EARL STRATHERN CAMPBELL v R [2022] NZCA 579

EARL STRATHERN CAMPBELL v R [2022] NZCA 579 [25 November 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA295/2022[2022] NZCA 579BETWEEN EARL STRATHERN CAMPBELLAppellantAND THE KINGRespondentHearing: 30 September 2022Court: Miller, Brewer and Moore JJCounsel: Appellant in personC R Walker for RespondentJudgment: 25 November 2022 at 2.00 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Moore J)Introduction[1] Earl Campbell was tried before a jury in the Napier District Court on onecharge of aggravated robbery,1 one charge of aggravated burglary2 and five charges ofunlawful possession of a firearm.31 Crimes Act 1961, s 235(a). Maximum penalty of 14 years' imprisonment.2 Section 232(1)(a). Maximum penalty of 14 years' imprisonment.3 Arms Act 1983, s 45(1)(b). Maximum penalty of four years' imprisonment or a fine not exceeding$5,000, or both.[2] In the somewhat unusual circumstances described below, the jury foundMr Campbell guilty of the firearms charges but not guilty of the other two charges.[3] On 20 May 2022, Judge Mackintosh sentenced Mr Campbell to two years andsix months' imprisonment.4 Mr Campbell appeals his sentence.Background facts[4] In order to provide context for how Mr Campbell claimed he came intopossession of the firearms, it is necessary to set out the Crown case on the aggravatedrobbery and aggravated burglary charges.[5] On 29 January 2021, two men broke into an address in Havelock North. One ofthe men assaulted the occupant, B. The assault was serious. It included B being struckon the head with a hammer. The keys to the gun safe were demanded. B handed themover. The co-offender went to B's gun safe and took three rifles, two shotguns, threeairguns and some ammunition.[6] Nearly three weeks later, four of B's guns (two .22 rifles and two shotguns)were found by police in a bivouac behind Mr Campbell's mother's property in Tuai, asmall settlement in northern Hawke's Bay. A fifth firearm of unknown origin was alsofound. It was a sawn-off rifle. Mr Campbell was living with his mother at the time.[7] The Crown case at trial was that Mr Campbell was the assailant and his brotherwas the co-offender. This was supported by a substantial body of circumstantialevidence which tended to implicate Mr Campbell as one of the offenders.[8] Mr Campbell elected to give evidence. He did not deny that the aggravatedrobbery and aggravated burglary occurred in the circumstances claimed by the Crown.His defence, however, was that he was not one of the offenders.4 R v Campbell [2022] NZDC 9253 [Sentencing notes].[9] Mr Campbell called Hawira Duncan as a witness. Mr Duncan andMr Campbell had shared a cell together. Mr Duncan admitted to committing theaggravated burglary and aggravated robbery with Mr Campbell's brother.[10] The jury acquitted Mr Campbell of the charges relating to the home invasion,but found him guilty of the five charges of unlawful possession of a firearm.District Court sentencing[11] Judge Mackintosh noted that there is no guideline judgment for firearmsoffending but noted that where the offending involves the possession of a singlefirearm with no mitigating circumstances, a starting point in the vicinity of two to threeyears' imprisonment has typically been adopted.5 The Judge took into account thenumber of guns, the presence of ammunition and the inherent danger associated withMr Campbell possessing firearms given his previous conviction for aggravatedrobbery and his allusions to committing other offending linked to the use of firearms.6The Judge set a starting point of two years and six months' imprisonment.7[12] Mr Campbell had no available personal mitigating factors.8 The Judge rejectedhis counsel's submission that he was deserving of credit for representing himself at histrial, thus saving the State in costs.9[13] An end sentence of two years and six months' imprisonment was imposed.10Approach on appeal[14] This Court must allow the appeal if it is satisfied that for any reason there wasan error in the sentence imposed on conviction and a different sentence should beimposed.11 The focus is on the sentence imposed, rather than the process by which itis reached.12 The Court will not intervene where the sentence is within the range that5 At [22].6 At [25].7 At [25].8 At [26].9 At [18].10 At [26].11 Criminal Procedure Act 2011, s 250(2).12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].can properly be justified by accepted sentencing principles.13 To this end the conceptof a "manifestly excessive" sentence is well-engrained and there is no reason not touse it.14Grounds of appeal[15] Mr Campbell's grounds of appeal are that the Judge erred by:(a) adopting a starting point that was too high; and(b) giving insufficient credit for personal mitigating factors.Did the Judge err by adopting a starting point that was too high?[16] Mr Campbell continued to represent himself on appeal. His first argument wasthat the Judge erred by adopting a starting point which was too high. He submittedthat the Judge failed to take into account his limited involvement in the offending.He referred to R v Cochrane and Police v Cranch in submitting that a lower startingpoint was called for.15[17] We consider that the starting point of two years and six months' imprisonmentwas within the available range. Our reasons follow.[18] First, the starting point adopted by the Judge appears to be on the lenient sidewhen compared to similar cases. Although there are few decisions where startingpoints have been set on the basis that firearms offending was the lead charge,possession of a single firearm with no mitigating circumstances generally calls for astarting point in the vicinity of two to three years' imprisonment.16[19] Unsurprisingly, offending involving a greater number of firearms generallyattracts a greater starting point. In Rawiri v R, the appellant was found in possession13 At [36].14 At [35].15 R v Cochrane [2020] NZHC 1485; and Police v Cranch [2022] NZHC 461.16 Rawiri v R [2021] NZHC 1573 at [35] citing R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338at [41] and Torea v R [2011] NZCA 96 at [13]–[14]; and Herewini v Police [2014] NZHC 2396 at[26]. See also Bowring v Police [2021] NZHC 3198 at [17]–[22].of five firearms and ammunition across three separate incidents.17 van Bohemen Jupheld a starting point of three years and six months' imprisonment, taking intoaccount the readily available nature of the firearms, the fact that many were loaded,the volume of ammunition, the gang-related context of the offending, the military stylenature of the weapons, and the circumstances suggesting that the offender wasregularly in possession of readily accessible firearms and ammunition.18[20] In Police v Cranch, the appellant was found in possession of 22 firearms(including 19 military style semi-automatic firearms), together with parts which, whencombined, would form another three firearms.19 He claimed he was storing them forothers.20 Fitzgerald J considered that the appropriate starting point was between threeand half to four years' imprisonment.21[21] Mr Campbell placed some reliance on the end sentence of home detention inCranch. That reliance is misplaced. The Solicitor-General appealed the sentence ofhome detention on the basis that the starting point of two years' imprisonment wasmanifestly inadequate.22 Fitzgerald J agreed,23 but dismissed the appeal on the basisit would be inappropriate to interfere with the end sentence.24[22] Nor do we accept Mr Campbell's submission that R v Cochrane is a helpfulcomparator.25 There the defendant was found in possession of an assault rifle, apump-action shotgun and two cut-down pistol grip shotguns.26 Gendall J adopted astarting point of two years' imprisonment.27 In our view this starting point could wellhave been higher. However, the context in which the sentence on the firearms chargeswas set may well explain the sentence. The starting point was only briefly consideredin the course of the offender being sentenced to life imprisonment for murder.17 R v Rawiri, above n 16, at [5]–[7].18 At [38].19 Police v Cranch, above n 15, at [13].20 At [14]–[15].21 At [51].22 At [2].23 At [40].24 At [72].25 R v Cochrane, above n 15.26 At [93].27 At [93].A concurrent sentence on lesser charges would have no pragmatic effect on the endsentence.[23] In contrast, Mr Campbell was found in unlawful possession of five firearmsand ammunition. Although the Judge concentrated on the four guns linked to theaggravated burglary and robbery, our view is that possession of the sawn-off rifle isparticularly concerning. By definition given its barrel length, Mr Walker, for theCrown, confirmed it is classified as a pistol under the Arms Act 1983. Such a weaponhas no legitimate use. It cannot be used for sporting or recreational pursuits. Its soleutility is as a tool for criminogenic purposes.[24] We also consider the Judge was correct to take into account the particulardanger posed by Mr Campbell being in possession of firearms. He has a relativelyrecent conviction for aggravated robbery involving the use of a firearm. His dangeroustendencies are well illustrated by text messages he sent to his partner after theaggravated burglary. Relevant and concerning excerpts include him saying that he isthe "happiest crim alive" and "crime duz pay"; that he is a "real gangsta" who "live[s]by the gun" and "die[s] by the gun"; and that he was "high an[d] happy now off tha[t]powerthrust an[d] exhilaration of shooting guns". These messages directly linkMr Campbell to the use of firearms in the context of criminal offending.[25] Taking these factors into account, we are of the view that the starting point oftwo years and six months' imprisonment for the unlawful possession of five firearms,including one which is directly linked to criminal offending, sits at the lower end ofthe available range.[26] It follows that we are satisfied the Judge did not adopt a starting point whichwas too high.Did the Judge give insufficient credit for personal mitigating factors?[27] Mr Campbell's next ground of appeal was that the Judge erred by failing togive credit for personal mitigating factors. His principal ground was that referred toearlier, namely that he should have received a discount for self-representing at trial.[28] We disagree. It is an orthodox sentencing principle that a defendant whoadopts measures to reduce the costs of trial, usually by conceding issues or agreeingto certain procedural measures designed to streamline the trial, may be entitled to somecredit.28 However, that factor is not engaged here. It is correct that defendants whoare eligible for legal aid may, theoretically, reduce the costs of the trial process whenthey self-represent. However, it is more often the case that self-represented defendantsadd to the costs of trial because they are unfamiliar with the criminal trial process, donot understand the complex procedural and evidential rules which apply or areignorant of trial strategies and tactics. These inadequacies usually impose significantburdens on the Crown and the Court, both in time and expense. It is simply impracticalto attempt any form of savings calculation to assess an appropriate level of discount.[29] That is particularly the case here. The Judge, in our view rightly, rejected thissubmission. She pointed out that Mr Campbell had several counsel available to him,including an Auckland silk.29 Despite this he elected to self-represent.[30] With no other available personal factors, the starting point remainedunadjusted. Indeed, it could have been uplifted. It would have been open to the Judgeto have added to the starting point on account of Mr Campbell's relatively recentconviction for aggravated robbery, which relevantly involved the use of a firearm.[31] It follows we consider that the Judge did not err in giving no credit for personalfactors.Result[32] The appeal is dismissed.Solicitors:Crown Solicitor, Napier for Respondent28 Sentencing Act 2002, s 9(2)(fa).29 Sentencing notes, above n 4, at [18].