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Campbell v Police

Campbell v Police

Case [2021] NZHC 1377 10 June 2021

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2021-419-26

[2021] NZHC 1377

BETWEEN
JAMIE DOUGLAS CAMPBELL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 10 June 2021

Appearances:

S A McKenna and J A Heinstman for the appellant B B Harris for the respondent

Date of judgment:

10 June 2021

ORAL JUDGMENT OF JAGOSE J

Solicitors:
McKenna King Limited, Hamilton Hamilton Legal, Hamilton

CAMPBELL v NEW ZEALAND POLICE [2021] NZHC 1377 [10 June 2021]

[1] Jamie Douglas Campbell pleaded guilty to a category 3 offence, being an assault on his then partner.1 He now appeals against Judge S R Clark’s 1 April 2021 decision in the District Court at Hamilton2 to refuse to grant him a discharge without conviction.3

Background

[2] Mr Campbell pleaded guilty to assaulting his former partner, with whom he has a child (and each have a child from previous relationships). All lived together. At home on 1 June 2020, a verbal argument between the adults escalated. Mr Campbell damaged an internal door and, when his partner said she was going to call police, “at worst” is said to have grabbed her in the presence of “some children” in a “bear style hug” from which she struggled, to “wrench” her cellphone from her.

Judgment under appeal

[3] Mr Campbell was entitled to be discharged without conviction only if the direct and indirect consequences of his conviction were out of all proportion to the gravity of the offence.4 Only then may the sentencing judge decide if to exercise residual discretion. There must be a “real and appreciable” risk any given consequence will arise; this recognises the court is assessing future likelihood.5 The proportionality test is a question of fact requiring judicial assessment.6

[4] In the District Court, Judge Clark recited the events giving rise to the charge Mr Campbell faced,7 noting, while Mr Campbell had some previous convictions, none related to the instant charge.8 The judge assessed the gravity of the offending as low.9 He considered the charge and conviction would not establish any substantial barrier to

1      Crimes Act 1961, s 194A.
2      New Zealand Police v Campbell [2021] NZDC 6005.
3      Sentencing Act 2002, s 106.
4      Sentencing Act, ss 106–107; and Scott v R [2019] NZCA 261 at [78]–[80], citing Prasad v R
[2018] NZCA 537 at [11].
5      DC (CA47/2013) v R [2013] NZCA 255 at [43].
6      Dickins v R [2012] NZCA 265 at [14], citing H (CA680/2011) v R [2012] NZCA 198 at [30] (citing
R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11], citing R v Rajamani [2007] NZSC 68,
[2008] 1 NZLR 723 at [5]).
7      New Zealand Police v Campbell, above n 2, at [1]–[3].
8 At [4].
9      At [6]–[9].

Mr Campbell achieving an international refereeing grade status in water polo,10 with which he expected to travel internationally at least once or twice per year.11

[5] With reference to appellate authority,12 the judge took…

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 1377
Case: [2021] NZHC 1377
Decision Date: 10 June 2021

CaseChat Overview and Summary

Jamie Douglas Campbell appeals against a decision of Judge S R Clark in the Hamilton District Court, who refused to grant him a discharge without conviction following his guilty plea to assaulting his former partner. The District Court assessed the gravity of the offence as low, and Judge Clark found that the direct and indirect consequences of the conviction were not out of proportion to the gravity of the offence. Mr Campbell argued that the judge did not adequately consider the potential consequences of the conviction on his employment prospects as an Olympic referee. The High Court considered the three-step analysis required under the Sentencing Act 2002, and held that the District Court was correct in its assessment. The gravity of the offence was appropriately assessed as low, and there was no real and appreciable risk that the consequences of the conviction would be out of proportion to the gravity of the offence. The appeal was dismissed.

Orders