Turnbull v Police - [2015] NZHC 147

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2014-409-000128 [2015] NZHC 147

BETWEEN
GRANT TURNBULL

Plaintiff

AND

NEW ZEALAND POLICE Respondent

Hearing: 5 February 2015

Appearances:

P N Allan for Appellant
D L Elsmore and N A Pointer for Respondent

Judgment:

12 February 2015

JUDGMENT OF GENDALL J

Introduction

[1] On 31 October 2014 Judge Garland1 sentenced Mr Turnbull to 12 months’ imprisonment on five charges of receiving stolen property and one charge of being found unlawfully in possession of ammunition. Reparation of $1000 was also ordered. Standard conditions of release until six months after the sentence end-date were also imposed. His Honour also made an order for the destruction of the ammunition and rifle bolts concerned here. The sentence arose from Mr Turnbull’s guilty plea to the charges in question following the giving of a sentence indication by Judge Garland.

[2] Specifically, the detail of those charges was:

(a) three charges of receiving where the value of the property received exceeds $1,000, respectively occurring between 12 May 2014 and 10

1 Police v Turnbull DC Christchurch CRI-2014-009-006590, 31 October 2014.

July 2014, one between 19 May 2014 and 10 July 2014, and one between 23 May 2014 and 10 July 2014;2

(b)one charge of receiving where the value of the property received exceeds $500 but does not exceed the sum of $1,000, which occurred between 13 May 2014 and 10 July 2014;3

(c) one charge of receiving where the value of the property received does not exceed $500, which occurred between 28 May 2014 and 10 July
2014;4 and

(d)one charge of being in possession of explosives, without some lawful, proper, and sufficient purpose.5

[3] Mr Turnbull now appeals against the sentence on the grounds that a sentence of home detention should have been imposed.

Background

[4] The facts giving rise to these charges were set out in Judge Garland’s

31 October 2014 sentencing notes:

[3] The facts relating to your offending are these. On 12 May this year the complainant Shi’s address in Havana Gardens in Christchurch was burgled and a 42 inch Panasonic television valued at $1000 was stolen. On
13 May the complainant Currie’s residential address at Aldwins Road in
Christchurch was burgled and a Toshiba laptop, three rifle bolts, two magazines and 303 and 7.9 millimetre ammunition valued at $600 was
stolen. On 19 May the complainant Ferguson’s residential address in
Havelock Street, Christchurch was burgled. His Toshiba laptop and suitcase valued at $2000 were taken from the address. On 23 May the complainant Tomkins address in Linwood Avenue, Christchurch was burgled and her Compac and Acer laptops valued at $1200 were stolen. On 28 May the complainant Voorhoeve’s residential address in Mackworth Street, Christchurch was burgled and his NEC laptop valued at $400 was stolen.

2 Crimes Act 1961, ss 246(1) and 247(a). Each offence is punishable by imprisonment for a term not exceeding seven years.
3 Sections 246(1) and 247(b). Each offence is punishable by imprisonment for a term not exceeding one…

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.

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Details

Case: [2015] NZHC 147
Decision Date: 12 February 2015

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Grant Turnbull against his sentence of 12 months imprisonment for receiving stolen property and being found in possession of ammunition. Turnbull had pleaded guilty following a sentence indication by Judge Garland, who stated that a sentence of home detention would be considered if the pre-sentence report was favourable. Turnbull argued that he should have been sentenced to home detention to allow him to complete community work and an anger management course. The court was required to determine whether Judge Garland adhered to his sentencing indication and whether he was justified in imposing a sentence of imprisonment instead of home detention.

The court found that Judge Garland had not departed from his sentencing indication, which included a short term of imprisonment as a starting point, and was not statutorily required to grant Turnbull leave to withdraw his guilty plea. The court also found that Judge Garland was entitled to decline home detention based on Turnbull's uncooperative attitude, the gravity of the offending, and the fact that the offending occurred within his home. The court concluded that a sentence of imprisonment was appropriate to achieve the purposes of denunciation and deterrence, and that home detention would have undermined the necessary deterrent purpose of a sentence. The appeal was dismissed.

The standard conditions of release until six months after Turnbull's sentence end-date were varied to provide that during this six-month period, Turnbull is to undertake a suitably approved anger management course, such course to conclude within that six-month period.

Orders