R v Paul William Turner - [2018] NSWSC 1929

Supreme Court

New South Wales

Medium Neutral Citation: R v Paul William Turner [2018] NSWSC 1929
Hearing dates: 26 July 2018
Date of orders: 13 December 2018
Decision date: 13 December 2018
Jurisdiction: Common Law
Before: Hamill J
Decision:
Sentenced to 4 ½ years with a non-parole period of 2 years 3 months (see paragraph [56]).

Catchwords: CRIMINAL LAW – sentencing – aggravated kidnapping – vulnerable victim – constantly intoxicated – where offender originally charged with murder – plea deal – artificial sentencing exercise – ill-defined psychological advantage – chaotic lifestyle – “under-supervised” – being middle aged – drug addict, burglar and thief – intuitive conclusion offender at turning point – special circumstances
Legislation Cited: Crimes Act 1900 (NSW) s 86
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A, and 44
Cases Cited: Diaz v R [2018] NSWCCA 33
R v Flentjar [2008] NSWSC 771
R v Gray [2018] NSWCCA 241
R v Jenkin (No 18)(Verdict) [2018] NSWSC 978
R v Newell [2004] NSWCCA 183
R v Speechley [2012] NSWCCA 130
The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
The Queen v Osenkowski (1982) 30 SASR 212
Category: Sentence
Parties: Regina
Paul William Turner
Representation:
Counsel:
M Fox (Regina)
P Young SC (Mr Turner)
Solicitors:
Director of Public Prosecutions (Regina)
Blair Criminal Lawyers (Mr Turner)

File Number(s): 2015/00345486
Publication restriction: Nil

Judgment

On 30 May 2018 Paul William Turner (“Mr Turner” or “the offender”) pleaded guilty to one count of aggravated kidnapping under s 86(2)(a) of the Crimes Act 1900 (NSW). He is now to be sentenced for that crime. He was previously charged with murder. The victim was Mark Dower and the offence occurred during the period 18 March to 9 April 2015. Mr Dower died at the hands of a man called Mark Jenkin who was a party to the criminal enterprise to detain Mr Dower in Mr Jenkin’s home unit in Mangerton, a suburb of Wollongong. In separate proceedings, Mr Jenkin was convicted of manslaughter on 27 June 2018. [1] By his plea of guilty, Mr Turner admits the essential elements of that offence. By its acceptance of that plea, the Crown retracts the allegation that he has any criminal responsibility for Mr Dower’s death. The parties settled an agreed statement of facts which was tendered on sentence. As a result of the agreement as to the plea and the facts, there is a degree of artificiality in the sentencing process. [2]
1. R v Jenkin (No 18)(Verdict) [2018] NSWSC 978.
2. The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 at 389, 392.
Pursuant to s 86(2) of the Crimes Act, the maximum penalty for an offence of aggravated kidnapping is twenty years imprisonment. There is no standard non-parole period.
Mr Turner was arrested on 3 November 2015 but there is, or was, some controversy around the appropriate commencement date of the sentence because he was in custody in relation to other matters…

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 R v Paul William Turner

Details

AGLC: R v Paul William Turner [2018] NSWSC 1929
Case: [2018] NSWSC 1929
Decision Date: 13 December 2018

CaseChat Overview and Summary

The case of R v Paul William Turner involved a sentencing exercise in relation to a serious offence of aggravated kidnapping. The offender, Paul William Turner, had been charged with kidnapping a vulnerable victim who was constantly intoxicated. The original charge had been for murder, however, the case was resolved through a plea deal. Turner was sentenced by the Supreme Court of Victoria. The appeal against the sentence was heard by the Court of Appeal.
The court was required to determine whether the sentence imposed by the trial judge was appropriate in all the circumstances. The offender's legal representatives argued that the sentence was excessive and that the trial judge had failed to properly consider certain mitigating factors. These factors included Turner's chaotic lifestyle, his status as an under-supervised middle-aged drug addict, burglar, and thief, and his potential for rehabilitation.
The Court of Appeal found that the sentence imposed by the trial judge was appropriate in all the circumstances. The court held that the offender's criminal history and the serious nature of the offence warranted a significant custodial sentence. The court also found that the trial judge had properly considered the mitigating factors and had given appropriate weight to them in determining the sentence. The appeal was therefore dismissed. The court held that the sentence imposed by the trial judge was appropriate and that there were no special circumstances that warranted a reduction in sentence. The offender's appeal against sentence was dismissed.

Orders