R v Paul William Turner

An assessment of the objective seriousness of the offence

1. The video, and inferences that can be drawn from the facts, show that Mr Dower was a weak and vulnerable person who was detained by the offender and Mr Jenkin in circumstances that were distressing and demeaning. During the period that Mr Turner was present, Mr Jenkin exhibited aggression and some violence towards Mr Dower.
2. In R v Newell, [3] Howie J set out a number of factors relevant to an assessment of the seriousness of an offence under s 86: [4] The gravamen of the offence for the purpose of sentencing is the unlawful detaining of a person. As his Honour noted, there are a number of factors that can be relevant in making an assessment of the seriousness of an offence under s 86 including the period of the detention, the circumstances of the detention, the person being detained and the purpose of the detention. The last factor, the nature of the advantage that the offender sought to obtain, is not, in my view, conclusive as to the seriousness of the offence.
3. The Court of Criminal Appeal subsequently said that it is "highly desirable" to consider each of these matters in assessing the seriousness of the offence. [5] Accordingly, I will refer to the matters identified by Howie J in turn.

The period of detention

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

The circumstances of detention

1. 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]
2. 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…
3. 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]

The person being detained

1. Mr Dower was a homeless man with alcohol problems who was weak and harmless. He was vulnerable and easy prey to those who sought to take advantage of him and stand over him.

Purpose of the detention

1. 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.
2. 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]
3. 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.
4. 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]

Aggravating circumstances

1. Mr Turner has a considerable criminal record, largely made up of stealing and burglary offences. His record disentitles him to leniency but its nature is not such that it is an aggravating feature under the relevant provision of the sentencing statute. [16] Mr Turner does not have a history of violent offending although his record of offences of dishonesty can rightly be described as appalling.
2. He was on parole at the time of the offence and this is an aggravating feature. [17]
3. I have taken into account Mr Dower's vulnerability in assessing the seriousness of the offence. He was an alcoholic and was homeless; matters which the offender acknowledged made him vulnerable to predatory behaviour. Senior Counsel conceded that Mr Dower's vulnerability is an aggravating feature. [18] However, it is important not to count this matter twice in making an assessment of the objective criminality.
4. Mr Dower was staying at Mr Pike's home. He was entitled to feel safe there. It was, temporarily at least, his home as well. The fact that the offence commenced in his own home (or Mr Pike's home) is an aggravating feature. [19]
5. The nature of the aggravated offence to which Mr Turner pleaded guilty encompasses the fact that it was committed in company and, accordingly, this matter cannot be taken into account as an aggravating circumstance. [20]

Assessment of criminality

1. I am satisfied that the offence is a very serious one from an objective point of view. It is neither at the top nor the bottom of the putative range of seriousness for offences charged under the section. However, it is a serious example of such a charge because of the vulnerability of the victim, the fact that he was taken away from his own home, the humiliating circumstances depicted in the video and the fact that the detention lasted for many hours or days. Against that, Mr Turner was clearly a secondary participant in the crime although he is responsible for the actions of Mr Jenkin as each was participating in a joint criminal enterprise.

Mr Turner's personal circumstances

1. 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.
2. 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".
3. 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".
4. 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".
5. 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.
6. 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."
7. 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.

Sentencing principles

1. I have taken into account the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The sentence must be calculated to protect the community, denounce the offender's conduct and make Mr Turner accountable for his actions. I must recognise the harm done to Mr Dower (although not the harm subsequently done by Mr Jenkin) and to the community. I must ensure that Mr Turner is adequately punished for the offence and deter him and other persons from committing similar offences. I must balance these considerations against the desirability that the sentence, and its structure, will promote Mr Turner's rehabilitation.

Discount for the plea of guilty

1. Mr Turner is entitled to some reduction in the sentence because of the utilitarian value of his plea of guilty. The parties disagreed on the appropriate discount. Senior Counsel for Mr Turner suggested a discount of 15-20% was appropriate. Given the timing of the plea, I cannot accept that submission.
2. The plea of guilty was entered at a very late stage, well after the trial was listed to commence. However, the trials were separated and Mr Turner's trial would have commenced after the conclusion of Mr Jenkin's trial. There was no evidence that Mr Turner offered to plead guilty to the particular offence for which he is to be sentenced at an early stage. He was arraigned on 2 June 2017 at which time he entered pleas of not guilty to a charge of murder and a specially aggravated detain charge under s 86(3). There was some discussion at the sentencing hearing as to whether a plea to s 86(2) could have been entered at that early stage. When asked how he pleaded to the s 86(3) charge, I can see no reason why Mr Turner could not have said "not guilty but guilty to an offence under s 86(2)" or "not guilty to specially aggravated kidnapping but guilty to aggravated kidnapping." Regardless of whether the offender could have entered a guilty plea in the arraignments list, Mr Turner was represented by experienced lawyers and could have, at least, indicated a willingness to plead to the less serious charge. As it was, the first indication of a plea came on 10 May 2018.
3. Against that, the case was complicated and many witnesses would have been called. The trial had an estimate of something like 4 weeks. This is a substantial saving of court time and should be acknowledged by an appropriate reduction in the penalty to be imposed. The Prosecutor suggested that a discount in the range of 5-10% was appropriate. The bottom of that range is a little parsimonious given the likely length of the trial.
4. I will reduce the sentence by 10%.

Assistance to authorities

1. Mr Turner was called by the prosecution to give evidence in Mr Jenkin's trial. The transcript of his evidence was tendered on sentence although there was some debate as to its admissibility and the purpose for which it could be used. The Prosecutor asked Mr Turner very few questions at the trial. It was obvious that he was a reluctant witness being compelled to give evidence. He was cross-examined at a little length by counsel representing Mr Jenkin.
2. The offender specifically eschewed any discount to which he may be entitled for any assistance he provided in the course of Mr Jenkin's trial. Senior Counsel submitted that there should be no reduction in the sentence. In those circumstances, it is inappropriate to reduce the sentence on account of this factor.

Commencement date of sentence

1. Initially there was some controversy over the commencement date of the sentence. The controversy arose as a result of the fact that Mr Turner was in custody for unrelated offences from 14 May 2015 and was arrested for the current offence on 3 November 2015. He has remained in custody since that date although a good deal of that period was referable to unrelated criminality including a period during which Mr Turner was serving another sentence and the balance of parole in relation to an earlier sentence.
2. The parties ultimately agreed that the sentence should commence on 13 November 2016. [21] That is the date he would otherwise have been entitled to (or eligible for) parole at the conclusion of the non-parole period for a different offence. The law allows certain flexibility in this regard and I am prepared to act on the agreed position of the parties.

Statistics and other cases

1. Senior Counsel for the offender directed my attention to statistics maintained by the New South Wales Judicial Commission. The statistics show that 74% of all offenders charged under s 86(2) receive a custodial sentence and those sentences largely fall between 1 - 3 ½ years. However, as Senior Counsel for Mr Turner acknowledged, the range of factual circumstances that can give rise to a charge under s 86(2) are so diverse as to render statistics of little use. In R v Newell, [22] Howie J said much the same thing at [43]: Statistical information may have value in an appropriate case to indicate a range of sentences for offences where there is a predictable similarity in the conduct amounting to the offence. I doubt the offences under s 86 will be sufficiently homogenous that a reference to statistics alone will be of much assistance.
2. The same applies to other sentencing cases. No two cases are alike and it is difficult to obtain very much guidance from sentencing outcomes in other cases.
3. While I have considered the statistics and the sentencing outcomes in other cases, the present case must be determined on its own peculiar factual circumstances.

Special circumstances

1. I am satisfied that there are special circumstances justifying a significant reduction in the non-parole period. [23] These include: 1. The fact that the sentence is accumulated upon pre-existing sentences, a matter which impacts on the proportion of the effective non-parole period relative to the total sentence. 2. Mr Turner's long standing institutionalisation and need for substantial support upon his release. He will benefit from a longer period under supervision to foster his rehabilitation and assimilation into the community. 3. The onerous conditions of incarceration resulting from matters beyond his control, staffing issues at the gaol, his medical conditions and the difficulty his family has in visiting him.

Sentence

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

Endnotes

1. R v Jenkin (No 18)(Verdict) [2018] NSWSC 978.
2. The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 at 389, 392.
3. [2004] NSWCCA 183.
4. R v Newell [2004] NSWCCA 183 at [32].
5. R v Speechley [2012] NSWCCA 130 at [86].
6. [2008] NSWSC 771.
7. R v Flentjar [2008] NSWSC 771 [36].
8. Diaz v R [2018] NSWCCA 33 at [43].
9. Crimes Act 1900 (NSW) s 86(2)(a).
10. R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 at 392.
11. R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 at 389.
12. R v Speechley [2012] NSWCCA 130 at [107]-[108].
13. Transcript (T) 26.7.18, pp 8 and 12.
14. R v Newell [2004] NSWCCA 183 at [32].
15. R v Newell [2004] NSWCCA 183 at [32].
16. Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(d).
17. Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(d).
18. Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(l).
19. Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(eb).
20. Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2).
21. T 26.7.18, p 4.
22. [2004] NSWCCA 183.
23. Crimes (Sentencing Procedure) Act 1999, s 44.
24. Crimes (Sentencing Procedure) Act 1999, s 5(1).
25. Cf The Queen v Osenkowski (1982) 30 SASR 212 at 212-213 cited with approval in R v Gray [2018] NSWCCA 241 at [119]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 December 2018