Turner v Police - [2017] NZHC 1113

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2017-470-10 [2017] NZHC 1113

BETWEEN
HOWARD GARTH TURNER

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 26 May 2017

Counsel:

V T Winiata for Appellant
A J Pollett for Respondent

Judgment:

26 May 2017

JUDGMENT OF BREWER J

Solicitors/Counsel:
V T Winiata (Tauranga) for Appellant
Hollister-Jones Lellman (Tauranga) for Respondent

TURNER v POLICE [2017] NZHC 1113 [26 May 2017]

Introduction

[1] Mr Turner appeals a sentence of 13 months’ imprisonment imposed on him by Judge SJ Coyle in the District Court at Tauranga on 14 March 2017.1 His appeal is brought on the basis that in all the circumstances a term of imprisonment of that length is manifestly excessive.

[2] The offence for which Mr Turner was sentenced was breaching a protection order. The maximum term of imprisonment is three years.

District Court

[3] Judge Coyle was principally concerned about two matters. The first is that Mr Turner had 11 previous convictions for breaching protection orders. The second was the bleak assessment contained in the PAC report. As a consequence, Judge Coyle decided that deterrence must be a significant focus of his sentence.

[4] The way in which Judge Coyle regarded Mr Turner’s situation is captured by

the following paragraph from the Judge’s sentencing notes:2

Mr Winiata, in his submissions, said that this is the first breach in relation to this victim but all that indicates to me is that you have a sustained pattern of breaching protection orders and showing total disregard over a longitudinal period. That really highlights your risk, in my view, because for a number of different women you have breached the orders that they have obtained – orders which are there to protect them. That really goes a long way to bolstering the concerns expressed by the author of the PAC report about your sense of entitlement and your attitude.

[5] As I will come to, the particular breach of the protection order was the sending of a text message to the victim. This breached the prohibition on making contact. Judge Coyle recognised that this was not the most serious form of breach, it was not physical abuse or sexual abuse. However, in Judge Coyle’s view, “anyone with any basic understanding of the dynamics of domestic violence would know that
is as damaging as a physical assault to victims of violence”.3

1 Police v Turner [2017] NZDC 5324.
2 At [11].
3 At [15].

[6] Accordingly, Judge Coyle set a starting point of 18 months’ imprisonment, which he reduced by 25 per cent to take into account Mr Turner’s guilty plea. That resulted in an end sentence of one year and one month imprisonment. Judge Coyle also imposed the release conditions recommended in the PAC report for six months after the sentence end date.

Discussion

[7] My task on appeal is to assess whether the sentence should stand. The law is still that the threshold where length of sentence is at issue is whether the sentence appealed…

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 [2017] NZHC 1113
Case: [2017] NZHC 1113
Decision Date: 26 May 2017

CaseChat Overview and Summary

In Turner v Police, the High Court of New Zealand reviewed the appellant's appeal against a 13-month imprisonment sentence imposed for breaching a protection order. The appellant's principal argument was that the sentence was manifestly excessive. The court found that the appellant's criminal history, which included 11 previous convictions for breaching protection orders, warranted a custodial sentence. However, the court considered mitigating factors such as the appellant's age and the time elapsed since the last breach. The court held that a starting point of 18 months was too high and that the final sentence of 13 months was manifestly excessive. The court substituted a sentence of 11 months' imprisonment, reduced from 13 months, for the breach of the protection order. The release conditions imposed for six months after the sentence end date were sustained and would continue in force.

The court examined the legal issues surrounding the imposition of a custodial sentence for breaching a protection order. The primary consideration was whether the sentence was manifestly excessive, given the maximum penalty for such an offence is three years' imprisonment. The court assessed the appellant's culpability, the circumstances of the offence, and personal factors to determine an appropriate starting point and final sentence. The court held that the starting point of 18 months was too high, and the final sentence of 13 months was manifestly excessive. The court substituted a sentence of 11 months' imprisonment, reduced from 13 months, for the breach of the protection order. The court's reasoning and outcome demonstrate the importance of considering all relevant factors when imposing a custodial sentence for breaching a protection order.

Orders