Campbell v The Queen
[2017] NZCA 623
•20 December 2017 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA629/2016 [2017] NZCA 623 |
| BETWEEN | DANIEL JOHN CAMPBELL |
| AND | THE QUEEN |
| Hearing: | 14 November 2017 |
Court: | Brown, Courtney and Toogood JJ |
Counsel: | T Aickin for Appellant |
Judgment: | 20 December 2017 at 3.00 pm |
JUDGMENT OF THE COURT
AThe application for an extension of time to file the notice of appeal is granted.
BThe application to adduce further evidence on appeal is granted.
CThe appeal against conviction is dismissed.
DThe appeal against sentence is allowed. The sentence of three years and three months’ imprisonment imposed on the charge of injuring with intent to injure is quashed and a sentence of two years and six months’ imprisonment is substituted.
____________________________________________________________________
REASONS OF THE COURT
(Given by Toogood J)
Introduction
Following a two-day jury trial in the District Court at Christchurch, the appellant, Daniel John Campbell, was found guilty of one charge of injuring with intent to injure.[1] He had represented himself at the trial. Mr Campbell was sentenced by Judge Garland on 9 November 2016 to three years and three months’ imprisonment.[2]
[1]Crimes Act 1961, s 189(2).
[2]R v Campbell [2016] NZDC 22507.
Mr Campbell filed his notice of appeal out of time and consequently requires an extension. As the delay is minimal and explained, we grant the application for an extension of time to file the notice of appeal.
Mr Campbell initially appealed to this Court against both his conviction and sentence. After several difficulties with the conviction appeal were raised in the course of the hearing, however, we adjourned briefly to enable Ms Aickin, who appeared for Mr Campbell, to receive further instructions. She informed the Court that Mr Campbell wished to abandon his conviction appeal and the hearing proceeded solely as an appeal against sentence. In light of that, we formally dismiss the appeal against conviction.
In his appeal against sentence, Mr Campbell argues that the sentence imposed was manifestly excessive because:
(a)he suffers from mental impairment that was not taken into account; and
(b)his limited criminal history and the gaps between previous offending were not given due weight.
The background facts
Mr Campbell lived in a council housing block, with one flat separating the two addresses where Mr Campbell and the complainant lived. At around 7.30 pm on Saturday 9 May 2015 Mr Campbell became concerned about the volume of music being played by the complainant and one of the other neighbours. Mr Campbell walked over onto the complainant’s property, approached the neighbours and told them to be quiet or he would sort them out. He struck the complainant “a couple of times” in the chest before returning to his flat.
The complainant went over to Mr Campbell’s flat a short time later to apologise and ask why he had been struck. Mr Campbell picked up a knife in each hand and then attacked the complainant, punching him and striking him four times with his elbow. This knocked the complainant to the ground and rendered him unconscious. While the complainant was on the ground, Mr Campbell continued to beat him, stomping on his head and ribs and repeatedly kicking him in the head. Mr Campbell was barefoot at the time.
The complainant suffered several injuries as a result, including bruising to his jaw and both eyes, cuts over his eyebrows, a wound to his tongue and a bleed in his brain.
District Court decision
Mr Campbell was unsuccessful in obtaining counsel so that, on the day of sentencing, he was represented by a duty lawyer with no prior knowledge of the case. There was a reference in the pre-sentence report to Mr Campbell exhibiting “some delusional and paranoid thought patterns” that seemed to the report writer “to have affected [Mr Campbell’s] thinking at the time of the offence.” In addition, the writer referred to Mr Campbell having been “resistant and abusive” during sessions with his probation officer while serving a sentence of supervision in 2014 and 2015 and to having been referred to a support agency for support for “his mental health in the community”. Nevertheless, no mitigating material concerning Mr Campbell’s psychological state or mental health was placed before Judge Garland at sentencing.
After recounting the facts, Judge Garland noted his view that the jury had rightly rejected Mr Campbell’s explanation for his offending that the complainant was playing his music too loud, that he had been hassling Mr Campbell and that Mr Campbell had acted in self-defence. The Judge said that, even if Mr Campbell thought he faced a risk of bodily harm from the complainant initially, there could be no possible justification for stomping and kicking him in the head and ribs repeatedly when the complainant was unconscious on the ground; such force was plainly excessive and highly dangerous.
The Judge noted comments in the pre-sentence report that Mr Campbell showed little insight into his offending and even less remorse for the complainant, with Mr Campbell stating he believed the complainant was just seeking attention and that his injuries were not that bad. Mr Campbell was assessed as presenting a high risk of harm should he reoffend, and at a medium risk of re-offending.
Identifying the applicable guideline judgment of Nuku v R,[3] Judge Garland considered bands two (starting points of up to three years’ imprisonment) and three (starting points of between two and five years’ imprisonment) to be relevant for the purposes of this case. The Judge determined that the factors elevating the seriousness of the offending warranting a starting point of three years’ imprisonment were:[4]
(a)the use of extreme violence, noting that Mr Campbell was fortunate not to have faced a considerably more serious charge;
(b)the use of feet to kick the complainant, which is of similar gravity to the use of a weapon;
(c)attacks to the head of the complainant with both fists and feet, which was particularly dangerous conduct;
(d)the complainant was vulnerable, particularly as he lay on the ground and was unconscious and then recovering consciousness; and
(e)the complainant suffered moderate to serious injuries.
[3]Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.
[4]R v Campbell, above n 2, at [16].
Turning to look at personal aggravating and mitigating factors, Judge Garland applied an uplift of three months’ imprisonment for Mr Campbell’s 11 previous convictions for violence (including aggravated wounding and aggravated assault) from 1984 to 2013,[5] recognising the uplift should be modest given that his last conviction for violence was in 2013 and, before then, 1993.
[5]At [19].
Because there had been no guilty plea and no expression of remorse, and no other personal mitigating factors put forward, the Judge found he could not reduce the sentence on account of personal mitigating factors. He therefore imposed a sentence of three years and three months’ imprisonment.
The appeal
An appeal against sentence under s 244 of the Criminal Procedure Act 2011 must be allowed if the Court is satisfied that for any reason there is an error in the sentence imposed and that a different sentence should be imposed.[6] In any other case the appeal must be dismissed.[7] It is well-accepted that the concept of a sentence being manifestly excessive is consistent with the language of “an error”.[8]
Psychiatric reports
[6]Criminal Procedure Act 2011, s 250(2).
[7]Section 250(3).
[8]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.
After detailed grounds of appeal were filed, the Court gave directions for Mr Campbell and the Crown to file psychiatric reports related to Mr Campbell’s state of mind at the time of the offending. We have read the reports, and are satisfied they meet the criteria for adducing fresh evidence on appeal.[9] We therefore grant leave to adduce these reports on appeal.
[9]Antonievic v R [2017] NZCA 87 at [39].
Dr Paul Edgar, engaged by Ms Aickin for Mr Campbell, reported that Mr Campbell presented with symptoms of paranoid schizophrenia, which include auditory perceptual disturbance, delusional persecutory beliefs and social withdrawal. These psychotic symptoms were said to have occurred and reoccurred over a period of approximately 15 years. He claimed to be able to hear people talking about him although there is no one present, and often through walls. Mr Campbell also told Dr Edgar his neighbours and everyone could hear what he was thinking all the time and that “lots of this information would be then put on the internet to manipulate him.” Dr Edgar had no evidence to suggest the use of any psychoactive substances which would account for Mr Campbell’s psychiatric symptoms and did not consider Mr Campbell was fabricating his symptoms. He considered it likely that Mr Campbell acted upon his persecutory delusions at the time of the offending. He concluded that Mr Campbell had been suffering with untreated paranoid schizophrenia for approximately 15 years leading to his social isolation, poor work history, violent offending and imprisonment.
Dr Eric Monasterio, who was engaged on behalf of the Crown, concluded that Mr Campbell had a 20-year history of fluctuating symptoms of psychosis which had developed insidiously and had been characterised by a combination of paranoid persecutory and grandiose delusions (false beliefs), perceptual disturbances in the form of auditory hallucinations and delusions of reference in the sense of a belief that he can read other people’s thoughts and that his actions are commented on by the internet. In Dr Monasterio’s opinion, Mr Campbell’s symptoms and clinical presentation is consistent with a chronic psychotic process, most likely schizophrenia. Dr Monasterio found it difficult to obtain information from Mr Campbell to establish his mental state at the time of the trial, but thought it likely that he was not unfit to stand trial. Dr Monasterio noted Mr Campbell seemed to be particularly guarded throughout the evaluation and reluctant to describe his mental state, assuming that because Dr Monasterio had been appointed by the Crown his answers might prejudice his appeal.
Challenges to the sentence
The starting point
Ms Aickin did not challenge the starting point of three years, conceding it was available to Judge Garland in terms of Nuku,[10] albeit at the upper end of the available range. The concession was properly made in our view; the Judge correctly recognised that the extent of injuries to the victim and the attack to the head were two discrete aggravating factors.[11] These two factors, along with the violence used and vulnerability of the complainant, made this relatively serious offending of its kind, and we would not take issue with the Judge’s assessment of the starting point in applying the Nuku guideline.
Criminal history
[10]Nuku v R, above n 3.
[11]R v Campbell, above n 2, at [10].
It was argued in the points on appeal that insufficient regard was given to the lengthy gap in Mr Campbell’s offending history between 2013 and 1993, and that his convictions for violent offending are for the most part, especially recently, of a minor nature. Judge Garland took these factors into account, however, when determining to apply a “modest” uplift of three months for Mr Campbell’s past history, instead of imposing a more significant uplift which could otherwise have been justified to reflect the additional need for deterrence. We are not satisfied there was any error in this regard.
Significance of Mr Campbell’s psychiatric disorder
In E (CA689/10) v R this Court said:[12]
[68] A mental disorder falling short of exculpating insanity may be capable of mitigating a sentence either because: if causative of the offending, it moderates the culpability; it renders less appropriate or more subjectively punitive a sentence of imprisonment; or because of a combination of those reasons. …
[12]E (CA689/10) v R [2010] NZCA 13, (2011) 25 CRNZ 411 (footnotes omitted).
Impaired mental functioning, whether temporary or permanent, is said to be relevant to sentencing in at least the following six ways:[13]
(a)The condition may reduce the moral culpability of the offending conduct, thereby affecting the punishment that is just in all the circumstances.
(b)The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
(c)The condition may moderate or eliminate the need for general deterrence as a sentencing consideration, depending on the nature and severity of the symptoms exhibited by the offender and the effect of the condition on the offender’s mental capacity.
(d)Similarly, the condition may mean the need for specific deterrence is moderated or eliminated as a sentencing consideration.
(e)The existence of the condition at the date of sentencing may mean that a given sentence will weigh more heavily on the offender than it otherwise would.
(f)Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this would be a factor tending to mitigate punishment.
[13]At [70].
This Court in E (CA689/10) v R reviewed relevant cases, noting that discounts ranging from 12 percent to 30 percent were considered appropriate where mental illness had contributed to the offending.[14]
[14]At [71]–[82].
In Mr Campbell’s sentencing, the only comment Judge Garland made regarding any mental impairment suffered by Mr Campbell was in describing defence counsel’s submissions:[15]
[11] [The duty lawyer] tells me that you feel that you were being bullied by the victim and his friend and that is why you responded as you did. He tells me that you suffer from diabetes and sometimes your thoughts become distorted. You feel that your home is your safe place when that happens. When the victim come to your door, you felt that you were threatened and that is why you resorted to violence.
[15]R v Campbell, above n 2.
Ms Aickin submits that if Dr Edgar’s and Dr Monasterio’s reports had been available at the time Mr Campbell was sentenced, the Court would inevitably have considered their views justified a conclusion that Mr Campbell’s psychiatric condition was a significant personal mitigating circumstance. That would have resulted in a reduction of the assessment of his overall culpability and therefore of the end sentence. Mr Lillico realistically accepted that proposition on behalf of the Crown but submitted that the issue was the extent to which what would otherwise be an appropriate sentence should be discounted as a result.
There is no evidence before us that Mr Campbell’s illness will make it harder for him to cope with a sentence of imprisonment and issues of general and specific deterrence did not feature in the Judge’s assessment of the appropriate sentence. In this case, the question is the extent to which it can be said that Mr Campbell’s psychiatric condition was a causative factor in the offending, thereby reducing his culpability.
Accepting, as we have, that Judge Garland was entitled to take a starting point of three years’ imprisonment as appropriate in accordance with the guideline judgment in Nuku, we must next assess what percentage discount is justified to reflect reduced culpability on the basis of Mr Campbell’s psychiatric condition.
Responding to Ms Aickin’s submission that a discount of up to 12 months (30 per cent of the starting point) would have been available, Mr Lillico argued that the case falls into the category where no more than a 15 per cent discount is permitted because there is a lack of evidence to suggest Mr Campbell’s mental condition was causative of the offending. Mr Lillico referred to Mr Campbell’s extensive history of violence, including offending between 1984 and 1993, before his mental health problem is said to have arisen.
While the prior history of violent offending is relevant, the issue is whether there is a causative link between Mr Campbell’s psychiatric condition and the index offending. We are satisfied that Mr Campbell’s paranoid schizophrenia was a significant contributor to the offending in this case and to the assessment of his culpability.
At trial, in giving evidence in his own defence, Mr Campbell said that the complainant and the other neighbours were taunting him by saying “woohoo”. He explained that this came from a situation in which he had been taking pictures of seagulls out on a pier and said “woohoo” every time he took a photo. He said word of that event got onto the internet, which he found quite embarrassing, and that that was what the neighbours were referencing on that day. He said that the taunting got a bit too much and that he thought that if he threatened the complainant that would get them all to be quiet. Later, the complainant appeared in the doorway to Mr Campbell’s kitchen and stood imposingly, speaking in a stern voice saying, “You wanna talk, let’s talk, come on, you wanna talk, let’s talk”. Mr Campbell said the complainant then reached behind his back to grab what Mr Campbell thought was a broken bottle. By this time his nerves had shattered and he grabbed the knife with the intention that it would scare him away. Mr Campbell then described how he had hit the complainant.
Dr Edgar concluded that it is “very likely that Mr Campbell has acted upon his persecutory delusions” in carrying out this assault. Dr Monestario said that Mr Campbell reported that, in the lead up to and at the time of the alleged offence the symptoms of psychosis were particularly pronounced, as at that time he felt that he was frequently taunted and harassed by many people, including neighbours around his housing complex.
We accept those views. Bearing in mind, however, that the psychiatrists do not attribute the high degree of violence used in the assault to Mr Campbell’s condition, we consider that a discount of 25 per cent from the three year starting point — nine months’ imprisonment — would have been appropriate to reflect the reduced level of blameworthiness.
The sentencing Judge did not have before him the material about Mr Campbell’s mental impairment which we consider justifies a reduction from the starting point to reflect his reduced culpability for the offending. That gave rise to an error that requires a different sentence to be imposed.
Therefore, maintaining the three-month uplift for prior convictions but allowing a discount of nine months for Mr Campbell’s psychiatric condition, we consider a sentence of two years and six months’ imprisonment is appropriate.
Result
The application for an extension of time to file the notice of appeal is granted.
The application to adduce further evidence on appeal is granted.
The appeal against conviction is dismissed.
The appeal against sentence is allowed. The sentence of three years and three months’ imprisonment imposed on the charge of injuring with intent to injure is quashed and a sentence of two years and six months’ imprisonment is substituted.
Solicitors:
Crown Law Office, Wellington for Respondent
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