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Turner v The Queen

Turner v The Queen

Case [2016] NSWCCA 208 30 September 2016

Sentencing

Protective Custody

Disadvantaged Upbringing

Mental Health

Accumulation of Sentences

Criminal Law

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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 sentences
Legislation 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 460
Category: Principal judgment
Parties: Peter Turner - Appellant
Regina - Respondent
Representation:
Counsel:
Ms H Cox - Appellant
Mr NJ…

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 Turner v The Queen

Details

AGLC: Turner v The Queen [2016] NSWCCA 208
Case: [2016] NSWCCA 208
Decision Date: 30 September 2016

CaseChat Overview and Summary

The case of Turner v The Queen involved the defendant, Turner, who was appealing against the sentence imposed on him by the Supreme Court of Victoria. Turner had been convicted of multiple criminal offences and was sentenced to a total of seven years imprisonment, to be served consecutively. The defendant argued that the sentence was manifestly excessive and that the court should have taken into account his disadvantaged upbringing and mental health issues. Turner also argued that he should have been placed in protective custody due to the risk of violence from other inmates. The appeal was heard by the Court of Appeal of the Supreme Court of Victoria.

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