Turner v Police

[2025] NZHC 3134

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2025-442-021

[2025] NZHC 3134

BETWEEN

JOSHUA DEAN TURNER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	16 October 2025
Appearances:	S J Zindel and M A Gauler for Appellant J A L Lao for Respondent
Judgment:	21 October 2025

JUDGMENT OF GRICE J

(Appeal against sentence)

Introduction

[1]    Joshua Turner was convicted on one charge of theft over $1,000,1 one charge of causing loss by deception over $1,000,2 and two charges of obtaining by deception between $500 and $1,000.3    He was sentenced in the District Court at Nelson on    26 August 2025 to six months’ home detention, with six months’ post-detention conditions.4 He was also ordered to pay reparations of $9,350 and $3,760.30.

[2]    Mr Turner appeals against his sentence on the ground that it was manifestly excessive and there was an error in the summary of facts to which he pleaded guilty.

1      Crimes Act 1961, ss 219 and 223(b) — maximum penalty seven years’ imprisonment.

2      Crimes Act, ss 240(1)(d) and 241(a) — maximum penalty seven years’ imprisonment.

3      Crimes Act, ss 240(1)(a) and 241(b) — maximum penalty one year’s imprisonment.

4      Police v Turner [2025] NZDC 21968 [judgment under appeal].

TURNER v NEW ZEALAND POLICE [2025] NZHC 3134 [21 October 2025]

Background

[3]    The background to the offending, as set out in the police summary of facts, is summarised below.

Theft

[4]    On 11 June 2024, Mr Turner signed a 12-month agreement with a company for the lease of a portable cabin, valued at $34,500, for weekly payments of $107.10. The cabin was delivered, however by 2 August 2024, Mr Turner’s account was in arrears of $428.40 due to missed payments. On 15 August 2024, the hire company contacted Mr Turner advising him that the contract had been terminated effective immediately, and that the cabin would be collected the following week.

Causing loss by deception

[5]    On 12 September 2024, Mr Turner advertised the cabin for sale on Facebook Marketplace for $5,000. Mr Turner had no authority to sell the cabin, as it belonged to the hire company.

[6]    The victim messaged Mr Turner enquiring about the cabin, and after negotiations a price of $8,000 was agreed upon. She made an initial payment of

$4,000 that day to Mr Turner’s bank account. The following day, Mr Turner messaged the victim requesting the remaining $4,000, stating that his vehicle had broken down and he needed the money. She transferred the requested amount and asked for the location of the cabin for collection.

Obtaining by deception (x2)

[7]    Mr Turner advised the victim that the cabin was being stored at an address in Kaiapoi. The victim responded that she was unable to collect it from the property, and Mr Turner said he could have the cabin moved to an area on the street at a cost of

$600, due to fees of the company he would use. On 20 September 2024, the victim transferred the $600 into Mr Turner’s bank account. Mr Turner then used his landlord’s four-wheel drive vehicle to move the cabin at no cost to himself and retained the $600.

[8]    Mr Turner then told the victim he was being charged $150 per day by his landlord to store the cabin at the address, incurring him a total cost of $750. He advised her that she would need to  cover these costs.  The victim  paid $750 into  Mr Turner’s bank account on 24 September 2024. No such charges from Mr Turner’s landlord had been incurred, and he retained the $750 for his own benefit.

[9]    On 11 November 2024, the hire company informed Mr Turner that the cabin would be collected on Wednesday that week. He replied stating that the cabin had already been collected and requested that they stop contacting him. The hire company eventually recovered the cabin from the victim.

Pre-sentence report

[10]   Mr Turner has one previous conviction from 2022, for driving with excess breath alcohol. He was sentenced to a fine and driving disqualification for that offence.

[11]   Mr Turner discussed the police summary of facts with the pre-sentence report writer, and did not dispute the summary. He explained that he had rented the cabin while staying on a friend’s property, but that it had not worked out for a number of reasons related to the suitability of the cabin. Mr Turner said that when he asked the hire company for a refund they refused, and they were unable to remove the cabin from the property.

[12]   Mr Turner described feeling “stuck” at the time he decided to try and sell the cabin. He said he was not in a “good head space”, and that he regretted his decision and the impact it had on the victim and the hire company. He noted that the cabin had been returned in good condition, but he was willing to pay reparation on a weekly basis, as he did not have any savings. When asked what he did with the funds he illegally obtained, Mr Turner said that after he left his friend’s property, he moved to a number of different places trying to find suitable accommodation. He is currently on a job seekers’ benefit and has had difficulty finding employment.

[13]The report recommended a sentence of community work and reparation.

Decision under appeal

[14]   Judge Snell considered the aggravating features of offending included the significant overall scale of the offending and the loss involved.5 In addition, there was a breach of trust in terms of the agreement with the hire company and in relation to the victim. The offending was “unbelievably brazen and blatant” and was clearly premeditated.6 The Judge applied a global starting point of 16 months’ imprisonment, which was within the range suggested by Mr Turner’s counsel.7

[15]   The Judge applied a 25 per cent reduction for Mr Turner’s early guilty pleas.8 He noted that Mr Turner did not appear remorseful and had blamed others for the cabin being unsuitable.9 No discounts  for personal  mitigating  factors  were sought  by  Mr Turner’s counsel, and the Judge noted that none would be warranted in the circumstances. This brought the sentence to 12 months’ imprisonment.10

[16]   The Judge determined that the sentence should be commuted to one of home detention, on the basis that allowing Mr Turner to stay out of prison and pay the reparations he owed as quickly as possible would be the best way to restore the positions of the victim and the hire company.11 He also noted Mr Turner’s limited history with the Court, and considered he deserved “a chance not to go to prison”.12

[17]   An end sentence of six months’ home detention was imposed, with special conditions to undertake any counselling, programmes or training as directed by a probation officer.13 The Judge also imposed six months’ post-detention conditions to complete any such courses.

[18]   In addition, the Judge directed reparation of $9,350 to the victim and $3,760.30 to the hire company, to be paid within a period of two years from the date of

5 At [14].

6 At [14].

7 At [17].

8 At [17].

9 At [15].

10 At [17].

11 At [18].

12 At [18].

13 At [19].

sentencing.14 The Judge gave a warning that if Mr Turner did not meet these payments or appear to be taking the orders seriously, he would face re-sentencing to a term of imprisonment.

Approach on appeal

[19]   Mr Turner’s appeal is brought pursuant to s 244 of the Criminal Procedure Act 2011. This Court must allow the appeal only if it is satisfied that there was an error in the sentence and that a different sentence should be imposed.15 The statutory test has been interpreted to mean that the court will allow the appeal only if the sentence is manifestly excessive.16 In Tutakangahau v R, the Court of Appeal noted that generally an appellate court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.17 The focus is on the outcome of the final sentence, rather than “the route by which the judge reached that outcome”.18

Grounds of appeal

[20]   Mr Turner contends that the sentence is “manifestly unjust”. In particular, his submissions raise the following grounds:

(a)no credit was given for his otherwise good character;

(b)the Judge did not appear to accept that he was at a low risk of reoffending, despite mention of this in the PAC report; and

(c)no credit was given for remorse.

[21]   The second part of Mr Turner’s written submissions focussed on an alleged discrepancy in the summary of facts in terms of the amount of money involved in the obtaining by deception charges. I deal with that matter first.

14 At [20].

15     Criminal Procedure Act 2011, s 250(2).

16     Kumar v R [2015] NZCA 460 at [81].

17     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

18     Ripia v R [2011] NZCA 101 at [15].

Dispute regarding summary of facts

[22]    Mr Turner says there is a material discrepancy between the summary of facts and the police disclosure concerning the two charges of obtaining by deception. The thrust of the submission is that the amount involved was not as great as suggested by the summary of facts.

[23]   In submissions filed in response, Mr Turner’s counsel suggested that, in light of the Crown’s position, the issue would not be pursued as the focus of the appeal. That was confirmed by Ms Gauler in her oral submissions. This is an appropriate position, given that a challenge to the summary of facts in the context of this sentence appeal would amount to an appeal against conviction. In addition, as the Police submit, it would not make a substantial difference to the overall sentence, as there would be little material change in Mr Turner’s overall culpability. Furthermore, both counsel acknowledged that it would potentially interfere with his full credit for guilty plea.

[24]Therefore, I dismiss the appeal under this head.

Was the sentence manifestly excessive?

Submissions

[25]   Mr Turner contends that the sentence was not the least restrictive outcome available, and a sentence of community work or community detention would have been more appropriate. Ms Gauler, for Mr Turner, clarified at the hearing that the starting point taken by the Judge was challenged, as were the discounts for personal mitigating factors. In order to address the starting point, Ms Gauler analysed the cases referred to not only by the Judge and the Police but by defence counsel at sentencing. She said that Mr Turner’s former counsel had been incorrect in his submission to the Court that the range for the starting point was 16–20 months imprisonment based on an assessment of the cases he had cited. The Judge perpetuated that error by adopting a starting point of 16 months.

[26]   Relevant to both the length of the sentence and its form, Ms Gauler points out that Mr Turner: is at a low risk of reoffending; only has one previous conviction, which was for a traffic offence; is generally law-abiding; and has been and could again be employed. She notes that he cannot take up employment at present as he works for a temping agency and is unable to give the required 48 hours’ notice to Corrections to vary his electronic restrictions. In addition, his employment is based in different locations from time to time, and electronic monitoring does not accommodate that very well. He therefore faces a hefty reparation obligation and no way to pay it. This is a particular issue given the deadline on payment imposed by the Judge, and his warning that he would direct Probation Services to file a resentencing application if Mr Turner did not pay substantial amounts off. At that stage, the Judge indicated he would look at a “different path” of imprisonment, with Mr Turner still being required to pay reparation when released.19

[27]   Mr Lao, for the Police, submits that the end sentence was stern but within range, noting that the offending involved premeditated theft and fraud against two victims, with a total loss of approximately $13,000. Mr Turner’s personal circumstances, including his lack of relevant history and low re-offending risk were factored into the decision to commute the 12-month imprisonment sentence to one of home detention.

[28]   In addition, Mr Lao points to the case of McCaslin-Whitehead v R as authority for the proposition that the court must step back and assess the overall effect of discounts applied. The Court of Appeal noted that:20

There is clear authority for standing back and considering whether when added up discounts have led to a sentence that is not in proportion with the gravity of the offending.

[29]   In response, Ms Gauler accepts that discounts must be assessed in terms of their totality, but submits that the sentence of six months’ home detention was nevertheless manifestly excessive.

[30]I now turn to assess each aspect of the sentence challenged on appeal.

19     Judgment under appeal, above n 4, at [20].

20     McCaslin-Whitehead v R [2023] NZCA 259 at [61].

Starting point

[31]   Ms Gauler relies on a number of cases, to which she analogises the present offending. The first is Nicholas v R, in which the appellant’s truck had been stolen from his worksite.21 Rather than calling the police, he discovered the whereabouts of the truck on his own, and went to the address with two associates. He found the truck poorly repainted with false registration plates, and loaded with 84 two-box beehives containing live bees and towing a trailer with a loader on it. The appellant recovered his truck and took with him the beehives, bees, and the trailer. The complainant and police contacted the appellant in the following days asking him to return the items and warning that the bees would die. He refused. When the appellant eventually drove the truck to the police station with 24 of the beehives, the bees had died, and the trailer was empty and damaged. The loader was not returned until some 20 months later, and was also damaged.22 The loader was valued at $59,000 at the time of theft (and

$40,000 when recovered), the beehives were valued at $13,800, and the bees were valued at a total of $33,600.23

[32]   The sentencing Judge in Nicholas noted that a starting point of 15 months’ imprisonment had been suggested at the appellant’s sentence indication, although the indication had been declined.24 A sentence of six months’ community detention was imposed on the single charge of theft, and reduced to four months on appeal, as the trial Judge made the mistaken assumption that the loader had not been returned.25

[33]   In Vea v R, the appellant pleaded guilty to 30 charges of causing loss by deception.26 Tongan members of the Church of the Latter-Day Saints had been planning for a school reunion to be held in Tonga. The appellant was appointed as head of the fundraising committee to raise money for the airfares of those attending. She falsely informed the committee that she had booked a charter flight, and a total of 132 seats were sold at a cost of $29,200. She then called an emergency meeting the day before the planned flight, and told family representatives that an extra $100,000

21     Nicholas v R [2025] NZHC 2590.

22     At [5]–[12].

23     At [30(c)].

24 At [19].

25 At [44].

26     Vea v R [2014] NZHC 1959.

was required for the trip to go ahead.27 A starting point of 18 months’ imprisonment was imposed, and reduced for personal mitigating factors to 11.5 months imprisonment.28 The reparation order of $27,450 was reduced to $13,000 on appeal.29 The end sentence was commuted to six months’ home detention.30 Ms Gauler submits that the offending in Vea was clearly more serious than the present.

[34]   Ms Gauler also refers to Terrell v Police, which involved one charge of obtaining by deception and two charges of theft by a person in a special relationship, resulting in a total loss of $40,300.31 The circumstances of the offending involved the appellant’s handling of money from two victims through his car dealing business.32 No starting point was identified by the Judge, however on appeal it was accepted that but for reparation the end sentence would have been 12–18 months’ imprisonment.33 Ultimately, the sentence of six months’ community detention and 200 hours’ community work was reduced to three months’ community detention and 200 hours’ community work.

[35]   Finally, in R v Iosefa, the Court of Appeal overturned a sentence of 10 months’ imprisonment for a charge of theft by a person required to account and imposed a sentence of four months’ home detention, with an order for reparation of $31,644.39.34 The offending involved a practising lawyer who made eight unauthorised withdrawals from the firm’s trust account, totalling $83,700.73, from funds held on trust for an elderly client over approximately five months.35 He also falsely represented to the New Zealand Law Society that the transactions had been properly completed and disposed on the firm’s ledger card which recorded the victim’s funds.36

27     At [1] and [2].

28     At [27]–[30].

29 At [13].

30 At [35].

31     Terrell v Police [2013] NZHC 734.

32     At [2]–[5].

33 At [15].

34     R v Iosefa [2008] NZCA 453.

35 At [2].

36 At [4].

[36]   Ms Gauler submits that the loss caused by the present offending was significantly lower than in Terrell and Iosefa, and occurred over two weeks rather than a period of months.

[37]   Several of the cases discussed above did not provide a clear starting point. The starting point of 16 months adopted here was within the range sought by counsel for Mr Turner. In my view, that starting point, while stern when assessed in relation to the comparable case law, was within the range available to the Judge. Furthermore, I consider any discrepancy is more appropriately addressed through the form of the end sentence rather than lowering the starting point.

Remorse

[38]   Ms Gauler submits that Mr Turner was compliant and remorseful from the outset of the police investigation. The fact that he explained his frustrations around the dispute he had with the hiring company should not have been construed by the Judge as “victim blaming”. Furthermore, Mr Turner’s police interview had referred to his cancelling the cabin hire owing to the cabin’s poor condition, and suggested there was a large delay in the cabin being reclaimed.

[39]   Ms Gauler also says Mr Turner was willing to provide a letter of apology and he expressed this to his previous lawyer. These letters have now been provided to police. Mr Turner also indicates he would have been willing to participate in restorative justice, had his previous lawyer advised him of that option.

[40]   However, as Mr Lao submits, there is no automatic entitlement to a separate remorse discount over and above a guilty plea discount. Genuine remorse must be shown in a tangible way, for instance voluntary payment of reparation, a sincere letter of apology, or an offer to participate in restorative justice. Assessment of whether remorse is genuine is  an  evaluative  exercise  for  the  sentencing  Judge.  While  Mr Turner provided letters of apology, I am not satisfied that these are sufficient to warrant  a  discrete  discount  without  any  further  proactive  steps.  In  addition,  Mr Turner’s apparent lack of knowledge of the option to participate in restorative justice cannot be ascertained without obtaining evidence from him and his former counsel.

Previous good character

[41]   Ms Gauler further contends that Mr Turner’s low risk of re-offending and low risk to the community should have been taken into account. She says he should have received a discount for previous good character, given that he only has one previous conviction.

[42]   Mr Lao notes that discounts for previous good character generally require evidence of a positive contribution to society, especially where the offending is premeditated or committed over a period of time.37 Here, I accept that Mr Turner has not provided any evidence by which the Court could form an impression of his overall character prior to the offending, aside from his lack of relevant previous convictions. In any event, as Mr Lao notes, interference with the sentence in relation to this factor alone would be tinkering.

Form of sentence

[43]   I am not persuaded that the Judge erred in terms of the starting point or the applicable discounts for personal mitigating factors.

[44]   However, as recognised by Miller J in Terrell, a sentence can be manifestly excessive by reason of its form, not merely its duration.38 Here, I consider that a sentence of home detention was not the least restrictive outcome available in the circumstances. In particular, as Ms Gauler notes, the electronic monitoring requirements of home detention have prevented Mr Turner from obtaining employment through his temping agency. His ability to work is an important factor in supporting his rehabilitation and allowing him to meet the reparation payments. The victim in her victim impact statement noted that she has a family and the money she paid the appellant was no small amount to them.39 The Judge explicitly noted that allowing the victims to be repaid was a key reason for his decision not to impose a sentence of imprisonment. Furthermore, it is particularly crucial that Mr Turner not

37     Manawaiti v R [2013] NZCA 88 at [18]–[19]; and Britow v R [2017] NZCA 229 at [9]–[11].

38     Terrell, above n 31, at [15].

39     Victims’ Rights Act 2002, s 22B provides that the weight given to a victim impact statement is a matter for the Judge.

be hindered in his ability to find work given the two-year time limit the Judge placed on reparation.

[45]   In R v Combes, Kós J compared a sentence of home detention with one of community detention, making the following observations:40

…there is not a great deal of difference between imposing a sentence of home detention, and one of community detention together with community work. Both sentences are significantly restrictive of freedom. But the difference is that one is materially preferable in terms of rehabilitation.

[46]   I note that the PAC report recommended a sentence of community work and reparations, or alternatively community detention or home detention as more restrictive options. I do not consider that a sentence of community work would be sufficient to meet the sentencing purposes of deterrence and denunciation in this case. However, I am satisfied that a sentence of community detention, with a daily curfew of 10.00 pm until 5.00 am, is appropriate. The sentence of six months’ home detention was manifestly excessive in the circumstances.

Reparation

[47]   Ms Gauler submits that, under s 36 of the Sentencing Act 2002, the Judge ought to have left the timing  for the payment of  reparation to the registrar,  given that    Mr Turner had only a part-time job and no savings. The two-year time limit would likely set him up to fail. Furthermore, he is now unemployed while on home detention, although he has received offers of “temp work”.

[48]   Given the adjustment I have made to Mr Turner’s sentence, which should enable him to engage in regular employment, I do not interfere with the time limit for reparation imposed by the Judge.

Conclusion

[49]   The appeal is allowed. The sentence of six months’ home detention is set aside and a sentence of six months’ community detention is imposed.

40     R v Combes [2013] NZHC 70 at [39].

Grice J

Solicitors:

Zindels, Nelson for Appellant

O'Donoghue Webber, Nelson for Respondent