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 the offences you have admitted.

[9]      Of the 20 images, nine are of naked boys exposing their anus or genitalia, a number with an erect penis, seven of naked boys together, in some instances engaged in oral sex, and in one anal sex. Two of a man penetrating a child's anus, and one of a child performing oral sex on a boy while holding a man's penis.

[10]     I do not have victim impact statements from the boys, but the psychiatrist who assessed you watched their disclosure interviews. They showed some distress, he says, but not any overt sign of harm, though harm could become manifest as they grow older.

Pre-sentence report

[11]     I have two pre-sentence reports, each recommending that you be sentenced to imprisonment, the first dated 27 August 2012 for the purpose of sentence in the District Court, the second, dated 15 January 2013, when you were to be sentenced in this Court. These two reports identify succinctly the issues you present on sentence.

[12]     You have offended in this way indecently before between March 1989  - March 1991. You then committed five indecent assaults on a boy, or boys, aged between 12 and 16, which I gather extended to anal sex. On 30 June 1992, you were imprisoned for two years and six months supervision on release and, while serving that custodial sentence, you underwent the Kia Marama Program.

[13]     You then did not offend until this most recent offending came to light some

18 years later, and why you resumed offending after all those years and in spite of

having undergone the program, is a concerning issue. The two reports differ, therefore, as to the risk you present.

[14]     The first, emphasising the length of time since you last offended, rates you as at medium risk of harming others and at low risk of re-offending, more especially because you assured your assessor that you accepted full responsibility and you were determined not to re-offend. The second emphasises that during your first sentence, you did undergo the Kia Marama Program and despite that you have re-offended. It assesses you as at high risk of harming others and of re-offending.

[15]     As to the image offences, one report says that you denied possessing the images  for  sexual  arousal.  You  said  that  you  had  simply  retained  them.  You expressed remorse, accepting that even receiving such images promotes the exploitation of children.

Letter

[16]    I have today a letter from you today in which you express regret that you offended as you did.  You say you do not think of yourself as a hurtful or violent person, but you are aware that is the effect of your offending.  You say you have issues you have to work on, as you have had to all your life, and because you do not want to hurt people you intend to.

[17]     You accept you must be imprisoned. You hope you will get help in prison, or on release, so that you can avoid re-offending.  You say that serving a sentence in a prison for offending of this character carries with it risk which you have experienced. You conclude by apologising once more to your victims.

Crown submissions

[18]     The Crown  submits, and this is the primary issue on sentence,  that  you qualify for a sentence of preventive detention, and commends that sentence to me. In the event that I do not impose preventive detention, the Crown contends instead for a lengthy finite sentence of imprisonment with a minimum term.

[19]     For your lead offences, the indecencies, the Crown contends for a five year starting point, increased to six years for the possession offences, for which it commends  a  one  year  starting  point.  Then  for  a  further  uplift  to  mark  your propensity, and the need to protect the community.

[20]     Aggravating  your  indecency  offences,  the  Crown  contends,  is  that  you prepared your home to attract young boys and you plied them with inducements. You took advantage of their vulnerability at age 13 and 14. Your offending involved a serious breach of trust. You offended persistently over close to 18 months.

[21]     Of concern, the Crown says, is that you have offended in this way before, and although that was 18 years ago your offences now are much as they were then despite the fact that while imprisoned you underwent the Kia Marama Program. That program, the Crown contends, cannot have been effective, even though you remain aware, according to one assessment, of what the principles are.

[22]    As to the possession offences, the Crown contends having regard to their number, 20 as charged, but also their nature and the gross nature of some, that the 12 months  starting point  it  commends  appropriate,  when  compared  with  other like cases.

[23]     The  Crown  accepts  that  on  the  Hessell1   principle  you  are  entitled  to  a discount of 20 to 25 per cent for entering your plea at the first opportunity and saving  your  victims  having  to  give  evidence.  But  as  against  that,  the  Crown contends, the prosecution case was particularly strong.

[24]     The Crown contends also for a two-thirds minimum sentence to protect the community, to hold you accountable and to serve more completely the purposes of denunciation and deterrence. Finally, the Crown applies for an instrument forfeiture order  as  to  the  two  sums  you  retain  in  your  bank  accounts,  $28,480.96  and

$10,495.62, the proceeds of the sale of your home.

[25]     Your two offences carry a maximum term of five years or more and, the Crown contends, you used your home as an instrument. You could offend there privately and securely. You stored there in large quantities the inducements you offered the children to get them there and to offend, soft drinks, lollies and chocolate, and access to your computer and play station.

[26]     In your case, the Crown contends, an instrument forfeiture order properly serves the purposes and principles of sentence and does not involve any undue hardship.

Defence submissions

[27]    Your counsel submits that the psychiatric and psychological reports do not establish that on release from a finite term you would be likely to commit another qualifying offence. Rather, your counsel submits, the reports both say that a finite sentence, and supervision on release, should suffice.

[28]     As to a finite sentence, your counsel submits, six years, is too high. That is close to the maximum sentence for indecencies. He does not oppose a six month uplift for the objectionable material offences. He submits that a further uplift for your  previous  offending  and  to  protect  the  community  is  unjustifiable.  That offending happened 18 years ago. He contends for a full 25 per cent discount for plea.

[29]     Your counsel opposes the making of an instrument forfeiture order. Your home, he submits, was merely the place where you offended, nothing more. You did not use it as an instrument. It was not modified in any way, as was the case in the one instance where a home has been held to be an instrument to commit indecencies.2

[30]     Furthermore, he submits, as a matter of discretion I should not impose such an order on you.  You will require your funds on your release. Forfeiture would be unduly punitive and a source of undue hardship.  It would inhibit your ability to reintegrate into the community.

Preventive detention

[31]    There is no issue that you qualify formally for a sentence of preventive detention. Your indecent assault is a qualifying sexual offence and attracts a maximum sentence of seven years imprisonment.3 Nor is there any question that you were over the age of 18 years at the time of this offending, the second threshold requirement. You were 44 years.4

[32]     The issue is rather whether preventive detention is called for to protect the community from any significant and ongoing risk to its safety.5 I must also be satisfied that you are likely to commit another such qualifying offence if released at the expiry of a finite sentence.6

[33]     In considering these issues, I am obliged to take into account five factors: (i) to what extent you have a history of serious offending; (ii) how seriously this present offending of yours has harmed the community; (iii) whether you have a tendency to offend seriously in the future; (iv) any absence or failure on your part to address the causes of your offending; and (v) the principle that a lengthy determinate sentence is preferable to preventive detention if that will protect the community.7

[34]     If I am satisfied that all five factors point towards preventive detention, that sentence is still not mandatory, but neither is it a sentence of last resort.   It is imposed to protect the community from any significant and ongoing risk.8

[35]     In striking a balance between preventive detention and a finite sentence, the absence  of  any  lengthy  prior  term  of  imprisonment  and  any  prior  warning  of

preventive detention, can tell against it being imposed in a finely balanced case.9   So,

3      Section 87(2)(a).

4      Section 87(2)(b).

5      Section 87(1).

6      Section 87(2)(c).

7      Section 87(4) subss (a), (b), (c), (d), (e).

8      R v C (CA 249/02) [2003] 1 NZLR 30 (CA) at [5].

9      R v Bailey CA102/03, 22 July 2003; Pritchard v R [2010] NZCA 403.

too, can the ability to impose a heightened finite sentence.10  So, too, the possibility of an extended supervision order on release.11

[36]     If I do impose on you a sentence of preventive detention I must also impose on you a minimum term of imprisonment of five years or more,12 reflecting the gravity of your offending, and safeguarding the community,13  taking into account your age and the risk you pose.14 Both must be considered.15

Psychiatric report

[37]     The psychiatrist, who assessed you, found you coherent and normal. He also found you depressed. You were then on medication, he says, and you disclosed to him that you had thought of suicide.

[38]     You explained to him, he says, how much you regret your offending. You are quite willing, he says, to undertake a further sex offender treatment program, especially as you told him that you did not think you underwent the full program during your first sentence.

[39]     You  accepted,  he  said,  full  responsibility  for  what  you  had  done.  You explained that you had not actively searched out your victims. They had been introduced to you by neighbours. You accepted that you had taken advantage of the opportunity. You had used lollies and chocolates and the like to gain their trust and engagement.

[40]     You explained also to him that you had become increasingly isolated after the death of your mother 10 years ago and that at the time you re-offended you were no longer  part  of  a  supportive  group,  as  you  had  been  on  release  from  your  first

sentence and you are socially reclusive.

10     R v C, above n 8.

11     R v Mist [2005] 2 NZLR 791 (CA).

12     Section 89(1).

13     Section 89(2)(a).

14     Section 89(2)(b).

15     R v C, above n 8.

[41]     As  to  the  risk  you  will  present  on  release  from  a  finite  sentence,  the psychiatrist emphasises that you have not offended for a long time and he is inclined to accept that your re-offending is in part certainly attributable to your increasing isolation. He questions also whether you did obtain the full benefit of a Kia Marama Program during your first sentence.

[42]    The psychiatrist considers that you would benefit from completing such a program again and from social skills training, whether in prison or on release. He also thought that supervision on release might well be important, given that your mother's influence was clearly significant in the past.

[43]    Finally, he considers, your risk of self harm appears moderate to high. He recommends  that  this  be  an  explicit  focus  in  the  management  of  any  sentence imposed on you.

Psychologist's report

[44]     The two psychologists who assessed you are of much the same mind. They too found you candid about your offending, though they did say that you attempted to deflect responsibility to one of your victims. They too considered your social isolation, following the death of your mother, may well explain, in part certainly, why you resumed offending after so many years.

[45]     They assessed your personality using the Personality Assessment Inventory and the risk you present against three measures, STATIC 99, STABLE 2007 and SVR-20.  They  conclude  that  you  are  at  moderate  to  high  risk  of  re-offending sexually against boys on release from a finite sentence. But they qualify that by saying that after your last sentence, you remained offence free for a very significant period.

[46]     They spoke, with your consent, to a woman friend of yours, who has known you for 20 years and who is present in Court today. Seventeen years ago, she says, you told her about your earlier offending at the time she happened to be giving birth

to her son. Despite that, she was happy for you to look after him, and another boy, I

gather more than once.

[47]     She was surprised that you had re-offended. She said that she and another friend had kept an eye on you, but you found it difficult to seek help and that may well explain why you had offended. She said you are truly regretful and she is, if anything, more concerned about your own personal safety given your depression.

[48]     The psychologists conclude, as the psychiatrist did, by saying that if a finite sentence were imposed it would have to be of sufficient length to enable you to undergo the programs you require from which they consider you would benefit.

[49]     After you have completed any such program, they recommend, your offence related needs must be reassessed. On release you will need treatment in the community to assist you to become able to form adult relationships within ordinary social contexts and to avoid risk.

Conclusions

[50]    These two reports put in issue squarely whether you will be at risk of committing  further  qualifying  offences  on  your  release  from  a  finite  sentence, despite the fact that you have now offended twice in this way. I cannot then be satisfied, that on your release from a finite sentence you would be likely to commit a further such qualifying offence.

[51]     Each report says that  you must have benefitted to some extent from the program you underwent during your first sentence.  Each considers your remorse is sufficiently real. As long, they say, as you undergo a further program reinforcing the first, any risk you present on release should be able to be managed by supervision and further treatment.

[52]     Your indecencies on the three boys, however I have to say, were calculated and persistent. You used inducements to secure their trust. The indecencies were serious. They involved direct touching of the genitals, oral sex and attempted anal

sex. They were persistent and extended over 18 months. I take a starting point for that offending, standing alone, of five years.

[53]    The 20 possession offences warrant, I consider, a six month starting point. Compared with other cases there were relatively few images. But a number were grossly indecent. I increase the starting point for the indecencies by six months. I also uplift your sentence by a further six months for your previous convictions, and to mark the need to protect the community.  The 18 year gap between that earlier offending and this does not warrant more.

[54]   The result is that for your indecencies your sentence will be six years imprisonment subject to the discount to which you are entitled for plea. I accept that the Crown case was strong. But I accept also accept that you were candid from the outset and in your assessments and will allow you a full 25 per cent discount, 18 months.

[55]     In the result you will be sentenced for the indecencies to imprisonment for four  years  six  months.  You  will  be  sentenced  concurrently  for  the  possession offences to six months imprisonment.

[56]     It is essential that you undergo a program while imprisoned and thus the need to protect the community, quite apart from the other primary relevant purposes of sentence, denunciation and deterrence, calls for a full two-thirds minimum term. I impose on you a three year minimum term.

[57]    I need also to bring home to you that your offending has now become sufficiently   persistent   to   warrant   a   sentence   of   preventive   detention   being considered. If you should offend in this way again, the likelihood is that preventive detention will be imposed on you.

[58]     I decline to make an instrument forfeiture order as matter of discretion.16

Your home did give you the privacy and security within which to offend.  You did store  there  inducements  for  the  children,  soft  drinks  and  the  sweets,  and  the

16     Sentencing Act 2002, s 142N(1).

computer and the play station. In those senses, you could be said in a literal way, to have 'used' your property 'wholly or in part, to commit or facilitate' your offending.17

But as a matter of degree that was at the lowest level. In real terms, your home was the place where you offended.

[59]     I also consider that to forfeit the funds from the sale of your home, which you inherited from your mother, would cause you 'undue hardship'.18    It would deprive you of your modest savings, and any means when you are released.  Without the security those funds will then afford you, it will be harder for you to reintegrate and

that is not in your interest or that of the community.

P.J. Keane J

17     Section 4: instrument of crime, para (a).

18     Section 142N(2)(c).