Campbell v Police

[2021] NZHC 1377

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 the view the risks to that travel were speculative.13 The judge was not persuaded there was evidence before him of a real and appreciable risk Mr Campbell would be prevented from travelling internationally if refused a discharge from conviction. He therefore declined that application, convicting and discharging Mr Campbell.14

[6]                   For Mr Campbell, Scott McKenna argues the judge too lightly weighed the immigration consequences flowing from conviction on a charge of assault on a person in a family relationship. He says Mr Campbell’s employment prospects as an Olympic referee also directly are at issue, assuming he obtains such qualification, even if he was able to gain admission to the relevant foreign countries.

Discussion

[7]                   A three-step analysis — the gravity of the offending; the direct and indirect consequences of a conviction; and if those consequences are out of all proportion to the gravity — is required.15 That is how the judge conducted his analysis.

—gravity of offending

[8]                   Assessing the gravity of the offending requires consideration of aggravating and mitigating factors relating to both the offending and the offender.16 This is an evaluative, highly fact-dependent exercise.17

[9]                   Family violence offending inherently is serious. It is exacerbated here by    Mr Campbell’s attempt to prevent his former partner from communicating with the

10     At [10]–[11].

11 At [12].

12     At [15]–[16], citing Edwards v R [2015] NZCA 583 at [26]–[27].

13     At [19]–[21].

14     At [22]–[24].

15     Sentencing Act, s 107; Z (CA447/12) v R [2012] NZCA 599, [2013] NZAR 142 at [8]; R v Hughes, above n 6, at [16]–[17]; and Scott v R, above n 4, at [79].

16     Rahim v R [2018] NZCA 182 at [15]; Z (CA447/2012) v R, above n 15, at [27]; DC (CA47/2013)

v R, above n 5, at [35]; and Waine v R [2017] NZCA 287 at [21].

17     Rahim v R, above n 16, at [16].

police. But, within the spectrum of family violence, Mr Campbell’s offending is toward the lower end, and mitigated by Mr Campbell’s guilty pleas, remorse and rehabilitation, and lack of relevant history. I recognise he and his former partner are working toward reconciliation. The judge was right to conclude the gravity of the offending was low.

—consequences of conviction

[10]               I do not doubt Mr Campbell’s conviction will have consequences for him, and possibly in relation to either or both his employability as an Olympic referee, and in admission to foreign countries to exercise it. But consequences are conviction’s point, and those relied on for discharge here only are speculative. Employment or travel disqualifications should convincingly be evidenced, and that is not established on the material proffered by counsel. Again, the judge was right.

—proportionality assessment

[11]               Accepting the gravity of Mr Campbell’s offending is low, I have little material on its consequences to weigh against it, and certainly nothing as may be thought to render them wholly disproportionate. Where actual consequences turn on a third party’s assessment of the relevant facts, and there is no reason to think that assessment would be otherwise than made in good faith, the better approach is to leave the assessment for that party than for this Court to avoid those decisions by discharge.18 That very much is the case here, if Mr Campbell’s most recent conviction additionally is, or is required, to be disclosed to decision-makers. This is not one of those “rare cases” where decision-makers’ scrutiny itself is of qualifying disproportionality.19 The judge did not err.

Result

[12]The appeal is dismissed.

—Jagose J

18     R v Taulapapa [2018] NZCA 414; and Ho v R [2016] NZCA 229.

19     Zhang v Police [2018] NZHC 285 at [32]. See also George v Police [2014] NZHC 1725 at [46].