RICK CAMPBELL AND THE KING

[2024] NZHC 2874

THE NAME IN THIS JUDGMENT HAVE BEEN ANONYMISED TO COMPLY WITH

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PROHIBITED BY S 201 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2024-425-36

[2024] NZHC 2874

BETWEEN

RICK CAMPBELL

Appellant

AND

THE KING

Respondent

Hearing:	3 October 2024
Appearances:	G A Walsh and M J James for Appellant A S C Alcock for Respondent (via VMR)
Judgment:	4 October 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 4 October 2024 at 11 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

CAMPBELL v R [2024] NZHC 2874 [4 October 2024]

Introduction

[1]    Rick Campbell was sentenced to four years’ imprisonment by Judge Walker on charges of:1

(a)possession of objectionable material;2

(b)distribution of objectionable material;3 and

(c)sexual conduct with a child under 12.4

[2]    Mr Campbell was sentenced alongside his husband and co-offender, who faced similar charges and received an end sentence of four years three months’ imprisonment.

[3]    Mr Campbell appeals on the basis that the excessive starting point resulted in a manifestly excessive sentence.

Facts

[4]    The summary of facts  for  Mr  Campbell’s  offending  is,  as  noted  by  Judge Walker, “lengthy and graphic”.5

[5]    During 2020, Mr Campbell and his husband’s objectionable online activity was detected following an automated Cyber tipline referral from the United States based ‘National Centre for Missing and Exploited Children’. The Department of Internal Affairs commenced an investigation into their activity.

[6]    On 21 October 2020, police executed a search warrant at the couple’s rural residential   address.   Various  devices   were   seized.   Mr   Campbell   possessed 37 objectionable images and video files on his cell phone. A number of these fell into

1      R v [Campbell] [2024] NZDC 17570.

2      Films, Videos, and Publications Classification Act 1993, s 131A — maximum penalty of 10 years’ imprisonment.

3      Sections 123(1)(d) and 124 — maximum penalty of 14 years’ imprisonment.

4      Crimes Act 1961, s 132(3) — maximum penalty of 10 years’ imprisonment.

5      R v [Campbell], above n 1, at [2].

category A, the most serious category and two were described as at the “extreme” end of this category.6 The files depicted boys and girls in sexualised positions, involved in sexual activity either alone, with other children, or being sexually abused by adults. The children featured were between approximately three months and 15 years’ old.

[7]    Examples of the files include a still image depicting a naked boy appearing between the ages of six and eight and a similar-aged girl who has his penis in her mouth, and a 49 second video which depicts a pre-pubescent boy’s genital area and an adult penis penetrating the boy’s anus whilst the boy is touching his own penis.

[8]    Between 15 December 2018 and 17 February 2020, Mr Campbell distributed 10 of these publications to another person, “A”. The two also discussed sexual fantasies involving children, including Mr Campbell’s four-year-old great nephew who was in  his  care.   By way of example,  an  excerpt of their conversation  on    15 December 2018 reads:

Who is Mr 4

Nephews child we have adopted him How old?

4

Have you touched him or masturbated on his cock or sucked it Nope

…..

Would I be able to touch it?

No can look at it

[9]    On 17 February 2020, Mr Campbell sent an objectionable image of a baby, who he said was his 12-week-old grandson, to person A.

6      Referring to the United Kingdom Sentencing Council’s guidelines on sentencing for sexual offences where child sexual exploitation material is divided into three categories where category A involves images of children involving penetrative sexual activity or images involving sexual activity with an animal or sadism.

[10]   Between 16 and 20 December 2018, when the victim (the defendant’s great nephew) was aged four and a half, Mr Campbell, while at home, positioned the victim standing naked in front of him and took photographs of him. During the same period, Mr Campbell took the victim to a park and, when he was using the public toilets, took photographs of the victim’s penis and distributed them to person A.

[11]   Sometime between December 2018 and October 2020, Mr Campbell engaged in WhatsApp communications with a male associate. During the course of these messages, he sent an explicit photograph of the victim with his penis fully exposed. The male associate  asked  to  “see  Mr  4  diddle  one  day  discretely’,  to  which  Mr Campbell replied, “guess so”. They discussed when the meeting could take place and arranged to meet at Mr Campbell’s address. Later attempts by the male associate to meet were denied because the victim would be at daycare or school.

District Court decision

[12]   Judge Walker found Mr Campbell’s offending was “towards the upper end of the spectrum in terms of seriousness”. The Judge had regard to the children’s vulnerability and defencelessness, that the publications and distributions promoted exploitation of young children, and the abuse of the victim — a young child placed in Mr Campbell’s care — amounted to “the ultimate betrayal of trust”.

[13]   The Judge noted there is no guideline judgment for this kind of offending, but considered on its facts this case was most alike to C v Police and M v New Zealand Customs Service.7 The Judge factored in the duration of Mr Campbell’s offending and the high proportion of category A material. The Judge adopted a starting point of four years’ imprisonment for the possession and distribution charges.

[14]   The Judge observed the sexual conduct charge would warrant a stand-alone sentence of 18 months’ imprisonment, but on a totality basis His Honour applied a nine-month uplift. A reduction of 15 per cent was given for guilty plea, resulting in an end sentence of four years’ imprisonment.

7      C v Police [2019] NZHC 3431; and M v New Zealand Customs Service [2021] NZHC 1402.

Principles on appeal

[15]   Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act 2011 and must be determined in accordance with s 250. An appeal against sentence will be successful only if the appeal Court is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.8 A court will not intervene if the ultimate sentence imposed is within the available range and is one that can properly be justified on the application of relevant sentencing principles.9 When assessing whether the sentence being appealed is “manifestly excessive” the focus must be on whether the sentence actually imposed is within range, rather than the process by which that sentence was reached, or its constituent elements.10

Submissions

Appellant’s submissions

[16]   Mr Walsh, for the appellant, submits the starting point imposed was manifestly excessive.

[17]   Mr Walsh cites Snell v R, where a four-year starting point was adopted for graver offending that comprised publication of more than 300 files, 60 of which were in the category A band.11 Mr Walsh distinguishes C v Police on the significantly higher level of distribution in that case, there being possession of some 1550 items, therefore warranting a lower starting point in the present case than the four years six months adopted there.12 Counsel similarly distinguishes M v New Zealand Customs Service, where a starting point of four years six months’ imprisonment was also adopted, on the basis of the greater number of files in the offender’s possession.13

8      Criminal Procedure Act 2011, s 250(2) and (3).

9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36]; and Ripia v R [2011] NZCA 101 at [15].

10     Islam v R [2020] NZCA 140 at [32]; and Bowring v Police [2021] NZCA 325 at [12].

11     Snell v R [2022] NZHC 1627.

12     C v Police, above n 7.

13     M v New Zealand Customs Service, above n 7.

[18]   Mr Walsh submits the appellant’s offending is at the lower end of the spectrum. He submits a three-year starting point is appropriate which results in an end sentence, after the nine-month uplift and 15 per cent guilty plea discount have been applied, of three years two months’ imprisonment.

Respondent’s submissions

[19]   Ms Alcock for the respondent submits the starting point was well within range. She submits this is confirmed by C v Police and Snell v R,14 and warns against placing too much weight on the size of the collection.15 Ms Alcock submits the appellant has possessed and distributed child exploitation material falling within category A, some involving infants of approximately three months old which is younger than the children in the Snell offending. As well, she submits that, although the volume of publications in the present case is less than C v Police and Snell v R, the fact the appellant has distributed material to his associates increases the gravity of the offending.

Analysis

[20]   There is no guideline judgment for this kind of offending; rather, each case rests on its facts and the personal circumstances of the offender.16

[21]I consider the aggravating factors of the appellant’s offending are:

(a)In terms of the aggravating features in the Films, Videos and Publications Classification Act 1993, all of the images and videos distributed promoted the exploitation of children, depicted sexual conduct with or by children, and/or exploited the nudity of children.17 A good proportion of the files were in category A, which consists of images of children involving penetrative sexual activity, and were assessed as at the “extreme” end of this category.

14     C v Police, above n 7; and Snell v R, above n 11.

15     Stewart v Department of Internal Affairs [2015] NZHC 2919.

16     B v Department of Internal Affairs [2023] NZHC 3558.

17     Films, Videos, and Publications Classification Act, s 132A(2).

(b)The offending was premeditated and sustained. It involved downloading and sharing child exploitation material, as well as engaging in discussions of sexual fantasies involving children and agreeing for a male associate to meet with his nephew, although there is no evidence that meeting occurred.

(c)The offending occurred over a period of more than one year, rather than it being a case of downloading an objectionable publication and quickly deleting it.18

(d)The victims depicted in the images and videos were all children aged between three months and 15 years’ old. They were inherently vulnerable. One of the victims was the appellant’s four-year-old great nephew who had been entrusted in the appellant’s care since he was one. The nephew was entitled to protection and the appellant failed this obligation. His conduct was a grave breach of trust.

[22]   Based on these factors, I agree with the Judge that the appellant’s offending is at the upper end of the spectrum in relation to seriousness.

[23]The cases cited by counsel are of assistance. I summarise them as follows:

(a)C v Police:19 A starting point of four years’ six months imprisonment was adopted for one charge each of distributing child sexual exploitation images and possessing bestiality and child sexual exploitation material but reduced for totality to four years, was upheld on appeal. The offending comprised 1,550 objectionable media items discovered on the appellant’s cell phone, including two of his approximately three-year-old daughter although they were not intentionally objectionable, and also involved distribution of 61 files on 16 occasions over a three-month period.

18     Snell v R, above n 7, at [51].

19     C v Police, above n 7.

(b)Snell v R:20 A starting point of four years’ imprisonment was adopted for Mr Snell, whose offending comprised importing and possession 306 objectionable publications involving the sexual abuse of children over a period of approximately 20 months. Fifty images were within category A. He did not distribute material.

(c)M v New Zealand Customs Service:21 The offending comprised importing distributing and possessing objectionable publications. The possession charge involved 1639 image and video files depicting the sexual exploitation or abuse of children that ranged form category A to category C. Mr M had the images on his computer and distributed files to other peer program users. He used the software for six years to find the material, but would delete them once he had looked at them.

[24]   C v Police and Snell v R both involved a higher number of objectionable files, many of which were category A, than the appellant’s offending here. However, the size of the collection of files is a “blunt tool in assessing culpability”.22 Here, the appellant photographed his nephew and distributed the images which were intentionally objectionable. In addition, the duration of his offending was longer; one year as against three months in C v Police. Unlike Snell v R, the appellant distributed material, which not only exacerbates the impact on the victims but encourages the demand for further creation of similar material.

[25]   The duration of offending was longer in M v New Zealand Customs Service, and involved a larger number of files, but Mr M’s offending did not involve any abuse of trust of a child in his care as the appellant’s offending did in relation to his great nephew. I consider that factor to be severely aggravating here.

[26]   Having considered these cases, I am satisfied the starting point of four years’ imprisonment was within the available range.

20     Snell v R, above n 11.

21     M v New Zealand Customs Service, above n 7.

22     Stewart v Department of Internal Affairs, above n 15, at [42]; and Snell v R, above n 7, at [49].

[27]   I also note the four-year starting point imposed for the appellant is consistent, on a parity basis, with his husband and co-offender, who received a higher starting point of five years’ imprisonment to reflect the greater seriousness of his offending that involved possession of 370 files of child sexual exploitation and distribution of 109 objectionable files to six different people.

[28]   The question on appeal is whether the end sentence is manifestly excessive. While I consider the four-year starting point was at the upper end of the range available to the Judge, I note a greater uplift than nine months for the sexual conduct with a child under 12 charge could have equally been applied. Overall, the starting point for sentence fairly reflected the gravity of the offending and was within range.

Conclusion

[29]The appeal is dismissed.

Solicitors:
Hamilton Legal, Hamilton

Copy to:

Gerard Walsh, Barrister, Hamilton M James, Barrister, Hamilton