Turner v Police
[2023] NZHC 648
•28 March 2023
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-409-9
[2023] NZHC 648
BETWEEN SIMON JOHN TURNER
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 23 March 2023 Appearances:
A Lee for the Appellant
K A Courteney for the Respondent
Judgment:
28 March 2023
JUDGMENT OF HARLAND J
[1] The defendant, Simon Turner, was sentenced in the District Court1 to two years and three months’ imprisonment after having pleaded guilty, following a sentence indication, to one charge of wounding with intent to injure his then partner.2
[2] Mr Turner appeals this decision on the basis that further discounts should have been provided for several personal mitigating factors, over and above the deduction of 20 per cent allowed to reflect his early guilty plea.
Facts
[3]Mr Turner’s offending took place on 25 March 2022.
1 New Zealand Police v Turner [2023] NZDC 1417.
2 Crimes Act 1961, s 188(2); maximum penalty seven years’ imprisonment.
TURNER v POLICE [2023] NZHC 648 [28 March 2023]
[4] At approximately 10 am, Mr Turner’s former partner was at an address in Shirley, Christchurch. Mr Turner arrived uninvited and started yelling at her about an alleged new relationship. He pushed her into the garden and stood over her before pulling out a heavily rusted screwdriver from his clothing. He used the screwdriver to stab her, in a downward motion, to her left chest and arm area four times. Mr Turner then left the address and was located by Police approximately 400 m away.
[5] The victim suffered four stab wounds and reported pain and difficulty breathing. She was hospitalised. In her victim impact statement, made on the same day as the offending occurred, she said she was nervous to make a formal statement to the Police because she was scared of Mr Turner and believed one day he would kill her.
Principles on appeal
[6] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.3 The focus is not on the process by which the sentence was reached, but on the correctness of the end result. In making this assessment, appellate courts do not interfere with the legitimate exercise of judicial discretion or indulge in “tinkering” with the end sentence if it is within range.4
District Court decision
[7] In setting a starting point with reference to Nuku v R,5 the Judge correctly identified the following aggravating features of the offending:
(a) serious violence, bordering on extreme violence;
(b) serious injury, the victim requiring surgery and overnight hospitalisation, experienced painful breathing and is likely to have permanent scars;
3 Criminal Procedure Act, ss 250(2) and 250(3).
4 Ripia v R [2011] NZCA 101 at [15].
5 R v Nuku [2012] NZCA 584; [2013] 2 NZLR 39.
(c) the use of a weapon;
(d) the vulnerability of the victim, especially after she was pushed to the ground in the garden;
(e) the offending displayed a degree of premeditation, as Mr Turner had arrived at the victim’s address intending to confront her and brought the screwdriver with him; and
(f) there were elements of breach of trust, as the parties were in a relationship and the offending occurred at the victim’s home.
[8] The Judge, noting analogous cases, placed the offending at the lower end of band three of R v Taueki and adopted a starting point of two years and eight months’ imprisonment.6 This was uplifted by five per cent to reflect Mr Turner’s history of offending, which includes assault and the unlawful possession of weapons. Recording that Mr Turner had initially entered a not guilty plea to the charge and proceeded to a case review hearing, the Judge adopted a 20 per cent discount for the guilty plea. These aspects of the decision are not under appeal.
[9] At the sentencing hearing, the Judge focussed on whether any further discounts were available to Mr Turner. Three possible mitigating factors were raised by counsel for Mr Turner, being his addiction to methamphetamine, factors raised under s 27 of the Sentencing Act 2002 about his personal and family background, and his expressed remorse for the offending. These aspects of the decision are under appeal because the Judge was not persuaded any further discounts for mitigation were warranted.
[10] The Judge first considered Mr Turner’s addiction to methamphetamine. He noted Mr Turner’s intermittent history of methamphetamine abuse, reflecting however that, in 2018, Mr Turner was referred to Odyssey House and he successfully completed a programme there in March 2019. He noted Mr Turned had remained drug-free for nearly three years until early 2022.
6 R v Taueki [2005] 3 NZLR 372 (CA).
[11] The Judge also noted that Mr Turner had reported to the pre-sentence report writer that he had only begun using methamphetamine again three weeks before the attack when he realised his relationship with the victim was over. He had admitted he was under the influence of methamphetamine at the time of the attack, stating that it would not have happened otherwise. The Judge concluded:
[5] … that methamphetamine was a significant factor in the defendant’s offending, but it was the immediate effects of methamphetamine rather than the long-term addiction. As such, I am expressly forbidden to take it into account by s 9(3) of the Sentencing Act.
[12] As to the s 27 report, which referred to Mr Turner’s adoption as a child, the separation of his adoptive parents, gang membership and abuse as a child, which the report writer considered relevant to his offending, the Judge disagreed. He concluded:7
Overall, the s 27 report does not provide a proper basis on which I could conclude that the culpability of the defendant was diminished by his earlier life experience.
[13] Finally, in relation to remorse, which had been referred to in the pre-sentence report, the Judge observed it came at a very late stage, noting that Mr Turner had maintained his not guilty plea for nearly five months. The Judge considered that remorse was adequately reflected in the discount he had given for the guilty plea.
Discussion
[14] Ms Lee submitted that the Judge’s response to each of the further mitigating matters was too simplistic because he ignored the fact that it was the combination of these factors and the cumulative effect of them on Mr Turner that justified a link being drawn between them and the offending. She submitted that, when viewed in combination, Mr Turner’s background, as outlined in the s 27 report and the presentence report, and his addiction issues, provided the necessary nexus or causal connection which explained, in part, the reasons for his offending and justified a further discount by way of mitigation.
7 Police v Turner, above n 1, at [12].
[15] Ms Courteney, in response, submitted that the Judge was right to deal with each issue on an individual basis and that, in all the circumstances, his conclusions on each were correct.
[16] Even though the approach urged on the Court by the appellant is to consider the further suggested deductions cumulatively, I nonetheless deal with each of them first before considering them together. I note that the submission that a further deduction ought to have been allowed for remorse is separate from this argument.
Addiction issues
[17] Ms Lee submitted that there is a clear causative link between Mr Turner’s addiction and the offending. She noted that Mr Turner has had lifelong addiction issues, beginning with cannabis use as an 11 year old and progressing to using methamphetamine at age 20. She observed that a number of his convictions (ten) pertain to drug-related offending. She also highlighted that, despite Mr Turner’s successful rehabilitation and three year abstinence from methamphetamine, he relapsed after starting a relationship with the victim of this offending, who also has addiction issues.
[18] Ms Lee cited Zhang v R as authority for the proposition that methamphetamine may overwhelm pro-social tendencies even if the offender has ceased using the drug.8 As the Court of Appeal in Zhang v R noted, addiction may give rise to a discount of up to 30 per cent depending on the extent to which it mitigates the moral culpability for the offending.9 However, any discount must be based on persuasive evidence about the extent and effects of addiction.10
[19] It is clear that Mr Turner has struggled with addiction to methamphetamine since he began using it in his youth. He engaged with Odyssey House in 2018 and completed its programme in early 2019. That engagement appears to have been productive, as Mr Turner remained largely free of methamphetamine until the weeks prior to the offending. Ms Lee noted that Odyssey House had indicated it would be
8 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [145].
9 At [149].
10 At [148].
able to accept Mr Turner again on its programme. Overall, Ms Lee submitted that a sentence of home detention to the Odyssey House programme was the least restrictive outcome in the circumstances.
[20] Addiction that is causative of offending may attract a discount on a sentence.11 The issue is whether a state of addiction contributed to the offending in a way that mitigates a defendant’s moral culpability for the offending or is otherwise relevant to the sentence to be imposed – for example, because it calls into question the effectiveness of deterrence or engages or calls into greater focus rehabilitative principles.12 While often applied to drug-related offending, a discount for addiction may be applicable where violent offending is at issue,13 though the Court requires “proper evidence” of a causal connection between the drug use and the offending.14 Where addiction is less causative, lesser discounts may be appropriate.15
[21] As the Judge correctly noted, the fact that Mr Turner was under the influence of methamphetamine at the time of the offending cannot be treated as a mitigating factor pursuant to s 9(3) of the Sentencing Act 2002. Mr Turner’s position appears to be that his addiction was causative of his use of methamphetamine which, in itself, was causative of the offending, and therefore his addiction was causative of the offending. The Judge rejected this submission by concluding that Mr Turner’s addiction was no longer operative as he had engaged in rehabilitation and had experienced a successful period of sobriety.
[22] I am not persuaded that Mr Turner’s addiction can be dealt with in this manner. Addiction is a complex illness. Mr Turner had been using methamphetamine for many years and had a dependence on it when he engaged with Odyssey House. I do not accept that completing rehabilitation and maintaining sobriety for a period of several years indicates a clean and complete break from the addiction cycle. Mr Turner, as assessed in the ADAS report of October 2022, has a methamphetamine dependence which is in remission in a controlled environment (this may be compared to other
11 Zhang v R, above n 8.
12 Zhang v R, above n 8, at [143]-[147].
13 Murray v New Zealand Police [2021] NZHC 275.
14 Ekeroma v R [2021] NZCA 250 at [31].
15 Ropitini v Ministry of Social Development [2021] NZHC 2273.
substance dependences which are described as being in early full remission or sustained full remission). He was faced with the end of a relationship which had brought him within closer proximity to methamphetamine, given his partner’s use of it, and that he and his partner are said to have smoked and used methamphetamine intravenously. Mr Turner told the s 27 report writer that, prior to the offending, he and the victim had been using methamphetamine and he had not slept for several days. In my view, the evidence suggests Mr Turner’s addiction remained operative and became problematic when faced with an emotionally stressful situation.
[23] Both the ADAS report and the pre-sentence report note Mr Turner’s longstanding addiction issues. In my view, the extent and effects of addiction on Mr Turner are clearly outlined in the reports that were available to the Judge. I return shortly to the ultimate issues, namely, the extent to which it mitigates Mr Turner’s moral culpability for the offending.
Section 27 issues
[24] Where an offender’s disadvantaged background is causatively linked to the offending, a further discount can be applied at sentencing.
[25] Ms Lee submitted that the circumstances of Mr Turner’s background also warranted a discount. She referred to the s 27 cultural report which identified factors that the report writer considered were likely to have influenced Mr Turner’s offending, namely, being adopted at birth and being an only child in his family, the separation of his adoptive parents and the departure of his father when he was eight years old, and the substance abuse, gang involvement and anti-social peers, and childhood sexual victimisation.
[26] The report writer noted that Mr Turner had never had counselling or any kind of intervention to address the trauma of sexual abuse. The report writer also noted that, although limited research had been done about the links between childhood sexual victimisation and criminality, she cited an article in which it was observed that traumatic experiences during childhood are known to be associated with mental health
problems, aggressive behaviour and criminality in adulthood.16 The Judge noted this at para [11] of his sentencing decision but observed that this opinion could go no further than suggesting a possible nexus “between the defendant’s abuse as a child and offending against his parents”, and came “nowhere near” to establishing a connection with the violent offending for which Mr Turner was being sentenced.
[27] Overall, the Judge concluded that the factors referred to in the s 27 report did not provide a proper basis upon which he could conclude that Mr Turner’s culpability was diminished by his earlier life experiences. Ms Courteney submitted that the Judge’s conclusion on this was correct.
[28] In Poi v R, when discussing the ways in which a person’s background may be relevant to sentencing, the Court of Appeal said:17
[26] Similarly, in the leading High Court of Australia decision of Bugmy v R, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ observed that the fact that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.
[29] While the positive aspects of Mr Turner’s background with his adopted family were referred to in the s 27 report and the Judge’s decision, and cannot be ignored, the impact of Mr Turner’s father’s departure from the home and the abuse that is said to have occurred over a week when he was in his early teens will undoubtedly have had an impact on him. In my view, the links the s 27 report writer makes with these factors and Mr Turner’s gravitation towards other troubled young people, and eventual gang involvement, make sense.
Addiction and s 27 in combination
[30] I am persuaded that, on the facts of this case, it is appropriate to consider the inter-relationship between Mr Turner’s background and his addiction in combination. Indeed, in my view, it would be artificial to separate them when considering whether these matters can be appropriately linked to the offending. I have already outlined my
16 Section 27 report at para 43.
17 Poi v R [2020] NZCA 312 at [26], citing Bugmy v R [2013] HCA 37, (2013) 249 CLR 571 at [40].
view that the evidence suggests Mr Turner’s addiction remained operative and became problematic when faced with emotionally stressful situations. The background outlined in the s 27 report explains why this is the case.
[31] By dealing with each issue separately, in my view, the Judge did not consider the interconnected nature of both and their relevance, in combination, to the issue he needed to determine, namely, whether there was a connection between them and the offending for which Mr Turner was being sentenced.
[32] Viewed holistically, I consider there is a nexus between Mr Turner’s background and the offending.
A further discount to reflect remorse?
[33] Whether a discount for remorse is appropriate is a matter of fact and judgment.18
[34] The District Court Judge dealt with this factor at para [14] of his judgment. He referred to the pre-sentence report writer recording that Mr Turner had “expressed some remorse for his offending”. The Judge considered that this had come at a very late stage and should be viewed in light of Mr Turner’s earlier responses to the charge, namely, maintaining his not guilty plea for nearly five months. The Judge considered that Mr Turner’s recent expression of remorse was adequately reflected in the discount of 20 per cent he had given for the guilty plea.
[35] With reference to s 9(2)(f) of the Sentencing Act, Ms Lee also referred to Mr Turner’s willingness to participate in a restorative justice conference with the victim and that this ought to have been taken into account as an additional expression of remorse, even though it was subsequently determined that it would not be appropriate for such a conference to be convened.
[36] I can see no error in the Judge’s determination about any deduction for additional remorse. Taking into account all matters, in my view, the discount allowed
18 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [24].
for the guilty plea of 20 per cent was generous. It was entirely appropriate for the District Court Judge to conclude that no further deduction for additional remorse was warranted.
Effect of discounts
[37] I have concluded that additional discounts ought to have been provided to reflect Mr Turner’s addiction issues and his background. Ms Lee submitted that a global discount of between 15 to 20 per cent for these matters and additional remorse was justified. Even taking additional remorse out of the equation, I do not agree that such a significant global discount is appropriate. In my view, the maximum discount available on the facts of this case for these two factors would be 10 per cent. This takes the total discounts available to a 30 per cent deduction from the starting point.
[38] The position, with the deductions I consider appropriate on appeal, is a reduction from the Judge’s end position (a term of imprisonment of two years and three months, or 27 months) to one of 23 months and two weeks’ imprisonment. I am prepared to round this down to an end sentence of 23 months’ imprisonment.
Should home detention be the sentencing outcome?
[39] The Judge did not address the prospect of home detention because the sentence he imposed did not permit that to occur.
[40] I am asked, on appeal, to consider that as the least restrictive outcome as there may be an opportunity for Mr Turner to undertake a further residential programme with Odyssey House.
[41] The pre-sentence report dated 30 September 2022 considered a sentence of home detention but did not consider the proposed address of Mr Turner’s late father on the West Coast to be suitable. The address is approximately 10 km from Greymouth, with no public transport available and Mr Turner does not have a current driver’s licence. Community Corrections therefore raised concerns about Mr Turner’s ability to adhere to the obligations of a community-based sentence.
[42] The alcohol and other drug assessment and treatment service report was dated 6 October 2022. This report noted that Mr Turner was at considerable risk of relapse on release from prison without formal support. It was recommended that Mr Turner undertake further residential treatment at Odyssey House. An admission to Odyssey House was offered for 7 February 2023. That date, of course, has been and gone. It is not clear whether it remains an option for Mr Turner.
[43] Regardless of this, given the nature of the attack and the victim’s views about it, I do not consider that the principles of deterrence and denunciation would be met by imposing the least restrictive outcome, namely, a sentence of home detention, in these circumstances. Further, I am satisfied that Mr Turner’s rehabilitative goals can be pursued both within custody and following his release.
Conclusion
[44] The appeal is allowed. The term of imprisonment imposed in the District Court on 27 January 2023 is quashed and replaced with a sentence of 23 months’ imprisonment.
Harland J
Solicitors:
K J Basire, Barrister, Christchurch
Raymond Donnelly & Co., Christchurch.