R v Turner
[2003] NSWCCA 334
•3 November 2003
CITATION: R v Turner [2003] NSWCCA 334 HEARING DATE(S): 3 November 2003 JUDGMENT DATE:
3 November 2003JUDGMENT OF: Barr J at 1; Greg James J at 24; Howie J at 27 DECISION: Grant leave to appeal but appeal dismissed. CATCHWORDS: Criminal law - sentencing - threatening to use an offensive weapon with intent to murder LEGISLATION CITED: Crimes Act s33B(1)(a)
Crimes (Sentencing Procedure) Act s32
Criminal Appeal Act s6(3)CASES CITED: R v Thomson; R v Houlton [2000] NSWCCA 309 PARTIES :
Regina
Peter Jeffrey TurnerFILE NUMBER(S): CCA 60199/03 COUNSEL: Applicant: In Person
Crown: P M MillerSOLICITORS: Applicant: In person
Crown: S E O'Connor
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/61/0146 LOWER COURT
JUDICIAL OFFICER :Freeman DCJ
60199/03
Monday, 3 November 2003Barr J
Grag James J
Howie J
1 BARR J: This is an application by Peter Jeffrey Turner for leave to appeal against a sentence imposed upon him in the District Court on 7 November 2002. On that day he came before Judge Freeman and pleaded guilty to a charge under section 33B(1)(a) of the Crimes Act of threatening to use an offensive weapon with intent to commit an indictable offence, namely murder. He also acknowledged the commission of five offences which were summarised pursuant to section 32 of the Crimes (Sentencing Procedure) Act and asked his Honour to take them into account. His Honour did so, and sentenced the applicant to imprisonment for six years and three months. A non-parole period of four years was fixed.
2 In 1993, when he was about twenty-six years old, the applicant formed an attachment to a young woman whom he later married. She was thirteen years his junior. As the sentencing judge found, the relationship was a volatile one, in which there was a deal of violence and controlling behaviour on the part of the applicant. The applicant is an immature man with entrenched personality difficulties. They make him susceptible to over-reaction to perceived or acute deprivation or abandonment.
3 The applicant and his wife have a son, who at the time of the events was eighteen months old.
4 The marriage broke down in 2002 and his Honour thought that that might have been because the applicant’s wife had matured and he had not. He began to suspect that she was seeing another man. He attempted suicide by taking an overdose of prescribed tablets and was admitted briefly to a mental hospital, then allowed home. He barricaded himself in the house and threatened suicide but was ultimately talked out of it. Again he was taken to hospital, kept briefly and sent home.
5 The applicant interpreted the signs as showing that his wife was lost to him. That is the opinion of a consultant psychologist, Ms Robilliard, whose report was tendered in the sentencing proceedings. He could not bear the circumstances he found himself in and had no mature understanding and no acceptance of those circumstances. Even before the sentencing judge he was expressing the desire to be reunited with his wife, an entirely unrealistic attitude in view of the matters I shall relate.
6 On 24 April 2002 the applicant’s wife, who had been talking about separating, moved out of the home. He was unable to contact her for the next couple of days. On 27 April he drove to the shop where she worked and had an argument with her about the man he thought she was seeing. He struck her. He left the shop, went to the place where the man worked and had an argument with him. Then he returned to the shop and struck his wife again, this time knocking her to the floor. He only left when others intervened.
7 The shopkeeper was trying to call the police and the applicant told him that if he rang them their son would die. He tore the telephone out of the wall. He drove his car into the car that his wife was using.
8 Having done these things he drove to the house where their son was being minded. His mother and sister were there. They tried to take the child away to safety, but the applicant seized him and held him by the foot, swinging him upside down with his head barely clearing the floor. He realised that his sister also was trying to telephone the police. He smashed the window and removed a shard of glass about 15 centimetres long. He carried the child into a nearby park, sat him on the ground and held the jagged glass close to its neck. That act constituted the offence to which the applicant pleaded guilty. The assaults and the occasion of damage which preceded it were the matters that the sentencing judge took into account.
9 In passing sentence his Honour expressed concern about the applicant’s personality. His Honour observed that some ten or eleven years earlier the applicant had attempted to abduct his female companion. He had been given the benefit of a good behaviour bond on that occasion.
10 His Honour had the benefit of reports from Dr Hugh Jolly and Dr Allnut, psychiatrists. They were not substantially in disagreement and remarked on the applicant’s immature personality and need to change so as to accept responsibility.
11 His Honour concluded in view of that unanimity between the experts that the applicant represented a risk to his wife and child. He remarked on Dr Allnut’s warning that the applicant’s wife should be warned when the prisoner was going to be released and to Ms Robilliard’s endorsement of that warning. His Honour observed that the need to protect society was a matter that weighed heavily in sentencing. He observed that the deep-seated personality flaws of the applicant were notoriously difficult to treat and would require prolonged treatment.
12 The applicant was originally committed for trial on a more serious charge. There was a change in the formulation of the charge when the case reached the District Court. As soon as that was done the applicant pleaded guilty. His Honour acknowledged that in the circumstances the applicant was entitled to recognition for a plea of guilty at the earliest possible time.
13 His Honour observed that but for the plea of guilty he would have imposed a head sentence of seven years but was reducing it by about 10 per cent in recognition of the plea.
14 The first submission made in this application was that that allowance was insufficient. This Court has said in R v Thomson; R v Houlton [2000] NSWCCA 309 that a person pleading guilty is entitled to a discount of somewhere in the range of 10 to 25 per cent for the utilitarian value of the plea. Generally, the earlier the plea of guilty is entered the higher in the range the discount may be taken to be.
15 A discount of about 10 per cent for an early plea is a matter for the discretion of the sentencing judge. On the face of it, however, there may be substance in the criticism which has been levelled at the discount allowed. Whatever view this Court may take about the discount it might have allowed in the circumstances, however, this Court does not simply substitute its own view for the view of the sentencing judge. The wide range of discretion of the sentencing judge has to be recognised. Also relevant to this question is the ultimate sentence that was arrived at. I shall make further reference to that matter.
16 On appeal, the applicant criticised the conduct of his barrister on the day of his plea and at earlier times. He submitted that his barrister told him that by the time he came up for sentence he would have served about six months in custody and that he would arrange for the matter to be put before a lenient judge. The time served would be taken into account and he would be given a bond. That is to say, he would be released immediately.
17 The applicant also said that on the day of his plea he was in a state of shock. He had been told that the charge had been changed and did not really understand what he was pleading guilty to. He also submitted that his barrister, his estranged wife, the Director of Public Prosecutions and the sentencing judge were in a conspiracy together to keep him in gaol. They perverted the course of justice.
18 The inconsistency between these several submissions is obvious. The facts put before the sentencing judge, which I have summarised and which were not challenged below, show that the applicant committed the offence for which he was sentenced and those offences which were taken into account. It seems to me that there is no substance in these submissions.
19 Then the applicant said that he had completed some programs while in gaol, and it is heartening to see that he is already making progress. However, these are matters that this Court cannot take into account. The duty of this Court is to consider whether the sentencing judge erred.
20 The final criticism the applicant made of his barrister was that he asked him during his evidence whether he had ever threatened his wife with a firearm. He answered that he had never done such a thing. The relevance of that question is not clear. None of the charges, either the one to which the applicant pleaded guilty, or those offences taken into account, involved the use of a firearm. It may have been a slip of the tongue or some misapprehension on the part of the barrister that gave rise to the question. At any rate, what is clear is that the sentencing judge expressly took no such matter into account. The question of the raising of the denial of any activity with a firearm is, it seems to me, irrelevant.
21 The maximum sentence attracted by the offence to which the applicant pleaded guilty is twelve years’ imprisonment. Bearing in mind the matters taken into account by his Honour at the applicant’s request, it seems to me that the resulting sentence fell within the proper range of his Honour’s discretion. It is true that another judge might have allowed a greater discount for the plea of guilty, but this Court is bound to look at the resulting sentence. To my mind a sentence which produced a non-parole period of four years was entirely proper in this case. The offence was a very serious one of its kind.
22 I would grant leave to appeal but would dismiss the appeal.
23 GREG JAMES J: Subsection (3) of section 6 of the Criminal Appeal Act provides that it is only in a case where some other sentence is warranted in law and should have been passed that this Court might intervene on an appeal against the severity of a sentence below. I am persuaded that the Court should not intervene, having regard to the statutory requirements. It is to the sentence that has been passed the section draws the Court’s attention, not merely the convenience of it.
24 It may well have been that in affording so little discount for a plea, he held to have been entered at the earliest possible opportunity, the trial judge may have erred, but such an error did not, in my view, affect the eventual product of the sentencing synthesis such as to show error in the upshot. I agree that leave to appeal should be granted and the appeal dismissed.
26 HOWIE J: For the reasons given by the presiding judge and Justice Greg James, I also agree the application for leave should be granted and the appeal dismissed.
27 BARR J: The orders of the Court are as I have proposed.
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Last Modified: 12/05/2003
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