Court of Criminal Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Turner v R [2016] NSWCCA 208 Hearing dates: 27 June 2016 Decision date: 30 September 2016 Before: Leeming JA at [1];
McCallum J at [2];
R S Hulme AJ at [3]Decision: In respect of Proceedings 2009/00058502:
(i) Grant leave to appeal in respect of the sentence imposed for assault occasioning actual bodily harm;
(ii) Allow the appeal in respect of that sentence;
(iii) Quash that sentence, and in lieu;
(iv) Sentence the Applicant to imprisonment for a non-parole period of 9 months commencing on 17 April 2011 together with a further term of 3 months;
(v) Refuse leave to appeal in respect of the sentence imposed for intentionally damaging property.
In respect of Proceedings 2011/00142641:
(i) Grant leave to appeal in respect of the sentences imposed for the offences of attempting to have aggravated sexual intercourse and having aggravated sexual intercourse;
(ii) Allow the appeal in respect of those sentences;
(iii) Quash those sentences and in lieu;
(iv) In respect of the offence of attempted aggravated sexual intercourse, sentence the Applicant to imprisonment for a fixed term of 4 years commencing on 17 September 2011;
(v) In respect of each of the offences of aggravated sexual intercourse, sentence the Applicant to imprisonment for a non-parole period of 5 years commencing on 17 June 2012 together with a further term of 3 years commencing on 17 June 2017;
(vi) Refuse leave to appeal in respect of the sentence imposed for assault occasioning actual bodily harm;
(vii) Record as the date upon which it appears to the Court that the Applicant shall be eligible for parole, 17 June 2017.Catchwords: Criminal law – sentence – availability of Local Court – sentence manifestly excessive
Criminal law – sentence – protective custody – disadvantaged upbringing and mental health – accumulation of sentencesLegislation Cited: Crimes Act 1900 (NSW), ss 59, 61J, 61P Cases Cited: Baines v R [2016] NSWCCA 132
Cowan v R [2015] NSWCCA 118
Des Rosiers v R [2006] NSWCCA 16; 159 A Crim R 549
Ingrey v R [2016] NSWCCA 31
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
McCullough v The Queen [2009] NSWCCA 94; 194 A Crim R 439
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
NM v R [2012] NSWCCA 215
R v Burchell (1987) 34 A Crim R 148
R v Couch-Clarke [2010] NSWCCA 288
R v Crombie [1999] NSWCCA 297
R v Dalton-Morgan (unreported, NSWCCA, 14 December 1989
R v Jason Smith (unreported NSWCCA 11 September 1991)
R v Totten [2003] NSWCCA 207
Regina v El Masri [2005] NSWCCA 167
Regina v Palmer [2005] NSWCCA 349
SM v R [2016] NSWCCA 171
Smith v R [2007] NSWCCA 138
Zreika v R [2012] NSWCCA 44; 223 A Crim R 460Category: Principal judgment Parties: Peter Turner - Appellant
Regina - RespondentRepresentation: Counsel:
Ms H Cox - Appellant
Mr NJ…
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- AGLC
- Turner v The Queen [2016] NSWCCA 208
- Case
- [2016] NSWCCA 208
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the sentence imposed on Turner was manifestly excessive, and whether the court should have taken into account his disadvantaged upbringing, mental health issues, and risk of violence from other inmates when determining his sentence. The court was required to consider whether the sentence imposed was proportionate to the crimes committed, and whether it took into account all relevant factors that could have influenced the sentence.
The Court of Appeal found that the sentence imposed on Turner was not manifestly excessive, but did find that the sentencing judge had failed to adequately consider Turner's disadvantaged upbringing and mental health issues. The court also found that the sentencing judge had failed to adequately consider the risk of violence from other inmates and whether Turner should have been placed in protective custody. The court held that these errors had the potential to undermine the overall fairness of the sentence and remitted the matter back to the sentencing judge for re-sentencing. The court also noted that Turner's accumulation of sentences, which included previous convictions, should have been taken into account when determining his sentence.
The Court of Appeal ordered that the matter be remitted back to the sentencing judge for re-sentencing, with directions that the judge take into account Turner's disadvantaged upbringing, mental health issues, and risk of violence from other inmates. The court also directed the sentencing judge to consider the accumulation of Turner's sentences when determining his sentence.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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