TURNER v R [2020] NZHC 3213

TURNER v R [2020] NZHC 3213 [7 December 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2020-409-162CRI-2020-409-163[2020] NZHC 3213BETWEEN DAMIEN CRAIG TURNERAppellantAND THE QUEENRespondentHearing: 2 December 2020Appearances: A J McKenzie for AppellantS Dayal for RespondentJudgment: 7 December 2020JUDGMENT OF OSBORNE JThis judgment was delivered by me on 7 December 2020 at 3.30 pmRegistrar/Deputy RegistrarDate:Introduction[1] Damien Turner was charged with four counts of male assaults female alongwith one charge each of speeding, driving with excess breath alcohol (third orsubsequent) and breaching community work ("the current charges"). On 23 June2020, Judge Gilbert gave a sentence indication of two years' imprisonment on thosecharges.1[2] Mr Turner accepted the indication and pleaded guilty. At sentencing, heapplied for an order cancelling an earlier sentence of community work imposed forconvictions of driving with excess breath alcohol, wilful damage, possession ofcannabis, 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); breachingcommunity work (one month cumulative); and drink driving (three monthscumulative).2 On the speeding charge he was convicted and discharged. His Honourcancelled the outstanding community work partly because most of the sentence wasdone and partly because the defendant's non-compliance had been factored into adecision not to commute the sentence to home detention.[3] Mr Turner appeals against the District Court decision on the ground that homedetention should have been imposed.Facts[4] The victim of the current assault charges was Mr Turner's ex-partner. Theywere in a relationship for just under a year. The charges relate to four separateincidents in that period:(a) Around 2 May 2018, Mr Turner became angry at the victim about herallegedly cheating on him. He punched her in the face, causing her tofall off her chair. He then grabbed her, pulled her by the legs, sat ontop 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 drivinghome drunk. He grabbed her around the throat and held her against thewall for about two minutes while her five year old daughter watched.(c) On Christmas Day in 2018, the victim drove home after Mr Turnerdemanded she do so. On arrival she realised Mr Turner's son was atthe address, and told Mr Turner she was leaving to go back to see herchildren. Mr Turner pushed her to the ground and held her by the neckfor about 30 seconds, then threw her car keys onto the roof so she couldnot leave.(d) On New Year's Day, Mr Turner and the victim were camping. Thevictim experienced heartburn, causing her to lie on the grass and throwup. Mr Turner picked her up and threw her into the van, where she fellasleep. A short time later she awoke to him pushing down on her facewith his arm. The victim got out of the van, and Mr Turner locked herout. He then reached out a side window, grabbed her by the hair andsmacked her head into the window frame twice.[5] The current driving charges relate to an incident on 2 May 2020. Mr Turnerdrove at 92 km/h in a 50 km/h zone. When pulled over, his breath alcohol level wasfound 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 completethe remaining hours.District Court decision[7] Judge Gilbert viewed the offending as "a pretty serious course of allegedconduct over a number of months".3 He noted that the victim was understandablyupset and that the child who witnessed some of the offending would have beenimpacted 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 includedstrangulation 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 drinkdriving and community work offences, together with a further three months for MrTurner's "long history of family violence" and the fact that he was subject to intensivesupervision at the time of the offending, which itself related to a family violence-typeoffence.4 That is an adjusted starting point of 30 months. The Judge then adopted adiscount 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-sentencematerial).[9] The pre-sentence report subsequently recorded that Mr Turner grew up in aviolent household. The Judge accepted that that would, to some extent, have shapedhis responses and actions with a tendency towards family violence. However, hisHonour also noted the report writer's conclusion that previous interventions andrehabilitation had not changed Mr Turner's behaviour. It was clear that alcohol anddrugs were still a real issue for Mr Turner, and that Mr Turner did not wish to availhimself of any residential treatment, but was willing to attend any outpatient-typeprogramme. On "a generous interpretation" of those matters, Judge Gilbert allowed atwo-month discount.5 With the 20 per cent discount for Mr Turner's guilty pleas, theJudge's end sentence became 22 months' imprisonment.[10] Having reached that end sentence, his Honour turned to consider whether heshould commute that to home detention. His Honour noted that, in his sentenceindication, he had explicitly stated that his consideration of home detention wascontingent on a positive pre-sentence report and Mr Turner's re-engagement with4 Sentencing decision, above n 2, at [9].5 At [14].community work. That re-engagement had not occurred. Mr Turner had explainedthat he had dropped something on his foot about four weeks earlier, but the Judgenoted there was neither mention of that in the pre-sentence report, nor explanation asto why Mr Turner had failed to attend community work at all in the three months sincethe 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 andrehabilitative sentences had not curbed his offending. In all the circumstances heconsidered the least restrictive sentence, having regard to the purposes and principlesof sentencing, was a term of imprisonment. Home detention would not meet thepurposes and principles of sentencing.[12] His Honour chose not to re-sentence Mr Turner on the previous convictionsbecause Mr Turner had already completed the bulk of his community work, andbecause his non-compliance was factored into the decision not to commute thesentence to home detention.[13] The end sentence was therefore 22 months' imprisonment, together with analcohol interlock sentence.Principles on appeal[14] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011, and must be determined in accordance with s 250 of that Act. Anappeal against sentence may only be allowed by this Court if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.6 As the Court of Appeal stated in Tutakangahau v R, "an appellate courtwill not intervene where the sentence is within the range that can properly be justifiedby accepted sentencing principles".7 It is only appropriate for this Court to interveneand substitute its own views if the sentence being appealed is "manifestly excessive"and not justified by the relevant sentencing principles.86 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].SubmissionsAppellant's submissions[15] Mr McKenzie, for Mr Turner, submitted that the sole ground upon which theJudge declined home detention was that Mr Turner had not completed his communitywork. He argued that this unfairly coloured the Judge's assessment, and that the Judgeerred in dismissing Mr Turner's reasons for non-completion.[16] Those reasons were the foot injury and the suffering of a sexual assault. MrMcKenzie informed me that the assault was the subject of a Police complaint, and thathe had invited the Crown to access the relevant Police report as verification. (MsDayal indicated that the Crown did not challenge Mr Turner's assertion that he hadmade a complaint of assault.) Mr McKenzie identified the sexual assault matter inparticular as a matter which Mr Turner had found very difficult, "triggering hisdepressive qualities". These circumstances served to explain why the communitywork had not been completed.[17] Mr McKenzie noted that the pre-sentence report recommended a sentence ofhome detention on the basis that Mr Turner stated he was motivated, and becauserehabilitation is best achieved in a community setting. While accepting that non-completion of community work may be a relevant consideration, Mr McKenziesubmitted the Judge had elevated it to become the overriding consideration fordeclining home detention. He submitted that imprisonment was a disproportionatesentence given that Mr Turner completed the majority (121/150) of his communitywork 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 findthat home detention was not an adequate response to meet the purposes and principlesof sentencing. She said Mr Turner accepted the sentence indication knowing it was avery real possibility that, if he did not complete his community work, he would besentenced to imprisonment.[19] Ms Dayal submitted that Mr Turner's explanation about his foot was at oddswith the pre-sentence report. She highlighted Mr Turner's own statement to the reportwriter 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 MrTurner's own statement in that regard when assessing the significance of the footinjury and the assault explanations provided by Mr McKenzie in his submissions. MsDayal submitted the Judge did not err in placing weight on Mr Turner's failure tocomplete his community work.[20] Additionally, Ms Dayal submitted the Judge's decision was informed by all thecircumstances, not solely the non-completion. She invoked the Judge's observationsas to Mr Turner's risk of re-offending and the fact that his history of community-basedand rehabilitative sentences had not curbed his offending.[21] Ms Dayal submitted the Judge was correct to impose a sentence ofimprisonment.Analysis[22] I reject the submission that the Judge's sole reason for declining homedetention was Mr Turner's failure to complete his community work. The relevantpassages of the judgment are as follows:[15] The next question is whether or not I should commute that to asentence of home detention. I was explicit that my consideration of homedetention was contingent on a positive pre-sentence report and yourreengagement with community work. I think it is clear that there is asignificant risk of you re-offending, and in particular, re-offending in a familyviolence type way. Prior community-based sentences and rehabilitativesentences have not curbed your offending. You have not engaged with yourcurrent community-based sentence, despite having the ability to do so, at leastuntil the last little while, and as I have noted, you have not, in fact, been toCorrections 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 provingyourself. I do not consider that you have done so.[17] When I look at all of that in the context of this offending, which wasundoubtedly serious, I am not satisfied that home detention is an adequateresponse or that it would meet the purposes and principles of sentencing thatI am required to apply. I consider that the least restrictive sentence, in thesecircumstances, is a term of imprisonment.[23] It is clear from this extract that Judge Gilbert took into account a number ofrelevant factors in determining whether home detention would be appropriate,including Mr Turner's risk of re-offending, the lack of impact of prior rehabilitativesentences, 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 despitehis indication that home detention may be available. In the sentence indication, hisHonour stated:[21] Whether or not home detention is appropriate would depend on thepre-sentence report, your on-going response to your community work betweennow [and] when I sentence you and any other information at sentencing. It was made clear to Mr Turner that he would be sentenced to imprisonmentunless 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 wasthe least restrictive sentence appropriate.[26] First, I agree with Judge Gilbert's assessment of the offending as serious. MrTurner had committed four independent assaults on a domestic partner over a periodof eight months. The assaults included strangulation and attacks to the head, some inthe presence of a child. They represented a continuing, escalating pattern of domesticviolence on the part of Mr Turner. The principles of deterrence, denunciation,accountability and protection of others needed to be at the forefront of this sentencingexercise.[27] Mr Turner has a lengthy list of previous convictions, comprising some 12pages. There are a number of convictions for violent offending. That includes severalconvictions between 2013 and 2016 which involved family violence. The pre-sentence report records that four women have been listed as victims of Mr Turner inthe last six years. The current victim is afraid of him. Mr Turner's previous9 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 alsorelevant to the appropriateness of home detention.[28] Mr Turner told the pre-sentence report writer that he was ashamed of hisactions and wished to be assessed for a domestic violence programme. He said heuses 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 aviolent household and that Mr Turner feels those tendencies were reinforced duringhis prison sentences. The report assesses Mr Turner as posing a medium risk of furtheroffending and a high risk of harming others, especially those with whom he is in anintimate relationship. "Taking an optimistic view", it concludes that if the Courtdecides to focus on Mr Turner's expressed motivation to rehabilitate, the appropriatesentence would be home detention.[29] In addition to those factors, there is of course the fact that Mr Turner did notcomplete his sentence of community detention. His explanation at sentencing on 30September 2020 was that he had been unable to attend due to events that had occurredseveral weeks prior. As noted by the Judge, that was at odds with his statement to thereport writer (also in September 2020) that "he often chose to become inebriated todeal with his negative emotions, and that caused a barrier to attending". I accept it ispossible that Mr Turner's explanations about why he did not attend community workin those last few weeks had a factual basis and that either they occurred after hisinterview 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 failedto report to Corrections since 12 June 2019, including for the months following JudgeGilbert's warning in June 2020. The strong implication is that Mr Turner did not takehis community sentence seriously, nor was it sufficient to deter him from reoffending.The Judge was entitled to view the previously unreported explanations as notexcluding Mr Turner's issues with alcohol as having been the major contributor to hisabsences.[30] Rehabilitation is an essential consideration in this case. There is a clear needfor Mr Turner to address his offending-related factors and to reintegrate safely into thecommunity. However, on an assessment of all the circumstances of this case, Iconsider it was inevitable that Judge Gilbert should find that that home detention isnot an appropriate sentence for Mr Turner. As in the District Court, that assessment ismade on the basis of the seriousness of the offending, Mr Turner's likelihood ofreoffending in a similar way, the resulting need for protection of others, theineffectiveness of previous rehabilitative sentences and Mr Turner's failure tocomplete his community work over a lengthy period of time. The relevant principlesand purposes of sentencing could not be met other than by a sentence of imprisonment.Outcome[31] I dismiss the appeal.Osborne JSolicitors:Crown Solicitor, Christchurch for Respondent