R v Turner
[2015] NZHC 189
•17 February 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-004-002949 [2015] NZHC 189
THE QUEEN
v
JUSTIN VANCE TURNER
Hearing: 17 February 2015 Appearances:
B D Tantrum and N J Small for the Crown
L Freyer for the DefendantSentencing:
17 February 2015
SENTENCING NOTES OF WOOLFORD J
Counsel/Solicitors:
Crown Solicitor, Auckland
Public Defence Service, Auckland
R v JUSTIN VANCE TURNER [2015] NZHC 189 [17 February 2015]
Introduction
[1] The offender, Mr Justin Vance Turner, has pleaded guilty to murder.
[2] This case triggers s 86E of the Sentencing Act 2002 (the Act) because the murder is Mr Turner’s “second strike” offence under the “three strikes” regime, introduced in the Sentencing and Parole Amendment Act 2010.
[3] In terms of s 86E(2), Mr Turner must be sentenced to life imprisonment without parole, unless it would be manifestly unjust to do so.
[4] If this Court finds it manifestly unjust to impose life imprisonment without parole, s 86E(4)(b) requires this Court to impose a sentence with a minimum non- parole period of at least ten years in accordance with s 103 of the Act, taking into account s 104 of the Act.
Relevant Facts
[5] Mr Turner is 29. He is, and has been, homeless for much of his adult life. He has not held down a job since he was 19. He has a history of severe alcohol abuse, of drug-taking (primarily in the form of cannabis) and of mental illnesses. He has epilepsy, which has for the most part been untreated. Although he is now prescribed some anti-psychotic medication, he appears to have taken this medication sporadically at best.
[6] The murder of his victim, Mr Maqbool Hussain, occurred on Saturday,
22 March 2014. Mr Hussain was a homeless, 49 year old male who was living in a storage area in Balmoral. The Police and Asian Safety Patrol team visited the victim at 7.15pm that Saturday, as part of a routine community operation. Mr Turner was present at that time, and helped put the victim to bed before leaving at the same time as the Police.
[7] At around 12.30pm on Monday, 24 March 2014, members of Mr Hussain’s
family went to perform a welfare check on Mr Hussain, but found him lying dead.
[8] Mr Turner was located in Taupo on 1 April 2014, and gave a statement to the Police admitting to committing the murder. He stated he had developed a rage toward Mr Hussain, because he was urinating in public, being sick in public and sleeping on the footpath. He had already beaten Mr Hussain once before the Police had arrived on 22 March, intending to steal his money and cigarettes. He later returned to the place Mr Hussain was staying, with the intention of killing Mr Hussain to obtain his money or to take what he could get from him.
[9] Mr Turner admits punching Mr Hussain in the face for 20 – 30 minutes. At one point he tried to stab him with a nail file, but it broke. He then dragged him off the bed, and began stomping his head on the floor, into the concrete. This apparently continued for half an hour, albeit that Mr Hussain was knocked out after the first stomp. Mr Turner himself described the attack as continuing until Mr Hussain’s head was bouncing off the pavement.
[10] Mr Turner then left the scene. He returned at some later time, removing
Mr Hussain’s pants, and putting them on, before leaving again.
[11] An autopsy report concluded that Mr Hussain was subjected to punches, kicks and stomps to the neck and head area while lying curled on the ground.
Prior Convictions
[12] Mr Turner has an extensive criminal history, having progressed straight from the youth court to the adult court system. Since that time, in 2002, he has accrued
110 convictions.
[13] However, many of his crimes are minor in nature, such as breaching liquor bans, trespassing and breach of bail conditions, all of which can be attributed to his itinerant lifestyle. Of his 22 assault convictions, only his first strike offence from
2011 attracted a sentence of over a year ’s imprisonment. While his record is certainly extensive, and shows some history of violence, that violence has for most of his life been low-level.
[14] His first strike offence in 2011 was not low-level or minor. Mr Turner was convicted of wounding with intent after hitting a female acquaintance in the head several times, causing her traumatic brain injuries. His victim required life support when admitted to Auckland Hospital and required ongoing, serious rehabilitative treatment. That offending also involved what the sentencing judge described as “extreme and prolonged violence which included attacks to her head”. He was
sentenced to three years four months in prison.1
[15] After committing the offence, Mr Turner immediately informed someone of what he had done. As with this offence, he was unable to explain a particular specific reason for his actions, and expressed regret following the event.
Pre-sentence Report
[16] Mr Turner has had an unenviable childhood. His parents separated when he was six, and he has eight other siblings from his parents’ subsequent relationships. His family were relatively transient, and at the age of four he suffered the loss of his brother in a fire, an incident which Mr Turner saw occur. He was subject to physical and sexual abuse, with alcohol, drug-taking and gang violence normal in his life from a young age. He also spent time in CYFS care and Youth Justice facilities. Apart from the time Mr Turner has spent in prison, he has lived on the streets for a period of around 15 years.
[17] The report notes that Mr Turner has a number of head injuries from fighting, leading to suspected frontal lobe damage, although there are “no obvious deficiencies in his mental processes”. He is, however, medicated for epilepsy, blood pressure and has been on anti-psychotics. While he has at times reported hearing voices, he was taking no medication at the time of his offending. He has an extensive history of alcohol abuse and has been an unsuccessful participant in
rehabilitation in the past.2
1 The maximum sentence for this charge was seven years. This included a 25 per cent guilty plea discount.
2 Mr Turner removed himself from an Odyssey House treatment programme, and was removed from another for consumption of hand sanitiser.
[18] He has had no pro-social support, as he has isolated himself from his family and refuses to engage with them. I note that his mother has submitted statements in support of Mr Turner, and Mr Turner’s father spoke movingly at sentencing to convey his regrets on not engaging in his son’s life.
[19] Mr Turner is identified as having a propensity for violence, an unhealthy lifestyle, offending supportive attitudes and a lack of pro-social support. The report ultimately assesses Mr Turner as at a high likelihood of reoffending, if he does not successfully engage with mental health professionals. His motivation to engage with Corrections and rehabilitation services is seen as limited due to his previous convictions for non-compliance with Court orders. He is assessed as posing a high risk of harm to others due to the violent theme throughout his offending. The report recommends imprisonment.
[20] It is clear from the report that both his violence and his propensity to offend are linked to his mental health needs, his lifestyle of living on the streets and his excessive drinking.
[21] The report suggests Mr Turner is seen as having limited insight to his offending. He felt embarrassed by the victim’s behaviours prior to the offending. He reported consuming a large amount of alcohol and having little memory of the offence after starting the assault. However, he also expressed regret about the assault and the death of the victim, and has written a letter of remorse to the family, stating “I put it down to being off my medication for so long, and alcohol, it’s definitely a factor.”
[22] Counsel for the defence notes some inconsistency between the statement that Mr Turner has limited insight with his expression of remorse and his understanding of the role of alcohol in his offending. Counsel notes his willingness to engage in treatment, and submits that the report draws too much on Mr Turner’s previous behaviour, and reporting from his offending in 2012 and does not reflect his new circumstances. In Mr Turner’s letter to the court, he says:
“ … since i have been in jail i have started reading books and trying to learn to become a better person. i know that i can’t undo what has happened but i
want you to know that i will spend my time in jail reading and learning so
that i can change my life for the better.”
Psychiatric Report
[23] Two health assessors’ reports found that Mr Turner was fit to stand trial.
[24] However, due to the severity of the punishment facing Mr Turner, Thomas J adjourned this sentencing late last year and commissioned an additional psychiatric report to address the type and length of sentence which might be imposed, under s
38(1)(c) of the Criminal Procedure (Mentally Impaired Persons) Act 2003. That report, dated 9 February 2015 from Dr Ian Goodwin, identifies Mr Turner as at an extremely high risk of reoffending.
[25] The report does not identify him as having a psychotic illness, but does see him as suffering from a severe personality disorder complicated by significant substance abuse. He displays characteristics associated with psychopathy, a history of early maladjustment and having displayed considerable “impulsivity” in the community and in prison. He does not have active symptoms of major mental illness at this time.
[26] Dr Goodwin notes that his personality disorder is long-standing and “need not” significantly influence the sentencing process. Although Mr Turner is not within the criteria allowing him to be detained under the Mental Health (Compulsory Assessment and Treatment) Act 1992, Dr Goodwin says the Court “may or may not” wish to see Mr Turner’s presentation as constituting mental impairment within the spirit of the Criminal Procedure (Mentally Impaired Persons) Act 2003.
[27] Contrary to comments in the pre-sentence report, Dr Goodwin identifies Mr Turner as having expressed a willingness to engage with alcohol, drug and anger management treatment during his imprisonment which “may or may not” go some way towards mitigating his risk to others. The report notes it is difficult to comment on whether he has been unresponsive to treatment as he has never engaged with alcohol, drug or personality disorder related treatment.
Victim Impact Statements
[28] The Crown has provided a victim impact statement, which was read to the Court this morning from someone who was close to Mr Hussain, whom he regarded as a brother to him and an uncle to his children. He has suffered financially because of the costs involved in hosting visitors. He says that the impact of Mr Hussain’s death cannot be expressed fully in words, but that his death is a great loss to him personally and to his relatives back in Pakistan.
Crown Submissions
[29] The Crown submits that there is nothing in the circumstances of the offence or the defendant which would make life imprisonment without parole manifestly unjust under s 86E(2)(b) of the Act.
[30] One such case, involving murder as a second strike offence requiring life without parole, has arisen before: R v Harrison.3 In that case, Mallon J found it would be manifestly unjust to apply life without parole because of the relative triviality of the first strike offence in that case – pinching the bottom of a female police officer, and brushing a hand across her groins and thigh, meaning itwould be disproportionate given the offender would otherwise be able to apply for parole. The minimum non-parole period imposed instead was 13 years imprisonment.
[31] Although the Crown has filed an appeal in regards to Mallon J’s application of the test in s 86E in that case, the Crown submits that the approach enunciated by Her Honour to the section generally was the correct one, and that the standard for manifest injustice is that set out under s 102.
[32] The Crown’s appeal is directed to whether the nature and circumstances of an earlier strike can be considered manifest injustice and whether in R v Harrison, it should have; and secondly whether the manifest injustice finding was based on the premise that life without parole would be an entirely disproportional response. That
approach, the Crown will argue on appeal, overlooks the fact that the three strikes
3 R v Harrison [2014] NZHC 2705.
regime intends increasingly disproportionate consequences at each stage of offending.
[33] Regardless, counsel for the Crown also submits that the first strike in this case is markedly more serious than the offence in R v Harrison, which underpinned Mallon J’s finding that the outcome was disproportionate.
[34] The Crown submits that the purpose of the Sentencing and Parole Reform Act 2010 is to create a strict sentencing regime, as explained in the explanatory note to the Bill in 2009: to “improve public safety by incapacitating these offenders for longer periods”. The Crown submits that the legislative history must mean that the exception was only intended for rare cases.
[35] Ultimately, the Crown submits in light of the case law in the area, and the legislative history the Court should undertake the assessment in light of ss 7 – 9 of the Act, in considering the circumstances of the offence and that of the offender. The Crown submits that any injustice must be clear, as indicated by the use of the term “manifestly”, and that the presumption of life imprisonment without parole is only to be displaced in rare and exceptional cases.
[36] They submit that there are aggravating features of the offending and no mitigating factors as well as aggravating features personal to the defendant, but no mitigating features. The circumstances of the offence and of the offender are not said to give rise to any manifest injustice in applying a life sentence without parole.
[37] In the alternative, the Crown submits that this murder triggers s 104 of the Sentencing Act 2002. It submits that this is the case because it triggers subs (1)(e) (brutality, cruelty, depravity or callousness) and subs (1)(g) (vulnerability of the victim), and therefore a minimum period of imprisonment (MPI) of 17 years is justified.
Defence Submissions
[38] The defence concedes that life imprisonment is appropriate, but argues that life imprisonment without parole is manifestly unjust. It submits that the matter should be determined under s 104.
[39] Counsel submits that the manifestly unjust tests under both s 102 and 104 were identified in R v Harrison as being the appropriate comparators for the meaning of manifestly unjust under s 86E. Counsel submits that the legislative history approaches the sentence of life imprisonment without parole as being intended to apply to the worst types of murders.
[40] The defence further submits that the application of life without parole to a 29 year old is an effective sentence of 45 – 55 years in prison, and is not the least restrictive sentencing outcome possible. Such a sentence would, in the eyes of the defence, be disproportionately severe, leaving the defendant without hope or incentive to achieve rehabilitation. In support of this submission, the defence point to the protection of s 9 of the New Zealand Bill of Rights Act 1990, and case law from the European Court of Human Rights which finds all-of-life sentences without the possibility of release are a breach of human rights.
[41] The defence submits that alternately, s 104 applies, but that it would also be manifestly unjust to impose a 17 year sentence minimum period of imprisonment because of mitigating factors associated with Mr Turner, namely his troubled childhood, borderline personality disorder, remorse and willingness to change. They also point to his guilty plea and his openness to admitting his guilt to the Police as positive features on his behalf.
Analysis of ‘manifestly unjust’ under s 86E
[42] The approach taken by Mallon J in R v Harrison is currently under appeal. As canvassed, the first ground of appeal deals with whether the (lack of) severity in the first strike offence can make the compulsory sentencing of the second murder offence manifestly unjust. This issue does not appear to arise in this case. The Crown’s argument, that the first strike in this case is significantly more severe than
that in Harrison, is not challenged by the defence. I agree that the offences are not comparable.
[43] However, the second ground of appeal falls squarely within the argument that counsel for the defence has invited this Court to accept, namely that the imposition of life imprisonment without parole is a disproportionately severe punishment for the court to impose.
[44] This court proceeds in the knowledge that a determinative ruling from the
Court of Appeal on the law in this area is forthcoming.
Sections 102 and 104 Sentencing Act 2002
[45] The interpretation of ‘manifestly unjust’ must be considered in light of the existing case law under s 102 and s 104, but also in the context of the Sentencing and Parole Amendment Act 2010, and its purpose.
[46] The approach set out by Mallon J can be found at [28] and footnote 17 of her judgment:
[28] Because you have been convicted of murder after receiving a first warning I am required to sentence you to life imprisonment. I am also required to order that you serve that sentence without parole. That is the starting point. Parliament has, however, accepted that in some instances that may be unfair. The sentencing Judge retains a discretion. The threshold for the exercise of that discretion has been set very high. It can be exercised only if I consider that, given the circumstances of the offence and the offender, it would be manifestly unjust to order that you serve a life sentence without parole.
…
Footnote 17: There is no definition of “manifestly unjust” in the legislation for the purposes of s 86E(2)(b). This is the first occasion where it has arisen. The same expression is found in s 102. In that context it has been held that the conclusion is to be made on the basis of the circumstances of the offence and the offender; it is an overall assessment; the injustice must be clear and to be considered against the sentencing purposes and principles; and is likely to be reached in exceptional cases only, as the legislation contains a strong presumption in favour of life imprisonment for murder: R v Rapira [2003] 3 NZLR 794 (CA). The expression is also found in s 104. In that context a similar conclusion was reached as to how the test is to be assessed. However, recognising the different legislative purpose of s 14 [sic], it was said that the cases which met this test need not be rare: R v
Williams [2005] 2 NZLR 506 (CA). I take guidance from these cases and apply this approach but in the context of the different legislative purpose to which s 86E(2)(b) is aimed. As to that I refer to the Explanatory Note to the Sentencing and Parole Reform Bill (Sentencing and Parole Reform Bill 2009 (17-1)) and the Commentary on that Bill as reported from the Law and Order Committee (Sentencing and Parole Reform Bill 2009 (17-2)). See also Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers) at [SA86A.2].
[47] Although the Crown has submitted that this suggests that the s 102 standard of manifestly unjust was being used as the standard for s 86E, Mallon J references both the ss 102 and 104 standard (and that is in her footnote 17). Her Honour also recognises that the standard in this case should be recognised in light of the particular purpose of this provision. This approach is the better one, given that the differing meanings of “manifestly unjust” in the Act as a whole demonstrates, in my view, that there is not considered to be one standard meaning throughout the Act.
[48] This also reflects the advice given to the Select Committee considering the Bill. On 9 May 2009, the Law and Order Committee were given a list of key cases on the meaning of “manifestly unjust”. These included cases relating to s 102,4 but also s 104.5
[49] For the purpose of s 102, a very high standard has been set. It has only been found to be manifestly unjust to impose a life sentence for murder in four cases. None are markedly similar to the case here: a mercy killing,6 a case of “battered women’s syndrome”,7 a secondary party with a peripheral role in the killing,8 and an
offender suffering psychotic delusions.9
[50] On the other hand, the application of manifestly unjust under s 104 –
mandating a 17 year minimum period of imprisonment – has been more expansive. Although the Court has found that the injustice must be clearly demonstrated, it has
4 R v Rawiri HC, Auckland T 014047, 16 September 2002, R v Mayes [2004] 1 NZLR 71 and R v
Smail [2007] 1 NZLR 411.
5 R v Parrish CA295/03, 12 December 2003 and R v Williams [2005] 2 NZLR 506 (CA).
6 R v Law (2002) 19 CRNZ 500.
7 R v Wihongi [2011] NZCA 592, [2012] 1 NZLR 775.
8 R v Cunnard [2014] NZCA 138.
9 R v Reid HC Auckland CRI-2008-090-2203, 4 February 2011.
not found that such cases must, necessarily, be rare. In R v Williams, the Court of
Appeal considered the meaning of manifestly unjust in s 104 and said:10
The specified minimum term may not be departed from lightly, as the Court is bound to give effect to the legislative policy of ensuring a 17 year minimum for the most serious murder cases. The reasons must withstand scrutiny. Marginal differences in personal circumstances or degrees of participation by co-offenders would not normally qualify … the presence of mitigating factors under s 9(2) which related to the personal circumstances of an offender would rarely displace the presumption. Powerful mitigating circumstances bearing on the offence are more likely to do so.
We conclude that a minimum term of 17 years will be manifestly unjust where the Judge decides as a matter of overall impression that the case falls outside the scope of the legislative policy that murders with specified features are sufficiently serious to justify at least that term. That conclusion can be reached only if the circumstances of the offence and the offender are such that the case does not fall within the band of culpability of a qualifying murder. In that sense they will be exceptional but such cases need not be rare [emphasis added]. As well, the conclusion may be reached only on the basis of clearly demonstrable factors that withstand objective scrutiny. Judges must guard against allowing a discount based on favourable subjective views of the case. The sentencing discretion of Judges is limited in that respect.
[51] The assessment in R v Williams has lead to the manifestly unjust standard as laid down in s 104 being applied in a greater range of cases. The approach specifically involves a comparative element to the assessment: looking first to the alternative sentence that would otherwise be imposed, and then in comparison to that
whether the 17 year term would be manifestly unjust.11
Legislative History
[52] The legislative history and Parliamentary debates shed light on the particular standard that Parliament intended to apply to s 86E(2)(b). As the purpose of the Act makes clear, the overall intent is:
(a) to deny parole to certain repeat offenders, and to offenders guilty of the worst murders;
(b)impose maximum terms of imprisonment on persistent repeat offenders who continue to commit serious violent offences.
10 R v Williams, above n 5.
11 R v Williams, above n 5 at [52], [53].
[53] The Crown refers to three references to the intended meaning of manifestly unjust during the parliamentary debates. On introduction, the Hon Simon Power described the provision as “intended to deal with exceptional cases where life without parole would be unjustifiably harsh”.12 At the second and third readings, the Hon Judith Collins, Minister of Justice, described the bill as allowing judicial discretion in very rare cases.13 The Minister also stated that the Bill “deliberately puts in place an escalating regime of penalties for which I make no apology.”
[54] It is hard to escape the clear inference that a disproportionately high sentence comparative to the sentence that would be imposed without the three strikes regime is an insufficient reason to find a sentence of life imprisonment without parole is manifestly unjust to impose.
[55] The clear legislative intent in this regard is also a barrier to the defendant’s reliance on the European Court of Human Rights’ (ECHR) case law. The defendant submits that the ECHR has found in support of the claim that, in principle, life without parole sentences are manifestly unjust. However, the ECHR has recently held that life without parole can be consistent with human rights principles where there is an exercisable discretion, which can be used to modify the sentences of prisoners, in order that those sentences can be adjusted to reflect changes in
circumstance.14 Even if this could be disputed in a New Zealand context – and it is
true that s 41 of the Parole Act envisages a much more minor role for discretion in alleviating the sentences of long-term prisoners – Parliament has clearly enacted the three strikes sentencing regime, which this court is bound by.
[56] However, in examining the scope of the “manifestly unjust” exception, it is notable that the disproportionate nature of receiving life imprisonment without parole for second strike murder offending was not specifically addressed by the MPs who spoke to the Bill’s passage, or mentioned in the Select Committee Report. In fact, the parliamentary debate also reveals a clear intent toward the types of murders
that would trigger the application of a full term of life imprisonment. At the Bill’s
12 (18 February 2009) 652 NZPD 1420.
13 (4 May 2010) 662 NZPD 10673 and (20 May 2010) 663 NZPD 11226.
14 Hutchinson v UK (5759/08) Section IV ECHR 3 February 2015.
third reading, David Garrett MP of the Act Party, the major proposers of the three strikes regime, stated:
[C]ontrary to what has been said by members on the other side of the House and by people elsewhere, this bill is not about locking people up and throwing away the key, and it never has been. I re-emphasise what the Minister of Corrections said: the only people who will be locked up for life under this bill will be persons who have committed murder as a “third strike”, or the worst of our murderers—people like Graeme Burton, William Bell, Liam Reed, and, sadly, a number of others whose names are less well known.15
[57] The Hon Judith Collins, introducing the Bill, noted the “pivotal” role of David Garrett and the ACT Party in promoting the legislation. His view that the bill would apply to only the worst murderers was clearly stated in the speeches of other MPs throughout the three readings of the bill, with references to mass murderers like
Graeme Burton and William Bell featuring repeatedly.16 Although some of these
comments were directed towards the discretionary life imprisonment without parole sentence also being introduced, the view that the only criminals who would be locked away for life would be those who had engaged in the worst, most egregious types of behaviour was clearly popular.
[58] Accompanying the view that the Act would cover the worst types of offending was the belief that the Act would apply to the worst types of offenders who were beyond rehabilitation. Introducing the third reading of the Bill, Ms Collins referenced the fact that although some offenders were bad, some merely needed significant treatment for alcohol and drug programmes.17 Other speeches also discussed the idea that the offenders targeted under the Act would be those who had no hope of rehabilitation and were simply, “bad people”.18 Although it is clear that this Bill in particular was not designed to help access rehabilitation, the intent that this Bill would punish those who were not capable of rehabilitation at all accompanied the view that life imprisonment without parole is for the worst
offenders possible.
15 (25 May 2010) 663 NZPD 11226.
16 See for example, David Garrett in (18 February 2009) 652 NZPD 1420; Richard Worth in (18
February 2009) 652 NZPD 1420; Jonathan Young in (20 May 2010) 663 NZPD 11226.
17 (20 May 2010) 663 NZPD 11226, Hon Judith Collins.
18 (20 May 2010) 663 NZPD 11226, Hon Judith Collins.
[59] A Cabinet discussion paper entitled “No parole for worst repeat violent offenders and worst murder cases” in late 2008 proposed what would become the new s 86E. In the discussion paper, Mr Power discussed the amendment to the Bill to allow the manifestly unjust exception, he said “Such a provision is intended to capture the very extraordinary case. Hypothetically, it may be that the personal circumstances of the offender, such as very low intelligence or mental disability, indicated diminished responsibility, but not to the extent that s/he was unfit to stand
trial”.19 The paragraph concludes “Even where there are specific aggravating
factors, some cases are clearly more serious than others”.
[60] Although this discretion was envisaged to occur infrequently, the proposals contained in the Cabinet paper suggest that there was consideration given to the fact that this discretion was a necessary part of reflecting the mitigating factors of each case in a contextual manner. It is clear from the Cabinet discussion that it was thought such cases would arise exceptionally, but also that the Cabinet considered the possibility of cases which were borderline in certain respects, particularly in relation to mental deficiencies. While someone may not always have a clear mitigating factor in their favour, a confluence of circumstances might make it unfair or unjust to be imprisoned for 59 years, which falls to be assessed at a judges’ discretion.
[61] This analysis is supported by the Attorney-General’s s 7 report on the then Sentencing and Parole Act Amendment Bill.20 It found that, although the provision for mandatory third strike life sentences for other crimes was inconsistent with s 9 of the Bill of Rights Act, the proposal for mandatory life sentences for offenders who commit murder as either their second or third strike was not inconsistent. The Hon Christopher Finlayson pointed to the US Supreme Court support for life without parole, and the fact that the most recent jurisprudence in the United Kingdom was “not wholly opposed” to the concept as support for it being harsh, but not
disproportionate.
19 At [16].
20 Christopher Finlayson Report of the Attorney-General under the New Zealand Bill of Rights Act
1990 on the Sentencing and Parole Reform Bill (18 February 2009).
[62] In the United Kingdom, the practice of imposing life without imprisonment has been a more common – but still rare – phenomenon. Lords Steyn and Bingham in the House of Lords have both expressed their belief that “whole life tariffs” can legitimately be imposed – but, both restricted their support to crimes that were “sufficiently heinous”21 or where the “crimes are so wicked that even if the prisoner is detained until he or she dies it will not exhaust the requirements of retribution and deterrence”.22
[63] In the UK, such orders are imposed at the discretion of the judge, based on just such an assessment of the gravity of the offending. They are not, as in this case, mandatorily imposed without regard for the type of offending except in certain cases.
[64] Although the international approach is not relevant to establishing our Parliament’s intent for the meaning of this exception, the references to the British approach in the Attorney-General’s report, justifying the Act not being inconsistent with the Bill of Rights Act, gives some indication of how the Attorney-General, and by implication the members of Parliament relying on his report, thought the provisions would be applied.
[65] Such an approach accords with the other sections of the Act which allow life imprisonment without parole, which have also been seen as intended for the worst types of murderers. In New Zealand, life without parole may be imposed at the discretion of the sentencing judge under s 103(2A), which was also brought in under the Sentencing and Parole Reform Act 2010.
[66] As of yet, the Crown has only sought to apply the section in one case, R v McLaughlin. In that case, Justice Panckhurst considered the relevant criteria applied in the UK for applying the equivalent provision, which include “multiple killings involving substantial premeditation or sadistic conduct, child murder following
abduction or as a result of sexual motivation, and murder after a previous like
21 R v Secretary of State for the Home Department, ex parte Hindley [1998] QB 751 at 769 per
Lord Bingham of Cornhill CJ.
22 R v Secretary of State for the Home Department, ex parte Hindley, [2000] 2 WLR 730 (HL) per
Lord Steyn.
conviction.”23 His Honour considered that New Zealand courts were not bound by any similar restrictions. However, he did feel that the appropriate comparators in New Zealand were the worst types of murders, with the longest MPI periods imposed. Justice Panckhurst refused to impose life without parole on Mr McLaughlin, who had killed the teenage daughter of his ex-partner by strangling her with an electrical cord before setting the house on fire. He received a 23 year MPI period. His Honour stated that cases in which life imprisonment without parole
should be imposed would be clearly in a different category to other murders.24
[67] Although there are obviously limitations to the extent that comments in Hansard and other extrinsic Parliamentary materials can be used to determine the intended meaning of a phrase, it is of particular use here where the phrase “manifestly unjust” has clearly been used in a range of ways across the statute. These statements from Parliament are not determinative, but are only aids to
determining the appropriate meaning of manifestly unjust in this part of the Act.25
They can aid the exercise of judicial discretion.
[68] Manifestly unjust should, clearly, be a rare test. However, the intent of this legislation, as well as to be disproportionately punitive, was to target the worst types of murderers and violent offenders. The legislature specifically retained discretion for judges for cases where, despite being a murder and inherently having horrible features, the offending was not so heinous as to justify a life imprisonment sentence, with no possibility ever arising of parole. The emphasis is on the need for the offenders caught by this policy to be the worst types of offenders, who are incapable of rehabilitation. The types of offending envisaged by Parliament as borderline cases for the purposes of s 86E are clearly a far wider range than was described in the legislative history of the enactment of s 102, which specifically drew out mercy killings or prolonged abuse as examples of the circumstances which create
‘manifestly unjust’ situations.26
23 R v McLaughlin [2013] NZHC 2625 at [30].
24 At [32].
25 JF Burrows and RI Carter Statute Law in New Zealand (4th edition, LexisNexis, Wellington,
2009) at 269 - 273.
26 Quoted in R v Rapira [2003] 3 NZLR 794; (2003) 20 CRNZ 396 (CA) at [121] per Elias CJ.
[69] In this respect, I am of the view that the standard is a mid-way point between the narrow discretion given under s 102 and the far wider one given under s 104.
[70] It is also relevant that the punishment anticipated in the alternative to s 86E applying is still far more significant and long-lasting than the punishment imposed by s 102. In this instance, the Court is not choosing between sentencing someone to life, and some more minor sentence. In either scenario available to this Court, Mr Turner will receive a life sentence and depending on the ongoing assessment of the Parole Board, perhaps never leave prison. At his age, this is a sentence of between 45 and 55 years according to defence calculations, and 59 years according to the average life expectancy assessments of Statistics New Zealand. The stricter presumption in the case of ‘manifestly unjust’ for the purposes of s 102 is justified.
[71] It will necessarily be rare that an absence of mitigating factors, in both the offending and offender, could persuade a judge not to impose a sentence of life imprisonment without parole. It may also be rare that a second time offender under the three strikes legislation will not meet the categorisation of true recidivist offenders as envisaged by the creators of this Act. In considering whether a case creates manifest injustice, reference should be had to whether factors exist which push this into the ‘worst’ categories of offending, or whether there are mitigating or non-aggravating factors of sufficient collective weight that they justify not applying s 86E.
Application
[72] Can the fact that this case is clearly, despite the understandable trauma to Mr Hussain’s family, nowhere near the worst type of murder, possibly make it manifestly unjust to apply the statutorily imposed sentence here? As laid out, this assessment requires assessing the application of ss 7, 8 and 9 of the Act and the circumstances of the offending, and separately, the offender.
[73] The Court in R v Williams warned judges against allowing findings of manifest injustice under s 104 based on favourable subjective views of the case.27 In
27 R v Williams, above n 5, at [67].
this instance, there are few favourable views to take. The offending was clearly severe and Mr Hussain’s life was brutally taken from him.
[74] The purposes of sentencing that are relevant must be to hold Mr Turner accountable for the harm he has caused to the victim, promote the interests of the victim’s family, and to protect the community from the defendant. I also have regard to the fact that Parliament has also instructed the court to consider at sentencing the purpose of assisting in the defendant’s rehabilitation and reintegration. Although in a mandatory sentencing exercise this is less relevant, I note that the general principle under s 8 of the Act is to impose the least restrictive sentence possible, and to take into account the need for consistency in sentencing in relation to the seriousness of this offence in relation to other offences.
[75] There are aggravating factors of the offending, although in total they are not severely aggravating given the seriousness with which murder is already considered. The attack was premeditated, although there was no real planning involved in the commission of the crime and it appears that the decision was impulsive rather than controlled. Although I recognise that the resulting harm to Mr Hussain’s family was enormous and will have a huge ongoing impact on their lives, this is an inherent feature of murder represented in the seriousness of the penalties which inevitably follow for Mr Turner. The fact that Mr Turner was on bail is also a factor, although he was on bail for breach of his parole conditions, not for more serious offending.
[76] Indisputably, however, there was a level of violence in the way in which Mr Turner carried out the offending, particularly the attacks to the head. The victim’s vulnerability also adds to the seriousness with which this must be treated. I am not convinced, however, that there was particular cruelty in the offending outside of its violent nature. In particular, the Crown’s highlighting of Mr Turner stealing the victim’s pants seems to me less to do with cruelty and more to do with Mr Turner’s range of psychological problems.
[77] Looking at the circumstances of the offending, both the Crown and defence advocate a starting point of 17 years minimum non-parole period under s 104, as it is statutorily required where a murder has certain features to it. This is far from the
murder cases which have attracted 20 – 30 year MPI periods, which have involved psychopathic behaviours, multiple cold-blooded killings and behaviours indicating a total lack of subsequent remorse.28 Although the defence have conceded that there are no mitigating factors to the offending, the case is also not in the realm of the worst murders. There was no extensive planning involved, and the extent of the violent behaviour was impulsive, using what was at hand, rather than planned behaviour.
[78] The chillingly violent offenders which characterise these cases are far from Mr Turner’s current demeanour and attitude, despite the gravity and gratuitousness of his actions. Mr Turner has expressed remorse, and has written letters to the victim’s family and to the Court recognising his need to learn from his behaviour, and the gravity of his offending. Mr Turner has always recognised the seriousness of his offending, and admitted his offending to Police almost immediately in his initial interviews. These factors put him in a different category from the worst type of violent offenders intended to be captured by s 86E. Using s 104 as guidance, I note that guilty pleas and expression of remorse can each separately be an indicator that a
long sentence would be manifestly unjust.29
[79] Mr Turner’s track record with rehabilitation is not positive. His two attempts at rehabilitation have resulted in his removal (either self-removal or due to his own continued consumption) from the programmes in question. The opportunities for rehabilitation that he received following his wounding with intent charge were not taken up by the defendant, despite his expressed remorse at that crime. As noted in the report, he faces a range of destabilisers in attempting to rehabilitate, particularly in the community.
[80] Severe substance addictions and street living in the absence of any social support are factors unlikely to be conducive to rehabilitation, and the psychiatric reports indicate that the lack of social support and negative environmental influences play a large role in Mr Turner’s continued substance abuse. Consideration must be
given to the fact that Mr Turner has never had an opportunity to attempt
28 Such cases include R v Bell CA80/03, 7August 2003, R v Frost [2008] NZCA 406 at [33] and R
v Howse [2003] 3 NZLR 767.
29 R v Holl [2014] NZHC 1655 at [29].
rehabilitation in a meaningful way, as although his previous sentence was for a first strike level crime, he was not in prison for a prolonged period.
[81] There must also be some weight given to Mr Turner’s mental needs. He admits he only feels normal with alcohol and has a long history of substance abuse, and that he finds functioning in society difficult, including mundane tasks like organising and remaining in accommodation. Although Mr Turner is not diagnosed with schizophrenia or bipolar disorder, he has been treated with anti-psychotics. Despite some scepticism expressed in the reports about his psychotic symptoms, there is a firm diagnosis of a severe personality disorder complicated by substance abuse; long term epilepsy for which he has been medicated only sporadically; and head injuries from numerous assaults. The disorder is of significant severity to lead Dr Goodwin to conclude that Mr Turner is at very high risk of reoffending in a violent manner in the future, despite not being seen by him as meriting a significant influence on the sentencing process.
[82] He has overdosed on his antiepileptic and antipsychotic medication in the past and threatened suicide. His past includes suffering sexual and physical abuse as a child, for which he has never sought counselling. I note that although some of the psychiatric reports describe this as self-reported, his mother corroborates these incidents occurring. Again, for comparison I note that troubled past and mental conditions have formed part of the manifestly unjust standard under s 104 in similar cases. These include cases where the offender has been not at the level of
diagnosable mental illness, and has been found culpable and fit to stand trial.30
[83] This is a finely balanced case, in which Mr Turner is not an overly sympathetic candidate. However, he is not the worst type of murderer, nor does he have an established inability to rehabilitate. The combination of factors in his case, in particular his borderline psychosis, his limited ability to attempt rehabilitation prior to this point and clear demonstrations of remorse, put him into a category in which it would be manifestly unjust to sentence him to life imprisonment without parole.
[84] Although the pre-sentence and psychiatric reports are not promising, after a significant time in prison this assessment may change. Once treatment options have been explored and the negative social behaviours encouraged by living on the streets are no longer part of his day to day life, Mr Turner may be able to change his life. If he does not change, under the terms of a life imprisonment, which I am about to impose, parole will not be granted.
[85] I therefore find that it would be manifestly unjust in light of the purpose and legislative intent behind s 86E to impose a sentence of life imprisonment without parole on Mr Turner.
Analysis of Standard Sentencing Approach
[86] Both the Crown and defence accept that a sentence of life imprisonment is appropriate in this case. Both counsel also acknowledge that factors in s 104 apply, requiring the imposition of a minimum period of imprisonment of 17 years or more, unless such sentence would be manifestly unjust. The defence argues it would be manifestly unjust to do so, on the basis of his early guilty plea, personality disorder, remorse and motivation to change.
[87] In R v Williams the Court of Appeal set down an approach to be followed in sentencing offenders for qualifying murders. In that decision, the Court recommended a three step approach:31
(a) the court must determine whether the murder is a qualifying murder;
(b)the court must determine what MPI would apply in the absence of s 104; and
(c) if the MPI from step two is less than 17 years, the court must determine whether an MPI of 17 years would be manifestly unjust.
[88] Section 104(1) states:
104 Imposition of minimum period of imprisonment of 17 years or more
(1) The court must make an order under section 103 imposing a minimum period of imprisonment of at least 17 years in the following circumstances, unless it is satisfied that it would be manifestly unjust to do so:
[…]
(e) if the murder was committed with a high level of brutality, cruelty, depravity, or callousness; or
[…]
(g) if the deceased was particularly vulnerable because of his or her age, health, or because of any other factor.
Brutality, Cruelty and Callousness
[89] The Crown argue, and the defence agree, that the murder engages s 104 (1)(e). That section provides that a murder will qualify if it is committed with a high degree of brutality, cruelty or callousness. Since many murders will inherently feature some cruelty or callousness to human life, the brutality in question must be a relatively serious standard.32
[90] I agree that the level of prolonged violence which was involved in this attack, particularly the stomping to Mr Hussain’s head for a prolonged period, should trigger the application of this section. The callousness with which Mr Turner sought out the victim for the purpose of brutally killing him deserves recognition.
Vulnerability
[91] Section 104(1)(g) triggers the application of s 104 if the offender is “particularly” vulnerable. The Crown argues that the fact that Mr Hussain was physically inferior, at just 57kg, was drunk and did not fight back are all indicators he was vulnerable to Mr Turner’s attack. The defence accepts this characterisation.
[92] Mr Hussain was not ‘particularly’ vulnerable through age or disability in the
meaning usually adopted under this section.33 In other cases, recently taking
32 R v Christison [2013] NZHC 2813 at [37] per Heath J.
33 See discussion in Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers)
medication which would make the defendant sleepy was insufficient to render an otherwise fit man particularly vulnerable.34
[93] However, I accept that the defendant knew that the victim was alone, that he had been drinking, and in particular that Mr Turner discussed openly in his interview with the Police that he knew Mr Hussain was vulnerable, smaller than him, and could not fight back. Although I think this is a marginal factor, it can be considered to be triggered in this case as well.
[94] Considering these factors, s 104 is triggered.
Starting Point
[95] The next consideration is the appropriate minimum period of imprisonment if s 104 was not operating.
[96] The Crown pointed to a number of murder cases in which the starting point was between 17 and 20 years was considered appropriate: R v Wallace,35 R v Uluakiola,36 R v Haerewa,37 Skilling v R38 and R v Tuporo.39
[97] While acknowledging that no two murders will have exact similarity in their identifying features, I agree with defence counsel that these cases are not manifestly similar for a range of reasons.
[98] Of these, most involved brutal murders featuring attacks to the victims using relatively heavy weapons, which were often brought to the scene. Most also involved offenders who sought to avoid culpability and who showed little remorse,
or understanding of the significance of their actions.
at SA9.12.
34 R v Lavemai [2014] NZHC 797.
35 R v Wallace HC New Plymouth CRI-2006-43-292, 5 October 2007.
36 R v Uluakiola CA123/06, 6 December 2006.
37 R v Haerewa HC Wellington CRI-2010-085-4794, 6 September 2011.
38 Skilling v R [2011] NZCA 462.
39 R v Tuporo HC Auckland 2005-092-12850, 31 August 2007 upheld at the Court of Appeal in R v
Tuporo [2008] NZCA 22
[99] In R v Tuporo, the attack occurred with a wrench and was described as a deliberate enacting of retribution, with striking brutality. It also involved an offender who did not admit culpability immediately, as well as other significant aggravating factors. R v Skilling involved a home invasion in which the victim was attacked with a hammer in her own home to facilitate a burglary, involving four separate serious s
104 triggering factors. These were worse actions than Mr Turner’s in this instance.
[100] The defence point to R v Green and Morice as an example of heinous crimes which have received a 17 year MPI. However, although a starting point of less than
17 years might have been appropriate given the offending was less serious than these cases, the aggravating factors under s 9, discussed above, are relevant. Moreover, although the totality of the offending in R v Ulakiola and R v Haerewa, were more serious than the offending involved here, including attempts to cover up or deflect the blame, the actual actions involved in the killing had some similarities. Many of the differences can be attributed to mitigating factors relating to admissions of guilt following the crime.
[101] Although a starting point might otherwise have been lower, the aggravating factors under s 9 of the Act in conjunction with Mr Turner’s past convictions for violence and disregard for the law warrant a 17 year starting point.
[102] I will now consider any possible reductions to this starting point of 17 years minimum non-parole period.
Mental Health
[103] Mr Turner, although not meeting any standard rendering him unfit for trial, is clearly a borderline case in terms of his mental health. He has been diagnosed as having a severe personality disorder, aggravated by substance abuse and has been prescribed anti-psychotics for reports of hearing voices. It is to be noted again that psychiatric reports are unwilling to make findings of schizophrenia or bipolar disorder. These are important factors to consider when sentencing Mr Turner.
[104] Mental health can either be a factor which reduces culpability, or it can mean a sentence of imprisonment will be disproportionately severe for an offender,
justifying a reduced sentence.40 A prolonged sentence may also, in some cases actually assist in rehabilitation by providing compulsory opportunities for treatment. Any factor which the defendant seeks to plead in mitigation must be proved to the balance of probabilities.41
[105] I am convinced on the balance of probabilities that, although s 104 was not solely triggered due to Mr Turner’s mental health problems, it played a role in forming his actions towards others. The irrationality of his obsession with Mr Hussain, and behaviours such as returning to the victim to steal his pants are evidence less of cruelty and more of a somewhat disordered mind. Mr Turner’s behaviour and approach to forming relationships with others is clearly influenced by his many years living outside of society and relying significantly on substance abuse.
[106] The defence cites R v Holl and R v Beca in support of the proposition that personality disorders should be considered a mitigating factor, such that a 17 year minimum non-parole period would be manifestly unjust. In R v Holl, the defendant had an actual diagnosis of bipolar as well as personality disorders.42 Mrs Holl had assisted in planning to murder her mother in law, and had murdered her with a significant level of brutality including use of an axe. The personality disorder received a six month discount, as the possibility that it contributed toward the offending in question could not be ruled out.
[107] R v Beca involved a planned killing, in which Mr Beca believed the victim was informing on him to gang members and subsequently strangled her. Mr Beca was found at a high risk of reoffending, and although not psychotic, he had anxiety disorders and pathological personality disorders. This also received a six month discount in the sentencing process.
[108] I am of the view that the guilty pleas and mental disorders in this case make it manifestly unjust to impose a 17 year MPI.
40 E (CA6890/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411 at [68].
41 Sentencing Act 2002, s 24.
42 R v Holl [2014] NZHC 1655.
[109] The Court of Appeal in E (CA689/2010) v R noted that a deduction between
12 per cent and 30 per cent is normally applied when the offender’s mental condition has contributed to the offending.43 No guideline exists for when mental illness makes a sentence disproportionately severe, but a similar range is likely. This has been applied in s 104 murder cases, where a mental condition had, in an indirect way, contributed to the offending.44
[110] In light of these cases, I am of the view that a discount of six months is appropriate, despite the lack of diagnosed illness.
Guilty Plea
[111] The Court in R v Williams also considered guilty plea discounts. Noting that such discounts were a matter of public interest, not personal justice,45 the Court held that a guilty plea may not always receive significant weight in assessing whether an MPI was manifestly unjust.46 Nonetheless the Court concluded that it would be manifestly unjust if two equally culpable offenders received identical sentences when only one pleaded guilty.47
[112] Mr Turner pleaded guilty at an early stage in the process. Although there was delay, this was primarily due to the need for extensive mental health testing to assess his fitness to plead and mental disorder, during which Mr Turner had indicated a guilty plea would be forthcoming. The Crown accepts that in the usual course of things, a 25 per cent discount would be appropriate, under the R v Hessell guidelines.
[113] I agree with counsel that in the usual run of things a 25 per cent discount would be appropriate. I note that in R v Williams the Court of Appeal suggested this discount will sometimes be less in s 104 cases than others, since departing from the minimum standard can only be justified in cases of clear injustice.48 I acknowledge
that a 25 per cent discount would be generous in these circumstances.
43 E (CA6890/10) v R, above n 38, at [71].
44 R v D [2014] NZHC 2272 at [43].
45 Above n 5, at [70].
46 At [72].
47 At [72].
48 At [73].
[114] I am therefore of the view that a further discount of one and a half years would be appropriate in these circumstances.
Manifest Injustice
[115] I have already discussed the meaning of “manifestly unjust” for this section. This will naturally be a subjective and context-specific analysis based on the particular offending. The fact it is manifestly unjust to impose a life sentence without parole will not automatically mean that it will also be manifestly unjust to impose a 17 year minimum non-parole period. This is because, although the standard will be lower and reached in more cases under s 104, it is directed towards considering the appropriateness of 17 year MPI, not a 45 – 59 year MPI.
[116] Having said that, taking into account the discounts that would have been received without the operation of s 104 in recognition of Mr Turner’s guilt, guilty plea, remorse and mental illnesses, I find it would be manifestly unjust to impose a
17 year MPI. I am of the view that a minimum period of imprisonment of 15 years is appropriate in its place.
[117] Mr Turner, please stand. On the charge of murder to which you have pleaded guilty, I accordingly sentence you to life imprisonment with a minimum period of imprisonment of 15 years.
[118] Given your conviction for murder, you are now subject to the “three strikes” law. This is now your final warning, which will explain the consequences of another serious violence conviction. You will also be given a written notice outlining these consequences, which lists these serious violent offences.
[119] If you are convicted of any serious violent offence, other murder or manslaughter, then you will be sentenced to the maximum term of imprisonment for each offence. That will be served without parole or early release unless it would be manifestly unjust. If you are convicted of manslaughter committed after this warning, then you will be sentenced imprisonment for life. The judge must order you to serve at least 20 years imprisonment unless the judge considers it would be
manifestly unjust to do so, in which case the judge must order you to serve a minimum of at least 10 years imprisonment.
[120] If you are convicted of murder after this warning, then you must be sentenced to imprisonment for life. The judge must order you to serve this sentence without parole, unless it would be manifestly unjust to do so. If the judge finds that it is manifestly unjust to do so then the judge must impose a minimum period of imprisonment of at least 20 years, unless that would be manifestly unjust, in which the case the judge must sentence you to a different minimum period of imprisonment.
[121] If you are sentenced to preventive detention, you must serve the maximum term of imprisonment of the most serious offence you are convicted of, unless a judge considers that would be manifestly unjust.
[122] You may stand down.
……………………………….
Woolford J
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