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District Court 8 June 2018

R v Garrath Mark Turnbull

[2018] NSWDC 142

Domestic & family violencePublic order & justice offences
MULTIPLE DOMESTIC VIOLENCE OFFENCES BOTH COMMONWEALTH AND STATE OFFENCES AGGREGATE SENTENCES.

Citation: R v Garrath Mark Turnbull [2018] NSWDC 142
Court: District Court of New South Wales
Date: 8 June 2018
Judge: Mahony SC DCJ

Background

The offender, born in September 1980, was sentenced in respect of a sustained campaign of threats, intimidation, and unlawful contact directed at his former de facto partner and the mother of his two young sons. The couple's relationship had ended in October 2014 after a period of escalating physical, emotional, and verbal abuse, during which the offender had also become increasingly dependent on methamphetamine and cannabis.

A pattern of prior offending had already resulted in a custodial sentence: in June 2015, the offender was convicted of multiple domestic violence offences, including possession of a sawn-off shotgun, and sentenced to 18 months imprisonment. He was released on parole in March 2016 and was subject to an Apprehended Violence Order (AVO) protecting the victim and her children until May 2017.

The offences the subject of this sentencing took place between 4 September and 19 December 2016. They included hundreds of threatening phone calls and messages, breaking into the victim's home on multiple occasions, leaving threatening notes, and telephoning his own father to announce he had purchased a gun and intended to kill the victim and their children. The victim and her children were ultimately forced to abandon their home out of fear.

  • How to structure an aggregate sentence where the offences span both Commonwealth and State legislation, given the different sentencing regimes that apply to each
  • What weight to give the offender's guilty pleas, entered at the earliest opportunity in the Local Court
  • How to treat the offender's background, including prior domestic violence convictions, drug use, and mental health considerations, in fixing the appropriate sentence
  • Whether special circumstances existed warranting an adjustment to the standard ratio between non-parole period and head sentence
  • How to give effect to the principle of totality across multiple offences committed over a discrete period

Decision

His Honour imposed separate sentences for the State and Commonwealth offences, reflecting the distinct legislative frameworks governing each. For State offences (principally break and enter with intent and the Form 1 intimidation matter), the offender received an aggregate sentence with a three-year non-parole period commencing 11 January 2017. The Commonwealth offences (two counts of using a carriage service to threaten to kill, under section 474.15 of the Criminal Code Act 1995 (Cth)) attracted a separate four-year term commencing 11 January 2018, with a non-parole period of two years and six months.

The court treated the Commonwealth sentence as partially concurrent with the State sentence, producing a combined effective non-parole period of three years and six months from 11 January 2017, expiring 10 July 2020. The balance of the Commonwealth term extended to 10 January 2022, leaving an overall balance of term of one year and six months.

His Honour took into account the offender's early guilty pleas, his troubled background, and the presence of mental health issues, but weighed these against the serious and sustained nature of the offending. The campaign of terror against the victim, who genuinely feared the offender possessed a firearm and could kill her, placed the offending at a significant level of objective gravity. The prior domestic violence history, including the earlier firearm-related conviction, was a significant aggravating factor.

The court also noted that parole at the conclusion of the non-parole period would not be automatic. Release would be subject to a decision by the Parole Board, and any breach of parole conditions could result in the offender serving the full balance of the term.

Orders Made

  • State offences (sequence 4 and related AVO contraventions): Aggregate sentence with a non-parole period of 3 years commencing 11 January 2017, terminating 10 January 2020; balance of term of 1 year, terminating 10 January 2021
  • Commonwealth offences (sequences 2 and 12, using carriage service to threaten to kill): 4 years imprisonment commencing 11 January 2018; non-parole period of 2 years and 6 months terminating 10 July 2020; balance of term of 1 year and 6 months terminating 10 January 2022
  • Combined effective non-parole period: 3 years and 6 months from 11 January 2017, terminating 10 July 2020
  • Convictions recorded for all offences, including those on the section 166 Certificate and the section 16BA (Cth) Certificate

Key Takeaways

  • Where an offender faces both State and Commonwealth charges arising from the same course of conduct, separate sentencing regimes apply and separate sentences must be imposed, with the court then using concurrency to achieve a just overall outcome reflecting the totality principle.
  • Under the Criminal Code Act 1995 (Cth), using a carriage service to threaten to kill carries a maximum penalty of 10 years imprisonment; in this case, two such offences formed the most serious element of the sentencing exercise.
  • A sustained domestic violence campaign, including repeated AVO contraventions, threats to kill communicated to third parties, and unlawful entries into the victim's home, placed the objective seriousness of the offending at a significant level even where the offender ultimately entered early guilty pleas.
  • Prior domestic violence convictions, particularly those involving weapons, constituted a significant aggravating factor in assessing the appropriate sentence.
  • Release to parole following a Commonwealth sentence is not automatic and remains subject to the Parole Board's discretion, with any breach potentially activating the full balance of the term.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 474.15(1), 474.17(1)
- Crimes Act 1900 (NSW), s 113(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 13(1), 14(1)
- Crimes Act 1914 (Cth), s 16BA
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Berryman v R [2017] NSWCCA 297
- DPP & DPP Commonwealth v Swingler [2017] VSCA 305
- JM v R [2014] NSWCCA 297
- Munda v Western Australia (2013) 249 CLR 600
- R v Cahyadi [2007] NSWCCA 1; 168 ACrimR 41
- R v Hamid [2006] 164 ACrimR 179
- R v Killick [2016] 91 ALJR 131
- R v Van Ryn [2016] NSWCCA 1