Earl Campbell was tried before a jury in the Napier District Court on one charge of aggravated robbery,[1] one charge of aggravated burglary[2] and five charges of unlawful possession of a firearm.[3]
[1]Crimes Act 1961, s 235(a). Maximum penalty of 14 years’ imprisonment.
[2]Section 232(1)(a). Maximum penalty of 14 years’ imprisonment.
[3]Arms Act 1983, s 45(1)(b). Maximum penalty of four years’ imprisonment or a fine not exceeding $5,000, or both.
In the somewhat unusual circumstances described below, the jury found Mr Campbell guilty of the firearms charges but not guilty of the other two charges.
On 20 May 2022, Judge Mackintosh sentenced Mr Campbell to two years and six months’ imprisonment.[4] Mr Campbell appeals his sentence.

Background facts

[4]R v Campbell [2022] NZDC 9253 [Sentencing notes].

In order to provide context for how Mr Campbell claimed he came into possession of the firearms, it is necessary to set out the Crown case on the aggravated robbery and aggravated burglary charges.
On 29 January 2021, two men broke into an address in Havelock North. One of the men assaulted the occupant, B. The assault was serious. It included B being struck on the head with a hammer. The keys to the gun safe were demanded. B handed them over. The co-offender went to B’s gun safe and took three rifles, two shotguns, three airguns and some ammunition.
Nearly three weeks later, four of B’s guns (two .22 rifles and two shotguns) were found by police in a bivouac behind Mr Campbell’s mother’s property in Tuai, a small settlement in northern Hawke’s Bay. A fifth firearm of unknown origin was also found. It was a sawn-off rifle. Mr Campbell was living with his mother at the time.
The Crown case at trial was that Mr Campbell was the assailant and his brother was the co-offender. This was supported by a substantial body of circumstantial evidence which tended to implicate Mr Campbell as one of the offenders.
Mr Campbell elected to give evidence. He did not deny that the aggravated robbery and aggravated burglary occurred in the circumstances claimed by the Crown. His defence, however, was that he was not one of the offenders.
Mr Campbell called Hawira Duncan as a witness. Mr Duncan and Mr Campbell had shared a cell together. Mr Duncan admitted to committing the aggravated burglary and aggravated robbery with Mr Campbell’s brother.
The jury acquitted Mr Campbell of the charges relating to the home invasion, but found him guilty of the five charges of unlawful possession of a firearm.

District Court sentencing

Judge Mackintosh noted that…

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 R

Details

AGLC: Campbell v R [2022] NZCA 579
Case: [2022] NZCA 579
Decision Date: 25 November 2022 at 2.00 pm

CaseChat Overview and Summary

Earl Strathern Campbell appeals his sentence for unlawful possession of firearms. The Court of Appeal dismissed his appeal, affirming the sentence of two years and six months’ imprisonment imposed by the District Court. Campbell was acquitted of aggravated robbery and burglary but found guilty of possessing five firearms, including four linked to a previous crime. The appeal hinged on whether the starting point for sentencing was too high and whether personal mitigating factors were inadequately considered.

The Court of Appeal held that the starting point of two years and six months was appropriate, considering the number of firearms and ammunition, and the inherent danger posed by Campbell's possession of these items. The Court noted that similar cases involving multiple firearms typically result in higher starting points, and the possession of a sawn-off rifle, classified as a pistol, added to the severity of the sentence. The Court also rejected Campbell’s argument that he should have received credit for self-representing at trial, stating that self-representation often increases trial costs rather than reducing them. The Court concluded that no personal mitigating factors warranted an adjustment to the sentence.

The appeal was dismissed, and the original sentence was upheld. The Court found no error in the District Court’s sentencing process or its consideration of mitigating factors.

Orders