Turner v The Queen

[2020] NZHC 3213

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-162

CRI-2020-409-163 [2020] NZHC 3213

BETWEEN

DAMIEN CRAIG TURNER

Appellant

AND

THE QUEEN

Respondent

Hearing:	2 December 2020
Appearances:	A J McKenzie for Appellant S Dayal for Respondent
Judgment:	7 December 2020

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 7 December 2020 at 3.30 pm

Registrar/Deputy Registrar Date:

TURNER v R [2020] NZHC 3213 [7 December 2020]

Introduction

[1]    Damien Turner was charged with four counts of male assaults female along with one charge each of speeding, driving with excess breath alcohol (third or subsequent) and breaching community work (“the current charges”). On 23 June 2020, Judge Gilbert gave a sentence indication of two years’ imprisonment on those charges.1

[2]    Mr Turner accepted the indication and pleaded guilty. At sentencing, he applied for an order cancelling an earlier sentence of community work imposed for convictions of driving with excess breath alcohol, wilful damage, possession of cannabis, possession of utensils and male assaults female (the earlier convictions). Judge Gilbert allowed the application. His Honour sentenced Mr Turner to 22 months’ imprisonment for the current charges of male assaults female (18 months); breaching community work (one month cumulative); and drink driving (three months cumulative).2 On the speeding charge he was convicted and discharged. His Honour cancelled the outstanding community work partly because most of the sentence was done and partly because the defendant’s non-compliance had been factored into a decision not to commute the sentence to home detention.

[3]    Mr Turner appeals against the District Court decision on the ground that home detention should have been imposed.

Facts

[4]    The victim of the current assault charges was Mr Turner’s ex-partner. They were in a relationship for just under a year. The charges relate to four separate incidents in that period:

(a)Around 2 May 2018, Mr Turner became angry at the victim about her allegedly cheating on him. He punched her in the face, causing her to fall off her chair. He then grabbed her, pulled her by the legs, sat on top of her and strangled her for about 30 seconds.

1      R v Turner DC Christchurch CRI-2019-009-2154, 23 June 2020 [sentence indication].

2      R v Turner [2020] NZDC 20140 [sentencing decision] at [18].

(b)In November 2018, the victim confronted Mr Turner about driving home drunk. He grabbed her around the throat and held her against the wall for about two minutes while her five year old daughter watched.

(c)On Christmas Day in 2018, the victim drove home after Mr Turner demanded she do so. On arrival she realised Mr Turner’s son was at the address, and told Mr Turner she was leaving to go back to see her children. Mr Turner pushed her to the ground and held her by the neck for about 30 seconds, then threw her car keys onto the roof so she could not leave.

(d)On New Year’s Day, Mr Turner and the victim were camping. The victim experienced heartburn, causing her to lie on the grass and throw up. Mr Turner picked her up and threw her into the van, where she fell asleep. A short time later she awoke to him pushing down on her face with his arm. The victim got out of the van, and Mr Turner locked her out. He then reached out a side window, grabbed her by the hair and smacked her head into the window frame twice.

[5]    The current driving charges relate to an incident on 2 May 2020. Mr Turner drove at 92 km/h in a 50 km/h zone. When pulled over, his breath alcohol level was found to be 781 mg of alcohol per litre of breath.

[6]    Mr Turner had completed 120.75 hours of his sentence of 150 hours’ community work. He was charged with breaching that sentence by failing to complete the remaining hours.

District Court decision

[7]    Judge Gilbert viewed the offending as “a pretty serious course of alleged conduct over a number of months”.3 He noted that the victim was understandably upset and that the child who witnessed some of the offending would have been impacted too. The Judge assessed the aggravating features as being:

3 Sentence indication, above n 1, at [8].

(a)multiple events involving violence, several of which included strangulation or an attack to the head;

(b)a child had been present; and

(c)Mr Turner was subject to a sentence at the time.

[8]    He adopted a starting point of two years’ imprisonment for the four assaults. His Honour had in his sentence indication uplifted that by three months for the drink driving and community work offences, together with a further three months for Mr Turner’s “long history of family violence” and the fact that he was subject to intensive supervision at the time of the offending, which itself related to a family violence-type offence.4 That is an adjusted starting point of 30 months. The Judge then adopted a discount of 20 per cent for guilty pleas, producing an end sentence of 24 months (without accounting for any additional credit which may be warranted by pre-sentence material).

[9]    The pre-sentence report subsequently recorded that Mr Turner grew up in a violent household. The Judge accepted that that would, to some extent, have shaped his responses and actions with a tendency towards family violence. However, his Honour also noted the report writer’s conclusion that previous interventions and rehabilitation had not changed Mr Turner’s behaviour. It was clear that alcohol and drugs were still a real issue for Mr Turner, and that Mr Turner did not wish to avail himself of any residential treatment, but was willing to attend any outpatient-type programme. On “a generous interpretation” of those matters, Judge Gilbert allowed a two-month discount.5 With the 20 per cent discount for Mr Turner’s guilty pleas, the Judge’s end sentence became 22 months’ imprisonment.

[10]   Having reached that end sentence, his Honour turned to consider whether he should commute that to home detention. His Honour noted that, in his sentence indication, he had explicitly stated that his consideration of home detention was contingent on a positive pre-sentence report and Mr Turner’s re-engagement with

4 Sentencing decision, above n 2, at [9].

5 At [14].

community work. That re-engagement had not occurred. Mr Turner had explained that he had dropped something on his foot about four weeks earlier, but the Judge noted there was neither mention of that in the pre-sentence report, nor explanation as to why Mr Turner had failed to attend community work at all in the three months since the sentence indication.

[11]   The Judge also considered there was a significant risk of Mr Turner re- offending, particularly in regard to family violence, given prior community-based and rehabilitative sentences had not curbed his offending. In all the circumstances he considered the least restrictive sentence, having regard to the purposes and principles of sentencing, was a term of imprisonment. Home detention would not meet the purposes and principles of sentencing.

[12]   His Honour chose not to re-sentence Mr Turner on the previous convictions because Mr Turner had already completed the bulk of his community work, and because his non-compliance was factored into the decision not to commute the sentence to home detention.

[13]   The end sentence was therefore 22 months’ imprisonment, together with an alcohol interlock sentence.

Principles on appeal

[14]   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.6 As the Court of Appeal stated in Tutakangahau v R, “an appellate court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.7 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.8

6      Criminal Procedure Act 2011, ss 250(2) and 250(3).

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

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

Submissions

Appellant’s submissions

[15]   Mr McKenzie, for Mr Turner, submitted that the sole ground upon which the Judge declined home detention was that Mr Turner had not completed his community work. He argued that this unfairly coloured the Judge’s assessment, and that the Judge erred in dismissing Mr Turner’s reasons for non-completion.

[16]   Those reasons were the foot injury and the suffering of a sexual assault. Mr McKenzie informed me that the assault was the subject of a Police complaint, and that he had invited the Crown to access the relevant Police report as verification. (Ms Dayal indicated that the Crown did not challenge Mr Turner’s assertion that he had made a complaint of assault.) Mr McKenzie identified the sexual assault matter in particular as a matter which Mr Turner had found very difficult, “triggering his depressive qualities”. These circumstances served to explain why the community work had not been completed.

[17]   Mr McKenzie noted that the pre-sentence report recommended a sentence of home detention on the basis that Mr Turner stated he was motivated, and because rehabilitation is best achieved in a community setting. While accepting that non- completion of community work may be a relevant consideration, Mr McKenzie submitted the Judge had elevated it to become the overriding consideration for declining home detention. He submitted that imprisonment was a disproportionate sentence given that Mr Turner completed the majority (121/150) of his community work hours, and that there is a clear need for rehabilitation.

Respondent’s submissions

[18]   Ms Dayal, for the respondent, submitted it was open to Judge Gilbert to find that home detention was not an adequate response to meet the purposes and principles of sentencing. She said Mr Turner accepted the sentence indication knowing it was a very real possibility that, if he did not complete his community work, he would be sentenced to imprisonment.

[19]   Ms Dayal submitted that Mr Turner’s explanation about his foot was at odds with the pre-sentence report. She highlighted Mr Turner’s own statement to the report writer that “he often chose to become inebriated to deal with his negative emotions, and that caused a barrier to attending”. The Judge was entitled to take account of Mr Turner’s own statement in that regard when assessing the significance of the foot injury and the assault explanations provided by Mr McKenzie in his submissions. Ms Dayal submitted the Judge did not err in placing weight on Mr Turner’s failure to complete his community work.

[20]   Additionally, Ms Dayal submitted the Judge’s decision was informed by all the circumstances, not solely the non-completion. She invoked the Judge’s observations as to Mr Turner’s risk of re-offending and the fact that his history of community-based and rehabilitative sentences had not curbed his offending.

[21]   Ms Dayal submitted the Judge was correct to impose a sentence of imprisonment.

Analysis

[22]    I reject the submission that the Judge’s sole reason for declining home detention was Mr Turner’s failure to complete his community work. The relevant passages of the judgment are as follows:

[15]      The next question is whether or not I should commute that to a sentence of home detention. I was explicit that my consideration of home detention was contingent on a positive pre-sentence report and your reengagement with community work. I think it is clear that there is a significant risk of you re-offending, and in particular, re-offending in a family violence type way. Prior community-based sentences and rehabilitative sentences have not curbed your offending. You have not engaged with your current community-based sentence, despite having the ability to do so, at least until the last little while, and as I have noted, you have not, in fact, been to Corrections for over a year.

[16]      My sentence indication, given the nature and extent of your violence, on any view, was generous, but I was prepared to give you a shot at proving yourself. I do not consider that you have done so.

[17]      When I look at all of that in the context of this offending, which was undoubtedly serious, I am not satisfied that home detention is an adequate response or that it would meet the purposes and principles of sentencing that

I am required to apply. I consider that the least restrictive sentence, in these circumstances, is a term of imprisonment.

[23]   It is clear from this extract that Judge Gilbert took into account a number of relevant factors in determining whether home detention would be appropriate, including Mr Turner’s risk of re-offending, the lack of impact of prior rehabilitative sentences, and the seriousness of the offending. There was no error in that respect.

[24]   There was also no error made by the Judge in imposing imprisonment despite his indication that home detention may be available. In the sentence indication, his Honour stated:

[21] Whether or not home detention is appropriate would depend on the pre-sentence report, your on-going response to your community work between now [and] when I sentence you and any other information at sentencing. …

It was made clear to Mr Turner that he would be sentenced to imprisonment unless those factors turned in his favour. In the event, they did not.9

[25]   I turn then to consider whether, in all the circumstances, home detention was the least restrictive sentence appropriate.

[26]   First, I agree with Judge Gilbert’s assessment of the offending as serious. Mr Turner had committed four independent assaults on a domestic partner over a period of eight months. The assaults included strangulation and attacks to the head, some in the presence of a child. They represented a continuing, escalating pattern of domestic violence on the part of Mr Turner. The principles of deterrence, denunciation, accountability and protection of others needed to be at the forefront of this sentencing exercise.

[27]   Mr Turner has a lengthy list of previous convictions, comprising some 12 pages. There are a number of convictions for violent offending. That includes several convictions between 2013 and 2016 which involved family violence. The pre- sentence report records that four women have been listed as victims of Mr Turner in the last six years. The current victim is afraid of him. Mr Turner’s previous

9      See Boyce v R [2014] NZCA 295 at [30].

convictions were taken into account by the Judge by way of an uplift, but they are also relevant to the appropriateness of home detention.

[28]   Mr Turner told the pre-sentence report writer that he was ashamed of his actions and wished to be assessed for a domestic violence programme. He said he uses alcohol, methamphetamine and cannabis to help manage his negative feelings, but did not accept he is an alcoholic. The report states that Mr Turner grew up in a violent household and that Mr Turner feels those tendencies were reinforced during his prison sentences. The report assesses Mr Turner as posing a medium risk of further offending and a high risk of harming others, especially those with whom he is in an intimate relationship. “Taking an optimistic view”, it concludes that if the Court decides to focus on Mr Turner’s expressed motivation to rehabilitate, the appropriate sentence would be home detention.

[29]   In addition to those factors, there is of course the fact that Mr Turner did not complete his sentence of community detention. His explanation at sentencing on 30 September 2020 was that he had been unable to attend due to events that had occurred several weeks prior. As noted by the Judge, that was at odds with his statement to the report writer (also in September 2020) that “he often chose to become inebriated to deal with his negative emotions, and that caused a barrier to attending”. I accept it is possible that Mr Turner’s explanations about why he did not attend community work in those last few weeks had a factual basis and that either they occurred after his interview with Corrections or he simply failed to mention them to the report writer. However, and as noted by the Judge, that does not explain why Mr Turner had failed to report to Corrections since 12 June 2019, including for the months following Judge Gilbert’s warning in June 2020. The strong implication is that Mr Turner did not take his community sentence seriously, nor was it sufficient to deter him from reoffending. The Judge was entitled to view the previously unreported explanations as not excluding Mr Turner’s issues with alcohol as having been the major contributor to his absences.

[30]   Rehabilitation is an essential consideration in this case. There is a clear need for Mr Turner to address his offending-related factors and to reintegrate safely into the community. However, on an assessment of all the circumstances of this case, I

consider it was inevitable that Judge Gilbert should find that that home detention is not an appropriate sentence for Mr Turner. As in the District Court, that assessment is made on the basis of the seriousness of the offending, Mr Turner’s likelihood of reoffending in a similar way, the resulting need for protection of others, the ineffectiveness of previous rehabilitative sentences and Mr Turner’s failure to complete his community work over a lengthy period of time. The relevant principles and purposes of sentencing could not be met other than by a sentence of imprisonment.

Outcome

[31]I dismiss the appeal.

Osborne J

Solicitors:

Crown Solicitor, Christchurch for Respondent