TURNER v POLICE [2023] NZHC 648

TURNER v POLICE [2023] NZHC 648 [28 March 2023]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2023-409-9[2023] NZHC 648BETWEEN SIMON JOHN TURNERAppellantAND NEW ZEALAND POLICERespondentHearing: 23 March 2023Appearances: A Lee for the AppellantK A Courteney for the RespondentJudgment: 28 March 2023JUDGMENT OF HARLAND J[1] The defendant, Simon Turner, was sentenced in the District Court1 to two yearsand three months' imprisonment after having pleaded guilty, following a sentenceindication, 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 havebeen provided for several personal mitigating factors, over and above the deduction of20 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.[4] At approximately 10 am, Mr Turner's former partner was at an address inShirley, Christchurch. Mr Turner arrived uninvited and started yelling at her about analleged new relationship. He pushed her into the garden and stood over her beforepulling out a heavily rusted screwdriver from his clothing. He used the screwdriverto stab her, in a downward motion, to her left chest and arm area four times. Mr Turnerthen left the address and was located by Police approximately 400 m away.[5] The victim suffered four stab wounds and reported pain and difficultybreathing. She was hospitalised. In her victim impact statement, made on the sameday as the offending occurred, she said she was nervous to make a formal statementto the Police because she was scared of Mr Turner and believed one day he would killher.Principles on appeal[6] 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.3 The focus is not on the process by which the sentence was reached, buton the correctness of the end result. In making this assessment, appellate courts donot interfere with the legitimate exercise of judicial discretion or indulge in "tinkering"with the end sentence if it is within range.4District Court decision[7] In setting a starting point with reference to Nuku v R,5 the Judge correctlyidentified 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 theground in the garden;(e) the offending displayed a degree of premeditation, as Mr Turner hadarrived at the victim's address intending to confront her and brought thescrewdriver with him; and(f) there were elements of breach of trust, as the parties were in a relationshipand the offending occurred at the victim's home.[8] The Judge, noting analogous cases, placed the offending at the lower end ofband 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 ofoffending, which includes assault and the unlawful possession of weapons. Recordingthat Mr Turner had initially entered a not guilty plea to the charge and proceeded to acase 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 discountswere available to Mr Turner. Three possible mitigating factors were raised by counselfor Mr Turner, being his addiction to methamphetamine, factors raised under s 27 ofthe Sentencing Act 2002 about his personal and family background, and his expressedremorse for the offending. These aspects of the decision are under appeal because theJudge was not persuaded any further discounts for mitigation were warranted.[10] The Judge first considered Mr Turner's addiction to methamphetamine. Henoted Mr Turner's intermittent history of methamphetamine abuse, reflecting howeverthat, in 2018, Mr Turner was referred to Odyssey House and he successfully completeda programme there in March 2019. He noted Mr Turned had remained drug-free fornearly 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 reportwriter that he had only begun using methamphetamine again three weeks before theattack when he realised his relationship with the victim was over. He had admitted hewas under the influence of methamphetamine at the time of the attack, stating that itwould not have happened otherwise. The Judge concluded:[5] that methamphetamine was a significant factor in the defendant'soffending, but it was the immediate effects of methamphetamine rather thanthe long-term addiction. As such, I am expressly forbidden to take it intoaccount 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, theseparation of his adoptive parents, gang membership and abuse as a child, which thereport writer considered relevant to his offending, the Judge disagreed. Heconcluded:7Overall, the s 27 report does not provide a proper basis on which I couldconclude that the culpability of the defendant was diminished by his earlierlife experience.[13] Finally, in relation to remorse, which had been referred to in the pre-sentencereport, the Judge observed it came at a very late stage, noting that Mr Turner hadmaintained his not guilty plea for nearly five months. The Judge considered thatremorse 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 mitigatingmatters was too simplistic because he ignored the fact that it was the combination ofthese factors and the cumulative effect of them on Mr Turner that justified a link beingdrawn between them and the offending. She submitted that, when viewed incombination, Mr Turner's background, as outlined in the s 27 report and thepresentence report, and his addiction issues, provided the necessary nexus or causalconnection which explained, in part, the reasons for his offending and justified afurther 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 eachissue on an individual basis and that, in all the circumstances, his conclusions on eachwere correct.[16] Even though the approach urged on the Court by the appellant is to considerthe further suggested deductions cumulatively, I nonetheless deal with each of themfirst before considering them together. I note that the submission that a furtherdeduction 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'saddiction and the offending. She noted that Mr Turner has had lifelong addictionissues, beginning with cannabis use as an 11 year old and progressing to usingmethamphetamine at age 20. She observed that a number of his convictions (ten)pertain to drug-related offending. She also highlighted that, despite Mr Turner'ssuccessful rehabilitation and three year abstinence from methamphetamine, herelapsed after starting a relationship with the victim of this offending, who also hasaddiction issues.[18] Ms Lee cited Zhang v R as authority for the proposition that methamphetaminemay overwhelm pro-social tendencies even if the offender has ceased using the drug.8As the Court of Appeal in Zhang v R noted, addiction may give rise to a discount ofup to 30 per cent depending on the extent to which it mitigates the moral culpabilityfor the offending.9 However, any discount must be based on persuasive evidence aboutthe extent and effects of addiction.10[19] It is clear that Mr Turner has struggled with addiction to methamphetaminesince he began using it in his youth. He engaged with Odyssey House in 2018 andcompleted its programme in early 2019. That engagement appears to have beenproductive, as Mr Turner remained largely free of methamphetamine until the weeksprior to the offending. Ms Lee noted that Odyssey House had indicated it would be8 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 asentence of home detention to the Odyssey House programme was the least restrictiveoutcome in the circumstances.[20] Addiction that is causative of offending may attract a discount on a sentence.11The issue is whether a state of addiction contributed to the offending in a way thatmitigates a defendant's moral culpability for the offending or is otherwise relevant tothe sentence to be imposed – for example, because it calls into question theeffectiveness of deterrence or engages or calls into greater focus rehabilitativeprinciples.12 While often applied to drug-related offending, a discount for addictionmay 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.14Where addiction is less causative, lesser discounts may be appropriate.15[21] As the Judge correctly noted, the fact that Mr Turner was under the influenceof methamphetamine at the time of the offending cannot be treated as a mitigatingfactor pursuant to s 9(3) of the Sentencing Act 2002. Mr Turner's position appears tobe 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 theoffending. The Judge rejected this submission by concluding that Mr Turner'saddiction was no longer operative as he had engaged in rehabilitation and hadexperienced 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 manyyears and had a dependence on it when he engaged with Odyssey House. I do notaccept that completing rehabilitation and maintaining sobriety for a period of severalyears indicates a clean and complete break from the addiction cycle. Mr Turner, asassessed in the ADAS report of October 2022, has a methamphetamine dependencewhich is in remission in a controlled environment (this may be compared to other11 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 orsustained full remission). He was faced with the end of a relationship which hadbrought him within closer proximity to methamphetamine, given his partner's use ofit, and that he and his partner are said to have smoked and used methamphetamineintravenously. Mr Turner told the s 27 report writer that, prior to the offending, he andthe victim had been using methamphetamine and he had not slept for several days. Inmy view, the evidence suggests Mr Turner's addiction remained operative and becameproblematic when faced with an emotionally stressful situation.[23] Both the ADAS report and the pre-sentence report note Mr Turner'slongstanding addiction issues. In my view, the extent and effects of addiction on MrTurner are clearly outlined in the reports that were available to the Judge. I returnshortly to the ultimate issues, namely, the extent to which it mitigates Mr Turner'smoral culpability for the offending.Section 27 issues[24] Where an offender's disadvantaged background is causatively linked to theoffending, a further discount can be applied at sentencing.[25] Ms Lee submitted that the circumstances of Mr Turner's background alsowarranted a discount. She referred to the s 27 cultural report which identified factorsthat 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 ofhis adoptive parents and the departure of his father when he was eight years old, andthe substance abuse, gang involvement and anti-social peers, and childhood sexualvictimisation.[26] The report writer noted that Mr Turner had never had counselling or any kindof intervention to address the trauma of sexual abuse. The report writer also notedthat, although limited research had been done about the links between childhoodsexual victimisation and criminality, she cited an article in which it was observed thattraumatic experiences during childhood are known to be associated with mental healthproblems, aggressive behaviour and criminality in adulthood.16 The Judge noted thisat para [11] of his sentencing decision but observed that this opinion could go nofurther than suggesting a possible nexus "between the defendant's abuse as a child andoffending against his parents", and came "nowhere near" to establishing a connectionwith 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 didnot provide a proper basis upon which he could conclude that Mr Turner's culpabilitywas diminished by his earlier life experiences. Ms Courteney submitted that theJudge's conclusion on this was correct.[28] In Poi v R, when discussing the ways in which a person's background may berelevant to sentencing, the Court of Appeal said:17[26] Similarly, in the leading High Court of Australia decision of Bugmy vR, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ observed that thefact that an offender has been raised in a community surrounded by alcoholabuse and violence may mitigate the sentence because his or her moralculpability is likely to be less than the culpability of an offender whoseformative years have not been marred in that way.[29] While the positive aspects of Mr Turner's background with his adopted familywere referred to in the s 27 report and the Judge's decision, and cannot be ignored, theimpact of Mr Turner's father's departure from the home and the abuse that is said tohave occurred over a week when he was in his early teens will undoubtedly have hadan impact on him. In my view, the links the s 27 report writer makes with these factorsand Mr Turner's gravitation towards other troubled young people, and eventual ganginvolvement, make sense.Addiction and s 27 in combination[30] I am persuaded that, on the facts of this case, it is appropriate to consider theinter-relationship between Mr Turner's background and his addiction in combination.Indeed, in my view, it would be artificial to separate them when considering whetherthese matters can be appropriately linked to the offending. I have already outlined my16 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 becameproblematic when faced with emotionally stressful situations. The backgroundoutlined 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 considerthe interconnected nature of both and their relevance, in combination, to the issue heneeded to determine, namely, whether there was a connection between them and theoffending for which Mr Turner was being sentenced.[32] Viewed holistically, I consider there is a nexus between Mr Turner'sbackground and the offending.A further discount to reflect remorse?[33] Whether a discount for remorse is appropriate is a matter of fact andjudgment.18[34] The District Court Judge dealt with this factor at para [14] of his judgment. Hereferred to the pre-sentence report writer recording that Mr Turner had "expressedsome remorse for his offending". The Judge considered that this had come at a verylate 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 consideredthat Mr Turner's recent expression of remorse was adequately reflected in the discountof 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 MrTurner's willingness to participate in a restorative justice conference with the victimand that this ought to have been taken into account as an additional expression ofremorse, even though it was subsequently determined that it would not be appropriatefor such a conference to be convened.[36] I can see no error in the Judge's determination about any deduction foradditional remorse. Taking into account all matters, in my view, the discount allowed18 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 theDistrict Court Judge to conclude that no further deduction for additional remorse waswarranted.Effect of discounts[37] I have concluded that additional discounts ought to have been provided toreflect Mr Turner's addiction issues and his background. Ms Lee submitted that aglobal discount of between 15 to 20 per cent for these matters and additional remorsewas justified. Even taking additional remorse out of the equation, I do not agree thatsuch a significant global discount is appropriate. In my view, the maximum discountavailable on the facts of this case for these two factors would be 10 per cent. Thistakes 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 areduction from the Judge's end position (a term of imprisonment of two years andthree months, or 27 months) to one of 23 months and two weeks' imprisonment. I amprepared 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 sentencehe imposed did not permit that to occur.[40] I am asked, on appeal, to consider that as the least restrictive outcome as theremay be an opportunity for Mr Turner to undertake a further residential programmewith Odyssey House.[41] The pre-sentence report dated 30 September 2022 considered a sentence ofhome detention but did not consider the proposed address of Mr Turner's late fatheron the West Coast to be suitable. The address is approximately 10 km fromGreymouth, with no public transport available and Mr Turner does not have a currentdriver's licence. Community Corrections therefore raised concerns about Mr Turner'sability to adhere to the obligations of a community-based sentence.[42] The alcohol and other drug assessment and treatment service report was dated6 October 2022. This report noted that Mr Turner was at considerable risk of relapseon release from prison without formal support. It was recommended that Mr Turnerundertake further residential treatment at Odyssey House. An admission to OdysseyHouse was offered for 7 February 2023. That date, of course, has been and gone. Itis 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 aboutit, I do not consider that the principles of deterrence and denunciation would be metby imposing the least restrictive outcome, namely, a sentence of home detention, inthese circumstances. Further, I am satisfied that Mr Turner's rehabilitative goals canbe pursued both within custody and following his release.Conclusion[44] The appeal is allowed. The term of imprisonment imposed in the District Courton 27 January 2023 is quashed and replaced with a sentence of 23 months'imprisonment.____________________Harland JSolicitors:K J Basire, Barrister, ChristchurchRaymond Donnelly & Co., Christchurch.