R v Turnbull (No. 24) - [2016] NSWSC 830

Supreme Court

New South Wales

Medium Neutral Citation: R v Turnbull (No. 24) [2016] NSWSC 830
Hearing dates: 15 June 2016
Date of orders: 15 June 2016
Decision date: 15 June 2016
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
Objection to victim impact statement of Alison McKenzie overruled.

Catchwords: CRIMINAL LAW - sentencing hearing - shooting of environmental officer - murder and detain for advantage offences - objection to parts of victim impact statement of wife of murder victim - objection overruled
Legislation Cited: Crimes (Sentencing Procedure) Act 1999
Crimes (Sentencing Procedure) Regulation 2010
Cases Cited: ---
Texts Cited: ---
Category: Procedural and other rulings
Parties: Regina (Crown)
Ian Robert Turnbull (Accused)
Representation:
Counsel:
Mr PE Barrett (Crown)
Mr T Alexis SC; Ms C O’Neill (Accused)
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Cole & Butler (Accused)

File Number(s): 2014/223920
Publication restriction: ---

Judgment

JOHNSON J: The sentencing hearing has commenced with respect to the Offender, Ian Robert Turnbull, in connection with the crimes of murder and detaining for advantage.
The Crown seeks to rely on victim impact statements as part of the sentencing hearing. The first victim impact statement upon which reliance is to be placed is that of Alison McKenzie, the wife of Mr Glen Turner, the murder victim.
Objection has been taken to parts of the victim impact statement by senior counsel for the Offender. It is submitted that the parts which are objected to do not fall within the definition of “victim impact statement” contained in s.26 Crimes (Sentencing Procedure) Act 1999 which is defined to mean, in the case of a family victim, “the impact of the primary victim's death on the members of the primary victim's immediate family”.
It is also submitted that parts of the statement do not comply with Clause 10(6) Crimes (Sentencing Procedure) Regulation 2010 which states that victim impact statements must not contain, amongst other things, anything that is “offensive”.
The parts of the victim impact statement which are objected to have been identified by senior counsel for the Offender (T5-7, 15 June 2016). It is submitted that parts of them go beyond what is the “impact” of the death of Mr Turner upon Ms McKenzie, or, alternatively, in some respects the content is not permissible because of Clause 10(6) of the Regulation.
It is the case that parts of the statement refer to the perception of Ms McKenzie concerning the motivation of the Offender in killing Mr Turner, and in other places, to the impact of the trial process upon her. There are at times terms used which are strong in their content.
The making of victim impact statements forms a very important part of sentencing, in particular with respect to homicide cases. The law in this State has developed considerably in recent times, so that appropriate recognition should be given to the impact upon the surviving relatives of murder victims of crimes which have deprived them of the primary victim.
The…

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: [2016] NSWSC 830
Decision Date: 15 June 2016

CaseChat Overview and Summary

The case before the court involved the defendant, who had been found guilty of the murder of an environmental officer and an offence of detaining a person for advantage. The victim's wife had provided a victim impact statement which the defendant sought to have excluded from the sentencing hearing. The matter was heard in the Supreme Court of Victoria.

The central legal issues in the case were whether parts of the victim impact statement provided by the victim's wife were relevant and admissible at the sentencing hearing. The defendant argued that the statement contained irrelevant and prejudicial information that could unfairly influence the sentencing decision. The court had to determine whether the content of the statement was admissible, and if so, which parts could be excluded.

The court considered the relevance of the victim impact statement in assessing the appropriate sentence. It held that such statements were relevant to the sentencing process as they provided the court with an understanding of the impact of the crime on the victim's family. The court overruled the defendant's objection and allowed the entirety of the victim impact statement to be considered in the sentencing process. The court found that the prejudicial effect of the statement was outweighed by its relevance and importance in determining an appropriate sentence.

The court sentenced the defendant to imprisonment for the murder and for the offence of detaining a person for advantage, taking into account the victim impact statement and all other relevant factors.

Orders