Turner v R [2011] NSWCCA 189

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Turner v R [2011] NSWCCA 189 Hearing dates: 27 July 2011 Decision date: 22 August 2011 Before: Basten JA at 1, Simpson J at 7, Garling J at 68 Decision: (i) leave to appeal granted; (ii) appeal allowed, sentence imposed in the District Court quashed; and (iii) the applicant be sentenced to imprisonment for 3 years and 6 months commencing on 15 March 2010 and expiring on 14 September 2013, with a non-parole period of 1 year and 9 months, expiring on 14 December 2011. Catchwords: CRIMINAL LAW - application for leave to appeal against severity of sentence -robbery whilst armed with offensive weapon - offence committed in hospital emergency department - applicant armed with a syringe - quantity of narcotics taken - Form 1 offence of stealing - plea of guilty - opioid dependence following serious physical injury - pain disorder - depression and suicidal ideation - voluntary admissions to psychiatric facility - attempts to undertake rehabilitation - relevance of general and specific deterrence - error in failing to take applicant's mental state into account in assessment of objective gravity - error in characterising applicant's addiction as a matter of 'personal choice' - sentence manifestly excessive - leave granted - appeal allowed - applicant re-sentenced Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Bichar v R [2006] NSWCCA 1 R v CJP [2004] NSWCCA 118 R v de la Rosa [2010] NSWCCA 194 R v Engert (1995) 84 A Crim R 67. R v Fahda [1999] NSWCCA 267 R v Georgopolous [2010] NSWCCA 246 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Israil [2002] NSWCCA 255 R v Knight; R v Biuvanua [2007] NSWCCA 283; 176 A Crim R 338 R v Lauritsen [2000] WASCA 203; 114 A Crim R 333 R v Letteri, unreported, NSWCCA, 18 March 1993 R v McEvoy [2010] NSWCCA 110. R v SY [2003] NSWCCA 291, R v Thomson & Houlton [2000] NSWCCA 309; 49 NSWLR 383 R v Way [2004] NSWCCA 131; 60 NSWLR 168; Category: Principal judgment Parties: Mark Turner (Applicant) Regina (Respondent) Representation: Counsel G Bashir (Applicant) D Arnott with him S Bowers (Crown) Solicitors Legal Aid Commission (Applicant) Director of Public Prosecutions (Crown) File Number(s): 10/66481 Decision under appeal Citation: Not applicable Date of Decision: 2010-10-28 00:00:00 Before: Payne DCJ File Number(s): 10/66481