Campbell v The Queen - [2020] NZCA 631

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA142/2020
[2020] NZCA 631

BETWEEN	LUCKY TE WAATA CAMPBELL Appellant
AND	THE QUEEN Respondent

Hearing:	2 November 2020
Court:	Clifford, Woolford and Mander JJ
Counsel:	E J Forster for Appellant M L Wong and L E Cacace for Respondent
Judgment:	8 December 2020 at 10.30 am

JUDGMENT OF THE COURT

A The application for an extension of time is granted.

B The appeal against sentence is dismissed.

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REASONS OF THE COURT

(Given by Mander J)

Mr Campbell pleaded guilty to seven charges of possessing methamphetamine for supply and one charge of unlawful possession of firearms. The offending involved the trafficking of approximately 6.3 kg of the drug over a two-year period. He was sentenced by Judge Cathcart to 14 years and seven months’ imprisonment and ordered to serve a minimum of half his sentence.[1]
[1]R v Campbell [2019] NZDC 26383.
Mr Campbell appeals his sentence on the single ground that the Judge failed to take proper account of the mitigating effect of a cultural report.
The appeal was filed some 27 days out of time. However, the delay was relatively short and the Crown is not prejudiced. In the absence of opposition leave is granted.

The offending

Mr Campbell was arrested at the conclusion of an electronic surveillance operation that targeted methamphetamine dealing in the Gisborne area. In sentencing Mr Campbell, the Judge referred to him as the “principal offender within [the] drug distribution network”.[2] No issue is taken with that description, nor is there any dispute that Mr Campbell’s offending fell at the “top end of the leading role” category of the dealing hierarchy set out in the guideline judgment of Zhang v R.[3]
[2]At [4].
[3]At [24]; and Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [126].
Typically, Mr Campbell would source large quantities of methamphetamine from an Auckland-based distributor which he then on-supplied in both wholesale and retail amounts in his local area. He would keep drugs and cash at a retail unit and at a storage facility that he leased on a long-term basis. When the police operation was terminated Mr Campbell was found in possession of 96.8 g of methamphetamine and some $10,000 in cash. A further $460,160 was located at the storage unit, together with two sawn-off shotguns.

Personal circumstances

At the time of his sentencing Mr Campbell was 43 years old. He had been in a relationship with his partner, that had produced five children, for some 24 years. Mr Campbell related to the pre-sentence report writer an upbringing of violence and exposure to alcohol and cannabis. He compared his life at that time to the movie Once Were Warriors and that he and his siblings were left to “fend for themselves”.
Mr Campbell was expelled from his local secondary school at 13, although he continued his education at a centre for “problematic children”. Despite those difficulties, until becoming involved in the…

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 The Queen

Details

AGLC: Campbell v The Queen [2020] NZCA 631
Case: [2020] NZCA 631
Decision Date: 8 December 2020 at 10.30 am

CaseChat Overview and Summary

Lucky Te Waata Campbell appeals against his sentence, contending that the sentencing Judge failed to take proper account of the mitigating effect of a cultural report. Campbell had been sentenced to 14 years and seven months' imprisonment for trafficking methamphetamine and unlawful possession of firearms. He had been in the business of trafficking methamphetamine for profit over a two-year period. The appeal was filed some 27 days out of time, however leave was granted in the absence of opposition from the Crown.

The Court noted that Campbell had been subject to a whāngai arrangement, his upbringing in an environment where drugs and alcohol were abused in overcrowded accommodation, as was the family violence. However, Campbell had largely overcome those difficulties when he decided to involve himself with methamphetamine and had been able to distance himself from the influences of alcohol and cannabis. His involvement with methamphetamine was limited to viewing it as a commodity and he had proven himself able to exercise his own choices by not involving himself in gangs despite whānau connections. Campbell had proven adept in gaining qualifications and participating in various forms of employment in order to advance his position and maintain his stable family relationships. The Court found it difficult to identify a causal connection with Campbell's disadvantaged past and his involvement in the supply of methamphetamine.

The appeal against sentence is dismissed.

Orders