[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…

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 R v Turner

Details

AGLC: R v Turner [2015] NZHC 189
Case: [2015] NZHC 189
Decision Date: 17 February 2015

CaseChat Overview and Summary

In the case of R v Turner, the defendant pleaded guilty to the murder of Maqbool Hussain. The case triggered the application of section 86E of the Sentencing Act 2002, which mandates a life sentence without parole for a second strike offence under the three strikes regime, unless it would be manifestly unjust to do so. The Court was required to decide whether a life sentence without parole was manifestly unjust in light of the purposes of the Act and the circumstances of the offence and offender. Woolford J determined that it would be manifestly unjust to impose a life sentence without parole, instead imposing a sentence of life imprisonment with a minimum period of imprisonment of 15 years. The Court considered the severity of the offending, the vulnerability of the victim, and mitigating factors such as the defendant's mental health, guilty plea, and remorse. The Court concluded that while the offending was severe, the defendant was not the worst type of murderer envisaged by Parliament, and the sentence imposed would provide an opportunity for rehabilitation and reintegration into society.

Orders