R v Campbell - [2001] NSWCCA 89

CITATION: R v CAMPBELL [2001] NSWCCA 89

FILE NUMBER(S): CCA 60124/00

HEARING DATE(S): 21/03/2001

JUDGMENT DATE:
23 March 2001

PARTIES :

REGINA v Allan Alexander CAMPBELL

JUDGMENT OF: Studdert J at 1; Barr J at 2

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/61/0126

LOWER COURT JUDICIAL
OFFICER : Bellear DCJ

COUNSEL : Crown: LMB Lamprati
Applicant: RJ Button

SOLICITORS: Crown: SE O'Connor
Applicant: DJ Humphreys

LEGISLATION CITED: Crimes Act 1900, s 66A

CASES CITED:
R v Keith James Bryant, Court of Criminal Appeal, 27 June 1994, unreported
R v Adrian Leonard Levi, Court of Criminal Appeal, 15 May 1997, unreported
R v Benjamin Cecil Page, Court of Criminal Appeal, 25 February 1994, unreported
R v Terrance George Skinner, Court of Criminal Appeal, 28 October 1993, unreported
R v Thomson & Anor [2000] NSWCCA 309
R v KBW, Court of Criminal Appeal, 26 August 1994, unreported

DECISION: See paragraphs 31 and 32.

60124/00

STUDDERT J
BARR J

REGINA v Allan Alexander CAMPBELL

JUDGMENT

1 STUDDERT J: I agree with Barr J.

2 BARR J: Allan Alexander Campbell seeks leave to appeal against sentences imposed in the District Court. On 11 February 2000 he pleaded guilty before Bellear DCJ to four acts of sexual intercourse, five acts of indecent assault and two acts of indecency, each committed on his four year old granddaughter. All the acts of intercourse were constituted by his licking the child’s vulva. The acts of indecent assault and of indecency related to the applicant fondling her genitals through her underpants and directly and getting the child to fondle his penis. All the acts were committed over a period of about five days during which the child was under the care of the applicant.

3 The child lived with her mother, who was the applicant’s daughter, and her boyfriend in Orange. The applicant’s marriage developed problems and he moved from Sydney, where he had been living, to his daughter’s household. He began to babysit the child regularly and was left alone with her for substantial periods. All the offences took place at such times, on five days between 1 March and 10 April 1999.

4 The child complained to her mother that her sexual parts were sore, and she was in a good deal of pain, especially when cream was put on to try to soothe her. Her exterior parts were blistered. Her mother referred her to a doctor, who thought that she had herpes and suspected sexual interference. Tests were carried out which confirmed that the blisters were herpes. The child’s mother spoke to the applicant about this and he asked how the child could have contracted the disease. When he was told that it must have been by contact, he remarked that he was the only one who suffered from herpes and wondered whether he might have infected the child by transfer of the virus from his lips to the child’s sexual parts by medium of a face washer or in some such…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Campbell

Details

AGLC: R v Campbell [2001] NSWCCA 89
Case: [2001] NSWCCA 89
Decision Date: 23 March 2001

CaseChat Overview and Summary

Allan Alexander Campbell sought leave to appeal against the sentences imposed by the District Court. He pleaded guilty to four acts of sexual intercourse, five acts of indecent assault, and two acts of indecency committed on his four-year-old granddaughter. The acts involved Campbell licking the child’s vulva, fondling her genitals, and engaging in other inappropriate sexual conduct. The offences occurred over five days while the child was in his care. The child's mother reported the abuse to authorities after noticing symptoms consistent with herpes, which Campbell, who had cold sores, suggested he might have transmitted to the child. Campbell confessed to police and has remained in custody since his arrest.

The primary legal issue in the appeal was whether the District Court erred in sentencing Campbell without considering the contraction of herpes by the child as evidence of the severity of his crimes. The Court of Criminal Appeal acknowledged that while the District Court's conclusion might be surprising, it was not entitled to overrule it. The Court also considered the breach of trust and the psychological harm that might befall the child in the future. The sentencing judge took into account Campbell's early guilty plea, expressions of remorse, and his efforts toward rehabilitation. Despite these mitigating factors, the Crown argued that the sentences were excessive, particularly considering the nature of the offences and the applicant's early plea.

The Court of Criminal Appeal found that the sentences were indeed excessive, noting that while the crimes were serious, the sentences were at the higher end of the range for similar offences. The Court granted leave to appeal, quashed the sentences for the first four counts, and re-sentenced Campbell to five years imprisonment for each count, with a non-parole period of three years. The remaining sentences were left undisturbed. The Court emphasized the importance of ongoing professional help for Campbell post-release to prevent reoffending.

Orders