CAMPBELL v POLICE [2019] NZHC 3447

CAMPBELL v POLICE [2019] NZHC 3447 [19 December 2019]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2019-425-000029[2019] NZHC 3447BETWEEN CORREY RAY CAMPBELLAppellantAND NEW ZEALAND POLICERespondentHearing: 16 December 2019Appearances: K Owen for the AppellantS McKenzie for the RespondentJudgment: 19 December 2019JUDGMENT OF NATION JIntroduction[1] Correy Campbell pleaded guilty to three charges of contravening a protectionorder and one of assaulting a person with whom he was in a family relationship. Hewas sentenced by Judge Brandts-Giesen to 22 months' imprisonment and 12 months'post-release conditions.1 Mr Campbell appeals that sentence on the basis it wasmanifestly excessive.Facts[2] On 14 August 2018 the District Court made a final protection order against MrCampbell in relation to the victim, his former partner.1 Police v Campbell [2019] NZDC 16474.[3] On 28 April 2019, Mr Campbell approached the victim as she sat in the driver'sseat of a friend's car in Invercargill. He leant in the open window and shouted at thevictim, demanding her keys before slapping her in the face with an open hand. Thevictim did not sustain any significant injuries from the slap. Another occupant of thecar told Mr Campbell to leave. As he walked away, Mr Campbell shouted at the victimthat he was going to burn down her house. Out of that incident, Mr Campbell wascharged with and pleaded guilty to the charge of assault and two breaches of aprotection order.[4] Several minutes later, the victim drove in the same direction as him to see if hewas going to her nearby house. Mr Campbell ran down the road towards the car thevictim was driving and threw a rock at it, damaging the windscreen. The victim droveaway, afraid Mr Campbell would damage the car more and, in her mirror, she saw himrunning down the road behind the car. She drove to a location where she felt safe andthen contacted the police. That led to the third charge of breaching a protection order.District Court decision[5] The Judge found this to be significant offending, involving multiple offencesagainst a victim over a short period of time, an assault to the head, threats to burndown her house and actual damage to property. He took the assault charge as the leadoffence and adopted a starting point of 18 months' imprisonment on that charge,stating that "as far as assaults go this is as bad as it gets".[6] The Judge added 12 months to the starting point for the three contraventionsof the protection order. He then added a further four months for previous similaroffending, bringing the sentence to 34 months.[7] Turning to mitigating factors, the Judge allowed a 10 per cent discount forremorse and the fact that Mr Campbell had not been taking his medication. Hereluctantly gave a full 25 per cent discount for guilty pleas, given the plea was notentered for some time due to negotiations with the Police. That resulted in an endsentence of 22.95 months, which the Judge rounded down to 22 months with regardto totality. That sentence was imposed on each of the charges, sentence to be servedconcurrently.[8] The Judge also imposed 12 months' post-release conditions as set out in thepre-sentence report. Mr Campbell was to attend a psychological assessment with adepartmental psychologist as directed by a probation officer and was to complete anytreatment and/or counselling as recommended by the assessment to the satisfaction ofa probation officer. He was required to submit to electronic monitoring in the form ofGPS technology and directed by a probation officer, in order to monitor his compliancewith any conditions relating to his whereabouts. He was not to enter an exclusion zoneas defined by a map to be presented to him before his release from prison.[9] The Judge gave Mr Campbell leave to apply for home detention.Principles on appeal[10] Appeals against sentence are allowed as of right by s 244 Criminal ProcedureAct 2011, and must be determined in accordance with s 250 of that Act. An appealagainst sentence may only be allowed by this Court if it is satisfied there has been anerror in the imposition of the sentence and that a different sentence should beimposed.2 As the Court of Appeal mentioned in Tutakangahau v R, quoting the lowercourt's decision, a "court will not intervene where the sentence is within the range thatcan properly be justified by accepted sentencing principles".3 It is only appropriatefor this Court to intervene and substitute its own views if the sentence being appealedis "manifestly excessive" and not justified by the relevant sentencing principles.4SubmissionsAppellant's submissions[11] Mr Owen, on behalf of Mr Campbell, submitted firstly that the 18 monthstarting point was manifestly excessive. He suggested the Judge erred in assessing theassault as being "as bad as it gets" and contended that a slap to the face resulting in noinjury should fall at the lower end of the scale for offending of this type. Mr Owenreferred to Sorenson v Police, where the Judge in the High Court upheld a sentence of12 months' imprisonment for an assault involving family violence and two charges of2 Criminal Procedure Act 2011, ss 250(2) and 250(3).3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].4 Ripia v R [2011] NZCA 101 at [15].breaching a protection order.5 The assault involved a punch to the nose and face,verbal abuse and pulling of hair, when the defendant had been released from prisontwo weeks earlier. In that case, the breach of protection order offending was taken asthe lead offence, with the assault offending attracting a concurrent sentence of threemonths' imprisonment.[12] Mr Owen further referred to Williams v Police, where the defendant punchedthe victim in the mouth, for which she received six stitches.6 On appeal, Mallon Jreduced the 12 month starting point to seven months in respect of the lead charge ofbreaching a protection order, and maintained the concurrent sentence of six monthsfor the assault charge.[13] In light of these cases, Mr Owen submitted that the breach of protection orderoffending should have been the lead offence. Given the breaches all related to a singleincident, similar to the offending in Williams, Mr Owen contended a starting point ofseven months would be appropriate. He submitted that the assault charge should thenattract a concurrent sentence in the range of one to three months.[14] Secondly, Mr Owen submitted that the four month uplift for prior convictionswas inappropriate as it amounted to punishing Mr Campbell twice for his prioroffending. He contended that an uplift of one or two months would be appropriate.That would result in an end sentence of nine to 12 months' imprisonment on the breachof protection order offending, with a concurrent sentence of one to three months forassault.Respondent's submissions[15] Ms Woodward, for the respondent, submitted that the end sentence of 22months was in range for the offending, but suggested a different approach than theJudge took in reaching that point.5 Sorenson v Police [2017] NZHC 2499.6 Williams v Police [2014] NZHC 3255.[16] Ms Woodward agreed with Mr Owen that the breaches of protection ordershould have been taken as the lead charges. In reaching a starting point for thatoffending, she referred to several cases where the courts have recognised theseriousness of protection orders and the importance in upholding them.7 For example,in Tetau v Police the High Court held that a starting point of two years was availablefor two charges of breaching a protection order, which constituted the appellant's 10thand 11th breaches.8 Ms Woodward submitted that, in the present case, a starting pointof two years' imprisonment would be well within range for the breach offending, anda starting point of two and a half years would also be justified.[17] She agreed with Mr Owen in his submission that a concurrent sentence wasappropriate for the assault charge. However, Ms Woodward submitted that an upliftof four months was appropriate to reflect Mr Campbell's history of domestic violenceoffending.[18] If a starting point of two and a half years was taken, plus a four month upliftfor previous offending, minus the discounts allowed by the sentencing Judge, the endsentence would be 22 months. Ms Woodward therefore contended the overall sentencewas not manifestly excessive and the appeal should be dismissed.AnalysisStarting point[19] I accept that the correct approach was to take the breach of protection ordercharges as the lead offending. I accept the Judge overstated the seriousness of theassault in describing it as being "as bad as it gets". Although it involved a slap to thehead, it was not a punch. It left no injury. The slap was through an open car window.The potential for harm was less because the victim was in the car and Mr Campbelloutside. The victim was also in the company of another person which reduced the riskto her.7 R v Nathan CA209/06, 29 November 2006 at [25]; Police v Tule HC Rotorua AP87/02, 10 October2002 at [14]; Tetau v Police [2015] NZHC 1284 at [39]-[40]; and Palmer v Police [2015] NZHC143 at [24].8 Tetau v Police, above n 7.[20] There are three breaches of a protection order but they arise out of the sameincident. The victim drove after Mr Campbell following the initial breach ofprotection order and assault because he had threatened to burn her house down. Shefollowed his vehicle rather than ring the Police immediately and did not drive to herhouse by a different route. Although the way she chose to respond could not excuseor diminish the seriousness of what Mr Campbell later did, it does mean that it isappropriate to deal with the breaches of a protection order with concurrent sentences.[21] There is no tariff authority for sentences imposed for breach of protectionorders, and each case must be considered on its own facts.9 Furthermore, cases arisingfrom facts prior to December 2013 will be of limited assistance because in that yearthe maximum sentence for breach of protection order was increased from two years tothree years.[22] The following post-2013 cases are relevant in determining the appropriatesentence for the present offending, in addition to those cited by counsel:(a) Palmer v Police: the defendant was charged with three breaches of aprotection order.10 After spending the night at the victim's home withher consent, he woke her by pulling her hair, then forced her head intothe mattress. The following day he verbally abused her and refused toleave when asked, so the victim was forced to leave the house to avoidhim. He did not leave until the victim called the Police two days later.On appeal, the Court upheld a global starting point of 14 months for thethree breaches.(b) Mataiti v Police: the defendant was charged with two breaches of aprotection order and one count of wilful damage relating to twoincidents five months apart.11 The first incident involved verbal abuseand banging on a bathroom door, causing a hole in it. The secondincident happened after the victim allowed him to accompany her towatch their son play rugby. When they returned to the house the9 Mataiti v Police [2014] NZHC 1675 at [14].10 Palmer v Police, above n 7.11 Mataiti v Police, above n 9.defendant refused to leave, resulting in him pushing the victim. TheHigh Court upheld an overall starting point of 16 months for the breachof protection order charges, though accepted it was stern.12(c) Apineru v Police: the defendant was charged with breaching aprotection order and common assault.13 He appeared at a houseuninvited, verbally abused the victim and grabbed her arm, causingbruising. He then took her to an empty house nearby before the pairspent the night at the defendant's house. There had been three priorbreaches of the final protection order. On appeal, a starting point of 24months was considered appropriate.[23] I also consider Tutbury v Police to have relevance, despite it being heard underthe previous maximum penalty.14 In that case the defendant was charged with doinga threatening act, breaching a protection order and male assaults female. He phonedthe victim in January 2013 while a Police Safety Order was in force and threatened toburn down her house. The Family Court issued a protection order in response. OnApril 25, the defendant stopped his car beside the victim as she was walking down theroad and told her to get in. Three days later, he phoned the victim to ask where shewas, to which she hung up. When the victim arrived home that day the defendant waswaiting for her. He threatened her, followed her down the driveway and slapped herin the face. The appeal Court accepted that a starting point in the area of 12 months,or half the maximum penalty, was warranted.[24] I consider the present offending to be on a similar level of seriousness to thatin Tutbury. In both cases, the offender threatened to burn down the victim's house,behaved in a physically threatening way and slapped her. The actions of the defendantin Tutbury could be seen as more serious given he phoned the victim several times andthen waited at her house for her. However, I consider Mr Campbell's actions wereequally, if not more aggravating in that he threw a rock at the present victim's carbefore chasing after it. That was understandably very frightening for the victim.12 At [20].13 Apineru v Police [2014] NZHC 1969.14 Tutbury v Police [2013] NZHC 2960.[25] I believe the seriousness of the breaches in this case falls somewhere betweenMataiti and Apineru, and is similar to Tutbury, where the starting point was half themaximum penalty. I would therefore see a starting point of 19 months as appropriate.[26] I agree with counsel that the sentence for the assault charge should be imposedconcurrently. It is part of the same instance of offending as the breach charges and hasbeen taken into account in assessing the seriousness of those charges.Aggravating factors[27] In Tutbury, the High Court considered an uplift of at least two months wouldhave been appropriate to account for the defendant's "continuum of violent offendingagainst a partner and defiance of protection orders".15 Asher J stated this would havebeen even higher had the past offending been more recent.[28] In Williams, referred to by Mr Owen, the Court accepted an uplift of threemonths was appropriate for previous convictions.16 That took into account that theincident occurred while the defendant was subject to release conditions.[29] I do not consider it would be double counting to make some addition to MrCampbell's sentence for his prior convictions. He has several recent convictions forfamily violence, which are clearly relevant, as well as a long list of other offences.On 28 January 2009, Mr Campbell was sentenced to imprisonment on conviction forbreaching a protection order on 7 November 2018, two breaches of a protection orderon 6 November 2018 and a common assault on 6 November 2018. He was releasedfrom prison just nine weeks before this latest offending. The increase is justifiedbecause of the need to deter Mr Campbell from further offending and to make himrealise how important it is that he takes his medication and deals with thepsychological issues that cause him to offend in this way.[30] I impose a three month uplift for this criminal history, bringing the startingpoint to 22 months.15 Tutbury v Police, above n 14, at [23].16 Williams v Police, above n 6, at [12].Mitigating factors[31] There is no dispute about the discounts applied for mitigating factors. Theseincluded 10 per cent for remorse and the way Mr Campbell's failure to take medicationcontributed to his offending. The pre-sentence report indicated Mr Campbell hasmental health issues for which he usually takes medication. It indicated that he nowrealises how imbalanced his thinking becomes without medication. On medication, itwould seem he is capable of avoiding causing harm of the sort his victim has sufferedthrough this offending. He has shared care of the parties' two children. At the time ofthis latest offending, those two children had been staying with him and his mother forthe last four weeks. Despite his history of criminal offending, if Mr Campbell doesdeal with his mental issues and takes his medication, he may be able to avoid thefrequent periods of imprisonment that have been a feature of his life so far.[32] With that credit and a 25 per cent credit for guilty plea, the appropriate sentencewould be 15 months' imprisonment.Conclusion[33] Though it is the end sentence, and not the process by which it was reached, thatis at issue on appeal, I am satisfied that the sentence imposed in the District Court of22 months' imprisonment was manifestly excessive. On my own application of thesentencing process, the end sentence would come to 15 months, which I consider isappropriate as an overall sentence for the offending.End result[34] On the assault charge, the appeal is allowed. The sentence of 22 months'imprisonment is quashed. On each charge of breach of a protection order, MrCampbell is sentenced to 15 months' imprisonment. On the charge of assault, he issentenced to three months' imprisonment. All sentences are concurrent.[35] Mr Campbell still has leave to apply for home detention should a suitableaddress become available. No change is made to the post-release conditions imposedin the District Court.Solicitors:K Owen, Barrister, InvercargillCrown Solicitor, Invercargill.This judgment was delivered by me on 19 December 2019 at 4.00 pmRegistrar / Deputy RegistrarDate: 19 December 2019