Campbell v Police - [2019] NZHC 3447

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…

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.

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Details

Case: [2019] NZHC 3447
Decision Date: 19 December 2019

CaseChat Overview and Summary

Corrrey Campbell appealed against the sentence imposed on him by the District Court in relation to three charges of contravening a protection order and one of assaulting a person with whom he was in a family relationship. The District Court Judge had sentenced Campbell to 22 months’ imprisonment and 12 months’ post-release conditions. Campbell submitted that the starting point of 18 months’ imprisonment for the assault charge was manifestly excessive, and that the four month uplift for previous similar offending was also inappropriate. The respondent submitted that the sentence was within the range for the offending, but that the breach of protection order charges should have been taken as the lead offence. The court accepted that the correct approach was to take the breach of protection order charges as the lead offending, and that the Judge had overstated the seriousness of the assault. The court considered the present offending to be on a similar level of seriousness to that in Tutbury, where the starting point was half the maximum penalty. The court imposed a three month uplift for this criminal history, bringing the starting point to 22 months. The appropriate sentence would be 15 months’ imprisonment, which the court considered appropriate as an overall sentence for the offending.

The appeal was allowed. The sentence of 22 months’ imprisonment was quashed. On each charge of breach of a protection order, Campbell is sentenced to 15 months’ imprisonment. On the charge of assault, he is sentenced to three months’ imprisonment. All sentences are concurrent. 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.

Orders