Citation: R v Paul William Turner [2018] NSWSC 1929
Court: Supreme Court of New South Wales
Date: 13 December 2018
Judge(s): Hamill J
Background
The offender had been charged with the murder of Mark Dower, a homeless and frequently intoxicated man who was detained at a housing unit in Mangerton, Wollongong in March 2015. The detention was arranged by the offender's associate, Mark Jenkin, who sought to compel the victim to provide evidence to police on Jenkin's behalf regarding money that had been confiscated. Jenkin was subsequently convicted of the victim's manslaughter in separate proceedings.
Following negotiations between the parties, the murder charge was discontinued and the offender pleaded guilty to one count of aggravated kidnapping under s 86(2)(a) of the Crimes Act 1900 (NSW). The plea was entered approximately three weeks before trial. The Crown's acceptance of the plea also retracted any allegation of criminal responsibility for the victim's death.
The sentencing proceedings relied on an agreed statement of facts and video evidence taken on Jenkin's phone, which depicted the victim naked, covered in faeces, and being humiliated while held upright by the offender. Hamill J acknowledged at the outset that the plea arrangement introduced a degree of artificiality into the sentencing exercise.
Legal Issues
- What was the appropriate objective seriousness of the offence, assessed by reference to the period of detention, the circumstances of the detention, the vulnerability of the victim, and the purpose of the detention?
- Whether the offender's departure from the unit, leaving the victim with a person he knew to be violent, was a relevant aggravating circumstance.
- What weight should be given to the offender's guilty plea, his background, and his prospects of rehabilitation?
- Whether special circumstances existed to justify a departure from the standard statutory ratio between the non-parole period and the balance of term.
Decision
Hamill J assessed the offence as falling in the lower-to-middle range of objective seriousness for aggravated kidnapping, while acknowledging the inherent artificiality of the agreed facts. The victim was plainly vulnerable, frequently intoxicated, and treated in a demeaning and humiliating manner during the approximately 24 hours the offender was present. The video evidence was described as graphic and disturbing.
The court declined to find that the offender knew he was leaving the victim in "serious peril" when he departed the following day. His Honour was satisfied that the offender believed the detention was continuing for the purpose of taking the victim to court to assist Jenkin, rather than appreciating the full danger the victim faced. Nonetheless, the circumstances of the detention, the vulnerability of the victim, and the offender's active participation were treated as significant factors.
The offender's background was characterised as chaotic: a long history of drug addiction, acquisitive offending, homelessness, and parole breaches. The court found that the psychological benefit of the plea, in circumstances where the offender had faced a murder charge and had given reluctant evidence against Jenkin, was real but difficult to quantify precisely. A 10% discount for the guilty plea was applied.
Hamill J identified special circumstances arising from the offender's limited experience of supervised parole, his age, and an intuitive conclusion that the gravity of events, including witnessing the consequences of association with Jenkin, may represent a turning point in the offender's life. This justified a substantial adjustment to the non-parole period, resulting in an equal split between the non-parole period and the balance of term rather than the usual statutory proportion.
Orders Made
- The offender was convicted of aggravated kidnapping contrary to s 86(2)(a) of the Crimes Act 1900 (NSW).
- Total sentence of 4 years and 6 months imprisonment.
- Non-parole period of 2 years and 3 months, commencing 13 November 2016 and expiring 12 February 2019.
- Balance of term of 2 years and 3 months, commencing 13 February 2019 and expiring 12 May 2021.
- Eligibility for parole release at the expiration of the non-parole period.
Key Takeaways
- In sentencing for offences under s 86 of the Crimes Act, the court reaffirmed the framework from R v Newell [2004] NSWCCA 183, which identifies the period of detention, the circumstances of the detention, the characteristics of the victim, and the purpose of the detention as the key factors in assessing objective seriousness.
- Where a plea agreement results in a significantly reduced charge, courts will acknowledge the artificiality of the sentencing exercise without abandoning rigorous assessment of the agreed facts.
- A guilty plea entered in circumstances where the offender faced a murder charge may attract a recognised, if imprecise, psychological benefit, distinct from the utilitarian value of the plea itself.
- Special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) s 44 can be established by a combination of limited prior experience of supervised parole and an intuitive judicial assessment that an offender has reached a genuine turning point, even where that conclusion is acknowledged as uncertain.
- Departure from the unit while a vulnerable victim remained in the custody of a known violent offender was treated as relevant to seriousness, but only to the extent the sentencing court was satisfied the offender appreciated the risk that departure created.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW) s 86
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 5, 21A, 44
Cases
- Diaz v R [2018] NSWCCA 33
- R v Flentjar [2008] NSWSC 771
- R v Gray [2018] NSWCCA 241
- R v Jenkin (No 18)(Verdict) [2018] NSWSC 978
- R v Newell [2004] NSWCCA 183
- R v Speechley [2012] NSWCCA 130
- The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31
- The Queen v Osenkowski (1982) 30 SASR 212