R v Campbell

[2016] NZHC 2817

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2016-019-003104 [2016] NZHC 2817

THE QUEEN

v

RAVEN CASEY CAMPBELL

Hearing:	24 November 2016
Appearances:	R Mann for Crown T Sutcliffe for Prisoner
Sentence:	24 November 2016

SENTENCING NOTES OF TOOGOOD J

R v Campbell [2016] NZHC 2817 [24 November 2016]

[1]      Raven Casey Campbell: you appear for sentence having pleaded guilty in the District Court to one charge of indecent assault.1     Because you have previously received stage-one and stage-two warnings under the “three-strikes” law, this has become a stage-three offence and you are liable to be sentenced to the maximum term of seven years’ imprisonment and to serve it without parole.2   That is why this case was transferred to this Court for sentencing.

Factual background

[2]      Your criminal history is important to the decision I must make about the sentence to be imposed.

[3]      In March 2013, you were convicted of receiving stolen property (committed in October 2011) and possessing a knife in a public place (in April 2012).  At that time,  you  were  also  convicted  of  robbery  and  demanding  to  steal,  offences committed in September and October 2012.  You were between 20 and 21 years old at the time of that offending.  On the more serious charges you received concurrent sentences of fourteen months’ intensive supervision and four months’ community

detention, and you were given a stage-one warning on the robbery charge.3

[4]      On 7 April 2014, you were convicted of aggravated robbery and sentenced to three years and four months’ imprisonment.  That offence was committed only five months after the earlier sentences were imposed.  You were given a stage-two warning.4   The terms of that warning informed you what the consequences would be if you were convicted of a later qualifying offence.  It has not been suggested to me that you did not understand it or were not capable of understanding it, but I have no doubt that it was not in your mind when you committed this impulsive and foolish offence.

[5]      The current offending occurred on 17 May 2016, while you were serving your sentence of imprisonment at Waikeria Prison. A female Corrections officer was

1      Crimes Act 1961, s 135.

2      Sentencing Act 2002, s 86D(2) and (3).

3      Section 86B.

4      Section 86C.

standing in a doorway supervising prisoners in the kit locker, where prisoners exchange their clothing, towels and bedding for fresh items.   Standing behind the Corrections officer, you grabbed her right buttock, squeezed it quite hard, and held on for about 1 to 2 seconds.

[6]      You were told to go to the guard room but you did not make any attempt to move.  When the Corrections officer went to leave the yard through a set of steel gates, you followed her, grabbed the gate, and asked the Corrections officer if you could talk to her.  You were told to move your hand so the Corrections officer could leave and you did so.  The Corrections officer was not injured but she suffered stress and has been off work.

[7]      You have said that you really liked the officer; that you grabbed her as a bit of a joke and you thought your actions would be taken that way.

Pre-sentence report

[8]      You are 25 years old.  The writer of your pre-sentence report says that you have limited support in the community and spent most of your childhood in foster care with one main caregiver who passed away recently.  You have one brother who visits you in prison and you would like to build ties with the rest of your whanau with whom you do not currently have a relationship.

[9]      You told the report writer that it was not until after the assault that you considered how disrespectful your actions were and that, looking back, you do not condone what you did.   You said that, if the victim was willing, you would like to participate  in  a  restorative  justice  meeting.    You  have  completed  the  Medium Intensity Rehabilitative Programme and Drug Treatment Unit while in prison.

[10]     I have read your letters to the Court and to the victim; they are thoughtful and insightful.     You  recognise  that  your  behaviour  was  “rude,  disrespectful  and immoral”.  You acknowledge that you made a stupid and thoughtless decision and say that you have learned a huge lesson.  I sense that your remorse is genuine and that it is as much related to the effect of your behaviour on the victim, whom you liked, as it is on the consequences for you.

[11]     About three weeks after the assault, the victim provided a victim impact statement.  She said she felt angry, frustrated and totally degraded by the offending. She had been left feeling vulnerable and uneasy when performing her work duties.

[12]     When speaking to the pre-sentence report writer recently, the victim stated that she hoped the Court would allow you the opportunity for parole as you are young and need help.  She said you do not grasp appropriate relationship boundaries and she would like to see you offered assistance.

“Three-strikes” regime

[13]     Mr Sutcliffe accepts that because you have been convicted of a stage-three offence other than murder, I have no option but to sentence you to the maximum term   of   imprisonment   prescribed   for   the   offence;5     that   is,   seven   years’

imprisonment.6   I agree that is very harsh given that what you did was not the most

serious assault of its type, but Parliament has determined that your history of violent offending requires a very stern response to protect the public from you and to act as a deterrent to you and others.  It may seem very surprising that this consequence could be required by law for an offence of this kind, but that is the law and I have no option but to enforce it.

Sentence without parole

Principles

[14]     The law also  requires  the Court  to  order that  you  shall  serve the entire sentence without parole, unless that would be manifestly unjust, given your circumstances and the circumstances of the offence.7

[15]     In making a strong submission that requiring you to serve the full seven year sentence would be manifestly unjust, Mr Sutcliffe points to what he says is the low

level of the offending and your remorse, early guilty plea and age.  For the Crown,

5      Section 86D(2).

6      Crimes Act 1961, s 135.

7      Sentencing Act, s 86D(3).

Mr Mann properly acknowledges that the Court might regard a finding of manifest injustice to be an appropriate outcome.

[16]     I may accept Mr Sutcliffe’s submission only if I conclude that there is a clear and convincing case that requiring you to serve the whole seven years without parole would be a grossly disproportionate outcome.8     In making that evaluation I am required to consider your circumstances, the circumstances of the offence, the statutory sentencing principles and other relevant factors.9

Discussion

[17]     The assault was spontaneous and not malicious, and the act itself was at the lower end of the spectrum of indecent assaults.10     There have been cases where offending  of  a  similar  nature  or  gravity  has  not  resulted  in  a  sentence  of imprisonment at all.11   But it was genuinely distressing for the victim and the Court must regard as serious an assault on a prison officer acting in the course of her duty.12

[18]     You were given a community-based sentence for the stage-one robbery and other convictions in 2013.   You have previously received only one sentence of imprisonment, for the aggravated robbery in 2014.  The probation officer considers that the escalation in the level of violence means you pose a high risk of harm to the public. That means imprisonment is required for public protection.

[19]     Overall, were it not for the requirement to sentence you to the maximum term of seven years, the need to denounce your conduct, hold you accountable and deter others and you from such offending would likely have resulted in a period of no

more than 12 months’ imprisonment.

8      R v Harrison [2016] NZCA 381, [2016] 3 NZLR 602 at [108](a) and (b).

9      At [108](c), (d) and (e). See also Sentencing Act, ss 7–9 and 86I.

10     R v Harrison [2014] NZHC 2705 at [29] in relation to the defendant’s qualifying offence which involved pinching the bottom of a police officer and brushing his hand across her groin and thighs; that comment was approved by the Court of Appeal in R v Harrison, above n 8,at [128].

11     Stephenson v New Zealand Police [2015] NZHC 3101; Burrows v New Zealand Police [2014] NZHC 2594.

12     An aggravating factor pursuant to s 9(1)(fa) of the Sentencing Act 2002.

[20]     I am also required to assist your rehabilitation and reintegration,13 and to take into account the need to impose the least restrictive outcome that is appropriate in the circumstances.14   At the age of 25 you are still relatively young and you do not have a long list of previous convictions.  None of your previous convictions relate to sexual  offending.    You  pleaded  guilty  and  I  am  satisfied  you  are  genuinely remorseful.  Having no prospect of parole would not encourage you to take steps to change your behaviour and to engage in rehabilitative programmes while in prison as you have said you are willing to do.   In that regard, I also take the victim’s sympathetic views into account.

Conclusion

[21]     Having considered all of these factors, particularly the nature of the offence and your prior offending; the early plea; your remorse and insight, and your rehabilitation prospects, I have no doubt that requiring you to serve a full sentence of seven  years’ imprisonment  without  parole  would  be  a  grossly  disproportionate outcome.  After you have served one third of the sentence, it will be a matter for the Parole Board to determine whether and when  it is safe to release  you into the community.    You  should  be  encouraged,  Mr Campbell,  to  take  part  in  those rehabilitation programmes.

Result

[22]     Please stand, Mr Campbell.

[23]     On  the  charge  of  indecent  assault  to  which  you  have  pleaded  guilty, I sentence you to seven years’ imprisonment as required by law.  I do not order that you must serve that sentence without parole.

[24]     You may stand down, thank you.

..............................................

Toogood J

13     Sentencing Act, s 7(1)(h).

14     Section 8(g).