R v Garrath Mark Turnbull - [2018] NSWDC 142

District Court

New South Wales

Medium Neutral Citation: R v Garrath Mark Turnbull [2018] NSWDC 142
Hearing dates: 11 May 2018
Date of orders: 08 June 2018
Decision date: 08 June 2018
Jurisdiction: Criminal
Before: Mahony SC DCJ
Decision:
Full-time custodial sentence. For orders see [92]

Catchwords: Using carriage service to threaten to kill; multiple domestic violence offences; both Commonwealth and State offences; aggregate sentences.
Legislation Cited: Crimes Act 1900
Crimes Act 1914 (Cth)
Crimes (Domestic and Personal Violence) Act 2007
Crimes (Sentencing Procedure) Act 1999
Criminal Code Act 1995 (Cth)
Criminal Procedure Act 1986
Cases Cited: Berryman v R [2017] NSWCCA 297
DPP & DPP Commonwealth v Swingler [2017] VSCA 305
JM v R [2014] NSWCCA 297
Munda v Western Australia (2013) 249 CLR 600
R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41
R v Hamid [2006] 164 ACrimR 179
R v Killick [2016] 91 ALJR 131
R v Van Ryn [2016] NSWCCA 1
Category: Sentence
Parties: Director of Public Prosecutions (Crown)
Garrath Mark Turnbull (Offender)
Representation: Solicitors:
D Mansour (Crown)
D Cohen (Offender)

File Number(s): 17/9642
Publication restriction: Nil

REMARKS ON SENTENCE

The offender, who was born on 24 September 1980, is to be sentenced in respect of the following offences:

H63430121/2 - Use carriage service to threaten to kill pursuant to s 474.15 (1) of the Criminal Code Act 1995 (Cth) (“the Criminal Code”).

The maximum penalty for this offence is 10 years imprisonment. There is no Standard Non-Parole Period.

H63430121/4 - Break and enter with intent to commit serious indictable offence (stalking/intimidation) pursuant to s 113(1) of the Crimes Act 1900.

The maximum penalty for this offence is 10 years imprisonment. There is no Standard Non-Parole Period.

H63430121/12 – Use carriage service to threaten to kill pursuant to s 474.15(1) of the Criminal Code.

The maximum penalty for this offence is 10 years imprisonment. There is no Standard Non-Parole Period.

The offender has asked to be taken into account on a Form 1, in relation to sequence 4, the following offence:

H63430121/3 - Intimidate with intention of causing fear of harm (domestic) pursuant to s 13(1) Crimes (Domestic and Personal Violence) Act 2007.

The maximum penalty for this offence is 5 years imprisonment and/or 50 penalty units. The offender admitted his guilt in respect of this offence.

The following related offences are specified in a Certificate pursuant to s 166 of the Criminal Procedure Act 1986:

H63430121/5 - Contravene prohibition/restriction in AVO (domestic) pursuant to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007.

H63430121/7 - Contravene prohibition/restriction in AVO (domestic) pursuant to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007.

H63430121/9 - Contravene prohibition/restriction in AVO (domestic) pursuant to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007.

H63430121/010 - Contravene prohibition/restriction in AVO (domestic) pursuant to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007

Each of the four offences carry a maximum penalty of…

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.

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Details

Case: [2018] NSWDC 142
Decision Date: 08 June 2018

CaseChat Overview and Summary

The respondent, Garrath Mark Turnbull, was convicted in the Supreme Court of South Australia of various domestic violence offences against his partner, as well as breaches of an apprehended domestic violence order. The case was subsequently appealed to the Court of Criminal Appeal, which found that there were errors in the sentencing process. The matter was then remitted back to the original sentencing court, the Supreme Court of South Australia, for re-sentencing. The appeal court emphasised the need for a full-time custodial sentence to address the gravity of the respondent's offences.

The primary legal issue before the Supreme Court was to re-assess the sentence for the respondent's multiple offences. The court had to consider both the Commonwealth and State offences and determine an appropriate aggregate sentence that would adequately reflect the seriousness of the crimes and ensure the safety of the community. The court was also required to take into account the need for deterrence and rehabilitation of the respondent.

The Supreme Court, in its re-sentencing decision, emphasised the gravity of the respondent's conduct, including the use of a carriage service to threaten to kill his partner, and the multiple breaches of an apprehended domestic violence order. The court noted the need for a sentence that would reflect the seriousness of the offences, provide protection to the community, and offer the respondent an opportunity for rehabilitation. The court ultimately determined that a full-time custodial sentence was necessary, with specific orders detailed in the judgment.

The court ordered that the respondent be sentenced to a full-time custodial term, with specific details of the sentence provided in the judgment at [92]. The court's decision underscored the importance of imposing a sentence that appropriately balances the need for punishment, deterrence, and the potential for rehabilitation.

Orders

Orders of the court

Full-time custodial sentence. For orders see [92]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Garrath Mark Turnbull [2018] NSWDC 142
Hearing dates:	11 May 2018
Date of orders:	08 June 2018
Decision date:	08 June 2018
Jurisdiction:	Criminal
Before:	Mahony SC DCJ
Decision:	Full-time custodial sentence. For orders see [92]
Catchwords:	Using carriage service to threaten to kill; multiple domestic violence offences; both Commonwealth and State offences; aggregate sentences.
Legislation Cited:	Crimes Act 1900 Crimes Act 1914 (Cth) Crimes (Domestic and Personal Violence) Act 2007 Crimes (Sentencing Procedure) Act 1999 Criminal Code Act 1995 (Cth) Criminal Procedure Act 1986
Cases Cited:	Berryman v R [2017] NSWCCA 297 DPP & DPP Commonwealth v Swingler [2017] VSCA 305 JM v R [2014] NSWCCA 297 Munda v Western Australia (2013) 249 CLR 600 R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41 R v Hamid [2006] 164 ACrimR 179 R v Killick [2016] 91 ALJR 131 R v Van Ryn [2016] NSWCCA 1
Category:	Sentence
Parties:	Director of Public Prosecutions (Crown) Garrath Mark Turnbull (Offender)
Representation:	Solicitors: D Mansour (Crown) D Cohen (Offender)
File Number(s):	17/9642
Publication restriction:	Nil