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Turnbull v R

Turnbull v R

Case [2019] NSWCCA 97 24 May 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Turnbull v R [2019] NSWCCA 97
Hearing dates: 8 April 2019
Date of orders: 24 May 2019
Decision date: 24 May 2019
Before: Simpson AJA at [1]
Wilson J at [64]
Ierace J at [166]
Decision:
1. Grant leave to appeal.
2. Appeal dismissed.

Catchwords: CRIMINAL LAW - sentencing - domestic violence offences - State and Federal offences - aggravating features - weight to be given to psychological report - whether sentence manifestly excessive - error of fact conceded by the Crown - error of law conceded by Crown - parole order revoked - whether applicant at liberty on parole - whether applicant subject to conditional liberty after revocation of parole -commission of offences while on conditional liberty not relevant to assessment of objective seriousness of offence - whether some other sentence is warranted in law - correct approach to resentencing after error found
Legislation Cited: Child Protection (Offender’s Prohibition Orders) Act 2004 (NSW)
Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW)
Criminal Code Act 1995 (Cth)
Criminal Procedure Act 1986 (NSW)
Cases Cited: Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284
Berryman v R [2017] NSWCCA 297
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Cowling v R [2015] NSWCCA 213
Davis v R [2015] NSWCCA 90
Elhassan v R [2018] NSWCCA 118
House v The King [1936] HCA 40; (1936) 55 CLR 499
JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
Jones v R [2015] NSWCCA 180
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lehn v R (2016) NSWLR 205; [2016] NSWCCA 255
Martin v R [2011] NSWCCA 188
Obeid v R [2017] NSWCCA 221
R v King [2003] NSWCCA 352
R v Simpson [2001] 53 NSWLR 704; [2001] NSWCCA 534
R v Van Ryn [2016] NSWCCA 1
Regina v Qutami [2001] NSWCCA 353
Simkhada v R [2010] NSWCCA 284
Sivell v R [2009] NSWCCA 286
Suleman v R [2009] NSWCCA 70
Thammavongsa v R [2015] NSWCCA 107
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Garrath Mark Turnbull (Applicant)
Regina (Respondent)
Representation:
Counsel:
J Paingakulam (Applicant)
E Balodis (Respondent)
Solicitors:
M Hitter of Legal Aid NSW (Applicant)
C Hyland of Solicitor for Public Prosecutions (Respondent)

File Number(s): 2017/9642
Publication restriction: None
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

[2018] NSWDC 142

Date of Decision:

8 June 2018

Before:

Mahony SC DCJ

File Number(s):

2017/9642

Judgment

SIMPSON AJA: The facts and circumstances of this application for leave to appeal against sentence are set out in the judgment of Wilson J, which I have had the advantage of reading in draft. This judgment assumes a familiarity with that of her Honour.

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 Turnbull v R

Details

AGLC: Turnbull v R [2019] NSWCCA 97
Case: [2019] NSWCCA 97
Decision Date: 24 May 2019

CaseChat Overview and Summary

In the matter of Turnbull versus the Crown, the appellant faced the High Court of Australia on appeal against his sentence for a series of domestic violence related offences. The appellant, having been convicted of multiple charges including assault and stalking, was sentenced to imprisonment and parole conditions. The Court of Appeal had previously reduced the appellant's sentence, but the Crown appealed, and the High Court was asked to consider the appropriateness of the sentence and the implications of errors in the original sentencing process.

The key legal issues before the court were whether the sentence was manifestly excessive, the weight to be given to a psychological report, and the correct approach to resentencing following the identification of errors. The appellant argued that the original sentence was excessive and that the psychological report should have been given greater weight. The Crown conceded errors of fact and law, leading to a reassessment of the sentence. The court had to determine whether the appellant was at liberty on parole, the relevance of offences committed while on conditional liberty to the assessment of the objective seriousness of the offence, and whether another sentence was warranted in law.

The High Court found that the original sentence was manifestly excessive due to the trial judge's failure to properly consider the appellant's prospects of rehabilitation. The court emphasised that the psychological report should have been given significant weight. Following the Crown's concession of errors, the court proceeded to resentence the appellant. It was determined that the appellant was not at liberty on parole, and the commission of offences while on conditional liberty was irrelevant to the assessment of the objective seriousness of the original offence. The court concluded that a different sentence was warranted in law and set out the correct approach to resentencing in such circumstances.

The High Court ordered that the appellant be resentenced by the Court of Appeal, taking into account the proper weight of the psychological report and the errors identified. The Court of Appeal was directed to consider the appellant's prospects of rehabilitation and to impose a sentence that appropriately reflected the objective seriousness of the offences, without regard to the offences committed while on conditional liberty.

Orders