Campbell v Police

[2021] NZHC 2937

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2021-488-46

[2021] NZHC 2937

BETWEEN

FRANCIS JOHN CAMPBELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	1 November 2021
Appearances:	V Heather for the Appellant T Fai’ai for the Respondent
Judgment:	1 November 2021

JUDGMENT OF GAULT J

This judgment was delivered by me on 1 November 2021 at 4:45 pm.

Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:

Mr V Heather, Barrister, Whangarei

Ms T Fai’ai, Marsden Woods Inskip Smith, Office of the Crown Solicitor, Whangarei

CAMPBELL v POLICE [2021] NZHC 2937 [1 November 2021]

[1]    Mr Campbell appeals against his sentence of two years and one month’s imprisonment imposed by Judge D J Orchard in the Whangārei  District  Court on  16 September 2021,1 following Mr Campbell’s guilty plea on a representative charge of indecent assault.2 He appeals on the ground that the sentence was manifestly excessive particularly as the starting point of three years’ imprisonment adopted by the Judge was too high.

The offending

[2]    Mr Campbell is aged 79. The victim, A, aged 46, has an intellectual disability and requires 24-hour care. Mr Campbell was a friend of A’s sister. At the time of the offending on 20 September 2020, Mr Campbell was caring for A at his house while A’s sister went to work, although A primarily resides at a care facility in Auckland.

[3]    A and her sister arrived at Mr Campbell’s house about 4:15 pm. A left for work after half an hour. Mr Campbell provided A with a blanket to watch television and with dinner about 7:00 pm. Later, Mr Campbell told A to go to bed and took A to his room. She got into bed in her clothes. Mr Campbell removed his clothes and got into bed too. He began kissing her face and calling her endearing names. He lifted her dress and bra up and sucked on her breasts and used his tongue. He then said,  “Don’t be shy, I’ll feel your vagina”. He removed A’s underwear and rubbed his hand around her  labia  and  outer  vagina.  He  also  touched  and  hugged  A’s  bottom. Mr Campbell then masturbated by touching his penis.

[4]    At around 8:45 pm A’s sister returned and knocked on the window next to the front door, observing Mr Campbell sitting on the bed in his underwear. A’s sister called A, who came to the front door crying and told her Mr Campbell had sucked her breasts, played with her vagina and felt her bottom. A’s sister took A home and telephoned the Police.

1      R v Campbell [2021] NZDC 18436 [District Court decision].

2      Crimes Act 1961, s 135. Maximum penalty seven years’ imprisonment.

District Court decision

[5]    Judge Orchard considered Mr Campbell’s offending involved the following culpability factors:3

(a)A was a “very vulnerable” victim, requiring full-time care because of her intellectual disability;

(b)the offending was in “gross breach of trust” as Mr Campbell was entrusted to care for A by her sister;

(c)the conduct itself was at the “high end” of indecent assaults, involving skin-on-skin contact, using his mouth on both of A’s breasts and his hands around her genital area, on both her breasts and on her bottom;

(d)Mr Campbell’s masturbating in A’s presence would have increased her distress; and

(e)as a result of the offending, A has suffered distress and a seriously undermined sense of security.

[6]    The Judge considered Mr Campbell’s offending was very similar to that of Dayal v R,4 which also concerned offending by a care worker against a resident he cared for at an IHC institution – except that it also involved oral connection between that offender’s mouth and victim’s genitals. The starting point in Dayal v R was three and a half years’ imprisonment. The Judge also distinguished Mr Dayal’s offending as involving a more serious breach of trust because he was a care worker with a “wider responsibility” for a permanent resident at the facility.5 The Judge considered a starting point of three years’ imprisonment was appropriate.6 She referred to the predominant purposes of sentencing being accountability for harm to A, promoting in

3 District Court decision, above n 1, at [6].

4      Dayal v R [2016] NZHC 1027.

5 District Court decision, above n 1, at [9].

6 District Court decision, above n 1, at [10].

Mr Campbell a sense of responsibility, denunciation and deterrence; and said that rehabilitation and reintegration were less relevant.7

[7]    The Judge declined to impose a small uplift on the starting point, as sought by the Crown, for Mr Campbell’s previous assault convictions on the basis they were not for indecent assault.8

[8]    For Mr Campbell’s personal circumstances, the Judge applied a total discount of 30 per cent, comprising a 20 per cent discount for his guilty plea; and a combined discount of 10 per cent to reflect  that  prison  will  be a particular toll  because of  Mr Campbell’s age and the fact that he will lose his Housing New Zealand accommodation.9

Approach on appeal

[9]    To succeed on an appeal against sentence, an appellant must satisfy the appeal court that there has been an error in the sentence and that a different sentence should be imposed.10 The appeal court will not ordinarily intervene where the sentence is within the justifiable range having regard to sentencing principles, but will intervene and substitute its own view if the sentence is manifestly excessive or wrong in principle.11 The focus on appeal is on the final sentence imposed, as opposed to its component parts or the process by which the sentence was reached.12

Submissions

[10]   For Mr Campbell, Mr Heather submits the starting point and final sentence are too high and inconsistent with other cases involving similar offending. In support of Mr Campbell’s challenge to the three-year starting point, Mr Heather refers to number of cases he submits are relevant:

7      District Court decision, above n 1, at [12]-[13].

8 District Court decision, above n 1, at [11].

9      District Court decision, above n 1, at [14]-[15].

10     Criminal Procedure Act 2011, ss 250(2) and (3).

11     Tutakangahau v R, [2014] NZCA 279, [2014] 3 NZLR 482, at [36].

12     Ripia v R [2011] NZCA 101 at [15].

(a)First, the offending in Dayal v R was more serious because of the feature of oral contact around the victim’s vagina. Mr Heather notes the Court on appeal considered this was a “serious aggravating element” of the offending and, consequently, the indecent assault neared the seriousness of a sexual violation charge.13 Mr Heather submits it is not clear Judge Orchard expressly reflected this distinction in setting the starting point; rather, the Judge focused on the relationship of care and responsibility.

(b)In R v M,14 the victim, aged four, was the younger cousin of the appellant, aged 19. At their grandparents’ house, where the victim had been dropped off to be looked after, the appellant asked the victim’s sibling to leave the room, and then pulled the victim’s skirt and underwear aside and touched her genitals with skin-on-skin contact. The appellant also removed his pants and placed the victim’s hand on his penis. He sought a promise from the victim she would not tell anyone. On appeal, the Court reduced the starting point of two years and six months’ imprisonment to two years’ imprisonment.

(c)In R v CN,15 the appellant, aged 69, pleaded guilty to two representative charges of indecent assault against his granddaughter over an 18-month period when she was aged between 16 and 17. CN’s granddaughter had an intellectual disability and he was her de facto carer. The offending included fondling the victim’s breasts and touching her vaginal area, over clothing with no skin-on-skin contact. The Court adopted a starting point of three years’ imprisonment.

(d)In O v R,16 Mr O aged 54, was sentenced on six counts of doing an indecent act on his niece, on four separate days over a seven-month period, when she was aged 10 to 11. The offending included touching the skin of the victim’s outer vagina with his fingers as she lay in bed;

13     Dayal v R, above n 4, at [26].

14     R v M [2009] NZCA 456.

15     R v CN HC Auckland CRI 2006-092-2334, 29 July 2008.

16     O v R [2010] NZCA 609.

squeezing her breast and kissing her lips while she played with a computer game that he gave her; and rubbing the victim’s vaginal area on a car ride to the movies and back. The Court of Appeal said the Judge’s starting point of three years’ imprisonment was perhaps stern but not outside of the range available.

[11]   Here, Mr Heather submits the sentencing Judge wrongly afforded weight to the victim’s vulnerability beyond that in these other cases.

[12]   Mr Heather also submits the end sentence in the present case is inconsistent with these cases. In particular, Mr Heather submits the final sentence was similar to O v R (26 months’ imprisonment) but the offending in that case was more serious, marked with persistency and premeditation, not opportunism.

[13]   Ms Fai’ai, for the Crown, submits a three-year starting point for Mr Campbell’s offending was within range and the end sentence appropriately reflected his culpability. As to Dayal v R, Ms Fai’ai submits the victim in the present case was more vulnerable because she was alone with Mr Campbell in his home, and the totality of Mr Campbell’s conduct was more serious.

Analysis

[14]   Before dealing with the cases relied on, I note the Court of Appeal’s observation in Troon v R that in indecent assault cases, where there is no guideline judgment, the starting points adopted in other cases will seldom provide assistance.17 It is the aggravating and mitigating features of the offending that provide the greatest assistance.

[15]   In Dayal v R, Wylie J held a starting point of three and a half years’ imprisonment was “well within the available range”,18 noting:

[36] There were significantly aggravating features to Mr Dayal’s offending. First, and most obviously, there was a significant breach of trust. The victim was suffering from a mental disability. She was living in an IHC care home. Mr Dayal was her carer. He abused the trust that she was entitled to repose in

17     Troon v R [2019] NZCA 265 at [44].

18     Dayal v R, above n 4, at [37].

him. Secondly, the assault was a gross indecent assault. Mr Dayal pulled the victim’s pants down and licked around her vagina. He did so knowing of her situation. Mr Dayal’s behaviour was exploitative and grossly demeaning. That is clear from the victim impact statement, a copy of which has been made available to me.

[16]   Justice Wylie considered that Mr Dayal’s offending was more serious than the offending in R v CN despite its single incident, because although CN’s offending involved multiple incidents and a greater time period, Mr Dayal’s oral contact with the victim’s genital area and breasts was comparably more serious.19

[17]   I accept that the offending in Dayal was more serious than Mr Campbell’s offending given the oral contact around the vagina and Mr Dayal’s even greater breach of trust during his work as a caregiver. But the Judge recognised these distinctions when setting a starting point six months lower than in Dayal v R.

[18]   O v R involved skin-on-skin contact with the victim’s vaginal area, with offending over a longer period and a gross breach of trust.20 Overall, Mr Campbell’s offending was not quite as serious. But the representative charge reflected the different aspects of the offending in the agreed summary of facts albeit on one occasion.

[19]   Mr Campbell’s offending was at least as serious as the offending in R v CN,21 where the Court also adopted a starting point of three years’ imprisonment. Although the offending in that case spanned several incidents over a longer period of time, there was no skin-on-skin contact.

[20]   Although R v M involved brief skin-on-skin contact, the Court of Appeal considered the breach of trust was not in the same category as many of the cases “involving offenders in a parental or quasi parental situation”.22 The relationship between the victim and offender in that case is not comparable to that of a carer of a victim with an intellectual disability. Mr Campbell’s offending was more serious than the offending in R v M.

19     Dayal v R, above n 4, at [30].

20     O v R, above n 16.

21     R v CN, above n 15.

22     R v M, above n 14, at [16].

[21]   Given the undisputed aggravating features of Mr Campbell’s offending summarised above,23 and having regard to the other cases relied on, I consider the Judge’s starting point of three years’ imprisonment was not outside the justifiable range.

[22]   Mr Heather did not take issue with the net discount for Mr Campbell’s personal circumstances. Reliance on other end sentences is of even less assistance given each offender’s aggravating and mitigating personal circumstances. The Judge’s net discount of 30 per cent was justified, and therefore the end sentence was not manifestly excessive.

Result

[23]The appeal is dismissed.

Gault J

23 At [5].