. 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. that the offender did not know what the police were investigating when Mr Thurlow first called him, 2. that Mr Thurlow had told the offender he was going to the offender's place, 3. that the complainant had been sitting on the laps of Mr Thurlow and his housemate and being affectionate, and 4. that the offender was sleeping in Mr Thurlow's room. 1. Of this aspect of the case, the sentencing judge said: "The offender was cross-examined in thorough detail about these aspects of his statement to the police. He denied that they were false and gave explanations for his answers. I observed the offender very closely as he gave evidence. His answers were clear and direct and he was unshaken in spite of his obvious distress in the witness box. I accept that he gave full and frank evidence and accept that the challenged aspects of his statement to the police were not false. It is important to note here my conclusions after careful consideration, that in denying the falsity of his evidence the offender was not downplaying the seriousness of his offending, rather that it was simply not the case that everything he told the police was a lie." 1. 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. 2. Considerable criticism was addressed to a short passage in his Honour's reasons which were directed to objective seriousness: "It is relevant to the objective seriousness however to note that the offender was not in a position of authority such as a police officer, a lawyer or a judge. Nevertheless, there was planning involved over a period of time and together with a number of people. The offence is above the low range of seriousness but falls below the mid-range." 1. 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. 2. 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. 3. The sentencing judge first observed that: "there was no benefit to the offender to lie to the police. He was driven by a misguided sense of loyalty to his friend. While loyalty and mateship are highly esteemed in Australian society, they present no excuse to this offending. That said, they were not put forward in the mitigation of the offending and given that they were the sole motivation for that offending, there is less moral culpability here than in cases where the offender seeks to divert the course of justice in order to protect his or her own interests." 1. It was not said that there was any error in that passage. 2. 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: "First, it is a consistent theme in them that the offender is a selfless person who values his relationships above all else. In times of great need the offender is said to have risked himself to save others. Secondly, the references come from friends, family, the family of friends and friends of the family. It is a mark of true remorse that the offender has revealed the full extent of his shameful offending to such a breadth of the people in his life and a mark of true respect that such detail and thoughtful references were given with knowledge of that offending. The third notable element of the subjective evidence is the offender's work ethic. It is unnecessary to catalogue the offender's achievements but it is important to note that the offender has consistently shown an ability to work hard to achieve his goals, together with flexibility to work towards meeting the needs of others, most notably those of his partner." 1. We will return to this when dealing with the ground that the sentence was manifestly inadequate. 2. 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. 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. 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. 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: 1. His Honour erred in his assessment of the objective seriousness of the offence in that he: (i) Took into account by way of mitigation of the objective seriousness of the offence the absence of an aggravating feature; and/or (ii) Failed properly to take into account the full extent of the perversion of justice intended; and/or (iii) Failed to make a finding as to whether or not the respondent volunteered to provide a false alibi of some description prior to any requests by others. 2. The sentence is manifestly inadequate." 1. 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. 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. 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. There were many matters of primary fact in issue, and no doubt the Crown's position reflected the findings for which it contended. 4. 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. 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. 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. 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. 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: "ROTHMAN J: Can I come back to the first sentence on p 4. If the offence of the kind here committed was committed by a police officer, a lawyer, or a judge, it would be a much more serious offence. CURTIS: Correct, your Honour, yes. ROTHMAN J: Why isn't it the case that he is merely saying this is not in the most serious class? CURTIS: That's precisely what my learned friend has invited the Court to do. The Crown says it can't be read that way because of the contrast that his Honour makes between matters of seriousness and matters of lesser seriousness by using the word, 'Nevertheless.'" 1. 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. 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. 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. 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. Ground 1 (iii) is the most serious ground alleging patent error, and it seemingly reflects different understandings of the history of the prosecution. 2. 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. 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. The second was the full context of the intercepted conversations between Mr Thurlow and the offender. 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. 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. 1. 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. 2. 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: "Where a specific fact has to be established beyond reasonable doubt by inference, it is not sufficient that it is a reasonable or rational inference from the evidence. It must be the only rational or reasonable inference available from the evidence: Knight v The Queen (1992) 175 CLR 495 at 502-503, 509-510." [emphasis as in original] 1. 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. 2. To return to this ground, the complaint was that the sentencing judge did not decide this part of the case: "his Honour did not wrestle with it and this was critical to his Honour's determination of objective seriousness and then I go back to what I've said about the particulars which is that if your Honours are not satisfied of the particular ground then his Honour's failure to wrestle with what was a very significant part of the Crown case on sentence is what has led his Honour to what the Crown says was an erroneously lenient sentence." 1. 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. The principles were recently summarised in R v Kennedy [2019] NSWCCA 242 at [80]-[84]: "Whilst an appellate court considering a ground of manifest inadequacy is not bound by the sentencing judge's assessment of the proper weight to be given to, for example, objective seriousness, limits upon appellate review nonetheless apply. The issue is not whether the aggregate sentence imposed failed to reflect the objective seriousness of the offences; it is whether it was open to the sentencing judge to impose that sentence, including in this case whether it was open to him to order that the sentence be served under supervision in the community: CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [78]. … In Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], Gleeson CJ and Hayne J stated: 'Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.' In R v Pham (2015) 256 CLR 550; [2015] HCA 39 at [28], French CJ, Keane and Nettle JJ stated: 'Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.' A sentence will be manifestly inadequate if it is 'unreasonable or plainly unjust' or 'below the range of sentences that could be justly imposed for the offence consistently with sentencing standards': Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24]." 1. 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. 2. 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. 3. 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]. 4. The offender's subjective case was summarised by counsel before the sentencing judge thus: "Your Honour knows this much about him: he grew up on the central coast. He comes from an ordinary family. He decided, when still at high school, to undertake quite an extraordinary course. He undertook an apprenticeship, but the apprenticeship was an apprenticeship that was undertaken whilst he was still studying for his higher school certificate. He worked part-time on his apprenticeship, and he studied fulltime for his higher school certificate. He achieved an ATAR score which enabled him to go into a university course, but he was such a good apprentice that he won high awards for his skill as a carpenter and joiner. Your Honour has those documents. He was the Apprentice of the Year in New South Wales. He was runner up as the national Apprentice of the Year. He was taken up as a craftsman by a small firm that supervised his apprenticeship, and there is a close connection with the family. Your Honour will have read, I trust, the reference from the James family who treat him, understandably, as one of their own, with huge gratitude and humility, and he served them well as their apprentice and then as their craftsman. When he was 16, he and his partner became sweethearts. They have been together ever since. They have crafted their own careers. He formed his own small business. He went into business when Ms Dwyer received a placement in Shoalhaven, and then Shellharbour. They moved there, and for the first time he moved out of home. It was not an easy time. His brother had had a serious accident some years before. His parents were, in retrospect, going through a difficult time. He became cut off from his roots. He became perhaps depressed. He became interested in bettering himself, even as an excellent craftsman. He went to university, which is where all of this occurred. He met up with Mr Thurlow, and he was very grateful to see a friendly face, and he bonded again with Mr Thurlow after some years separation. In those circumstances, he was still someone who thought of others. He was 27 or 28 - I think 29 shortly. He's 29 now. He's at the stage where he's been a scout since he was in primary school. An active bushman. Someone who is interested in the environment, who cares about the bush, but cares about others. It's a very unusual circumstance - subjective case. Somebody who has given back to children, back to young people, back to disadvantaged people. He has worked for OzHarvest. He has provided significant assistance to charities. He has been a mentor to the underprivileged, and now has achieved a position as a planner at Randwick Council. He will lose that. He cannot possibly continue in that job. He and his partner will need to start again somehow, if he doesn't go to gaol ... he'll have to go back and live in the granny flat. His partner will need to travel from the central coast to Rose Bay every day. The shame of all of this has never left him, and it may well be that he was not as ashamed at a time before he was discovered, but there is no doubting his shame now. His evidence about his insight should be accepted. The references are replete with descriptions of how he feels a heavy sense of guilt and shame. He knows what he did was extremely wrong, and he's destroyed his reputation. It will take a very long time for him to earn it again properly." 1. Very few offenders are able to present anything like such a case. 2. 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: "The surgeon and everyone else involved were perplexed as to how Brenton managed to physically lift my son off the bottom of the river bed without any help. ... At 14 years of age, Brenton demonstrated bravery, maturity and leadership capabilities beyond anyone his age. He is an intelligent, witty and selfless person that values his relationships with others above all else." 1. 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. 2. 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. 3. 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. 4. 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.

********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 April 2020