R v Paul William Turner

R v Paul William Turner - [2018] NSWSC 1929 - NSWSC 2018 case summary — Zoe

The facts

In March 2015 Mr Turner had no fixed address and would seek accommodation with friends in the Mangerton area. He accepted an offer from Mr Jenkin to stay in his unit in Crana Place, Mangerton on 21 March 2015. At the time, the police were attempting to find the offender because he had committed two offences while on parole. Mr Young SC described the accommodation at Mr Jenkin's unit as "something of a safe haven".
Mr Dower also had no fixed address and was staying at friends' homes and sometimes sleeping in the waiting area of the Wollongong Hospital. He and Mr Jenkin knew each other and some witnesses claimed that Mr Jenkin would assault the victim and obtain money from him. On 8 February 2015 police seized $1690 from Mr Jenkin. He was with Mr Dower at the time in a laundry attached to his Mangerton unit. Over the next couple of weeks, Mr Jenkin tried to get Mr Dower to go to the police station and provide evidence that the money lawfully belonged to Mr Jenkin. Each attempt was foiled because Mr Dower was constantly intoxicated.
On Sunday 22 March 2015, Mr Dower was staying with a friend called Jodie Pike in another block on the housing estate at Mangerton. The offender and Mr Jenkin attended the unit, Mr Jenkin said that Mr Dower owed him money and the two offenders escorted Mr Dower back to Mr Jenkin's unit. Later on the same day, and in the presence of the offender, Mr Jenkin struck Mr Dower once near his left ear. It is agreed that Mr Turner was neither aware, nor suspected, that Mr Jenkin was going to do this and no other injuries were sustained by Mr Dower in the time that the offender was in the unit. A video taken on Mr Jenkin's 'phone at 4:19pm on 22 March 2015 was tendered on sentence. The video, taken in Mr Jenkin's bathroom, is graphic and disturbing. Mr Dower is naked and covered in faeces. He is being held upright by the offender as the victim is berated by Mr Jenkin. Mr Jenkin was recorded saying "throw him in there [the bath] - head first" and "I'm gonna kill him." The offender slept in the spare room that night while the victim slept on the lounge. At around lunchtime on 23 March 2015, the offender left Mr Jenkin's unit and travelled to his mother's house. He never returned to the unit and did not see Mr Dower again.
The parties recorded the basis of Mr Turner's criminal liability in the agreed facts as follows: It is agreed that the basis of the offender's liability is that he was in company on 22 March 2015 with JENKIN when JENKIN took the victim from PIKE's unit back to JENKIN's unit without the victim's consent. The offender did this with the intention of obtaining the advantage of accommodation from JENKIN.
Evidence that Mr Turner gave (reluctantly) at Mr Jenkin's trial was tendered on a limited basis during the sentencing proceedings. It was agreed that the evidence could be used to establish that, while he was present at the unit, Mr Turner made a number of calls to Port Kembla Local Court to assist Mr Jenkin in his plan to get Mr Dower to give evidence to support his case that the $1690 seized by police was Mr Jenkin's property.
Mr Turner was charged on 24 November 2015 with the murder of Mr Dower and with specially aggravated detain for advantage under s 86(3) of the Crimes Act. There were committal proceedings and he pleaded not guilty on arraignment on 2 June 2017. On 30 May 2018, a few weeks before his trial was due to commence but after the trial was originally listed and following negotiations between the lawyers, the offender was re-arraigned. He pleaded guilty to the lesser charge of aggravated detain for advantage for which he now stands to be sentenced. The Prosecutor indicated that the Director of Public Prosecutions had discontinued ("no billed") both the murder charge and the charge under s 86(3).

[4]

The period of detention

Mr Dower was first brought to Mr Jenkin's unit on Sunday 22 March 2015. All three men remained in the unit overnight and the offender left around lunchtime the following day. The period of time that Mr Dower was detained with Mr Turner present, somewhere in the vicinity of 24 hours, is significant.
The Prosecutor submitted that in leaving the unit on 23 March 2015, the offender was aware that he was leaving Mr Dower in "serious peril and at the mercy of Jenkin whom he knew to be violent and unpredictable". The offender was present when Mr Jenkin struck Mr Dower, and the video clips tendered show that the offender witnessed Mr Jenkin behaving aggressively toward the victim; berating and humiliating him.
While it was agreed that Mr Jenkin targeted vulnerable people including the victim, it was not suggested that the offender was aware of this. However, the offender knew that Mr Jenkin's motivation for detaining Mr Dower was to recover money that had been confiscated by the police and that Mr Jenkin had assaulted and humiliated Mr Dower. The offender called the Local Court on Mr Jenkin's behalf to let them know that he was going to be late.
Prosecuting counsel referred to the case of R v Flentjar [6] in which Buddin J found the "real gravamen" of the offender's conduct was that he walked away from the situation and decided not to provide any assistance. This was because the offender could and should have realised that "there was every prospect that, following his departure, the victims were going to be exposed to much more extensive harm than they had already suffered". [7] On the limited evidence tendered in these proceedings, I am not satisfied that Mr Turner knew that he was leaving Mr Dower in "serious peril" or that he had any real insight into the fate that was to befall Mr Dower. I am satisfied that Mr Turner left the unit thinking that Mr Dower was going to be taken to court to assist Mr Jenkin in retrieving the confiscated money.
Even so, the period of Mr Dower's detention was substantial. Mr Turner was present for around a day and was aware that the detention was to continue after he left.

[5]

The circumstances of detention

The most important evidence of the circumstances of Mr Dower's detention is the video taken on Mr Jenkin's telephone. This depicts the demeaning and humiliating way in which Mr Dower was treated while inside Mr Jenkin's unit. Mr Jenkin can be heard berating the victim; calling him a "fucken rat" and "filthy animal" and saying "I'm gonna kill him". The facts demonstrated that Mr Jenkin struck the victim while Mr Turner was present. Mr Dower was not physically restrained but this does not diminish the seriousness of the offence. He was weak and no doubt in fear and fear can be as effective as violence as a means of restraint. [8]
While it was agreed that Mr Dower was struck by Mr Jenkin in the offender's presence, Mr Turner is not to be sentenced by reference to aggravating circumstances not charged in the indictment. The indictment alleges an offence under s 86(2) with the circumstance of aggravation particularised as the fact that the offence was committed in company. [9] I cannot have regard to the fact that Mr Dower may have sustained actual bodily harm in the course of the assault referred to in the agreed facts because that constitutes the more serious offence of "specially aggravated" kidnapping under s 86(3). I must also ignore the most salient fact of which I am aware - the fact that Mr Dower died some time later while still detained by Mr Jenkin. This crucial detail is not referred to in the agreed facts and it would be contrary to law to take it into account. I must take an "artificially restricted" approach to the facts. [10] In R v De Simoni, [11] Gibbs CJ said at 389: At common law the principle that circumstances of aggravation not alleged in the indictment could not be relied upon for purposes of sentence if those circumstances could have been made the subject of a distinct charge appears to have been recognised as early as the eighteenth century…
On the other hand, it has been held that the absence of injury is not a matter that reduces the objective criminality of the offence. [12]

[7]

Purpose of the detention

The advantage asserted in the indictment to which Mr Turner pleaded guilty is "psychological advantage". Neither counsel was able to articulate in any meaningful way the psychological advantage that Mr Turner hoped to gain. The Prosecutor said it was "by breaking down the will of Dower and making him cooperate". Senior Counsel for Mr Turner said the advantage would have been "better particularised [as] a financial advantage" and went on to say: …that simple explanation of the basis of the plea has difficulty being tortured into an interpretation of the literal meaning of a psychological advantage, but nevertheless that is the way the charge was framed and the accused was content to plead to it.
I cannot reconcile the particulars of the advantage alleged in the indictment with the facts tendered on sentence. It is apparent that the advantage sought by Mr Turner was to continue to enjoy rent free accommodation. The purpose of the joint criminal enterprise was to enable Mr Jenkin to recover the money confiscated by police. Accordingly, the purpose of the detention was not to obtain some ill-defined psychological advantage of which there is no evidence but, rather, to obtain a financial advantage. In the course of submissions counsel accepted that it would not be an error to sentence on the basis that the advantage obtained by the offenders was a financial one (rather than a psychological one). [13]
According to both parties, the advantage that the offenders sought was a financial one. It was submitted on behalf of Mr Turner that the offender's involvement was motivated by his "perceived need to keep Jenkin's goodwill so as to maintain a continuation of the availability of somewhere to stay". The prosecution submitted that Mr Dower was brought to Mr Jenkin's unit in order to assist him at the Port Kembla Local Court to retrieve the money that had been confiscated by the police. I accept the submissions of both sides.
In any event, the advantage that Mr Turner sought to obtain is "not conclusive as to the seriousness of the offence." [14] The nature of offences charged under s 86 of the Crimes Act vary dramatically and the circumstances of the present offence can be distinguished from other cases, such as kidnapping for ransom or cases where a person is detained by offenders acting as 'vigilantes'. However, the fact that Mr Dower was not detained for ransom does not, of itself, mean that the case cannot fall into the most serious category of offence. [15]

[10]

Mr Turner's personal circumstances

The offender has led a troubled life. He was 48 years old at the time of the offending and is now 51 years old. A psychological report under the hand of Patrick Sheehan was tendered on sentence along with references from his mother and sister who remain supportive of him. There was also evidence in relation to Mr Turner's time in custody, both from a prison chaplain and a helpful affidavit made by his solicitor, Mr Robinson.
Mr Turner had a reasonably stable upbringing but became involved in drugs at an early age. He has had limited employment and has a bad criminal record for offences of dishonesty. He has many serious offences on his record although there is nothing to suggest that he is a violent man. His record is largely confined to offences of dishonesty and breaking into houses. There is also an offence of "armed with intent" and escape. However, these offences were committed some time ago and no details were provided. His record is fairly typical of a person who has abused drugs over many years. There is a family history of substance abuse and the evidence suggests that his decline into a chaotic lifestyle commenced when he was in his adolescence and "under-supervised".
Mr Sheehan diagnosed him as having a persistent mood disorder and symptoms of PTSD. His psychological problems developed as a result of his lifestyle and drug abuse. He is "heavily institutionalized".
His mother is elderly and can only visit him occasionally. She acknowledged her son's past difficulties but says she has noticed a change in his behaviour over the last three years. He is suffering from pain in his teeth and knees associated, I suppose, with being middle-aged. His mother notes that he "does not do well on his own".
The offender's sister, Cathy, also remains supportive. She says the present offences are out of character. She believes he was "way over his head" and that he is "easily influenced by others." She has not known Mr Turner to hurt anyone or anything. She acknowledged that he is a drug addict and has a bad record for breaking into people's homes and stealing their property. However, the present offence "is not Paul". She says that both of her brothers are "institutionalised criminals." However, she thinks Paul may be changing. She says that she will be there for the offender when he is released from gaol.
The prison chaplain says that Mr Turner has been a regular participant in the religious services he conducts in gaol. He described Mr Turner as "quiet, polite and appreciative". He has expressed his "regret and remorse for what he regards as the worst mistake of his life."
Mr Robinson's affidavit shows the extent to which Mr Turner has been subject to "lock in" periods while he has been in custody. There is nothing to suggest this is a matter particular to Mr Turner. Rather, it seems to have been "centre wide" and the result of "staffing issues." While the evidence does not show that the conditions of incarceration are peculiarly onerous, I am satisfied that Mr Turner's time in gaol has been difficult and I have taken that matter into account in attempting to fashion an appropriate sentencing structure.

[17]

Sentence

The case is very serious. This is reflected by the maximum penalty which must be borne steadily in mind throughout the sentencing process. The victim was vulnerable and the offence was committed for selfish reasons. Mr Turner's long record of offences of dishonesty disentitles him to much leniency at all. There is no appropriate alternative but to impose a full-time custodial sentence of some substance. [24] No other sentence would reflect the purposes of punishment and principles of sentencing that guide the proper exercise of the sentencing discretion.
I have taken into account the fact that the offender played a smaller role in the joint criminal enterprise than Mr Jenkin. The major motive behind the kidnapping was the financial motive of Mr Jenkin. I accept that Mr Turner acted outside of his normal character. While he is a drug addict, a burglar and a thief, his criminal record and the unchallenged testimonials of his mother and sister show that he a person of non-violent disposition. I accept that he was easily influenced and motivated by the need to secure a roof over his head when he was otherwise homeless and drug dependant.
In some respects, sentencing is an intuitive exercise. [25] This is the longest period Mr Turner has spent in custody and he is now into his middle age. He looks older than his actual age. I have a strong feeling that the seriousness of the events that unfolded, including the death of Mr Dower and the offender being charged with murder, is likely to result in Mr Turner turning his life around.
I would commence with a sentence of 5 years imprisonment. I would reduce that by 10% to take account of his plea of guilty. This results in a sentence of 4½ years. I will make a substantial adjustment to the non-parole period to take into account the special circumstances identified in paragraph [51] and to give effect to my intuition that Mr Turner may have reached a turning point in his life.
I will now impose sentence. Mr Turner, you are convicted and sentenced to a total sentence of 4 ½ years. 1. There will be a non-parole period of 2 years and 3 months commencing on 13 November 2016 and expiring on 12 February 2019. 2. There will be a balance of term of 2 years and 3 months commencing on 13 February 2019 and expiring on 12 May 2021. 3. You will become eligible for release on parole at the expiration of the non-parole period.

At a glance

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Judgment (18 paragraphs)

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Legislation Cited (2)

Cases Cited (9)

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