R v Turner - [2012] NZHC 855

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2011-463-56 [2012] NZHC 855

THE QUEEN

v

TINA JESSICA TURNER

Hearing: 1 May 2012

Counsel: A M Gordon for Crown
W Lawson for Prisoner

Judgment: 1 May 2012

SENTENCING NOTES OF HEATH J

Solicitors:
Crown Solicitor, Rotorua
Lance Lawson, Rotorua

R V TURNER HC ROT CRI 2011-463-56 [1 May 2012]

Introduction

[1] Tina Jessica Turner, you appear for sentence today having pleaded guilty, on

23 April 2012, to four charges involving the possession and supply of the Class A

controlled drug, methamphetamine. The offending occurred at Rotorua, between 1

July 2009 and 16 September 2009.

[2] You were tried on other charges in May 2011. Towards the end of that trial, Duffy J took away from the jury charges relating to the offending on which you have now been convicted. At the conclusion of that trial, you were convicted on one count of possession of methamphetamine for supply and one of the Class C controlled cannabis for supply. On those charges, you were sentenced to an effective
term of imprisonment of three years and 10 months.[1]

[1] R v Turner HC Rotorua CIV 2009-063-5375, 24 June 2011 (Duffy J) at para [41].

[3] The charges to which you have now pleaded guilty were put to you in an amended indictment after discussions between counsel for the Crown, Ms Gordon, and your present counsel, Mr Lawson. I accept that a good deal of the discussions that took place in relation to resolving these trials could only have taken place after Mr Lawson was assigned and I am going to take that into account in determining the sentence to be imposed.

[4] It has been agreed that the amount of methamphetamine actually in your possession and supplied (in addition to those on which you had previously been convicted) was 40 grams.

[5] Ms Turner you asked to be sentenced promptly because of your present position. I have read the pre-sentence report for the last hearing. I have read the correspondence you have put before me. You are clearly an articulate person. You have clearly had some problems that led to this offending that followed the illness of your long-standing partner. I am not going to refer to much of that in detail and I am not going to trawl over all the facts that led to this offending but you can take it that all of that has been taken into account by me in reaching a final sentence.

[6] My task today is to determine what sentence would have been imposed if the Judge who sentenced you last year had had all of the additional information and your pleas of guilty to the current charges. That means that I am going to be talking about figures that seem somewhat higher than you might think appropriate for this sentencing. Ultimately, my job is to come to a figure that will effectively increase the sentence you are currently serving so that the…

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 [2012] NZHC 855
Case: [2012] NZHC 855
Decision Date: 1 May 2012

CaseChat Overview and Summary

Tina Jessica Turner was sentenced in the High Court of New Zealand, Rotorua Registry, having pleaded guilty to four charges involving possession and supply of methamphetamine. The offending took place in Rotorua between 1 July 2009 and 16 September 2009. Turner had previously been convicted on two other drug-related charges in May 2011 and was sentenced to an effective term of imprisonment of three years and 10 months. The current charges were dealt with in an amended indictment following discussions between counsel for the Crown and Turner's counsel. Turner asked for prompt sentencing due to her current position. The court considered the amount of methamphetamine involved in the current charges to be 40 grams, placing the offence at the lower end of the three to nine years imprisonment range. Turner was given credit for mitigating factors, including remorse, and the court allowed a further credit for the circumstances in which the pleas were entered. The final sentence imposed was an additional term of imprisonment of four months to be served concurrently with the existing sentences.

The court was required to determine the appropriate sentence for Turner, taking into account the additional information and her pleas of guilty to the current charges. The court also had to decide whether a BMW motor vehicle used in the course of the offending should be forfeited to the Crown. The forfeiture application was opposed by Turner's long-standing partner, who is in ill health and requires the vehicle for regular medical check-ups.

In its reasoning, the court considered the starting point for sentence on a standard basis for offending in relation to a quantity of methamphetamine of 40 grams. The court agreed with counsel that, had sentencing all taken place before Duffy J at the same time, a starting point of four years six months would have been taken. The court applied the same uplift for other relevant aggravating factors of 12 months, resulting in a revised starting point of five years six months. Turner was given credit for mitigating factors such as remorse, and the court allowed a further credit for the circumstances in which the pleas were entered. The final sentence imposed was an additional term of imprisonment of four months to be served concurrently with the existing sentences. The court also dismissed the application for forfeiture of the BMW motor vehicle, considering it unjust to do so due to the ill health of Turner's partner and his need for the vehicle for regular medical check-ups.

Turner was sentenced to a term of four months imprisonment on each of the charges, to be served cumulatively on the existing sentences imposed by Duffy J but concurrently as between themselves. The BMW motor vehicle was not forfeited to the Crown and shall be returned to Turner's partner as soon as possible.

Orders