R v Campbell - [2013] NZHC 835

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S
203 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2012-92-6121

CRI 2012-92-13351 [2013] NZHC 835

THE QUEEN

v

LESLIE CAMPBELL

Hearing: 16 April 2013

Counsel: M R Harborow for Crown
J H A Wiles for Prisoner

Judgment: 16 April 2013

SENTENCE OF KEANE J

Solicitors:
Crown Solicitor, Auckland

R V LESLIE CAMPBELL HC AK CRI 2012-92-6121 [16 April 2013]

[1] Leslie Campbell, you appear for sentence for five offences of indecency against young persons aged under 16, between January 2011 and April 2012, three indecent assaults and two indecent acts. You appear also for 20 offences of possessing, on 4 May 2012, objectionable publications.

[2] You pleaded to the indecencies in the District Court on 30 May 2012 and to the possession offences on 14 November 2012. In each instance you are deemed to have been convicted of those offences on the different dates they were transferred to this Court.

[3] The District Court declined jurisdiction to sentence you for your indecency offences, because they qualify for a sentence of preventive detention and you have offended in that way in the past. The possession offences do not qualify for that sentence, but are relevant to whether it ought to be imposed.

[4] The Crown also applies for an order for the forfeiture of the funds you retain from the sale of your home in which this offending occurred. The Crown contends that you used your home as an instrument to commit the indecencies and the proceeds of sale should be forfeit. You oppose that order.

Index offences

[5] The victims of your indecencies were two brothers then aged 14 and 13, J and G, and although not the subject of any charge, a 13 year old friend of theirs, V. You, then aged 44, lived close by to all three. They came to your home and you gave them food, sweets and chocolate, and soft drinks, from the warehouse where you worked. You gave them access to your computer and a play station.

[6] You touched J's penis a number of times under his clothing. You also took him to your bedroom and performed oral sex on him to the point where he ejaculated. You touched G's penis and masturbated in front of him and J. At least once, though not the subject of a charge, you performed oral sex on V while G watched.

[7] When spoken to by the police you admitted this offending but said that you could not remember oral sex with V. You did acknowledge that you put your mouth over G's penis on the outside of his clothing.

[8] On 4 May 2012, the police executed a search warrant at your home. They seized two unmarked disks from your bedroom, which you then admitted contained images of boys. Altogether there were 50 such images, 20 of which are the subject of…

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 R v Campbell

Details

AGLC: R v Campbell [2013] NZHC 835
Case: [2013] NZHC 835
Decision Date: 16 April 2013

CaseChat Overview and Summary

Leslie Campbell was sentenced for multiple counts of indecency against young persons under 16, committed between January 2011 and April 2012, and for possession of objectionable publications on 4 May 2012. The court heard that Campbell had previously offended in a similar manner between March 1989 and March 1991, for which he was imprisoned. The primary legal issue was whether Campbell qualified for a sentence of preventive detention due to his history of serious offending and the risk he posed to the community.

The court considered multiple factors, including Campbell's history of offending, the harm caused by his current offences, and the risk he posed in the future. The psychiatric and psychological reports presented differing views on Campbell's risk of reoffending. While one report assessed him as a medium risk, the other deemed him high risk due to his previous offending and failure to abstain despite participating in a rehabilitation program. The court found Campbell's indecencies were calculated and persistent, involving direct genital touching, oral sex, and attempted anal sex over 18 months. For these offences, the court set a starting point of five years, increased by six months for the possession offences, and further uplifted by six months for previous convictions and community protection. Campbell was sentenced to four and a half years for the indecencies and six months for the possession offences, to run concurrently. A two-thirds minimum term was imposed to protect the community. The court declined to make an instrument forfeiture order as it would cause undue hardship and inhibit Campbell's reintegration into society.

In summary, while the court recognised the severity of Campbell's current and past offences, it determined that a finite sentence, combined with supervision and treatment, would suffice to manage the risk he posed, and thus did not impose preventive detention. The court also declined to forfeit the proceeds from the sale of Campbell's home, considering it would cause undue hardship and hinder his reintegration.

Orders