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…

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 Campbell v Police

Details

AGLC: Campbell v Police [2021] NZHC 2937
Case: [2021] NZHC 2937
Decision Date: 1 November 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Judge Gault considered an appeal by Francis John Campbell against the sentence imposed on him by Judge Orchard in the Whangārei District Court. Campbell had pleaded guilty to a charge of indecent assault and was sentenced to two years and one month’s imprisonment. Campbell argued that the sentence was manifestly excessive, particularly because the starting point of three years' imprisonment was too high. The offending involved Campbell engaging in inappropriate sexual conduct with a woman with an intellectual disability who was in his care.

The court needed to determine whether the sentence imposed by the District Court was manifestly excessive. This required a review of the starting point and the discount applied to the sentence, as well as a comparison with similar cases.

Judge Gault considered the District Court’s reasons for setting the starting point and discount, and examined the submissions made by both parties. The appeal court noted that in indecent assault cases, the starting points adopted in other cases provide limited assistance, and that it is the aggravating and mitigating features of the offending that provide the greatest assistance. After examining the aggravating features of Campbell's offending and comparing them with similar cases, the appeal court concluded that the starting point and sentence were not manifestly excessive. The appeal was therefore dismissed.

The final orders of the Court were that the appeal was dismissed and Campbell’s sentence of two years and one month’s imprisonment, with a starting point of three years, was affirmed.

Orders