Turnbull v Chief Executive of the Department of Corrections [2020] NZCA 409 (11 September 2020)

Last Updated: 15 September 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA265/2020 [2020] NZCA 409

	BETWEEN	SHANNON TURNBULL Appellant
	AND	CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Hearing:	3 September 2020
Court:	Goddard, Ellis and Dunningham JJ
Counsel:	K F Preston and V E Thursby for Appellant C Ure for Respondent
Judgment:	11 September 2020 at 11.00 am

JUDGMENT OF THE COURT

1. The appeal is allowed.
2. The extended supervision order made in respect of Mr Turnbull on 24 February 2020 is quashed.

100. The question of whether an extended supervision order should be made is remitted to the District Court for reconsideration.

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REASONS OF THE COURT

(Given by Dunningham J)

• [1] The appellant, Mr Turnbull, was convicted on three charges of indecent assault on a child,^[1] relating to two nine-year-old children.^[2]
• [2] He was sentenced to two years and one month’s imprisonment.

The application for an extended supervision order

• [3] Prior to Mr Turnbull’s release, the Chief Executive of the Department of Corrections (Chief Executive) applied for an extended supervision order (ESO) in respect of Mr Turnbull, under s 107F of the Parole Act 2002. The Chief Executive sought that the ESO be made for a term of five years, subject to the standard conditions.
• [4] The application came before Judge Phillips on 24 February 2020. While Mr Turnbull consulted with a duty solicitor, he declined to have any legal representation at the hearing. He said he had read the application and the attached report from a health assessor, and he consented to the order being made.
• [5] The Judge issued his decision in the form of a minute and briefly addressed the grounds for making the order, saying that:^[3]

(a) Mr Turnbull had a longstanding history of sexual pre-occupation and “deviant sexual arousal towards children”.

(b) Mr Turnbull had significant difficulties managing his behaviour and emotional state appropriately.

(c) Mr Turnbull’s difficulties with his mental health, “somewhat reduced cognitive functioning”, and social isolation, all impacted upon his ability to cope in a community setting.

(d) External monitoring management would be important because there was a “high risk that [Mr Turnbull] could commit further relevant sexual offending”.

The Judge then made the order sought for a five-year term on the standard conditions.

The appeal

• [6] The appeal is advanced on the basis that the District Court erred in granting the application. Mr Preston argues there is a statutory test which must be met before finding that there is a high risk of Mr Turnbull committing a relevant sexual offence in the future. In this case, it was not met. In particular, Mr Turnbull does not meet the statutory criteria that he:^[4]

(d) displays either or both of the following:

(i) a lack of acceptance of responsibility or remorse for past offending:

(ii) an absence of understanding for or concern about the impact of his or her sexual offending on actual or potential victims.

• [7] Mr Preston says that, when the report of the health assessor is considered, not all criteria in s 107IAA of the Parole Act are met. The report contains evidence that Mr Turnbull displays both an acceptance of responsibility and remorse, and an understanding of, or concern about, the impact of his offending on victims. In short, Mr Preston says the District Court incorrectly granted the application when the criteria in s 107IAA(1) were not fulfilled and an ESO should not have been made.

The respondent’s position

• [8] We do not outline the careful arguments of Mr Turnbull’s counsel in any further detail because Ms Ure, counsel for the respondent, accepts that the Judge simply did not address the statutory criteria in making his decision. She also accepts that the decision did not provide a clear explanation to Mr Turnbull of the reasons for the imposition of the ESO. In these circumstances the Crown concedes that the appeal should be allowed and the ESO quashed.
• [9] Ms Ure submits that the appropriate course of action upon the quashing of the ESO is that the proceeding be remitted to the District Court for reconsideration. She points out that although Mr Turnbull is now released from prison and his release conditions expired on 1 September 2020, the application for the ESO was filed well before that date, so the District Court still has jurisdiction to make such an order, despite Mr Turnbull no longer being an eligible offender as defined.^[5]
• [10] We questioned Ms Ure on whether there was any concern about the gap between the decision being set aside and the matter being reconsidered in the District Court. No specific concerns were identified, and she confirmed there was no need to defer our decision until a District Court hearing date was secured.

Decision

• [11] It is important that a decision imposing an ESO addresses the statutory criteria for making such an order, and that there is a clear explanation to the offender of the reasons for imposing an ESO.^[6] While a Judge’s decision can be relatively brief when an application is unopposed, the statutory criteria must still be addressed. In the present case, we do not have the benefit of the Judge’s reasoning on this issue and we accept it is arguable that the statutory criteria are not met. In these circumstances the Crown was right to concede that the appeal should be allowed and the decision set aside. For these reasons, we make the following orders:

(a) The appeal is allowed.

(b) The extended supervision order made in respect of Mr Turnbull on 24 February 2020 is quashed.

(c) The question of whether an extended supervision order should be made is remitted to the District Court for reconsideration.





Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Crimes Act 1961, s 132(3).

^[2] R v Turnbull [2018] NZDC 5299.

^[3] Department of Corrections v Turnbull DC Wellington CRI-2020-085-374, 24 February 2020 at [7].

^[4] Parole Act 2002, s 107IAA(1)(d).

^[5] Pursuant to s 107I(3) of the Parole Act.

^[6] R v Peta [2007] NZCA 28, [2007] 2 NZLR 627 at [56].