Campbell v Police
[2019] NZHC 3447
•19 December 2019
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2019-425-000029
[2019] NZHC 3447
BETWEEN CORREY RAY CAMPBELL
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 16 December 2019 Appearances:
K Owen for the Appellant
S McKenzie for the Respondent
Judgment:
19 December 2019
JUDGMENT OF NATION J
Introduction
[1] Correy Campbell pleaded guilty to three charges of contravening a protection order and one of assaulting a person with whom he was in a family relationship. He was sentenced by Judge Brandts-Giesen to 22 months’ imprisonment and 12 months’ post-release conditions.1 Mr Campbell appeals that sentence on the basis it was manifestly excessive.
Facts
[2] On 14 August 2018 the District Court made a final protection order against Mr Campbell in relation to the victim, his former partner.
1 Police v Campbell [2019] NZDC 16474.
CAMPBELL v POLICE [2019] NZHC 3447 [19 December 2019]
[3] On 28 April 2019, Mr Campbell approached the victim as she sat in the driver’s seat of a friend’s car in Invercargill. He leant in the open window and shouted at the victim, demanding her keys before slapping her in the face with an open hand. The victim did not sustain any significant injuries from the slap. Another occupant of the car told Mr Campbell to leave. As he walked away, Mr Campbell shouted at the victim that he was going to burn down her house. Out of that incident, Mr Campbell was charged with and pleaded guilty to the charge of assault and two breaches of a protection order.
[4] Several minutes later, the victim drove in the same direction as him to see if he was going to her nearby house. Mr Campbell ran down the road towards the car the victim was driving and threw a rock at it, damaging the windscreen. The victim drove away, afraid Mr Campbell would damage the car more and, in her mirror, she saw him running down the road behind the car. She drove to a location where she felt safe and then contacted the police. That led to the third charge of breaching a protection order.
District Court decision
[5] The Judge found this to be significant offending, involving multiple offences against a victim over a short period of time, an assault to the head, threats to burn down her house and actual damage to property. He took the assault charge as the lead offence and adopted a starting point of 18 months’ imprisonment on that charge, stating that “as far as assaults go this is as bad as it gets”.
[6] The Judge added 12 months to the starting point for the three contraventions of the protection order. He then added a further four months for previous similar offending, bringing the sentence to 34 months.
[7] Turning to mitigating factors, the Judge allowed a 10 per cent discount for remorse and the fact that Mr Campbell had not been taking his medication. He reluctantly gave a full 25 per cent discount for guilty pleas, given the plea was not entered for some time due to negotiations with the Police. That resulted in an end sentence of 22.95 months, which the Judge rounded down to 22 months with regard to totality. That sentence was imposed on each of the charges, sentence to be served concurrently.
[8] The Judge also imposed 12 months’ post-release conditions as set out in the pre-sentence report. Mr Campbell was to attend a psychological assessment with a departmental psychologist as directed by a probation officer and was to complete any treatment and/or counselling as recommended by the assessment to the satisfaction of a probation officer. He was required to submit to electronic monitoring in the form of GPS technology and directed by a probation officer, in order to monitor his compliance with any conditions relating to his whereabouts. He was not to enter an exclusion zone as defined by a map to be presented to him before his release from prison.
[9]The Judge gave Mr Campbell leave to apply for home detention.
Principles on appeal
[10] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.2 As the Court of Appeal mentioned in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.3 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.4
Submissions
Appellant’s submissions
[11] Mr Owen, on behalf of Mr Campbell, submitted firstly that the 18 month starting point was manifestly excessive. He suggested the Judge erred in assessing the assault as being “as bad as it gets” and contended that a slap to the face resulting in no injury should fall at the lower end of the scale for offending of this type. Mr Owen referred to Sorenson v Police, where the Judge in the High Court upheld a sentence of 12 months’ imprisonment for an assault involving family violence and two charges of
2 Criminal Procedure Act 2011, ss 250(2) and 250(3).
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
4 Ripia v R [2011] NZCA 101 at [15].
breaching a protection order.5 The assault involved a punch to the nose and face, verbal abuse and pulling of hair, when the defendant had been released from prison two weeks earlier. In that case, the breach of protection order offending was taken as the lead offence, with the assault offending attracting a concurrent sentence of three months’ imprisonment.
[12] Mr Owen further referred to Williams v Police, where the defendant punched the victim in the mouth, for which she received six stitches.6 On appeal, Mallon J reduced the 12 month starting point to seven months in respect of the lead charge of breaching a protection order, and maintained the concurrent sentence of six months for the assault charge.
[13] In light of these cases, Mr Owen submitted that the breach of protection order offending should have been the lead offence. Given the breaches all related to a single incident, similar to the offending in Williams, Mr Owen contended a starting point of seven months would be appropriate. He submitted that the assault charge should then attract a concurrent sentence in the range of one to three months.
[14] Secondly, Mr Owen submitted that the four month uplift for prior convictions was inappropriate as it amounted to punishing Mr Campbell twice for his prior offending. He contended that an uplift of one or two months would be appropriate. That would result in an end sentence of nine to 12 months’ imprisonment on the breach of protection order offending, with a concurrent sentence of one to three months for assault.
Respondent’s submissions
[15] Ms Woodward, for the respondent, submitted that the end sentence of 22 months was in range for the offending, but suggested a different approach than the Judge took in reaching that point.
5 Sorenson v Police [2017] NZHC 2499.
6 Williams v Police [2014] NZHC 3255.
[16] Ms Woodward agreed with Mr Owen that the breaches of protection order should have been taken as the lead charges. In reaching a starting point for that offending, she referred to several cases where the courts have recognised the seriousness of protection orders and the importance in upholding them.7 For example, in Tetau v Police the High Court held that a starting point of two years was available for two charges of breaching a protection order, which constituted the appellant’s 10th and 11th breaches.8 Ms Woodward submitted that, in the present case, a starting point of two years’ imprisonment would be well within range for the breach offending, and a starting point of two and a half years would also be justified.
[17] She agreed with Mr Owen in his submission that a concurrent sentence was appropriate for the assault charge. However, Ms Woodward submitted that an uplift of four months was appropriate to reflect Mr Campbell’s history of domestic violence offending.
[18] If a starting point of two and a half years was taken, plus a four month uplift for previous offending, minus the discounts allowed by the sentencing Judge, the end sentence would be 22 months. Ms Woodward therefore contended the overall sentence was not manifestly excessive and the appeal should be dismissed.
Analysis
Starting point
[19] I accept that the correct approach was to take the breach of protection order charges as the lead offending. I accept the Judge overstated the seriousness of the assault in describing it as being “as bad as it gets”. Although it involved a slap to the head, it was not a punch. It left no injury. The slap was through an open car window. The potential for harm was less because the victim was in the car and Mr Campbell outside. The victim was also in the company of another person which reduced the risk to her.
7 R v Nathan CA209/06, 29 November 2006 at [25]; Police v Tule HC Rotorua AP87/02, 10 October 2002 at [14]; Tetau v Police [2015] NZHC 1284 at [39]-[40]; and Palmer v Police [2015] NZHC 143 at [24].
8 Tetau v Police, above n 7.
[20] There are three breaches of a protection order but they arise out of the same incident. The victim drove after Mr Campbell following the initial breach of protection order and assault because he had threatened to burn her house down. She followed his vehicle rather than ring the Police immediately and did not drive to her house by a different route. Although the way she chose to respond could not excuse or diminish the seriousness of what Mr Campbell later did, it does mean that it is appropriate to deal with the breaches of a protection order with concurrent sentences.
[21] There is no tariff authority for sentences imposed for breach of protection orders, and each case must be considered on its own facts.9 Furthermore, cases arising from facts prior to December 2013 will be of limited assistance because in that year the maximum sentence for breach of protection order was increased from two years to three years.
[22] The following post-2013 cases are relevant in determining the appropriate sentence for the present offending, in addition to those cited by counsel:
(a)Palmer v Police: the defendant was charged with three breaches of a protection order.10 After spending the night at the victim’s home with her consent, he woke her by pulling her hair, then forced her head into the mattress. The following day he verbally abused her and refused to leave when asked, so the victim was forced to leave the house to avoid him. He did not leave until the victim called the Police two days later. On appeal, the Court upheld a global starting point of 14 months for the three breaches.
(b)Mataiti v Police: the defendant was charged with two breaches of a protection order and one count of wilful damage relating to two incidents five months apart.11 The first incident involved verbal abuse and banging on a bathroom door, causing a hole in it. The second incident happened after the victim allowed him to accompany her to watch their son play rugby. When they returned to the house the
9 Mataiti v Police [2014] NZHC 1675 at [14].
10 Palmer v Police, above n 7.
11 Mataiti v Police, above n 9.
defendant refused to leave, resulting in him pushing the victim. The High Court upheld an overall starting point of 16 months for the breach of protection order charges, though accepted it was stern.12
(c)Apineru v Police: the defendant was charged with breaching a protection order and common assault.13 He appeared at a house uninvited, verbally abused the victim and grabbed her arm, causing bruising. He then took her to an empty house nearby before the pair spent the night at the defendant’s house. There had been three prior breaches of the final protection order. On appeal, a starting point of 24 months was considered appropriate.
[23] I also consider Tutbury v Police to have relevance, despite it being heard under the previous maximum penalty.14 In that case the defendant was charged with doing a threatening act, breaching a protection order and male assaults female. He phoned the victim in January 2013 while a Police Safety Order was in force and threatened to burn down her house. The Family Court issued a protection order in response. On April 25, the defendant stopped his car beside the victim as she was walking down the road and told her to get in. Three days later, he phoned the victim to ask where she was, to which she hung up. When the victim arrived home that day the defendant was waiting for her. He threatened her, followed her down the driveway and slapped her in the face. The appeal Court accepted that a starting point in the area of 12 months, or half the maximum penalty, was warranted.
[24] I consider the present offending to be on a similar level of seriousness to that in Tutbury. In both cases, the offender threatened to burn down the victim’s house, behaved in a physically threatening way and slapped her. The actions of the defendant in Tutbury could be seen as more serious given he phoned the victim several times and then waited at her house for her. However, I consider Mr Campbell’s actions were equally, if not more aggravating in that he threw a rock at the present victim’s car before chasing after it. That was understandably very frightening for the victim.
12 At [20].
13 Apineru v Police [2014] NZHC 1969.
14 Tutbury v Police [2013] NZHC 2960.
[25] I believe the seriousness of the breaches in this case falls somewhere between Mataiti and Apineru, and is similar to Tutbury, where the starting point was half the maximum penalty. I would therefore see a starting point of 19 months as appropriate.
[26] I agree with counsel that the sentence for the assault charge should be imposed concurrently. It is part of the same instance of offending as the breach charges and has been taken into account in assessing the seriousness of those charges.
Aggravating factors
[27] In Tutbury, the High Court considered an uplift of at least two months would have been appropriate to account for the defendant’s “continuum of violent offending against a partner and defiance of protection orders”.15 Asher J stated this would have been even higher had the past offending been more recent.
[28] In Williams, referred to by Mr Owen, the Court accepted an uplift of three months was appropriate for previous convictions.16 That took into account that the incident occurred while the defendant was subject to release conditions.
[29] I do not consider it would be double counting to make some addition to Mr Campbell’s sentence for his prior convictions. He has several recent convictions for family violence, which are clearly relevant, as well as a long list of other offences. On 28 January 2009, Mr Campbell was sentenced to imprisonment on conviction for breaching a protection order on 7 November 2018, two breaches of a protection order on 6 November 2018 and a common assault on 6 November 2018. He was released from prison just nine weeks before this latest offending. The increase is justified because of the need to deter Mr Campbell from further offending and to make him realise how important it is that he takes his medication and deals with the psychological issues that cause him to offend in this way.
[30] I impose a three month uplift for this criminal history, bringing the starting point to 22 months.
15 Tutbury v Police, above n 14, at [23].
16 Williams v Police, above n 6, at [12].
Mitigating factors
[31] There is no dispute about the discounts applied for mitigating factors. These included 10 per cent for remorse and the way Mr Campbell’s failure to take medication contributed to his offending. The pre-sentence report indicated Mr Campbell has mental health issues for which he usually takes medication. It indicated that he now realises how imbalanced his thinking becomes without medication. On medication, it would seem he is capable of avoiding causing harm of the sort his victim has suffered through this offending. He has shared care of the parties’ two children. At the time of this latest offending, those two children had been staying with him and his mother for the last four weeks. Despite his history of criminal offending, if Mr Campbell does deal with his mental issues and takes his medication, he may be able to avoid the frequent periods of imprisonment that have been a feature of his life so far.
[32] With that credit and a 25 per cent credit for guilty plea, the appropriate sentence would be 15 months’ imprisonment.
Conclusion
[33] Though it is the end sentence, and not the process by which it was reached, that is at issue on appeal, I am satisfied that the sentence imposed in the District Court of 22 months’ imprisonment was manifestly excessive. On my own application of the sentencing process, the end sentence would come to 15 months, which I consider is appropriate as an overall sentence for the offending.
End result
[34] On the assault charge, the appeal is allowed. The sentence of 22 months’ imprisonment is quashed. On each charge of breach of a protection order, Mr Campbell is sentenced to 15 months’ imprisonment. On the charge of assault, he is sentenced to three months’ imprisonment. All sentences are concurrent.
[35] Mr Campbell still has leave to apply for home detention should a suitable address become available. No change is made to the post-release conditions imposed in the District Court.
Solicitors:
K Owen, Barrister, Invercargill Crown Solicitor, Invercargill.
This judgment was delivered by me on 19 December 2019 at 4.00 pm Registrar / Deputy Registrar
Date: 19 December 2019
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