CAMPBELL v POLICE [2021] NZHC 2937

CAMPBELL v POLICE [2021] NZHC 2937 [1 November 2021]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlIN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2021-488-46[2021] NZHC 2937BETWEEN FRANCIS JOHN CAMPBELLAppellantAND NEW ZEALAND POLICERespondentHearing: 1 November 2021Appearances: V Heather for the AppellantT Fai'ai for the RespondentJudgment: 1 November 2021JUDGMENT OF GAULT JThis judgment was delivered by me on 1 November 2021 at 4:45 pm.Registrar/Deputy RegistrarSolicitors / Counsel:Mr V Heather, Barrister, WhangareiMs T Fai'ai, Marsden Woods Inskip Smith, Office of the Crown Solicitor, Whangarei[1] Mr Campbell appeals against his sentence of two years and one month'simprisonment imposed by Judge D J Orchard in the Whangārei District Court on16 September 2021,1 following Mr Campbell's guilty plea on a representative chargeof indecent assault.2 He appeals on the ground that the sentence was manifestlyexcessive particularly as the starting point of three years' imprisonment adopted bythe Judge was too high.The offending[2] Mr Campbell is aged 79. The victim, A, aged 46, has an intellectual disabilityand requires 24-hour care. Mr Campbell was a friend of A's sister. At the time of theoffending on 20 September 2020, Mr Campbell was caring for A at his house whileA's sister went to work, although A primarily resides at a care facility in Auckland.[3] A and her sister arrived at Mr Campbell's house about 4:15 pm. A left for workafter half an hour. Mr Campbell provided A with a blanket to watch television andwith dinner about 7:00 pm. Later, Mr Campbell told A to go to bed and took A to hisroom. She got into bed in her clothes. Mr Campbell removed his clothes and got intobed too. He began kissing her face and calling her endearing names. He lifted herdress and bra up and sucked on her breasts and used his tongue. He then said,"Don't be shy, I'll feel your vagina". He removed A's underwear and rubbed his handaround her labia and outer vagina. He also touched and hugged A's bottom.Mr Campbell then masturbated by touching his penis.[4] At around 8:45 pm A's sister returned and knocked on the window next to thefront door, observing Mr Campbell sitting on the bed in his underwear. A's sister calledA, who came to the front door crying and told her Mr Campbell had sucked her breasts,played with her vagina and felt her bottom. A's sister took A home and telephoned thePolice.1 R v Campbell [2021] NZDC 18436 [District Court decision].2 Crimes Act 1961, s 135. Maximum penalty seven years' imprisonment.District Court decision[5] Judge Orchard considered Mr Campbell's offending involved the followingculpability factors:3(a) A was a "very vulnerable" victim, requiring full-time care because ofher intellectual disability;(b) the offending was in "gross breach of trust" as Mr Campbell wasentrusted to care for A by her sister;(c) the conduct itself was at the "high end" of indecent assaults, involvingskin-on-skin contact, using his mouth on both of A's breasts and hishands around her genital area, on both her breasts and on her bottom;(d) Mr Campbell's masturbating in A's presence would have increased herdistress; and(e) as a result of the offending, A has suffered distress and a seriouslyundermined sense of security.[6] The Judge considered Mr Campbell's offending was very similar to that ofDayal v R,4 which also concerned offending by a care worker against a resident hecared for at an IHC institution – except that it also involved oral connection betweenthat offender's mouth and victim's genitals. The starting point in Dayal v R was threeand a half years' imprisonment. The Judge also distinguished Mr Dayal's offendingas involving a more serious breach of trust because he was a care worker with a "widerresponsibility" for a permanent resident at the facility.5 The Judge considered astarting point of three years' imprisonment was appropriate.6 She referred to thepredominant purposes of sentencing being accountability for harm to A, promoting in3 District Court decision, above n 1, at [6].4 Dayal v R [2016] NZHC 1027.5 District Court decision, above n 1, at [9].6 District Court decision, above n 1, at [10].Mr Campbell a sense of responsibility, denunciation and deterrence; and said thatrehabilitation and reintegration were less relevant.7[7] The Judge declined to impose a small uplift on the starting point, as sought bythe Crown, for Mr Campbell's previous assault convictions on the basis they were notfor indecent assault.8[8] For Mr Campbell's personal circumstances, the Judge applied a total discountof 30 per cent, comprising a 20 per cent discount for his guilty plea; and a combineddiscount of 10 per cent to reflect that prison will be a particular toll because ofMr Campbell's age and the fact that he will lose his Housing New Zealandaccommodation.9Approach on appeal[9] To succeed on an appeal against sentence, an appellant must satisfy the appealcourt that there has been an error in the sentence and that a different sentence shouldbe imposed.10 The appeal court will not ordinarily intervene where the sentence iswithin the justifiable range having regard to sentencing principles, but will interveneand substitute its own view if the sentence is manifestly excessive or wrong inprinciple.11 The focus on appeal is on the final sentence imposed, as opposed to itscomponent parts or the process by which the sentence was reached.12Submissions[10] For Mr Campbell, Mr Heather submits the starting point and final sentence aretoo high and inconsistent with other cases involving similar offending. In support ofMr Campbell's challenge to the three-year starting point, Mr Heather refers to numberof cases he submits are relevant:7 District Court decision, above n 1, at [12]-[13].8 District Court decision, above n 1, at [11].9 District Court decision, above n 1, at [14]-[15].10 Criminal Procedure Act 2011, ss 250(2) and (3).11 Tutakangahau v R, [2014] NZCA 279, [2014] 3 NZLR 482, at [36].12 Ripia v R [2011] NZCA 101 at [15].(a) First, the offending in Dayal v R was more serious because of thefeature of oral contact around the victim's vagina. Mr Heather notesthe Court on appeal considered this was a "serious aggravatingelement" of the offending and, consequently, the indecent assaultneared the seriousness of a sexual violation charge.13 Mr Heathersubmits it is not clear Judge Orchard expressly reflected this distinctionin setting the starting point; rather, the Judge focused on the relationshipof care and responsibility.(b) In R v M,14 the victim, aged four, was the younger cousin of theappellant, aged 19. At their grandparents' house, where the victim hadbeen dropped off to be looked after, the appellant asked the victim'ssibling to leave the room, and then pulled the victim's skirt andunderwear aside and touched her genitals with skin-on-skin contact.The appellant also removed his pants and placed the victim's hand onhis penis. He sought a promise from the victim she would not tellanyone. On appeal, the Court reduced the starting point of two yearsand six months' imprisonment to two years' imprisonment.(c) In R v CN,15 the appellant, aged 69, pleaded guilty to two representativecharges of indecent assault against his granddaughter over an 18-monthperiod when she was aged between 16 and 17. CN's granddaughter hadan intellectual disability and he was her de facto carer. The offendingincluded fondling the victim's breasts and touching her vaginal area,over clothing with no skin-on-skin contact. The Court adopted astarting point of three years' imprisonment.(d) In O v R,16 Mr O aged 54, was sentenced on six counts of doing anindecent act on his niece, on four separate days over a seven-monthperiod, when she was aged 10 to 11. The offending included touchingthe skin of the victim's outer vagina with his fingers as she lay in bed;13 Dayal v R, above n 4, at [26].14 R v M [2009] NZCA 456.15 R v CN HC Auckland CRI 2006-092-2334, 29 July 2008.16 O v R [2010] NZCA 609.squeezing her breast and kissing her lips while she played with acomputer game that he gave her; and rubbing the victim's vaginal areaon a car ride to the movies and back. The Court of Appeal said theJudge's starting point of three years' imprisonment was perhaps sternbut not outside of the range available.[11] Here, Mr Heather submits the sentencing Judge wrongly afforded weight to thevictim's vulnerability beyond that in these other cases.[12] Mr Heather also submits the end sentence in the present case is inconsistentwith these cases. In particular, Mr Heather submits the final sentence was similar toO v R (26 months' imprisonment) but the offending in that case was more serious,marked with persistency and premeditation, not opportunism.[13] Ms Fai'ai, for the Crown, submits a three-year starting point for Mr Campbell'soffending was within range and the end sentence appropriately reflected hisculpability. As to Dayal v R, Ms Fai'ai submits the victim in the present case wasmore vulnerable because she was alone with Mr Campbell in his home, and the totalityof Mr Campbell's conduct was more serious.Analysis[14] Before dealing with the cases relied on, I note the Court of Appeal'sobservation in Troon v R that in indecent assault cases, where there is no guidelinejudgment, the starting points adopted in other cases will seldom provide assistance.17It is the aggravating and mitigating features of the offending that provide the greatestassistance.[15] In Dayal v R, Wylie J held a starting point of three and a half years'imprisonment was "well within the available range",18 noting:[36] There were significantly aggravating features to Mr Dayal's offending.First, and most obviously, there was a significant breach of trust. The victimwas suffering from a mental disability. She was living in an IHC care home.Mr Dayal was her carer. He abused the trust that she was entitled to repose in17 Troon v R [2019] NZCA 265 at [44].18 Dayal v R, above n 4, at [37].him. Secondly, the assault was a gross indecent assault. Mr Dayal pulled thevictim's pants down and licked around her vagina. He did so knowing of hersituation. Mr Dayal's behaviour was exploitative and grossly demeaning. Thatis clear from the victim impact statement, a copy of which has been madeavailable to me.[16] Justice Wylie considered that Mr Dayal's offending was more serious than theoffending in R v CN despite its single incident, because although CN's offendinginvolved multiple incidents and a greater time period, Mr Dayal's oral contact with thevictim's genital area and breasts was comparably more serious.19[17] I accept that the offending in Dayal was more serious than Mr Campbell'soffending given the oral contact around the vagina and Mr Dayal's even greater breachof trust during his work as a caregiver. But the Judge recognised these distinctionswhen setting a starting point six months lower than in Dayal v R.[18] O v R involved skin-on-skin contact with the victim's vaginal area, withoffending over a longer period and a gross breach of trust.20 Overall, Mr Campbell'soffending was not quite as serious. But the representative charge reflected the differentaspects of the offending in the agreed summary of facts albeit on one occasion.[19] Mr Campbell's offending was at least as serious as the offending in R v CN,21where the Court also adopted a starting point of three years' imprisonment. Althoughthe offending in that case spanned several incidents over a longer period of time, therewas no skin-on-skin contact.[20] Although R v M involved brief skin-on-skin contact, the Court of Appealconsidered the breach of trust was not in the same category as many of the cases"involving offenders in a parental or quasi parental situation".22 The relationshipbetween the victim and offender in that case is not comparable to that of a carer of avictim with an intellectual disability. Mr Campbell's offending was more serious thanthe offending in R v M.19 Dayal v R, above n 4, at [30].20 O v R, above n 16.21 R v CN, above n 15.22 R v M, above n 14, at [16].[21] Given the undisputed aggravating features of Mr Campbell's offendingsummarised above,23 and having regard to the other cases relied on, I consider theJudge's starting point of three years' imprisonment was not outside the justifiablerange.[22] Mr Heather did not take issue with the net discount for Mr Campbell's personalcircumstances. Reliance on other end sentences is of even less assistance given eachoffender's aggravating and mitigating personal circumstances. The Judge's netdiscount of 30 per cent was justified, and therefore the end sentence was notmanifestly excessive.Result[23] The appeal is dismissed.________________________________Gault J23 At [5].