LINDA GRACE KELLY AND THE KING

[2024] NZHC 2719

JUDGMENT REDACTED AND REISSUED FOR PUBLICATION – SEE [6].

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2024-441-000020

[2024] NZHC 2719

BETWEEN

LINDA GRACE KELLY

Appellant

AND

THE KING

Defendant

Hearing:

17 September 2024

Counsel:

M J James for Appellant

S B Manning and T A D Zohrab for Respondent

Judgment:

20 September 2024

Reissued:

29 October 2024

JUDGMENT OF LA HOOD J

(Appeal against Sentence)

[1]    In 2023, Linda Kelly attempted to persuade a rape complainant not to give evidence in a jury trial. As a result, Ms Kelly was charged with conspiring to pervert the course of justice.1 After pleading guilty, she was sentenced to two years and five months’ imprisonment on 19 July 2024 in the District Court.2 She now appeals on the basis the starting point taken was too high and insufficient credit was given for her previous good character, age and other personal mitigating factors.

1      Crimes Act 1961, s 116; maximum penalty of seven years’ imprisonment.

2      R v Kelly [2024] NZDC 16925.

KELLY v R [2024] NZHC 2719 [20 September 2024]

The offending

[2]    To explain Ms Kelly’s offending it is first necessary to explain some background.  Ms Kelly  was the girlfriend of Earl Campbell.  In November 2020,   Mr Campbell “ram raided” a sports arena and community centre and stole an ATM. He did so having taken a 15-year-old girl with him, who I will refer to as the complainant, who was the daughter of a family friend. He proceeded to kidnap, rape, sexually violate and assault her over successive nights. Having seen the burglary and having been subject to the other offending, the complainant was the principal witness. Mr Campbell was charged with this offending in May 2022.

[3]    In July 2024, a jury found Mr Campbell guilty of one charge of aggravated burglary, two charges of kidnapping, one charge of sexual violation by rape, three charges of sexual violation by unlawful sexual connection, one charge of strangulation and one charge of attempting to pervert the course of justice3 largely based on the evidence given by the complainant.  At trial,  Ms Kelly gave “alibi” evidence for   Mr Campbell that, it can be inferred from the verdict, was soundly rejected by the jury.

[4]    Turning to Ms Kelly’s offending, on 24 April 2023, Ms Kelly conspired with Mr Campbell and two others to influence the complainant (then aged 17 years) to either not give evidence or change her evidence in the pending trial.

[5]    In a lengthy planning process spanning about 14 days, Ms Kelly had several discussions with Mr Campbell while he was in custody, both on the phone and in person, about the idea of having a meeting with the complainant to convince her not to give evidence against Mr Campbell. Ms Kelly brought the idea to Mr Campbell, saying another party to the offending, William Horne, had thought of it.

[6]    Also involved in the conspiracy were Mr Horne and Moana Lawton. Mr Horne is a close friend of Mr Campbell and knows the complainant, [redacted]. Ms Lawton knows Mr Horne [redacted]. [T]he complainant was staying at her house at the time of Ms Kelly’s offending.

3      The attempting to pervert the course of justice offending arose out of the same facts that form Ms Kelly’s offending.

[7]    Ms Kelly does not appear to have previously known Ms Lawton, and it is unclear to what extent she had a previous association with Mr Horne. In the lead up to the meeting with the complainant, Mr Horne and Ms Kelly were in contact and it was Mr Horne who liaised with Ms Lawton to arrange the meeting.

[8]    On 24 April, Ms Kelly went to Ms Lawton’s home to meet with the complainant along with Mr Horne.   The meeting lasted an hour.   Ms Kelly and     Mr Horne told the complainant they thought she was fabricating the allegations. They told her how hard it would be to give evidence in court.  Ms Kelly, Mr Horne and  Ms Lawton put emotional pressure on the complainant to do “what was right”. They alluded to the fact harm could come to the complainant’s family members should she continue with her allegations. They discussed the consequences for Mr Campbell, saying he would go to prison for 15 years. During the meeting, the complainant was distressed and crying.

[9]    Ms Kelly continued to communicate with Mr Campbell, who was still in custody, both during and after the meeting.

The sentencing decision

[10]   The sentencing Judge set a starting point of three and a half years’ imprisonment, considering Ms Kelly’s offending to be similar to that in the case of R v Potter4 and dissimilar to cases referred to her by counsel for Ms Kelly.5 The Judge considered aggravating factors were the age and vulnerability of the complainant, the length of the meeting, the distress caused to the complainant during the meeting, the very serious nature of the charges Mr Campbell was facing, the extent of planning involved, and the circumstances of the meeting where the complainant was confronted by three adults in her own home at night.

[11]   The  Judge  rejected  arguments  that  Ms  Kelly  had  been  pressured  by   Mr Campbell or somehow played a lesser role in pressuring the complainant at the

4      R v Potter [2015] NZCA 25.

5      R v Kelly, above n 2, at [35]–[39] citing Maney v R [2018] NZCA 193; R v Hunter [2023] NZHC 3531; and R v Taoho [2021] NZHC 1552.

meeting, finding her to be a very much willing participant who was motivated to help her partner escape criminal liability and who was central to the plan.6 The Judge said:

[17] It is clear to me throughout that meeting that you were an active participant in that meeting. I do not accept that you were there just simply going along with what was being said by others. When it was appropriate, you were certainly putting pressure on her,  with particularly highlighting  Mr Campbell’s truthfulness in terms of what he would be saying and what the defence case would be and what the likely effect of a Court trial would be for the complainant.

…

[38] But it is not the case for you here, Ms Kelly. You were certainly more than a messenger. You were involved in the preparation, execution, attendance and debriefing in relation to the proposed plan for what was to happen with the complainant and it could hardly be said that you were reluctant. In fact, I think you were seriously invested and highly motivated to be involved in the process.

[12]   The Judge had already sentenced Mr Horne and Ms Lawton, setting their starting points at three years and two and a half years’ imprisonment respectively. She imposed a higher starting point for Ms Kelly compared to the others because of the greater level of culpability she considered Ms Kelly to have had and because there was more information  about  the content of the conversations between Ms Kelly and   Mr Campbell:

[46] I do think that whilst the others were involved, that your involvement was more than them, that from initially having discussed the matter with him, to several visits, to attending at the meeting, and to the following debrief about it, and it is convenient that through Mr Horne and Ms Lawton that you were able to gain access to the complainant. Mr Horne became involved in his own way and he was able to facilitate things because he knew Ms Lawton, he knew the complainant lived with her, and that was the only way that Mr Campbell could actually indirectly get access to the complainant.

[13]   The Judge gave credit of 20 per cent for Ms Kelly’s guilty plea,7 credit of  five per cent for her lack of prior convictions and credit of five per cent for her background. The Judge declined to give credit for remorse.8 On appeal, Ms Kelly only challenges the credit given for her lack of prior convictions and her background.

[14]In giving credit for Ms Kelly’s lack of prior convictions, the Judge said this:

6      At [30] and [42]–[45].

7 At [51].

8      At [51], and see [23], [28] and [31].

[52] You have no previous convictions and I am prepared to give you a  small discount for that. But I cannot help but note that whilst you have no previous convictions you have been involved with Mr Campbell, who is a serious criminal with serious previous convictions aside from the most recent round of offending that was dealt with in July this year, and your association with him would, in my view, call into question your actual character and good judgement. However, I am prepared to give you, because you do not have any prior convictions, a discount of five per cent for that.

[15]   The Judge went on to give five per cent credit for Ms Kelly’s background, saying she could see how the challenges faced by Ms Kelly, which included the suicide of an ex-partner and family violence, could perhaps have played out in her decision- making process both in forming a relationship with Mr Campbell and in what she was “prepared to do for Mr Campbell”.9 The Judge explained the limited credit in this way:

[53] … it does have to be said that you have been able to achieve academically in recent times. You have maintained employment. You have maintained a relationship in some form with Mr Kelly. You have chosen to be in a relationship with Earl Campbell as well. There is no suggestion of manipulation or pressure by him in that regard … In any event, you have had some challenges and I am prepared to give you a small discount, for whatever that has ended up translating to in terms of the way you operate is concerned.

Approach on appeal

[16]   The Court must allow this appeal if it is satisfied that, for any reason, there is a material error in the sentence and a different sentence should be imposed.10 In most sentence appeals brought by a defendant, the appeal court will not intervene unless the sentence is manifestly excessive. Whether the sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached.11 Sentencing “is not a science” and an “appellate court does not start afresh nor simply substitute its own opinion for that of the original sentencer”.12

9      At [52] and see [32].

10     Criminal Procedure Act 2011, s 250; Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].

11     Tutakangahau v R, above n 10, at [30]–[36].

12     At [30] and [35].

Was the starting point in range?

Parties’ positions

[17]   Ms Kelly’s first ground of appeal is that the starting point taken by the Judge was too high. Ms James submits the appropriate starting point is three years, having regard to the cases of Ngerengere v R,13 Ropiha v Police14 and R v Potter,15 and to the starting points of Ms Kelly’s co-offenders. The Crown submits the starting point was within range and could justifiably have been higher.

Discussion

[18]   There is no tariff case for wilfully perverting the course of justice. The starting point is that interfering with a witness to prevent them from giving evidence is a matter of grave concern and should be met with a strong response, in proportion to the threat such conduct poses to the administration of justice.16 As the Court of Appeal observed in R v Churchward, in most circumstances such cases will result in a moderately lengthy term of imprisonment.17 In Miller v R , the Court of Appeal noted:18

[11]  The real focus in each case of an attempt to pervert the course of  justice must be on the intention behind the attempt and on its potential effect. Because of its potential effect, deterrence of others as well as denunciation of the act itself must be the overriding sentencing principles.

[19]   The sentencing Judge set the starting point mainly by reference to the case of R v Potter, in which the Court of Appeal said the offending was at least in the mid- range of seriousness and required a starting point of around three and a half years, with the “very minimum” appropriate starting  point being  three years.19  In that  case,  Ms Potter put pressure on her 14 year–old relative (who had been living with her for some years) on two occasions to withdraw the sexual violation allegations she had made against Ms Potter’s partner. Specifically, she told her that if her abuser went to prison there would be consequences because he was helping to pay for the rent and

13     Ngerengere v R [2024] NZHC 889.

14     Ropiha v Police [2015] NZHC 2229.

15     R v Potter, above n 4.

16     M v R [2013] NZCA 385 at [10].

17     R v Churchward CA439/05, 2 March 2006 as cited in M v R, above n 16, at [9].

18     Miller v R [2014] NZCA 382.

19     R v Potter, above n 4, at [23].

other items. This pressure resulted in the complainant initially telling police she had lied and formally withdrawing the allegations, before she changed her mind and testified at trial. At the trial, Ms Potter gave evidence for the defence.

[20]   Counsel for Ms Kelly submits the offending here is less serious than in Potter because Ms Kelly did not have a role of care over the complainant in the same way Ms Potter did over the complainant in that case.

[21]   I consider Ms Kelly’s offending is roughly of equal seriousness to Potter, if not more serious. On one hand, as counsel for Ms Kelly submitted, there was no breach of trust here as there was in Potter due to Ms Potter’s care of the complainant. The complainant here was also three years older than the complainant in that case and so less vulnerable.

[22]   On the other hand, here there was far greater effort made to pressure the victim, given the number of adults present and the length of the meeting. Present here was also a much greater level of premeditation. Ms Kelly, together with Mr Campbell, formed a detailed plan of how to go about convincing the complainant not to give evidence. There were at least four phone calls and one in person discussion between Ms Kelly and Mr Campbell about the plan. One of those calls involved prison officers being advised that Ms Kelly was Mr Campbell’s lawyer so the call would not be recorded. Ms Kelly communicated directly with Mr Campbell during the meeting with the complainant, removing herself to take a call from him and discuss how the meeting was going. The planning was detailed, with discussions about what kind of “pitch” would be given, what mindset was required, and the seriousness of the task.

[23]   I agree with the Crown that the other cases cited by counsel for Ms Kelly are less serious. In Ngerengere v R, the appellant engaged in a “sustained, persistent, and consistent campaign” to have the victim drop charges of family violence against him.20 Contact was mostly by email or text but there was also one face to face incident. Contact to this effect occurred over a period of roughly six months and was “unremitting and quite sophisticated psychological manipulation”.21 The High Court

20     Ngerengere v R, above n 13, at [15].

21 At [31].

upheld a starting point of two years and four months.22 I consider the offending here to be more serious because of the young age of the complainant, the seriousness of the allegations Mr Campbell was facing, and the prolonged nature of the meeting that took place with three adults in the complainant’s own home.

[24]   In Ropiha v Police, the appellant had assaulted his ten-year-old stepson, causing bruising.23 The appellant told the victim and the victim’s sister to tell the authorities that the sister was responsible for the bruising and that if they did not, the younger children would be taken off them. The appellant prevented the victim from attending school for the next week and from attending a sleep-over at the school on the day of the assault, so the bruising would not be noticed. The victim’s sister maintained that she had caused the bruising, as did the appellant, including throughout the trial in which the appellant was found guilty of the assault. The High Court considered the starting point taken in the District Court of two years and six months imprisonment was lenient and that a starting point of three years to three years and six months would not have been excessive.24

[25]   I consider the offending in this case was at least comparable to, and arguably more serious, than in Ropiha. Although, the element of breach of trust as a care giver was not present, here Mr Campbell had already been charged, unlike the appellant in Ropiha, and was facing much more serious charges. The offending here also involved greater premeditation and pressure.

[26]   Overall, I consider the starting point of three years and six months is well within the available range. As the Judge said, Ms Kelly’s actions were very serious. She carried out a predetermined plan to pervert the course of justice that could have, had  the  complainant  lacked  the  courage  she  has  demonstrated,  resulted  in     Mr Campbell escaping the consequences of very serious offending.

[27]   I also see no error in a higher starting point being taken for Ms Kelly’s offending compared to her co-offenders. It is an important principle that two or more

22 At [37].

23     Ropiha v Police, above n 14.

24 At [27].

co-offenders should not receive unjustifiably different sentences.25 As explained by the Court of Appeal in R v Lawson, it is significant for policy reasons:26

[A]    marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute. The Courts must bear in mind the public confidence in the administration of justice is best preserved if justice appears to be administered even-handedly.

[28]   I do not consider that principle to be made out here. The higher starting point taken for Ms Kelly’s offending was justified by the higher culpability the Judge saw her as having in the offending, an assessment that I agree with. As the Crown submitted, there is far more evidence of Ms Kelly planning the offending in a calculated way through her communications with Mr Campbell. Altogether, it can be said that Ms Kelly was more culpable than her co-offenders.

[29]   Moreover, as the Crown has pointed out, Mr Horne and Ms Lawton were sentenced on a different charge and on a narrower summary of facts to Ms Kelly. This was because by the time Ms Kelly was sentenced, the previously unavailable intercepted prison phone calls had been obtained.

[30]   In conclusion, I see no error in the starting point reached of three and a half years’ imprisonment.

Should the credit for personal mitigation have been greater?

[31]   Ms Kelly’s second ground of appeal is that greater credit should have been given for Ms Kelly’s previous good  character,  personal  circumstances  and  age. Ms James submits that appropriate credit would be 20 per cent for previous good character and age combined, and 15 per cent for personal circumstances.

[32]The Crown’s position is that the credit given was appropriate, if not generous.

25     Cao v Police [2022] NZHC 2034 at [14].

26     R v Lawson [1982] 2 NZLR 219 (CA) at 223.

Previous good character and age

[33]   Ms James submits that greater credit should have been given for Ms Kelly’s previous 70 years of good character and to reflect the fact a sentence of imprisonment will have a harsher impact on her due to her age. She refers to the case of Ngaheu v R, where the High Court on appeal gave credit of 20 per cent for previous good character, in support of a submission that Ms Kelly should also receive a 20 per cent credit for previous good character and age combined.27

[34]   The Crown submits that the credit of five per cent for previous good character was justified in circumstances where Ms Kelly had been the longstanding girlfriend of a serious criminal for whom she was prepared to engage in a long course of conduct designed to derail the jury trial, including by committing perjury for Mr Campbell at the trial.

[35]   I can see no error in the credit given for Ms Kelly’s previous good character. Credit for good character has been said to be “very much a matter of impression”.28 Credit for good character recognises “a fall from grace as punishment in itself” and “the greater potential for rehabilitation where community involvement and good character bears witness to a reduced probability of reoffending”.29 In Manawaiti v R, the Court of Appeal discussed the matters to be considered in assessing the appropriate credit for previous good character if one is due:30

(a)the length of the period for which the defendant has exhibited good character;

(b)whether the evidence of good character consists only of an absence of convictions or also includes positive contributions to society; and

(c)the need for any discount to be proportionate to the overall sentence.

27     Ngaheu v R [2024] NZHC 1124.

28     Manawaiti v R [2013] NZCA 88 at [18] citing William Young P in R v Hockley [2009] NZCA 74 at [32].

29     R v Findlay [2007] NZCA 553 at [91].

30     Manawaiti v R, above n 28, at [19] cited with approval in Parkin v R [2018] NZCA 404 at [16].

[36]   The circumstances of Ngaheu, where a 20 per cent credit was given, were different to those present here. Mr Ngaheu had been sentenced for offending that had occurred 48 years prior. During that 48-year period, he had led a blameless life and made positive contributions to society by serving in the New Zealand Army, receiving several medals for long service and good conduct.

[37]   Ms Kelly’s absence of convictions prior to her offending justifies credit. However, I agree with the Judge that it does not demand significant credit given the circumstances of her involvement with Mr Campbell. That involvement included not only the premeditated attempt to dissuade the complainant from giving evidence, but over a year later giving false evidence in support of Mr Campbell at trial.

[38]   I also see no error in the Judge’s decision not to give credit for Ms Kelly’s age. Age can, where its effect is to make a sentence appreciably harsher in its impact, be a mitigating factor.31 Ill-health can exacerbate that effect and justifying increasing any reduction.32 However, the extent to which age or ill health can be treated as mitigating factors varies according to the particular circumstances of the offender and the offending. Whether credit for old age or ill health is appropriate and what the amount of such a discount should be is a matter of fact and degree, although any reductions given are generally limited.33

[39]   In the case cited by counsel for Ms Kelly, Ngaheu, where credit of 30 per cent for age and ill health was given, Mr Ngaheu was 77 and in very poor health, with a list of afflictions. The sentencing Judge accepted Mr Ngaheu’s physical infirmity was such that he would find it much more difficult to serve a sentence of imprisonment than a more youthful person. By comparison, Ms Kelly is six years younger and, most importantly, no information has been provided that would indicate a term of imprisonment would be appreciably harsher on her than another defendant. She has identified no health issues and it is not the case that she is likely to serve an unduly large proportion of her remaining life in prison. These facts distinguish her circumstances from other cases where credit has been granted.

31     R v Mikus CA 296/04, 26 October 2004.

32     R v Gallagher (1993) 9 CRNZ 421 (CA).

33     M v R, above n 16, at [54].

Personal circumstances

[40]   The cultural report discusses challenges that Ms Kelly has had in her life, including her mother leaving her family for a period while she was very young due to a mental health episode, an abusive relationship that lasted for nine years and ended some time before 1977, and the suicide of her first husband in 1994.

[41]   Ms James submits there is a causal link between Ms Kelly’s background and her offending that justifies a higher discount than that granted by the Judge. She says Ms Kelly has an ingrained need to survive and protect herself and that she is excessively reliant on others for emotional support, leading to poor decision making and clouded judgement. These factors mean, it is said, Ms Kelly has a diminished moral culpability. It is said that Ms Kelly’s husband’s reliance on her both financially and in caring for him in the midst of ongoing health problems also leads to the conclusion that the discount should have been higher.

[42]   The Crown submits the discount of five per cent given was generous. It points to Ms Kelly’s upbringing, which it says was privileged by comparison to many other defendants who may receive greater reductions for their personal circumstances. It says that in contrast, her background working at a law firm and for Corrections demonstrates that she should have understood the seriousness of her actions.

[43]   As the Supreme Court said in Berkland v R, a background factor personal to an offender is relevant to sentencing where it helps to explain why the offender has come to offend in some rational way.34 Such background factors can include those that have causatively contributed to offending – such as more diffuse drivers or intergenerational sources of offending – rather than only those that have been an operative or proximate cause. However, there is a point at which background factors no longer assist in explaining offending.35

34     Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [109].

35 At [110].

[44]   Credit for personal mitigating factors also involves a highly fact-specific assessment.36 As Whata J observed in Solicitor-General v Heta, there is no “clear unifying principle for applying discounts for deprivation”.37 Rather, “personal circumstances discounts tend to be informed by a multiplicity of overlapping factors, including deprivation, trauma, youth, drug and alcohol abuse, and mental health issues”.38 Whata J also noted that “larger discounts tend to rely on identifying linkages between personal circumstances and the offending and thus the moral culpability of the offender”.39

[45]   An example of a five per cent discount for personal circumstances is the case of Lee v R.40 The defendant was sentenced on two charges of serious violence against his partner at the time. The Court of Appeal upheld credit of five per cent for the defendant’s “extremely disadvantaged childhood” and exposure to violence and drugs from a young age. The Court accepted that the s 27 cultural report identified “obvious factors of concern” in the defendant’s upbringing, but found it did not warrant greater credit than five per cent as methamphetamine use and issues with jealousy were the primary drivers of the offending.41 Another example of a discount for personal circumstances is Berkland v R itself.42 In that case, the defendant was sentenced for serious drug supply charges.  The Court considered he should be given a credit of   10 per cent for his history of deprivation and trauma and the role of addiction in his offending.

[46]   I do not accept that the total of five percent for personal mitigating factors was below the available range, or that a minimum credit  of 10 per cent  was required.  On the basis of the pre-sentence and cultural reports, I consider Ms Kelly’s background to have been a limited driver of her offending. I can see how Ms Kelly’s background may lead to attachment problems of the kind that can lead to poor decision

36     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [26] citing R v A [1994] 2 NZLR 129 (CA)

at 132.

37     Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [63].

38 At [63].

39 At [63].

40     Lee v R [2019] NZCA 539.

41 At [61].

42     Berkland v R, above n 34.

making about who she chooses to form relationships with and the lengths she is willing to go for them.

[47]   However, I accept the Crown submission that Ms Kelly’s background challenges bear a small, if any, causative link with her present offending given the gap in time of several decades between their occurrence and the present offending. Since those challenges, Ms Kelly has completed a Masters degree in psychology and worked both at a law firm and at Corrections. It cannot be said she may not have appreciated how serious her actions were based on her background. It is also difficult to see the connection between her abusive relationship prior to 1977 and the offending given the lapse of time and lack of detailed information about that relationship. Finally, credit must also be limited by the fact that there is no evidence Ms Kelly was pressured into playing the role she did by Mr Campbell; on the contrary, the Judge found her to be a more than willing participant.

[48]   In comparison to the cases discussed above, Ms Kelly’s upbringing was relatively privileged. Her background forms a weaker causative contribution to her offending than in many cases. Further, while I have sympathy for the situation with Ms Kelly’s husband, it does not require greater credit for personal circumstances than five per cent.

Conclusion

[49]I do not find any error in the Judge’s approach and dismiss the appeal.

La Hood J

Solicitors:

Crown Solicitor, Napier for Respondent