Campbell v R
[2020] NZCA 356
•19 August 2020 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA154/2020 [2020] NZCA 356 |
| BETWEEN | LORETTA TOHUNGARAU CAMPBELL |
| AND | THE QUEEN |
| Hearing: | 16 June 2020 |
Court: | Courtney, Brewer and Hinton JJ |
Counsel: | T Epati for Appellant |
Judgment: | 19 August 2020 at 10.30 am |
JUDGMENT OF THE COURT
A The appeal is allowed.
BThe sentence of three and a half years’ imprisonment is quashed and substituted with a sentence of three years’ imprisonment.
____________________________________________________________________
REASONS OF THE COURT
(Given by Courtney J)
Introduction
Following a jury trial in the District Court at Gisborne Loretta Campbell was convicted as a party on two charges of possessing methamphetamine for supply.[1] Judge Cathcart sentenced Ms Campbell to three years and six months’ imprisonment.[2] She appeals her sentence on the ground that it is manifestly excessive as a result of the Judge taking too high a starting point and not allowing sufficient discount for personal circumstances.
The offending
[1]Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a). She was acquitted on four other charges of possessing methamphetamine for supply and discharged on a fifth charge, the jury having been unable to reach a verdict.
[2]R v Campbell [2020] NZDC 3286 [Sentencing decision].
Ms Campbell was arrested along with her husband, Lucky Campbell, and others as part of a police investigation into methamphetamine dealing in the Gisborne region in 2017 and 2018. Mr Campbell was the principal offender and pleaded guilty to seven charges of possession of methamphetamine for supply.[3] As noted, Ms Campbell was convicted at trial of two charges of possession of methamphetamine (charges 2 and 6).
[3]R v Campbell [2019] NZDC 26383. Mr Campbell was sentenced to 14 years and seven months’ imprisonment on the drugs charges and 12 months’ imprisonment (concurrent) on a firearms charge.
The evidence at trial was that Mr Campbell would travel to Auckland to buy methamphetamine in bulk and distribute it through his Gisborne network at both wholesale and retail levels. Surveillance evidence and intercepted communications showed that Ms Campbell was aware of her husband’s activities and participated to a limited extent.
Charge 2 related to the possession of 140 grams of methamphetamine between 28 July and 2 August 2017. Mr Campbell had travelled to Auckland intending to purchase a kilogram of methamphetamine. His efforts to do so were frustrated because he had been unable to find a supplier. Eventually, he purchased 140 grams. Intercepted communications showed that Ms Campbell was aware that her husband intended to purchase a kilogram of methamphetamine and that she made efforts to help him find an alternative source by locating possible contacts in Mr Campbell’s phone. She also assisted in the sale of one ounce of the amount Mr Campbell had purchased by passing information from him on to the buyer.
Charge 6 related to Mr Campbell’s trip to Auckland on 11 November 2017 and his purchase there of one kilogram of methamphetamine. Ms Campbell knew the purpose of Mr Campbell’s trip and, at his request, paid the toll road fee and booked accommodation. The Judge was not satisfied that she knew the exact amount Mr Campbell had purchased and proceeded on the basis that she just knew he intended to purchase “a significant amount” of methamphetamine.[4]
[4]Sentencing decision, above n 2, at [25].
In January 2018 Ms Campbell separated from her husband. Intercepted communications between the couple captured exchanges about the division of money, clearly from drug dealing. In January 2018 the police searched the motel unit rented by Lucky Campbell and a self-storage unit rented by Ms Campbell (the contract was in her name and she held the access card). The motel unit contained 94.9 grams of methamphetamine and $10,010 in cash. The storage unit contained $460,160 in cash and a small amount of cannabis but no methamphetamine.
First ground of appeal: the starting point was too high
The issue on appeal
The Judge sentenced on the basis of Zhang v R[5] and one of the other appeals determined in Zhang, Phillips v R.[6] He was conscious of Ms Campbell’s role in fixing a starting point in accordance with the Zhang methodology. He considered that, on quantum alone, the offending fell within the top end of band two or the low end of band three but, taking her lesser role in the overall network into account, concluded that a starting point of five and a half years’ imprisonment was appropriate.[7]
[5]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[6]At [204]–[228].
[7]Sentencing decision, above n 2, at [33].
The role played by an offender is an important part of the Court’s assessment of the seriousness of the conduct, the level of criminality involved and the culpability inherent in the offending.[8] The trial Judge is best placed to make this assessment and must frequently do so on the basis of inferences about role, knowledge and gain.[9] The issue in this appeal is what evidence the Judge was entitled to draw on for this purpose.
[8]Zhang, above n 5, at [118] and [126].
[9]At [127].
Ms Epati, for Ms Campbell, submitted that, in assessing Ms Campbell’s role for the purposes of identifying the correct starting point, the Judge wrongly took into account evidence that was unrelated to the charges and failed to take into account the matters raised in the report provided under s 27 of the Sentencing Act 2002, which addressed (among other aspects) the effect of Ms Campbell’s relationship with Mr Campbell on her culpability. Ms Campbell asserted that her offending was to be viewed in the context of a coercive relationship with her husband
Evidential basis for finding as to Ms Campbell’s role
Because Ms Campbell was facing a number of charges the scope of the evidence at trial was much wider than that required to prove charges 2 and 6 on which she was convicted. The extent to which the Judge could take into account the wider context in sentencing on those charges was the subject of argument at the sentencing hearing.
The Crown invited the Judge to interpret the guilty verdicts on charges 2 and 6 by reference to the wider evidential context, including in particular the undisputed evidential communications data.[10] This included evidence about Ms Campbell’s dealings with customers, including arranging refunds and handling both money and methamphetamine.[11] In addition, there was what the Judge referred to as non-charged evidence; evidence of a general nature not specifically directed towards particular charges but forming part of the Crown’s circumstantial case.[12] The Judge did not consider such material relevant:
[12] I have reached the view the proper approach on factual material — as it relates to Ms Campbell — is to use evidence only to the extent it properly bears down [on] an assessment of charges 2 and 6 only. The use of any evidential communications and drawing of inferences on issues of quantum and role must be only what is permissible and do not usurp the jury’s decision which resulted in Ms Campbell’s acquittal on remaining allegations.
[13] In my view the key issue before the jury on all counts was whether Ms Campbell knew that her husband was in Auckland on the specific dates trying to obtain large bulk supplies of methamphetamine by way of reloads. In short, knowledge of what was going through her mind in relation to the individual transactions by her husband was the key issue in her case. …
[14] I have come to the conclusion it would be wrong in principle for me to take into account the wider evidential material relied upon, including: the non-charged evidence said to represent supplies and offering to supply methamphetamine; the advice component about the handling [of] money, equipment or product issue; and the customer relations evidence.
But the Judge went on:
[15] Having said that, there are core facts which are of direct relevance to my factual assessment of charges 2 and 6. I have already spoken about the immediate context of those transactions. That context is obviously relevant to an assessment of what Ms Campbell knew on those particular dates about her husband’s activities in Auckland re quantum and role.
[16] Also, evidence about the discussion between Lucky Campbell and Ms Campbell in January 2018 where the two had a dispute over the enterprise that had been run to that date is also relevant. The jury and I saw the relevant CCTV footage and listened to the evidential communications by Ms Campbell during that period to her husband and another third party and we read the relevant text material.
[10]Sentencing decision, above n 2, at [5]–[6].
[11]At [9].
[12]At [10].
At trial, both the relevance and the significance of the money found in the self‑storage unit were in dispute. The Crown asserted that the communications showed that Ms Campbell’s share in the drug proceeds was represented largely by the $460,000 found in the storage unit;[13] Ms Campbell’s counsel argued that there were other explanations for the money (there had been evidence of cannabis dealing and money lending) and that on a proper interpretation the evidence suggested that the lion’s share of the money belonged to Mr Campbell.[14] While the Judge acknowledged the arguments advanced for Ms Campbell as having force, he nevertheless considered that they left “the money-factor as being relevant to the overall inferences I draw in interpreting the verdict, and resolving the key factual issues in dispute on quantum (charge 6 only) and role”.[15]
[13]At [17].
[14]At [18]–[19].
[15]At [19].
On that basis the Judge proceeded to find, in relation to charge 2, that the immediate context showed Ms Campbell was aware that Mr Campbell was attempting to source one kilogram of methamphetamine.[16] In relation to charge 6, the Judge found that the evidence that related solely to that charge, coupled with the finding regarding Ms Campbell’s knowledge in relation to charge 2, showed that Ms Campbell knew that Mr Campbell was seeking to purchase methamphetamine but not that she knew the amount. The Judge added, however:[17]
… in my view when these evidential threads are combined along with the inferences drawn from the money found at the storage unit; her connection with that unit and the motel unit (she rented it), she must have known in relation to charge 6 that her husband was intending to source a significant amount of methamphetamine but certainly not proved to the level of one kilogram.
[16]At [21].
[17]At [25] (Emphasis in original).
In relation to Ms Campbell’s role the Judge said:
[28] Ms Campbell’s role as it relates to charges 2 and 6 only was significant in that context but in the wider drug distribution network run by Mr Campbell her role must be seen as lesser in terms of Zhang. Then again labels are never helpful, much like decisions which give banding directions to lower Courts. …
The Judge compared the offending with that in Phillips, relied on by Ms Campbell’s counsel and concluded that:
[33] Given my findings, I consider this is one of those cases where placing an individual’s culpability within a particular band is not overly helpful. My findings could lead to the offending falling either at the top end of band 2 or low end of band 3 on quantum alone and without consideration of role. But, when I take into account Ms Campbell’s lesser role in the overall drug distribution network, albeit a significant role in the limited two transactions, and taking into account all the other relevant factors mentioned, I consider a starting point of five and a half years’ imprisonment is appropriate.
(Emphasis in original).
Ms Epati submitted that, having correctly identified the wider evidential material as irrelevant, the Judge erred by then taking into account the communications about the money found in the storage unit. Ms Epati said that, having acknowledged the strength in the submission that the evidence suggested the lion’s share of the money belonged to Mr Campbell, the Judge was wrong to then draw inferences from Ms Campbell’s connection with the money found in the storage unit to conclude that she knew Mr Campbell was intending to source a “significant” amount of methamphetamine. Further, there was nothing in the storage unit to connect the money with the methamphetamine dealing; it was only the motel unit, which was rented by Mr Campbell, that contained any physical evidence of methamphetamine.[18]
[18]Mr Campbell had rented the unit in 1998 when he and Ms Campbell decided to have some time apart and, although they had reconciled and separated several times after that, he retained the unit.
Ms Epati also argued that, in relation to charge 6, the text messages and the verdicts required the Judge to treat the evidence as showing that most of the money found in the storage unit belonged to Mr Campbell. As a result, the only available conclusion was that Ms Campbell’s role was a lesser one. On that basis, the starting point of five and a half years was too high.
For the Crown, Ms Fuhr argued that the intercepted communications in January 2018 indicated an expectation that the money generated by the enterprise, which undoubtedly included methamphetamine dealing, would be shared. Mr Campbell had not been at the storage unit after 12 January 2018, the day on which he and Ms Campbell exchanged a number of texts about the division of the money in the context of their separation and later went to the storage unit, apparently so that Mr Campbell could take his share of the money.
We agree that the tenor of messages between Mr and Ms Campbell on 12 January 2018 is to the effect that, although Mr Campbell claimed to have done most or all of the work to generate the money, it was nevertheless viewed as being subject to division between them. Mr Campbell referred in texts to “our empire”, “my half” of the money and the fact that Ms Campbell was “set for life now”. Ms Campbell agreed that Mr Campbell would “get [his] … money” and made arrangements for them both to go to the storage unit for that purpose. In an intercepted telephone call to a third party later that day Ms Campbell referred to having “sorted … that money” with Mr Campbell and that Mr Campbell “took me to go and get it and he’s left me with most of it”.
A sentencing judge is entitled to take into account broader contextual evidence in assessing role and culpability. Knowledge of commerciality, expectation of financial benefit and actual financial benefit are all highly relevant to the assessment of an offender’s role and culpability, yet the evidence of these aspects is often disconnected from particular transactions. In our view it was open to the Judge, who had heard all the evidence (including evidence about other potential sources of the money) to draw the inference that some or all of the money in the storage unit was the proceeds of methamphetamine dealing and that Ms Campbell knew the source of the money, exercised a significant level of control over access to the storage unit in which the money was kept and both asserted the right to a share in the money and actually received the benefit of part of it.
Should the s 27 report have affected the Judge’s assessment of role and culpability?
In Zhang, in acknowledging that a lesser role in the offending may indicate a lower level of culpability that ought to be recognised in the starting point, this Court identified certain indicia that might be taken into account in assessing an offender’s role. These included where the offending is the result of pressure, coercion and intimidation. But the Court noted expressly noted that these indicia were descriptive of conduct; any discount for associated mitigating personal considerations was for the second stage of sentencing.[19]
[19]Zhang, above n 5, at [126].
At sentencing Ms Campbell relied on a report by Associate Professor Khylee Quince for the purposes of s 27 of the Sentencing Act. Section 27(1) entitles an offender to request the Court to hear any person called by the offender to speak on a variety of personal factors that might affect sentencing. These include the personal, family, whānau, community and cultural background of the offender and the way in which that background may have related to the commission of the offence.[20]
[20]Sentencing Act 2002, s 27(1)(a) and (b).
Associate Professor Quince is a legal academic whose areas of speciality include criminal law and youth justice, family law, restorative justice and therapeutic jurisprudence with a particular focus on Māori engagement in justice. The s 27 report was proffered for the purposes of showing mitigating factors that warranted recognition by way of deduction from the starting point; the Judge was not invited to treat it as relevant to the assessment of Ms Campbell’s role for the purposes of fixing the starting point. The Judge reviewed the report at some length at the second stage of the sentencing and recorded counsel’s submission that Ms Campbell would not have been before the court but for Mr Campbell and his criminal activity.[21] He concluded that, whilst difficult, the relationship was not causative of the offending.[22] Although he accepted that there was some truth in the proposition that the source of the offending lay in Ms Campbell’s relationship with Mr Campbell he did not accept it was to the degree asserted.[23]
[21]Sentencing decision, above n 2, at [55].
[22]At [57].
[23]At [58].
Ms Epati submitted that the report placed Ms Campbell’s offending in the context of her relationship with Mr Campbell and that the Judge had erred in failing to properly recognise that aspect as relevant to Ms Campbell’s role and true level of culpability. Ms Epati submitted that the Judge had overstated the need for a demonstrative causal connection between the offending and the relevant context and argued that Ms Campbell’s offending had to be viewed through the prism of the controlling nature of the marital relationship.
In advancing this argument, Ms Epati said that she was not advocating for “double-dipping”, but rather for a more nuanced assessment of culpability. Ms Epati acknowledged that this was not a case where social, cultural and economic deprivation in childhood had affected future adult moral choice and actions. Instead, it was the ongoing relationship dynamic that was operative at the time of the offending; the dynamics of the relationship were such that Ms Campbell should have been regarded as less culpable than the bare facts of the offending might suggest. She relied on Associate Professor Quince’s opinion that “[t]he key element underpinning Loretta’s offending is her relationship with Lucky”.
In her report Associate Professor Quince recorded Ms Campbell’s description of her relationship. The salient points are as follows. The couple had been in a relationship from the time Ms Campbell left school at the age of 14. They have five children together.[24] There had been one instance of strangulation in 2016 but otherwise the relationship was generally not violent. Mr Campbell was, however, chronically unfaithful and left the family several times over the years. Mr Campbell was controlling of Ms Campbell and tended to belittle her until Ms Campbell eventually believed that she did not deserve anything better than what she had. The relationship worsened when Mr Campbell became involved with methamphetamine.
[24]Counsel advised that the children are now aged between nine and 23 years.
Associate Professor Quince made some general observations regarding the nature of a healthy relationship, common to all cultures, but then expressed the view that Ms and Mr Campbell’s relationship was one in which the dynamics of “coercive control” were at play. The basis for this assertion was a publication by a Canadian researcher, Professor Evan Stark.[25] That led into reference by Māori researchers Professor Denise Wilson and Dr Alayne Mikahere-Hall and their work on how coercive control operates for Māori women:[26]
Empirical interviews with a number of Maori women in problematic domestic relationships demonstrate that wahine Maori view their controlling partners with aroha and manaaki – love and compassion, as key principles within the framework of Maori cultural imperatives. Whilst this may seem counterintuitive, it fits within a Maori sense of priorities – within the overarching framework of whakapapa – genealogy, and the obligations of whanaungatanga that derive from relatedness. Put simply, the women prioritise the needs and wellbeing of their partner and children – because they have forged a kin connection, which is incumbent upon them to maintain. Added to this cultural analysis, are the complex and interrelated factors deriving from historical, social and economic inequities – which render escape and concepts of individual agency illusory. The practical realities of seeking help, starting again and managing your children’s relationship with an estranged father, are significant barriers to overcome.
(Footnote omitted).
[25]Evan Stark Coercive Control: How Men Entrap Women in Personal Life (Oxford University Press, New York, 2007).
[26]Denise Wilson and Alayne Mikahere-Hall “Aroha and Manaakitanga – That’s What It Is About – Indigenous Women, “Love” and Interpersonal Violence” (2019) Journal of Interpersonal Violence.
Associate Professor Quince then proceeded to the following conclusion:
This relationship dynamic would undoubtedly affect a person’s psychological and spiritual wellbeing – Te Taha Hinengaro and Te Taha Wairua – in terms of their self-esteem, sense of self and individual agency. Although a strongly collectivist culture, Te Ao Maori acknowledges and values the individual within the structures of whanau, hapu and iwi. However, the individual can only flourish within functional social structures that are providing appropriate aroha and manaaki for their members. A common response for women in violent or controlling relationships, is to focus on children or the household. Loretta talks in these terms – of “getting on with her life, while Lucky did his own thing”. He was not committed to the partnership, home or children in any sustained way. She reports that in the year leading up to their apprehension and arrests, she and Lucky “broke up at least 5 or 6 times”.
And later:
Whilst it is disingenuous to completely deny Loretta’s agency for her actions that underpin this offending, those actions must be considered within context. That context is a life in which she has little consistent support or love from her partner; where he does as he likes and she has little to no influence or control over his behaviours. Although Loretta accepts her situation, she is consistent in her claim that, but for [Mr Campbell] she would not be here and “would not have failed her children”. Viewing her offending behaviours as a series of transactions in which she provided assistance or encouragements to her husband fails to appreciate the longer-term dynamics operating within their relationship.
We readily accept Associate Professor Quince’s knowledge of te ao Māori. However, we are more cautious about her assertions regarding the psychological aspects of human relationships. If the assertion is that the nature of Ms Campbell’s marital relationship had a psychological impact capable of affecting her culpability, the Court would expect to benefit from the opinion of a psychologist. We note, for example, that in Philips, which was relied on as a comparable case, the Court had the benefit of a report by a psychologist.
Even leaving that concern aside, however, there is an insufficient basis on which to find that the type of indicia contemplated in Zhang as likely to affect culpability existed in this case. That is not to downplay the relevance of Ms Campbell’s personal circumstances, but the s 27 report does not seem, to us, to provide a basis on which the Judge might have been able to assess Ms Campbell’s role and culpability. In our view, the matters raised in the s 27 report were properly part of the Judge’s consideration of mitigating factors and the Judge made no error in his approach to this aspect of the sentencing
Was the starting point nevertheless too high?
We have concluded that the Judge did not make any error in assessing Ms Campbell’s culpability in relation to charge 6 by taking into account the evidence relating to charge 2 and, in relation to both charges, in taking into account the evidence about the money in the storage unit. Nor did he err in treating the s 27 report as relevant to the second stage of sentencing. However, for completeness, we go on to consider whether the starting point selected was appropriate, notwithstanding the issues just discussed.
It is clear that Ms Campbell was involved in the circumstances giving rise to charge 2 in a way that was lesser but not completely minor or administrative; she actively encouraged and assisted. The quantum of the drug and the nature of her involvement in that transaction would place that offending in the middle to upper range of band two, attracting a starting point of between five and seven years. Charge 6 required the starting point to be determined on the basis of the Judge’s factual finding that Ms Campbell knew that Mr Campbell was seeking to source a significant amount of methamphetamine, though not the precise amount. However, her involvement was very much at the lower end; the charge 6 offending would fall within the lower end of band 3, attracting a starting point of between six and seven years.
On this basis alone, a starting point of six to eight years would have fairly reflected the totality of the offending, subject to any adjustment to reflect Ms Campbell’s overall culpability as a minor player in the organisation. The Judge was clearly right that Ms Campbell’s role in the overall network was much less than her role in the two particular transactions of which she was convicted. He was right to adjust the starting point accordingly. We consider that the starting point of five and a half years’ imprisonment, which would place the offending in the middle of band two, was a fair reflection of the offending overall. The first ground of appeal therefore fails.
Second ground of appeal: failure to allow sufficient discount for mitigating factors
The approach of the District Court Judge
Ms Campbell raised a number of mitigating factors and the Judge allowed a total of two years (36 per cent) in recognition of them. This comprised eight months (12 per cent) for her previous clean record, solid history of paid work and devotion to her five children,[27] 12 months (18 per cent) for personal circumstances (her difficult marital relationship and the effect of her incarceration on her children)[28] and four months (six per cent) for the time spent on strict bail conditions.[29]
[27]Sentencing decision, above n 2, at [42].
[28]At [59].
[29]At [61].
No allowance was made for remorse; the Judge considered this unwarranted given that Ms Campbell had defended all the charges against her and seemed to lack insight in to her own criminality.[30]
[30]At [60].
Ms Epati submitted that the total discount was too low. Specifically, the discount for Ms Campbell’s good record was “miserly”; the Judge failed to adequately recognise the factors addressed in the s 27 report, particularly the effect of incarceration on Ms Campbell’s children; and there was no recognition of Ms Campbell’s efforts towards and prospects for rehabilitation.
Discount for previous good record
As already noted, Ms Campbell left school at a young age and appears not to have any formal qualifications. She was 40 years old when convicted. She had no previous convictions of any kind and a history of consistent employment with a reputation as a hard worker, loyal friend and devoted mother. Ms Epati relied on the observations made in R v Findlay[31] and R v Davidson[32] that for a person with a good record a fall from grace is punishment in itself, and that there is greater potential for rehabilitation where community involvement and good character bear witness to a reduced probability of reoffending. In both Findlay and Davidson discounts of 25 per cent were given for previous good character.
[31]R v Findlay [2007] NZCA 553 at [91].
[32]Davidson v R [2011] NZCA 356 at [16].
The Crown’s response, however, is that Findlay and Davidson were distinguishable by the notable service the offenders had given to their communities and extended family. Ms Fuhr submitted, moreover, that any claim to a discount for Ms Campbell’s good record must be considered in light of her involvement in commercial drug dealing over a period of months.[33]
[33]R v Zhang (2004) 20 CRNZ 915 (CA) at [26].
Given Ms Campbell’s difficult circumstances and lack of opportunity in life we agree that her record is something to be proud of. A slightly higher discount than then 12% allowed would have been justified but the nature of Ms Campbell’s offending, clearly not a “one-off”, meant that a discount greater than 15 per cent would have been excessive by comparison to like cases.
Discount for personal circumstances: Ms Campbell’s marital relationship, effect of incarceration on her children and rehabilitative prospects
Ms Campbell’s personal circumstances were addressed in the s 27 report, which the Judge reviewed at some length, referring specifically to the difficult relationship that Ms Campbell had with her husband and the impact that Ms Campbell’s incarceration would have on her children. As to the latter, he acknowledged a letter written by one of Ms Campbell’s children.[34] As to the former, we have already referred to the Judge’s view that whilst there was some truth in the proposition that the source of the offending lay in Ms Campbell’s relationship with Mr Campbell he did not accept it was to the degree asserted. The 12-month (18 per cent) discount was fixed without identifying how it was made up; it was said simply to reflect Ms Campbell’s personal circumstances.[35]
[34]Sentencing decision, above n 2, at [56].
[35]At [59].
Ms Epati submitted, first, that the non-specific discount failed to adequately address the effect of incarceration on Ms Campbell’s children. It is uncontroversial that the effect imprisoning an offender’s children has on those children is a factor that may be taken into account in considering the appellant’s personal circumstances. The weight to be accorded that factor depends on the circumstances.[36] The relevant circumstances include the type of offending and the circumstances of the child or children.
[36]R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [13], citing R v Harlen (2001) 18 CRNZ 582 (CA) at [21]–[22]. .
In this case we accept that there would be a significant impact on Ms Campbell’s children as a result of her imprisonment. It is quite evident from the pre-sentence report and from the s 27 report that Ms Campbell has been the primary caregiver for her children, a devoted mother and a stable presence in her children’s lives. It is true that her eldest child has children of his own and is, strictly, of an age that he should be independent; sadly, it is also true that he has difficulties with addiction and his children would, in the usual course, rely on Ms Campbell to some extent for stability in their lives. Further, Ms Campbell’s imprisonment comes at a time when her children’s father will be absent, serving at least the eight-year minimum period of imprisonment imposed on him.
We accept that even though the children are not as young as those in other cases, they are nevertheless at an age where parental presence is an important protective factor and the loss of that a corresponding risk factor for these children. These children do have substantial and positive whānau support from both their mother’s and father’s extended families. They are in the day-to-day care of their paternal grandparents and have a close relationship with their aunt and maternal grandmother. This is not a case where the children will be left rudderless, without support and guidance. Nevertheless, teenagers are at an especially vulnerable stage of life to lose a loving and stable parent.
We note that practical considerations mean that the opportunities for Ms Campbell’s children to visit her will be rare, if they occur at all. The distance from their home in Gisborne to Auckland Women’s Prison and the cost of travel are likely to put visits beyond reach. We also note that Ms Campbell is reluctant for her children to see her in the prison environment but do not accept the Crown’s suggestion that it is simply Ms Campbell’s choice not to see her children.
Overall, we accept that the impact on Ms Campbell’s children is an issue that deserved specific recognition and, ideally, would have been the subject of an identifiable discount rather than being included in the total discount allowed for personal circumstances. Taking the children’s position into account, but set against the nature of the offending and other sentencing considerations, a discount of five per cent would have been warranted.
We turn next to the lack of any discount for rehabilitative efforts and prospects. The pre-sentence report identified rehabilitative needs, specifically drug and alcohol counselling to reduce the risk of further offending, and reported that Ms Campbell was motivated to address those needs. The s 27 report refers to Ms Campbell’s exemplary conduct in prison. We accept that, while Ms Campbell does not have rehabilitative needs in the sense of drug addiction, there are clearly other aspects that have contributed to her situation and that she is motivated to change. Encouraging and rewarding efforts to reform is a significant sentencing consideration and we agree that the Judge should have recognised this aspect. A discount of 8–10 per cent ought to have been allowed for that purpose.
This leaves the discount given for Ms Campbell’s problematic relationship with Mr Campbell. It is evident from the Judge’s comments that he did not accept that Ms Campbell was overborne by her husband to the extent she claimed. But he did accept that it was a controlling relationship and it is reasonable to infer that she was drawn into the offending by him, even if, ultimately, the offending was a product of her own will. In our view these were conclusions that were open to the Judge, who was best placed, having heard all the evidence at trial. In our view a discount of 10 per cent would have been fair.
Total discount
A total discount in the order of 45 per cent would have been reasonable to reflect the various factors discussed above, including the discount for time spent on electronically-monitored bail. This would have resulted in an end sentence of three years rather than the three and a half years imposed. This is a sufficiently significant difference such that we should allow the appeal on this ground.[37]
Result
[37]Criminal Procedure Act 2011, s 250(2).
The appeal is allowed. The sentence of three and a half years’ imprisonment is quashed and substituted with a sentence of three years’ imprisonment.
Solicitors:
Rishworth Wall & Mathieson, Gisborne for Appellant
Crown Law Office, Wellington for Respondent
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