Turnbull v Police - [2018] NZHC 671

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000041

[2018] NZHC 671

BETWEEN
LEVI TURNBULL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 9 April 2018

Appearances:

Scott Brickell for the Appellant Sam Teppett for the Respondent

Judgment:

13 April 2018

JUDGMENT OF MOORE J

[Appeal against sentence]

This judgment was delivered by me on 13 April 2018 at 10:30 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

TURNBULL v NEW ZEALAND POLICE [2018] NZHC 671 [13 April 2018]

Introduction

[1] The appellant, Levi Turnbull, pleaded guilty to charges of burglary1 and unlawfully opening a postal article.2 At the District Court at Auckland, Judge D J Sharp sentenced Mr Turnbull to 23 months’ imprisonment.3 He now appeals that sentence on the basis that the starting point was excessive and the Judge erred in not commuting the sentence to one of home detention.

Background

[2] The factual background set out below is drawn from the summaries of fact for each of the charges.

Burglary

[3] At about 10:25 pm on 18 July 2017 Mr Turnbull jemmied open the front door of a residential address in Panmure, Auckland. Once inside he rummaged through drawers and removed various electronic items which he placed in a backpack.

[4] After he had been in the house for about five minutes the complainant arrived home. To her surprise she saw that the front door was wide open and the lights on. She went inside and found Mr Turnbull in the kitchen. She immediately contacted the Police who arrived shortly afterwards. Mr Turnbull was found in the front yard of the house. By way of explanation Mr Turnbull said, “I am sorry. I didn’t mean to do it.”

[5] At the time of the burglary Mr Turnbull was subject to standard release conditions relating to a sentence imposed in April 2017 for a previous burglary and other dishonesty offending.

Unlawfully opening a postal article

[6] About two months later, on 2 September 2017, Mr Turnbull was walking along Swanson Road, Ranui, when he was seen looking into letterboxes. The Police were

1      Crimes Act 1961, s 231(1)(a). The maximum penalty is 10 years’ imprisonment.
2      Postal Services Act 1998, s 23. The maximum penalty is six months’ imprisonment, or a fine not exceeding $5,000.
3      Police v Turnbull [2018] NZDC 3056.

called and found Mr Turnbull in a nearby reserve. He admitted his actions and handed over a driver’s licence and an AA card which he admitted had been taken from the mail.

[7] At the time Mr Turnbull was still subject to the standard release conditions and was also on bail for the previous burglary.

[8]On 30 October 2017 he pleaded guilty to both charges.

District Court decision

[9] Judge Sharp adopted a starting point of 24 months’ imprisonment. He arrived at that figure by first acknowledging the following:

(a)the danger and risk inherent in burglaries of domestic dwellings, which 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.

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: [2018] NZHC 671
Decision Date: 13 April 2018

CaseChat Overview and Summary

The appeal in Turnbull v Police was heard by the High Court of New Zealand. The appellant, Levi Turnbull, sought to appeal against his sentence for burglary and unlawfully opening a postal article. The primary legal issues were whether the starting point for the sentence was excessive and if the District Court judge erred by not substituting the sentence with one of home detention. The court found that the starting point was indeed excessive and adjusted it to 27 months' imprisonment. The court, however, declined to commute the sentence to home detention due to Turnbull's history of offending and breaches of court orders.

The reasoning of the court was that the starting point set by the District Court was too high considering the facts of the case. The court found that the aggravating factors of the crime, such as the actual confrontation with the victim, were serious but not to the extent that warranted a starting point of 24 months. The court determined a starting point of 20 months was more appropriate, but adjusted it to 27 months' imprisonment after considering all the aggravating factors. The court found that while there were mitigating factors such as Turnbull's participation in a rehabilitation program and his employment, these did not warrant a reduction in the sentence to home detention. The court considered the need for denunciation, deterrence, and protection of the community, and concluded that a sentence of imprisonment was necessary.

The final orders of the court were to allow the appeal against sentence in part. The sentence of 23 months' imprisonment was quashed and substituted with a sentence of 18 months' imprisonment. The court declined to commute Turnbull's sentence to one of home detention.

Orders