The Queen v Campbell

[2006] NZCA 284

IN THE COURT OF APPEAL OF NEW ZEALAND

CA141/06

THE QUEEN

v

CORREY RAY CAMPBELL

Hearing:31 August 2006

Court:William Young P, Panckhurst and Ronald Young JJ

Counsel:W P N van Vuuren and T D Lawrence for Appellant

L J Lange and C E Butchard for Respondent

Judgment:12 October 2006 at 3 pm

JUDGMENT OF THE COURT

A        LEAVE TO APPEAL OUT OF TIME IS GRANTED

BTHE APPEAL AGAINST SENTENCE AND IMPOSITION OF A MINIMUM NON PAROLE PERIOD ARE DISMISSED.

REASONS

(Given by Ronald Young J)

[1]       This is an application for leave to appeal out of time and, if granted, an appeal against a total sentence of 12 years imprisonment for two sets of serious offending.

[2]       In January 2003 Judge Moran sentenced the appellant to four and a half years imprisonment for aggravated robbery committed on 30 October 2002 and a cumulative sentence of seven and a half years imprisonment for aggravated wounding of a prison officer committed on 8 December 2002 together with concurrent sentences of five years imprisonment for the kidnapping of a prison officer, two years imprisonment for aggravated assault of two prison officers, 18 months for possession of a knife and two years imprisonment for an attempt to escape from the prison.

Application for leave to appeal out of time

[3]       The appellant was finally sentenced on all offences on 14 April 2003 after an initial sentencing, without jurisdiction, on 24 January 2003.  The appellant has sworn an affidavit in support of his application for leave deposing he instructed his then solicitor to appeal against the length of sentence.  He says he recalls signing a notice of appeal immediately after the January sentencing and assumed it had been lodged.  Mr Campbell said after the second sentencing hearing in April 2003 he again instructed his solicitors to appeal and followed those instructions up with telephone calls to his solicitor.  No such appeal was filed.  The appellant instructed current counsel in April 2005, however counsel had difficulty in obtaining the appellant’s file and this appeal was not filed until April 2006.  The Crown oppose granting of leave solely on the basis of the long delay in bringing this appeal.  Before reaching a final conclusion on the application for leave we turn to the merits of the appeal itself.

Facts of offending

[4]       In October 2002 the appellant together with a co-offender planned a robbery of a Christchurch takeaway shop.  Both offenders disguised their clothing and the appellant wore a black hat and sunglasses.  He armed himself with two large butcher’s knives.  The co-offender was the driver of the car which took them to and from the shop.  The appellant entered the shop and demanded money from the female shop keeper.  He screamed at and abused her.  He prised open the till with one of the knives he was carrying.  As he did so the woman tried to intervene.  The appellant elbowed her in the face and then struck her across the left side of the face with the flat of the butcher’s knife.  The woman fell onto the floor and the appellant stood over her with both knives raised above her head threatening her.  The appellant took $800 from the till and ran to the car, by then pursued by the male owner of the shop, and left the scene.

[5]       In early November 2002 the appellant was arrested for this offending and after appearing in Court was remanded in custody.  On 8 December 2002 the appellant decided to escape from the Invercargill remand centre.  He sharpened a plastic knife to a point  in his cell in preparation for the escape.  As he was being escorted by a female prison guard to the holding yards he was able to get behind the prison officer.  He grabbed her and held the knife to her throat.  He told the prison officer that he was going to use her to help him escape.  The prison officer struggled free but in the process was cut on her neck and face.  The appellant then ran off towards a cell port where he was confronted by another prison officer.  He tried to stab that prison officer with the knife but the prison officer was able to fend off the appellant’s attack with a bag he was carrying.  A second officer arrived to help.  The appellant threatened to kill the prison officers and in the ensuing struggle the second officer was stabbed and received a 10mm wound on the left side of his torso near his ribs.  Eventually, a third officer arrived and the appellant was restrained. 

Sentencing – Judge’s remarks

[6]       The appellant was sentenced by Moran DCJ on 24 January 2003 for all offending arising from the two incidents.  However, the Judge discovered shortly after sentencing that the appellant had not signed a written request to plead guilty (pursuant to s 153A Summary Proceedings Act) to two of the indictable offences on which he had been sentenced.  In April 2003 the Judge vacated the convictions and pleas, the appellant completed the appropriate written requests to plead guilty to all charges and the Judge re-entered the convictions and re-sentenced the appellant to imprisonment for the same periods and for the same reasons.

[7]       As to the aggravated robbery sentencing the Judge considered, based on R v Mako (2000) 17 CRNZ 272 (CA), that the facts justified a sentence of six years imprisonment.  He said the sentence should be increased because of the appellant’s serious previous convictions, including relevantly, convictions for aggravated robbery, possession of an offensive weapon, threatening to kill and four convictions for burglary at night.  The Judge assessed the appellant’s future risk to the community as high.  He thought those aggravating features justified an increase to eight years imprisonment and then deducted two years for the appellant’s guilty plea.  He said, therefore, six years was the appropriate sentence for the aggravated robbery subject to a consideration of the overall sentence. 

[8]   As to the offending arising from the attempt to escape from Invercargill Prison he identified the lead offence as the wounding charge.  Based on the Court’s decision in R v Hereora [1986] 2 NZLR 164 (CA) he considered the aggravated wounding justified a sentence of eight years imprisonment with an additional two years to reflect the appellant’s previous convictions particularly four convictions for escaping from custody including one from a prison. He deducted one year for the appellant’s guilty plea, viewing conviction on these charges as inevitable, giving an overall sentence of nine years imprisonment for the prison offending. Judge Moran said that cumulative sentences were required as between the aggravated robbery and the attempting to escape from prison charges. However, he concluded that a total sentence of 15 years would overall be too long and reduced that to 12 years. He imposed four and a half years imprisonment for the aggravated robbery charge and seven and a half years on the lead sentence of wounding during the attempted escape. He considered a release after one third would not represent sufficient denunciation, punishment and deterrence and imposed a minimum non parole period of five years imprisonment.

Counsel’s submissions

[9]       The appellant submits the overall sentence was manifestly excessive and the minimum non parole period was not justified.  The appellant says the Judge’s reduction of one year for the guilty plea on the attempting to escape offending was insufficient.  Counsel submits that, looked at overall, a 12 year sentence for a 19 year old young man was a crushing sentence which was more than that required to reflect the overall criminality of the offending.

[10]     The Crown submitted that the starting point for the robbery was within the range available giving the planning involved, the disguise adopted by the appellant and the possession and use of the butcher’s knives.  As to the offending arising from the attempt to escape from prison, the Crown say the Judge properly assessed the aggravating and mitigating features and properly took into account the inevitability of a conviction for this offending, thus giving only a modest reduction for the guilty plea.

[11]     As to the minimum non parole period the Crown submitted the Judge properly took undertook the two stage process required of him in s 86 Sentencing Act (see R v Taueki [2005] 3 NZLR 372), and given this was very serious offending the setting of a minimum non parole period was well within his discretion.

Discussion

[12]     We are not satisfied the overall sentence of 12 years imprisonment was manifestly excessive and we consider a minimum non parole period was appropriate for this very serious offending.  No criticism can be made of the two individual lead sentences identified by the Judge.  The sentence of six years imprisonment for the robbery of the takeaway shop involving, as it did, planning, disguise, threats and use of knives and an assault on the shopkeeper, was well within the range of sentences available to the Judge (see R v Mako (supra)).

[13]     A sentence of nine years imprisonment for the events arising from the attempt to escape was also well within an appropriate range.  This was a very serious incident involving a violent and potentially life threatening attempt to escape from prison using a female prison guard as a hostage.  Even when it was clear the attempt had been thwarted the appellant continued to try to stab and threatened to kill the prison guards.  The appellant was in custody awaiting trial for the knife point robbery of the takeaway shop.

[14]     The appellant has a serious background, for someone so young, of dangerous offending including convictions for aggravated robbery, arson (endangering life), escaping from custody (4), wilful damage (3), possession of a knife or an offensive weapon (2), and threatening to kill as well as a number of property offences.

[15]     The Judge correctly concluded that a sentence which simply added together these two already lengthy sentences would result in a disproportionate overall sentence.  He therefore reduced the 15 years to 12 years to reflect the totality of offending and the appellant’s circumstances.  We agree that a sentence of 12 years imprisonment for someone so young is a stern sentence.  However, this very serious offending and combined with the appellant’s background of serious offending justified such an overall sentence.  We are not convinced that the sentence was, therefore, manifestly excessive.

Minimum non parole period

[16]     The Judge, in considering whether to impose a minimum non parole period, properly undertook the two stage analysis required in s 86.  He did, however, make one factual error.  At paragraph [55] of his sentencing remarks he said:

[55]     The question is, whether your release after one third of 11 years, namely three years and eight months, would represent insufficient denunciation, punishment and deterrence in all the circumstances, and I think that it would.

[17]     In fact, the finite sentence was 12 years imprisonment and so the appellant was potentially eligible to be considered for parole after four years rather than three years and eight months.  We do not think in the circumstances this modest difference is of particular relevance to an assessment as to whether eligibility for release after four years would represent sufficient denunciation, punishment and deterrence in the circumstances.  The circumstances of these two serious sets of offending illustrate such eligibility after four years would be inadequate.  The Judge, we think appropriately, set the minimum non parole period at five years.  Compared with the overall sentence of 12 years it was at the bottom end of the range available for minimum non parole sentences at just over 40 percent.  Given the age of the appellant, we consider that was the correct approach.  We are satisfied, therefore, that the minimum non parole period was properly imposed here. 

[18]     We give leave to appeal out of time.  The appeals against sentence and the imposition of the minimum non parole period will however be dismissed.

Solicitors:

Crown Law Office, Wellington