Turnbull v Police - [2021] NZHC 828

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-43

[2021] NZHC 828

BETWEEN
RYAN ROBERT TURNBULL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 12 April 2021

Counsel:

E Kim and C A Oxnam for appellant H J Bell for respondent

Judgment:

20 April 2021

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 20 April 2021 at 10.00am.

Registrar/Deputy Registrar Date:

Solicitors:
Public Defence Service, Auckland Crown Solicitor, Auckland

TURNBULL v NEW ZEALAND POLICE [2021] NZHC 828 [20 April 2021]

Introduction

[1]Ryan Turnbull pleaded guilty to the following offending:

(a)two charges of possession of utensils for the consumption of prohibited drugs;1

(b)one charge of cultivating cannabis;2

(c)one charge of breach of community work;3

(d)one charge of male assaults female;4

(e)five charges of theft under $500;5

(f)one charge of unlawfully taking a motor vehicle;6

(g)one charge of receiving stolen property;7

(h)one charge of burglary;8

(i)one charge of possession of ammunition;9

(j)one charge of failing to comply with the direction of a medical officer, which was a breach of the COVID-19 lockdown rules;10 and

(k)one charge of possession of offensive weapons.11

1      Misuse of Drugs Act 1975, ss 13(1)(a) and 13(3). Maximum penalty one year’s imprisonment and
$500 fine.
2      Section 9(1). Maximum penalty seven years’ imprisonment.
3      Sentencing Act 2002, s 71(1)(a). Maximum penalty three months’ imprisonment or a $1,000 fine.
4      Crimes Act 1961, s 194(b). Maximum penalty two years’ imprisonment.
5      Sections 219 and 223(d). Maximum penalty three months’ imprisonment.
6      Section 226(1). Maximum penalty seven years’ imprisonment.
7      Section 247. Maximum penalty three months’ imprisonment.
8      Section 231(1)(a). Maximum penalty 10 years’ imprisonment.
9      Arms Act 1983, s 45(1). Maximum penalty four years’ imprisonment and a $5,000 fine.
10     Health Act 1956, s 72(d). Maximum penalty six months’ imprisonment and a $4,000 fine.
11     Crimes Act 1961, s 202A(4)(a). Maximum penalty three years’ imprisonment.

[2] The offending took place on discrete occasions over a long period between March 2019 and June 2020. Almost all of the offending, with the exception of the theft of the sunglasses, the 18 March drug-utensil offending, and the 20 March breach of community work, took place while Mr Turnbull was on bail for the other offending.

[3] On 7 January 2021 in the Auckland District Court, Judge Collins sentenced Mr Turnbull to two years and nine months’ imprisonment.12 Mr Turnbull appeals on the basis that the Judge erred by not making adjustments in accordance with the principle of totality and by applying insufficient credit for Mr Turnbull’s guilty pleas, which led to a manifestly excessive sentence.

The offending

Drug offences

[4] On 18 March 2019, the Police searched a car driven by Mr Turnbull. They found a methamphetamine pipe and two cannabis bongs. Mr Turnbull admitted that they belonged to him. On 11 November 2019 the Police searched Mr Turnbull’s residence. They found seven cannabis plants and 18 cannabis seedlings. Mr Turnbull said that he was looking after them for 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.

Keep reading for free

Create a free CaseChat account to read Turnbull v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NZHC 828
Decision Date: 20 April 2021

CaseChat Overview and Summary

Ryan Turnbull appeals against his sentence of two years and nine months’ imprisonment, imposed by the Auckland District Court for a range of offences. The appeal is heard by Toogood J in the High Court at Auckland. The appellant submits that the sentence was manifestly excessive, principally on the basis that the District Court Judge did not make sufficient adjustments to accord with the principle of totality and that he applied an insufficient discount for his guilty pleas. The Court considers that the methodology of the District Court Judge was sound but that he erred in the application of the discount for the guilty plea. The Court allows the appeal in part, reducing the sentence to two years and five months’ imprisonment.

The Court considers that the District Court Judge applied the correct principles in determining the appropriate uplifts for the various charges. The Court accepts that the uplift for the drug-related charges was excessive but that the uplifts for the other charges were within the range available to the Judge. The Court is satisfied that the District Court Judge’s approach to the guilty plea discount was flawed. The Court holds that the Judge should have applied the discounts for personal circumstances and the guilty plea separately, rather than combining them into a single 15 per cent discount. The Court finds that a four-month reduction in the sentence is appropriate.

Orders