Turner v Police - [2023] NZHC 648

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…

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.

Continue reading Turner v Police

Details

AGLC: Turner v Police [2023] NZHC 648
Case: [2023] NZHC 648
Decision Date: 28 March 2023

CaseChat Overview and Summary

In the appeal case of Turner v Police, Simon John Turner, the appellant, contested the two-year and three-month imprisonment sentence imposed on him by the District Court for wounding with intent to injure his then partner. Turner argued that additional discounts should have been applied to his sentence, beyond the 20% reduction for his early guilty plea. The legal issues in this case centred on whether the District Court erred in its assessment of Turner’s mitigating factors, namely his methamphetamine addiction, his personal and family background, and his expressed remorse.

The High Court, in its judgment, found that Turner’s addiction to methamphetamine, which had remained dormant for three years, resurfaced and contributed to the offence due to the emotional stress of his relationship ending. The court agreed with Turner's counsel that the addiction should have warranted a discount, as it had a significant influence on Turner's actions. Additionally, the court considered Turner's background, including his adoption, separation of adoptive parents, gang involvement, and childhood abuse, as relevant mitigating factors. These factors, when viewed in combination, provided a nexus to the offending. The court found that the District Court had not adequately considered these factors collectively and thus failed to appropriately mitigate Turner's sentence.

Regarding remorse, the court upheld the District Court's decision that Turner's late expression of remorse was already reflected in the discount for his guilty plea. The court concluded that an additional discount for remorse was not warranted. The court also noted that while a sentence of home detention might offer Turner an opportunity for rehabilitation, the nature of the offence and the victim's perspective made such a sentence inappropriate.

Ultimately, the appeal was allowed, and the High Court substituted the original sentence of two years and three months with a reduced sentence of 23 months’ imprisonment. The court's decision highlighted the importance of considering the cumulative effect of mitigating factors in sentencing.

Orders