Cameron v The King

[2024] NZHC 3843

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-642

[2024] NZHC 3843

BETWEEN

GAVIN BARRY STUART CAMERON

Appellant

AND

THE KING

Respondent

Hearing:	10 December 2024
Appearances:	S Shanahan and A Bloem for Appellant D Karl for Respondent
Judgment:	10 December 2024

(ORAL) JUDGMENT OF WILKINSON-SMITH J

Solicitors:

Bloem Law, Auckland

Meredith Connell, Auckland

CAMERON v R [2024] NZHC 3843 [10 December 2024]

Introduction

[1]                 Gavin Cameron was sentenced to four years and three month’s imprisonment on 14 October 2024 in the District Court at Auckland.1 He appeals the sentence on the grounds that the Judge erred by granting insufficient credit for remorse and rehabilitation and says that as a result the sentence is manifestly excessive.

Background

[2]                 At about 12 pm on Monday 2 January 2023, Mr Cameron, together with two co-defendants, Mr Westley  and Ms Falwasser,  went to the address of the victim,  Mr Larkins. The summary of facts records that they had formed a common intention to locate Mr Larkins and kidnap him. When  Mr Larkins came to  the  front  door,  Mr Westley lifted his  shirt  to  show  Mr  Larkins  an  air  pistol.  Mr Westley  told Mr Larkins to come with him and he would not be hurt. Mr Larkins ran from the address on foot and tried to hide in the driveway of a neighbouring address where he was calling out for help. Mr Cameron and his co-defendants chased Mr Larkins in their vehicle and caught up to him. The summary of facts records that Mr Cameron got out of the vehicle and approached Mr Larkins pointing a pipe (which was half of a pipe gun) at him telling him to get in the car. The pipe was made of metal and was approximately 60 cm long and formed the basis of the charge of possession of an offensive weapon.

[3]                 Mr Cameron and his male co-defendant then forced Mr Larkins to get in the back seat of the car. Mr Cameron got into the front passenger seat; Mr Westley got into the backseat next to Mr Larkins with Ms Falwasser driving. Mr Westley pulled out a short knife and pointed it at Mr Larkins, telling him to calm down or he would be stabbed. Mr Westley  then  punched  Mr  Larkins  in  the  head  multiple  times. Mr Cameron struck Mr Larkins to the head numerous times with the pipe. This forms the basis of the charge of assault with a weapon.

[4]                 Mr Larkins attempted to escape the car but was unsuccessful. Mr Westley then put his arm around Mr Larkins’ neck from behind in a sleeper hold and applied

1      R v Cameron [2024] NZDC 27383.

pressure to his neck, causing Mr Larkins to be unable to breathe. Mr Larkins stopped resisting. He was unable to see clearly due to being unable to breathe.

[5]                 Mr Westley pulled out a pair of metal handcuffs and handcuffed Mr Larkins left hand to the handrail attached to the ceiling of the car. Once Mr Larkins was handcuffed the summary of facts records that Mr Cameron and Mr Westley continued assaulting Mr Larkins by punching him and hitting him with the pipe, targeting his face and head. Mr Larkins feigned an asthma attacked in an attempt to gain the defendants’ sympathy to no avail.

[6]                 After 10 to 15 minutes, the vehicle returned to Mr Larkins’ address where  Mr Cameron picked up his own car which he had arrived in separately to his co‑defendants.     Another   female   co-defendant   —   I   infer   the   sister   of     Mr Cameron — then joined  the  group.  During  the  incident  Mr  Cameron  told  Mr Larkins that he deserved what was happening for bringing a gun to his sister’s house. Mr Cameron and one female co-defendant drove back to an address in Stanmore Bay in Mr Cameron’s vehicle. Mr Westley and the other female co‑defendant drove in the vehicle containing Mr Larkins to the same address.

[7]                 Upon arriving at the Stanmore Bay address, Mr Westley removed Mr Larkins’ handcuff and told him to get into Mr Cameron’s car, telling him “if you don’t I’ll shoot you”. Mr Larkins then got into the back right seat of Mr Cameron’s car. Mr Cameron was seated in the back seat beside him with a female co-defendant driving. As both vehicles were leaving the address a police car entered the driveway and blocked the exit. Police located the four defendants and Mr Larkins. Mr Larkins was barely conscious upon the arrival of the police and required assistance to walk.

[8]                 An examination of the vehicles located two pipes joined together to form a pipe gun, being a firearm capable of firing 12-gauge shotgun rounds. Located near the pipe in the back seat was one round of 12-gauge shotgun ammunition. A set of metal handcuffs and a handcuff key were located in the black Honda, which was not Mr Cameron’s car, but the other car.

[9]Mr Cameron told police that he did not know how Mr Larkins got his injuries.

[10]             Mr Cameron has previously appeared before the Court but not for violent offending.

The sentencing decision

[11]             Judge Glubb first set out the factual background, including the injuries to the victim. Mr Larkins had swelling to his skull and bleeding from the right ear. He suffered bruising to his head, face and neck, and circle marks on his head from being hit with the pipe.

[12]             The sentencing Judge said that in terms of planning and premeditation, the appellant’s counsel submitted that there was limited planning and premeditation.   Mr Cameron denied any common intention to kidnap Mr Larkins despite having pleaded guilty and accepted a summary of facts to that effect. The sentencing Judge was satisfied that there was planning and premeditation apparent and I agree that must have been the case. The offending was in response to an incident apparently involving Mr Cameron’s sister. The defendants were armed with weapons and had handcuffs ready. It seems impossible to accept that there was not a degree of planning and premeditation. Mr Cameron himself told one of the report writers that they had intended to go to Mr Larkins’ address to give him a hiding.

[13]             The Judge identified further aggravating factors as the number of assailants, initially three and then four when the second female co-defendant joined the group. There was actual violence, and the use of a weapon to attack to the head. The Judge referenced the vulnerability of the victim who was outnumbered and handcuffed, and while handcuffed, assaulted, including with a weapon. The Judge noted the period and manner of confinement, saying it was not an overly lengthy period of time but that was a matter of good luck as opposed to good management — because the police intercepted the incident and stopped the offending.

[14]             The Judge set out the impact upon the victim including emotional and mental effects.

[15]             As to aggravating factors personal to Mr Cameron, the Judge set out his previous conviction history and noted that there was nothing of a violent nature, being convictions for unlawfully in an enclosed yard and driving related offences.

[16]             The Judge said he had read letters of support, and they painted a picture of a man with many positive attributes. I have also read those letters of support and the reports provided and I agree with Ms Shanahan that the offending seems out of character and  a real deviation from previous behaviour of Mr Cameron, who was   37 years old at the time.

[17]             The Judge  referred to a  report prepared by  Dr Joseph who observed that   Mr Cameron was using drugs by the age of 19; and that he and his co-defendants had formed a common intention to locate and kidnap the victim. The Judge recorded that the appellant told Dr Joseph that things just got out of hand and that Mr Cameron said he took a pipe from his sister’s car to defend himself. In that report, Mr Cameron also said that he had hit the victim in order to calm him down and stop him fighting with Mr Westley; and also said that he had hit the victim around the shoulders and neck area, and not around the head and face. I agree with the Crown that this is a minimisation. The injuries suffered by Mr Larkins show clearly that he was hit around the face and head with the pipe.

[18]             Mr Cameron’s counsel submitted that his background had a causal nexus to the offending, but the Judge said that he was not necessarily satisfied that was the case considering that Mr Cameron had reached the age of 37 years without showing this sort of violent outburst. The Judge accepted there was a degree of hypervigilance and an overprotective streak in response to a perceived threat to the appellant’s sister and family but, despite the difficulties in the appellant’s background, he had maintained a stable lifestyle without violence until this point. The references painted a picture of someone who was well able to remain in the community and treat people well.

[19]             The Judge said that the Crown submitted five to six year starting point would be appropriate on the basis of totality and a five per cent discount for guilty plea.

[20]             The appellant’s counsel submitted a four to four and a half year starting point and sought discounts of up to 40 per cent, being:

(a)five to 10 per cent for guilty plea;

(b)ten per cent for rehabilitation prospects;

(c)15 per cent for psychological factors: and

(d)five per cent for remorse.

[21]             The Judge recorded that the Crown took issue with the proposed discount for remorse, noting comments made in the psychiatric report which minimised or downplayed the offending. Some of which were contrary to facts accepted in the summary of facts.

[22]             The Judge set out a number of precedent cases and referred to the issue of parity. Ms Falwasser, one of the co-defendants, had a sentence indication and accepted a starting point of four years. The Crown submitted that her role was lesser. The Judge said that because Ms Falwasser was not armed with a weapon, did not assault or use actual violence against Mr Larkins, and was not engaged in confining him in the back of the vehicle, nor did she assault in him anyway with a weapon whilst he was handcuffed and vulnerable, she had a significantly lower culpability although she was part and parcel of the overall events.

[23]             The Judge adopted a starting point of five years and four months’ imprisonment. A credit of five per cent was applied for guilty plea, which was on the morning of trial. The Judge applied an additional credit of 10 per cent for personal factors, although he was not necessarily satisfied of a causal nexus to any great extent.

[24]             The Judge said he was satisfied Mr Cameron was remorseful and had acknowledged responsibility. The Judge was also satisfied that Mr Cameron was working hard to try and better himself in custody. A further five per cent was applied globally for remorse and rehabilitation.

[25]             No uplift was applied for previous convictions because Mr Cameron had not previously offended violently but equally there was no credit for previous good conduct.

[26]             The lead sentence was imposed on the charge of kidnapping and the balance of sentences imposed were concurrent. On the charge of kidnapping, Mr Cameron was sentenced to 51 months’ (four years and three months’) imprisonment. A minimum period of imprisonment (MPI) was not imposed. On Charge 2, assault with a weapon, Mr Cameron was sentenced to 18 months’ imprisonment concurrent and on Charge 3, possession of an offensive weapon, Mr Cameron  was  sentenced  for  eight months’ imprisonment concurrent. There was an order for destruction of the weapon and ammunition.

The approach on appeal

[27]             An appellant may appeal against sentence as of right under s 244 the  Criminal Procedure Act 2011.

[28]             An appeal against sentence must be allowed if an appellate court is satisfied that for any reason there is an error in the sentence imposed on conviction and that a different sentence should be imposed.2 In any other case the appellate court must dismiss the appeal.3 Sentencing is not a science, and an appellate court will not intervene unless the end sentence is outside the range available to the sentencing judge.4 An appellate decision is focused on the end result rather than the process by which the end sentence was reached.5

[29]             When allowing an appeal on the basis that there was an error in the sentence imposed the appellate court may: set aside the sentence and impose another sentence (whether more or less severe) that it considers appropriate; vary the sentence or any part of the sentence or any condition of sentence; or remit the sentence to the court that imposed it.

2      Criminal Procedure Act 2011, s 250(2).

3      Section 250(3).

4      Palmer v R [2016] NZCA 541 at [17] citing Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [35].

5      Kumar v R [2015] NZCA 460 at [81].

Discussion

[30]             In this case, the sentence is challenged on the basis that the five per cent discount imposed for remorse and rehabilitation was insufficient. Mr Cameron’s counsel says that he offered to participate in restorative justice processes and wrote a letter of remorse to the victim. No issue is taken with the starting point or other credits. The appellant says that a five per cent discount for remorse alone would have been appropriate and that an additional credit was required to reflect rehabilitative efforts and prospects.

[31]             In terms of the rehabilitative efforts, it is submitted that the appellant was under the influence of methamphetamine at the time of the offending and was using approximately one gram of methamphetamine a day. This was in the context of the breakdown of his relationship. He had issues with other drugs and issues sleeping. This is not a case, however, where addiction issues have led to the  offending. Section 9(3) of the Sentencing Act 2002 prohibits drug use as a mitigating factor where it is not in the context of addiction driven offending. The psychiatric report provided to the sentencing Court said that Mr Cameron’s reported intoxication with amphetamines was likely to have significantly contributed to his offending. As I have said, this cannot be a mitigating factor.

[32]             Mr Cameron was remanded in custody at his arraignment on 1 July 2024. Since then, he has worked as a cleaner and in the kitchens at prison and is well respected by staff. While on remand he completed a critical thinking skills program and a creative writing course. He completed self-directed workbooks in custody. He does not have any gang affiliations.  It is  submitted he had taken meaningful steps  to address the driving factors of his offending and is  committed  to  his  rehabilitation — although his current custodial situation makes that now more difficult.

[33]             The appellant says that the Judge gave insufficient weight to the letters of support, the appellant’s prospects of rehabilitation, and the fact that the appellant does not have a history of violent offending and has never been incarcerated before. The offending is described as out of character.

[34]             The appellant submits that a discount of 15 per cent would have been appropriate to account for remorse, efforts at rehabilitation and prospects of reintegrating into society. That would have resulted in a 30 per cent credit overall, leading to a sentence of three years and nine months. The appellant says this is a material difference from the sentence imposed of four years and three months.

[35]             The Crown accepts that Mr Cameron’s efforts to rehabilitate while in prison are genuine and credit for that was justified. However, the Crown submits that it would have been open to the Judge to provide no credit for remorse. That is because although Mr Cameron offered to participate in restorative justice processes and wrote a letter of remorse, he continued to deny aspects of the summary of facts to which he pleaded guilty and in doing so attempted to mitigate the seriousness of his offending.

[36]             In a psychiatric report, Mr Cameron denied any intention to kidnap or hurt the victim which is simply incongruent with the summary of facts to which he pleaded guilty. He said that he went to the victim’s house to speak to him and find out why the victim had gone to his sister’s place with a firearm; and he only took the pipe for personal safety. This is itself inconsistent with later comments in the pre-sentence report that he “went around to give the victim a hiding and it escalated”. Mr Cameron also denied assaulting the victim after he was handcuffed which is inconsistent with the summary of facts to which he accepted.

[37]             The Crown submits that the five per cent credit reflects Mr Cameron’s efforts to better himself while he has been in custody rather than specifically relating to remorse. The Crown submits that it appears from the sentencing decision that this is what the credit was predominately afforded for. The Crown submits that the Judge could have imposed a larger discount for rehabilitation, however, that does not mean that the discount imposed was out of the range available to the Court.

[38]             The  Crown  also  submits  that  the  10  per  cent  discount  imposed  for    Mr Cameron’s personal background factors was generous. The Judge queried the causal connection between the appellant’s personal background and his offending, noting that he had made it to 37 years of age without resorting to any violence. I agree with Ms Shanahan’s submission that the material question is whether those

background factors were operating at the time regardless of the passage of time between the trauma or childhood difficulties and the time of the offending.

[39]             The Crown supports the Judge’s observation at sentencing that the 10 per cent discount was the maximum. The Crown says that this offending was not a “knee jerk” reaction triggered by reactiveness arising from a traumatic upbringing. It was a deliberate choice to offend as a group against one victim. The Crown said that a discount of less than 10 per cent could well have been afforded to recognise a weak causal connection between the issues in Mr Cameron’s past and the offending.

[40]             I think that there is a causal connection because Mr Cameron’s difficult upbringing no doubt led him into some of his earlier offending behaviour and drug use and meant that he almost certainly has a less positive view of the police than others and would be less likely to turn to the police for assistance when he felt that his sister had been the victim of a crime. It made him more likely to offend in this way, however, the 10 per cent credit imposed, in my view, is appropriate to recognise that.

[41]             It is important to remember that sentencing is not a mathematical exercise and in the end the Court must stand back and consider whether the end sentence imposed was outside the range available. When looking at credits it is also important to assess the overall credits imposed.

[42]             This incident was very serious in nature. It only stopped because the police fortuitously arrived. The  victim  was  in  a  very  bad  state  when  police  arrived. Mr Cameron’s expressions of remorse must be considered against the background that he did not stop the offending against the victim voluntarily. The physical condition of the victim did not cause any remorse in him at the time of the offending.

[43]             I agree with the Crown that it is the rehabilitative efforts after being arrested that warrant a discount more than the expressions of remorse. Mr Cameron pleaded guilty at a very late stage in circumstances where the case against him was strong given that he had been located by police with the victim and weapons. While there may have been questions over his exact role, the matter resolved very late.

[44]             The only real dispute on appeal is whether there should have been a greater global discount for remorse and rehabilitation or alternatively a discrete discount for rehabilitation and rehabilitative prospects alone. Counsel suggested that the appropriate discount was 15 per cent, so the difference suggested by the appellant at most is a further 10 per cent. That would lead to an adjustment of six months.

[45]             Ms Shanahan makes the point that both rehabilitative efforts and rehabilitative prospects should have been recognised. Mr Cameron has made rehabilitative efforts, and his prospects are said to be positive given his lack of previous like offending and efforts. I accept that but I still come back to whether the credits applied overall were within range and whether the end sentence was manifestly excessive.

[46]             It would certainly have been open to the sentencing Judge to apply a further discount for rehabilitative efforts. Had he done so, I would have regarded an adjustment of a further five per cent to be the most appropriate. That would lead to an adjustment on appeal of three months. In my view, three months on a starting point of five years and four months would amount to tinkering. I agree in any event that the appellant did significantly minimise his role when speaking to the report writer, saying that it was not planned, the weapon was for self-defence and denying hitting to the head. Had the Judge declined to apply a discount for remorse, I would not necessarily have interfered with it.

[47]             I also agree Ms Shanahan that the 10 per cent discount for matters raised in the psychiatric report was appropriate rather than generous. It may well be that the discounts could have been applied differently in this case to allow less for personal factors and more for remorse and rehabilitation, but the end result is that the overall discount of 20 per cent for remorse, rehabilitation, personal factors and an extremely late guilty plea cannot be said to be inappropriate to the point that it makes the sentence manifestly excessive.

[48]             When I stand back and look at the end sentence overall, I am firmly of the view that the sentence is within the available range.

Result

[49]The appeal is dismissed.

Wilkinson-Smith J