CAMPBELL v R [2020] NZCA 356

CAMPBELL v R [2020] NZCA 356 [19 August 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA154/2020[2020] NZCA 356BETWEEN LORETTA TOHUNGARAU CAMPBELLAppellantAND THE QUEENRespondentHearing: 16 June 2020Court: Courtney, Brewer and Hinton JJCounsel: T Epati for AppellantZ A Fuhr for RespondentJudgment: 19 August 2020 at 10.30 amJUDGMENT OF THE COURTA The appeal is allowed.B The sentence of three and a half years' imprisonment is quashed andsubstituted with a sentence of three years' imprisonment.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)Introduction[1] Following a jury trial in the District Court at Gisborne Loretta Campbell wasconvicted as a party on two charges of possessing methamphetamine for supply.11 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a). She was acquitted on four other charges ofpossessing methamphetamine for supply and discharged on a fifth charge, the jury having beenunable to reach a verdict.Judge Cathcart sentenced Ms Campbell to three years and six months' imprisonment.2She appeals her sentence on the ground that it is manifestly excessive as a result of theJudge taking too high a starting point and not allowing sufficient discount for personalcircumstances.The offending[2] Ms Campbell was arrested along with her husband, Lucky Campbell, andothers as part of a police investigation into methamphetamine dealing in the Gisborneregion in 2017 and 2018. Mr Campbell was the principal offender and pleaded guiltyto seven charges of possession of methamphetamine for supply.3 As noted,Ms Campbell was convicted at trial of two charges of possession of methamphetamine(charges 2 and 6).[3] The evidence at trial was that Mr Campbell would travel to Auckland to buymethamphetamine in bulk and distribute it through his Gisborne network at bothwholesale and retail levels. Surveillance evidence and intercepted communicationsshowed that Ms Campbell was aware of her husband's activities and participated to alimited extent.[4] Charge 2 related to the possession of 140 grams of methamphetamine between28 July and 2 August 2017. Mr Campbell had travelled to Auckland intending topurchase a kilogram of methamphetamine. His efforts to do so were frustrated becausehe had been unable to find a supplier. Eventually, he purchased 140 grams.Intercepted communications showed that Ms Campbell was aware that her husbandintended to purchase a kilogram of methamphetamine and that she made efforts to helphim find an alternative source by locating possible contacts in Mr Campbell's phone.She also assisted in the sale of one ounce of the amount Mr Campbell had purchasedby passing information from him on to the buyer.2 R v Campbell [2020] NZDC 3286 [Sentencing decision].3 R v Campbell [2019] NZDC 26383. Mr Campbell was sentenced to 14 years and seven months'imprisonment on the drugs charges and 12 months' imprisonment (concurrent) on a firearmscharge.[5] Charge 6 related to Mr Campbell's trip to Auckland on 11 November 2017 andhis purchase there of one kilogram of methamphetamine. Ms Campbell knew thepurpose of Mr Campbell's trip and, at his request, paid the toll road fee and bookedaccommodation. The Judge was not satisfied that she knew the exact amountMr Campbell had purchased and proceeded on the basis that she just knew he intendedto purchase "a significant amount" of methamphetamine.4[6] In January 2018 Ms Campbell separated from her husband. Interceptedcommunications between the couple captured exchanges about the division of money,clearly from drug dealing. In January 2018 the police searched the motel unit rentedby Lucky Campbell and a self-storage unit rented by Ms Campbell (the contract wasin her name and she held the access card). The motel unit contained 94.9 grams ofmethamphetamine and $10,010 in cash. The storage unit contained $460,160 in cashand a small amount of cannabis but no methamphetamine.First ground of appeal: the starting point was too highThe issue on appeal[7] The Judge sentenced on the basis of Zhang v R5 and one of the other appealsdetermined in Zhang, Phillips v R.6 He was conscious of Ms Campbell's role in fixinga starting point in accordance with the Zhang methodology. He considered that, onquantum alone, the offending fell within the top end of band two or the low end ofband three but, taking her lesser role in the overall network into account, concludedthat a starting point of five and a half years' imprisonment was appropriate.7[8] The role played by an offender is an important part of the Court's assessmentof the seriousness of the conduct, the level of criminality involved and the culpabilityinherent in the offending.8 The trial Judge is best placed to make this assessment andmust frequently do so on the basis of inferences about role, knowledge and gain.94 Sentencing decision, above n 2, at [25].5 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.6 At [204]–[228].7 Sentencing decision, above n 2, at [33].8 Zhang, above n 5, at [118] and [126].9 At [127].The issue in this appeal is what evidence the Judge was entitled to draw on for thispurpose.[9] Ms Epati, for Ms Campbell, submitted that, in assessing Ms Campbell's rolefor the purposes of identifying the correct starting point, the Judge wrongly took intoaccount evidence that was unrelated to the charges and failed to take into account thematters raised in the report provided under s 27 of the Sentencing Act 2002, whichaddressed (among other aspects) the effect of Ms Campbell's relationship withMr Campbell on her culpability. Ms Campbell asserted that her offending was to beviewed in the context of a coercive relationship with her husbandEvidential basis for finding as to Ms Campbell's role[10] Because Ms Campbell was facing a number of charges the scope of theevidence at trial was much wider than that required to prove charges 2 and 6 on whichshe was convicted. The extent to which the Judge could take into account the widercontext in sentencing on those charges was the subject of argument at the sentencinghearing.[11] The Crown invited the Judge to interpret the guilty verdicts on charges 2 and6 by reference to the wider evidential context, including in particular the undisputedevidential communications data.10 This included evidence about Ms Campbell'sdealings with customers, including arranging refunds and handling both money andmethamphetamine.11 In addition, there was what the Judge referred to as non-chargedevidence; evidence of a general nature not specifically directed towards particularcharges but forming part of the Crown's circumstantial case.12 The Judge did notconsider such material relevant:[12] I have reached the view the proper approach on factual material — asit relates to Ms Campbell — is to use evidence only to the extent it properlybears down [on] an assessment of charges 2 and 6 only. The use of anyevidential communications and drawing of inferences on issues of quantumand role must be only what is permissible and do not usurp the jury's decisionwhich resulted in Ms Campbell's acquittal on remaining allegations.10 Sentencing decision, above n 2, at [5]–[6].11 At [9].12 At [10].[13] In my view the key issue before the jury on all counts was whetherMs Campbell knew that her husband was in Auckland on the specific datestrying to obtain large bulk supplies of methamphetamine by way of reloads.In short, knowledge of what was going through her mind in relation to theindividual transactions by her husband was the key issue in her case. [14] I have come to the conclusion it would be wrong in principle for meto take into account the wider evidential material relied upon, including: thenon-charged evidence said to represent supplies and offering to supplymethamphetamine; the advice component about the handling [of] money,equipment or product issue; and the customer relations evidence.But the Judge went on:[15] Having said that, there are core facts which are of direct relevance tomy factual assessment of charges 2 and 6. I have already spoken about theimmediate context of those transactions. That context is obviously relevant toan assessment of what Ms Campbell knew on those particular dates about herhusband's activities in Auckland re quantum and role.[16] Also, evidence about the discussion between Lucky Campbell andMs Campbell in January 2018 where the two had a dispute over the enterprisethat had been run to that date is also relevant. The jury and I saw the relevantCCTV footage and listened to the evidential communications by Ms Campbellduring that period to her husband and another third party and we read therelevant text material.[12] At trial, both the relevance and the significance of the money found in theself-storage unit were in dispute. The Crown asserted that the communicationsshowed that Ms Campbell's share in the drug proceeds was represented largely by the$460,000 found in the storage unit;13 Ms Campbell's counsel argued that there wereother explanations for the money (there had been evidence of cannabis dealing andmoney lending) and that on a proper interpretation the evidence suggested that thelion's share of the money belonged to Mr Campbell.14 While the Judge acknowledgedthe arguments advanced for Ms Campbell as having force, he nevertheless consideredthat they left "the money-factor as being relevant to the overall inferences I draw ininterpreting the verdict, and resolving the key factual issues in dispute on quantum(charge 6 only) and role".15[13] On that basis the Judge proceeded to find, in relation to charge 2, that theimmediate context showed Ms Campbell was aware that Mr Campbell was attempting13 At [17].14 At [18]–[19].15 At [19].to source one kilogram of methamphetamine.16 In relation to charge 6, the Judge foundthat the evidence that related solely to that charge, coupled with the finding regardingMs Campbell's knowledge in relation to charge 2, showed that Ms Campbell knewthat Mr Campbell was seeking to purchase methamphetamine but not that she knewthe amount. The Judge added, however:17 in my view when these evidential threads are combined along with theinferences drawn from the money found at the storage unit; her connectionwith that unit and the motel unit (she rented it), she must have known inrelation to charge 6 that her husband was intending to source a significantamount of methamphetamine but certainly not proved to the level of onekilogram.[14] In relation to Ms Campbell's role the Judge said:[28] Ms Campbell's role as it relates to charges 2 and 6 only was significantin that context but in the wider drug distribution network run by Mr Campbellher role must be seen as lesser in terms of Zhang. Then again labels are neverhelpful, much like decisions which give banding directions to lower Courts.The Judge compared the offending with that in Phillips, relied on by Ms Campbell'scounsel and concluded that:[33] Given my findings, I consider this is one of those cases where placingan individual's culpability within a particular band is not overly helpful. Myfindings could lead to the offending falling either at the top end of band 2 orlow end of band 3 on quantum alone and without consideration of role. But,when I take into account Ms Campbell's lesser role in the overall drugdistribution network, albeit a significant role in the limited two transactions,and taking into account all the other relevant factors mentioned, I consider astarting point of five and a half years' imprisonment is appropriate.(Emphasis in original).[15] Ms Epati submitted that, having correctly identified the wider evidentialmaterial as irrelevant, the Judge erred by then taking into account the communicationsabout the money found in the storage unit. Ms Epati said that, having acknowledgedthe strength in the submission that the evidence suggested the lion's share of themoney belonged to Mr Campbell, the Judge was wrong to then draw inferences fromMs Campbell's connection with the money found in the storage unit to conclude that16 At [21].17 At [25] (Emphasis in original).she knew Mr Campbell was intending to source a "significant" amount ofmethamphetamine. Further, there was nothing in the storage unit to connect the moneywith the methamphetamine dealing; it was only the motel unit, which was rented byMr Campbell, that contained any physical evidence of methamphetamine.18[16] Ms Epati also argued that, in relation to charge 6, the text messages and theverdicts required the Judge to treat the evidence as showing that most of the moneyfound in the storage unit belonged to Mr Campbell. As a result, the only availableconclusion was that Ms Campbell's role was a lesser one. On that basis, the startingpoint of five and a half years was too high.[17] For the Crown, Ms Fuhr argued that the intercepted communications in January2018 indicated an expectation that the money generated by the enterprise, whichundoubtedly included methamphetamine dealing, would be shared. Mr Campbell hadnot been at the storage unit after 12 January 2018, the day on which he andMs Campbell exchanged a number of texts about the division of the money in thecontext of their separation and later went to the storage unit, apparently so thatMr Campbell could take his share of the money.[18] We agree that the tenor of messages between Mr and Ms Campbell on12 January 2018 is to the effect that, although Mr Campbell claimed to have done mostor all of the work to generate the money, it was nevertheless viewed as being subjectto division between them. Mr Campbell referred in texts to "our empire", "my half"of the money and the fact that Ms Campbell was "set for life now". Ms Campbellagreed that Mr Campbell would "get [his] money" and made arrangements for themboth to go to the storage unit for that purpose. In an intercepted telephone call to athird party later that day Ms Campbell referred to having "sorted that money" withMr Campbell and that Mr Campbell "took me to go and get it and he's left me withmost of it".[19] A sentencing judge is entitled to take into account broader contextual evidencein assessing role and culpability. Knowledge of commerciality, expectation of18 Mr Campbell had rented the unit in 1998 when he and Ms Campbell decided to have some timeapart and, although they had reconciled and separated several times after that, he retained the unit.financial benefit and actual financial benefit are all highly relevant to the assessmentof an offender's role and culpability, yet the evidence of these aspects is oftendisconnected from particular transactions. In our view it was open to the Judge, whohad heard all the evidence (including evidence about other potential sources of themoney) to draw the inference that some or all of the money in the storage unit was theproceeds of methamphetamine dealing and that Ms Campbell knew the source of themoney, exercised a significant level of control over access to the storage unit in whichthe money was kept and both asserted the right to a share in the money and actuallyreceived the benefit of part of it.Should the s 27 report have affected the Judge's assessment of role and culpability?[20] In Zhang, in acknowledging that a lesser role in the offending may indicate alower level of culpability that ought to be recognised in the starting point, this Courtidentified certain indicia that might be taken into account in assessing an offender'srole. These included where the offending is the result of pressure, coercion andintimidation. But the Court noted expressly noted that these indicia were descriptiveof conduct; any discount for associated mitigating personal considerations was for thesecond stage of sentencing.19[21] At sentencing Ms Campbell relied on a report by Associate Professor KhyleeQuince for the purposes of s 27 of the Sentencing Act. Section 27(1) entitles anoffender to request the Court to hear any person called by the offender to speak on avariety of personal factors that might affect sentencing. These include the personal,family, whānau, community and cultural background of the offender and the way inwhich that background may have related to the commission of the offence.20[22] Associate Professor Quince is a legal academic whose areas of specialityinclude criminal law and youth justice, family law, restorative justice and therapeuticjurisprudence with a particular focus on Māori engagement in justice. The s 27 reportwas proffered for the purposes of showing mitigating factors that warrantedrecognition by way of deduction from the starting point; the Judge was not invited to19 Zhang, above n 5, at [126].20 Sentencing Act 2002, s 27(1)(a) and (b).treat it as relevant to the assessment of Ms Campbell's role for the purposes of fixingthe starting point. The Judge reviewed the report at some length at the second stageof the sentencing and recorded counsel's submission that Ms Campbell would nothave been before the court but for Mr Campbell and his criminal activity.21 Heconcluded that, whilst difficult, the relationship was not causative of the offending.22Although he accepted that there was some truth in the proposition that the source ofthe offending lay in Ms Campbell's relationship with Mr Campbell he did not acceptit was to the degree asserted.23[23] Ms Epati submitted that the report placed Ms Campbell's offending in thecontext of her relationship with Mr Campbell and that the Judge had erred in failingto properly recognise that aspect as relevant to Ms Campbell's role and true level ofculpability. Ms Epati submitted that the Judge had overstated the need for ademonstrative causal connection between the offending and the relevant context andargued that Ms Campbell's offending had to be viewed through the prism of thecontrolling nature of the marital relationship.[24] In advancing this argument, Ms Epati said that she was not advocating for"double-dipping", but rather for a more nuanced assessment of culpability. Ms Epatiacknowledged that this was not a case where social, cultural and economic deprivationin childhood had affected future adult moral choice and actions. Instead, it was theongoing relationship dynamic that was operative at the time of the offending; thedynamics of the relationship were such that Ms Campbell should have been regardedas less culpable than the bare facts of the offending might suggest. She relied onAssociate Professor Quince's opinion that "[t]he key element underpinning Loretta'soffending is her relationship with Lucky".[25] In her report Associate Professor Quince recorded Ms Campbell's descriptionof her relationship. The salient points are as follows. The couple had been in arelationship from the time Ms Campbell left school at the age of 14. They have fivechildren together.24 There had been one instance of strangulation in 2016 but21 Sentencing decision, above n 2, at [55].22 At [57].23 At [58].24 Counsel advised that the children are now aged between nine and 23 years.otherwise the relationship was generally not violent. Mr Campbell was, however,chronically unfaithful and left the family several times over the years. Mr Campbellwas controlling of Ms Campbell and tended to belittle her until Ms Campbelleventually believed that she did not deserve anything better than what she had. Therelationship worsened when Mr Campbell became involved with methamphetamine.[26] Associate Professor Quince made some general observations regarding thenature of a healthy relationship, common to all cultures, but then expressed the viewthat Ms and Mr Campbell's relationship was one in which the dynamics of "coercivecontrol" were at play. The basis for this assertion was a publication by a Canadianresearcher, Professor Evan Stark.25 That led into reference by Māori researchersProfessor Denise Wilson and Dr Alayne Mikahere-Hall and their work on howcoercive control operates for Māori women:26Empirical interviews with a number of Maori women in problematic domesticrelationships demonstrate that wahine Maori view their controlling partnerswith aroha and manaaki – love and compassion, as key principles within theframework of Maori cultural imperatives. Whilst this may seemcounterintuitive, it fits within a Maori sense of priorities – within theoverarching framework of whakapapa – genealogy, and the obligations ofwhanaungatanga that derive from relatedness. Put simply, the womenprioritise the needs and wellbeing of their partner and children – because theyhave forged a kin connection, which is incumbent upon them to maintain.Added to this cultural analysis, are the complex and interrelated factorsderiving from historical, social and economic inequities – which render escapeand concepts of individual agency illusory. The practical realities of seekinghelp, starting again and managing your children's relationship with anestranged father, are significant barriers to overcome.(Footnote omitted).[27] Associate Professor Quince then proceeded to the following conclusion:This relationship dynamic would undoubtedly affect a person's psychologicaland spiritual wellbeing – Te Taha Hinengaro and Te Taha Wairua – in terms oftheir self-esteem, sense of self and individual agency. Although a stronglycollectivist culture, Te Ao Maori acknowledges and values the individualwithin the structures of whanau, hapu and iwi. However, the individual canonly flourish within functional social structures that are providing appropriatearoha and manaaki for their members. A common response for women inviolent or controlling relationships, is to focus on children or the household.25 Evan Stark Coercive Control: How Men Entrap Women in Personal Life (Oxford University Press,New York, 2007).26 Denise Wilson and Alayne Mikahere-Hall "Aroha and Manaakitanga – That's What It Is About –Indigenous Women, "Love" and Interpersonal Violence" (2019) Journal of Interpersonal Violence.Loretta talks in these terms – of "getting on with her life, while Lucky did hisown thing". He was not committed to the partnership, home or children inany sustained way. She reports that in the year leading up to theirapprehension and arrests, she and Lucky "broke up at least 5 or 6 times".[28] And later:Whilst it is disingenuous to completely deny Loretta's agency for her actionsthat underpin this offending, those actions must be considered within context.That context is a life in which she has little consistent support or love fromher partner; where he does as he likes and she has little to no influence orcontrol over his behaviours. Although Loretta accepts her situation, she isconsistent in her claim that, but for [Mr Campbell] she would not be here and"would not have failed her children". Viewing her offending behaviours as aseries of transactions in which she provided assistance or encouragements toher husband fails to appreciate the longer-term dynamics operating withintheir relationship.[29] We readily accept Associate Professor Quince's knowledge of te ao Māori.However, we are more cautious about her assertions regarding the psychologicalaspects of human relationships. If the assertion is that the nature of Ms Campbell'smarital relationship had a psychological impact capable of affecting her culpability,the Court would expect to benefit from the opinion of a psychologist. We note, forexample, that in Philips, which was relied on as a comparable case, the Court had thebenefit of a report by a psychologist.[30] Even leaving that concern aside, however, there is an insufficient basis onwhich to find that the type of indicia contemplated in Zhang as likely to affectculpability existed in this case. That is not to downplay the relevance ofMs Campbell's personal circumstances, but the s 27 report does not seem, to us, toprovide a basis on which the Judge might have been able to assess Ms Campbell's roleand culpability. In our view, the matters raised in the s 27 report were properly part ofthe Judge's consideration of mitigating factors and the Judge made no error in hisapproach to this aspect of the sentencingWas the starting point nevertheless too high?[31] We have concluded that the Judge did not make any error in assessingMs Campbell's culpability in relation to charge 6 by taking into account the evidencerelating to charge 2 and, in relation to both charges, in taking into account the evidenceabout the money in the storage unit. Nor did he err in treating the s 27 report asrelevant to the second stage of sentencing. However, for completeness, we go on toconsider whether the starting point selected was appropriate, notwithstanding theissues just discussed.[32] It is clear that Ms Campbell was involved in the circumstances giving rise tocharge 2 in a way that was lesser but not completely minor or administrative; sheactively encouraged and assisted. The quantum of the drug and the nature of herinvolvement in that transaction would place that offending in the middle to upper rangeof band two, attracting a starting point of between five and seven years. Charge 6required the starting point to be determined on the basis of the Judge's factual findingthat Ms Campbell knew that Mr Campbell was seeking to source a significant amountof methamphetamine, though not the precise amount. However, her involvement wasvery much at the lower end; the charge 6 offending would fall within the lower end ofband 3, attracting a starting point of between six and seven years.[33] On this basis alone, a starting point of six to eight years would have fairlyreflected the totality of the offending, subject to any adjustment to reflectMs Campbell's overall culpability as a minor player in the organisation. The Judgewas clearly right that Ms Campbell's role in the overall network was much less thanher role in the two particular transactions of which she was convicted. He was rightto adjust the starting point accordingly. We consider that the starting point of five anda half years' imprisonment, which would place the offending in the middle of bandtwo, was a fair reflection of the offending overall. The first ground of appeal thereforefails.Second ground of appeal: failure to allow sufficient discount for mitigatingfactorsThe approach of the District Court Judge[34] Ms Campbell raised a number of mitigating factors and the Judge allowed atotal of two years (36 per cent) in recognition of them. This comprised eight months(12 per cent) for her previous clean record, solid history of paid work and devotion toher five children,27 12 months (18 per cent) for personal circumstances (her difficultmarital relationship and the effect of her incarceration on her children)28 and fourmonths (six per cent) for the time spent on strict bail conditions.29[35] No allowance was made for remorse; the Judge considered this unwarrantedgiven that Ms Campbell had defended all the charges against her and seemed to lackinsight in to her own criminality.30[36] Ms Epati submitted that the total discount was too low. Specifically, thediscount for Ms Campbell's good record was "miserly"; the Judge failed to adequatelyrecognise the factors addressed in the s 27 report, particularly the effect ofincarceration on Ms Campbell's children; and there was no recognition ofMs Campbell's efforts towards and prospects for rehabilitation.Discount for previous good record[37] As already noted, Ms Campbell left school at a young age and appears not tohave any formal qualifications. She was 40 years old when convicted. She had noprevious convictions of any kind and a history of consistent employment with areputation as a hard worker, loyal friend and devoted mother. Ms Epati relied on theobservations made in R v Findlay31 and R v Davidson32 that for a person with a goodrecord a fall from grace is punishment in itself, and that there is greater potential forrehabilitation where community involvement and good character bear witness to areduced probability of reoffending. In both Findlay and Davidson discounts of25 per cent were given for previous good character.[38] The Crown's response, however, is that Findlay and Davidson weredistinguishable by the notable service the offenders had given to their communitiesand extended family. Ms Fuhr submitted, moreover, that any claim to a discount for27 Sentencing decision, above n 2, at [42].28 At [59].29 At [61].30 At [60].31 R v Findlay [2007] NZCA 553 at [91].32 Davidson v R [2011] NZCA 356 at [16].Ms Campbell's good record must be considered in light of her involvement incommercial drug dealing over a period of months.33[39] Given Ms Campbell's difficult circumstances and lack of opportunity in lifewe agree that her record is something to be proud of. A slightly higher discount thanthen 12% allowed would have been justified but the nature of Ms Campbell'soffending, clearly not a "one-off", meant that a discount greater than 15 per cent wouldhave been excessive by comparison to like cases.Discount for personal circumstances: Ms Campbell's marital relationship, effect ofincarceration on her children and rehabilitative prospects[40] Ms Campbell's personal circumstances were addressed in the s 27 report,which the Judge reviewed at some length, referring specifically to the difficultrelationship that Ms Campbell had with her husband and the impact thatMs Campbell's incarceration would have on her children. As to the latter, heacknowledged a letter written by one of Ms Campbell's children.34 As to the former,we have already referred to the Judge's view that whilst there was some truth in theproposition that the source of the offending lay in Ms Campbell's relationship withMr Campbell he did not accept it was to the degree asserted. The 12-month(18 per cent) discount was fixed without identifying how it was made up; it was saidsimply to reflect Ms Campbell's personal circumstances.35[41] Ms Epati submitted, first, that the non-specific discount failed to adequatelyaddress the effect of incarceration on Ms Campbell's children. It is uncontroversialthat the effect imprisoning an offender has on the offender's children is a factor thatmay be taken into account in considering the appellant's personal circumstances. Theweight to be accorded that factor depends on the circumstances.36 The relevantcircumstances include the type of offending and the circumstances of the child orchildren.33 R v Zhang (2004) 20 CRNZ 915 (CA) at [26].34 Sentencing decision, above n 2, at [56].35 At [59].36 R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [13], citing R v Harlen (2001) 18 CRNZ 582(CA) at [21]–[22]. .[42] In this case we accept that there would be a significant impact onMs Campbell's children as a result of her imprisonment. It is quite evident from thepre-sentence report and from the s 27 report that Ms Campbell has been the primarycaregiver for her children, a devoted mother and a stable presence in her children'slives. It is true that her eldest child has children of his own and is, strictly, of an agethat he should be independent; sadly, it is also true that he has difficulties withaddiction and his children would, in the usual course, rely on Ms Campbell to someextent for stability in their lives. Further, Ms Campbell's imprisonment comes at atime when her children's father will be absent, serving at least the eight-year minimumperiod of imprisonment imposed on him.[43] We accept that even though the children are not as young as those in othercases, they are nevertheless at an age where parental presence is an importantprotective factor and the loss of that a corresponding risk factor for these children.These children do have substantial and positive whānau support from both theirmother's and father's extended families. They are in the day-to-day care of theirpaternal grandparents and have a close relationship with their aunt and maternalgrandmother. This is not a case where the children will be left rudderless, withoutsupport and guidance. Nevertheless, teenagers are at an especially vulnerable stage oflife to lose a loving and stable parent.[44] We note that practical considerations mean that the opportunities forMs Campbell's children to visit her will be rare, if they occur at all. The distance fromtheir home in Gisborne to Auckland Women's Prison and the cost of travel are likelyto put visits beyond reach. We also note that Ms Campbell is reluctant for her childrento see her in the prison environment but do not accept the Crown's suggestion that itis simply Ms Campbell's choice not to see her children.[45] Overall, we accept that the impact on Ms Campbell's children is an issue thatdeserved specific recognition and, ideally, would have been the subject of anidentifiable discount rather than being included in the total discount allowed forpersonal circumstances. Taking the children's position into account, but set againstthe nature of the offending and other sentencing considerations, a discount offive per cent would have been warranted.[46] We turn next to the lack of any discount for rehabilitative efforts and prospects.The pre-sentence report identified rehabilitative needs, specifically drug and alcoholcounselling to reduce the risk of further offending, and reported that Ms Campbell wasmotivated to address those needs. The s 27 report refers to Ms Campbell's exemplaryconduct in prison. We accept that, while Ms Campbell does not have rehabilitativeneeds in the sense of drug addiction, there are clearly other aspects that havecontributed to her situation and that she is motivated to change. Encouraging andrewarding efforts to reform is a significant sentencing consideration and we agree thatthe Judge should have recognised this aspect. A discount of 8–10 per cent ought tohave been allowed for that purpose.[47] This leaves the discount given for Ms Campbell's problematic relationshipwith Mr Campbell. It is evident from the Judge's comments that he did not accept thatMs Campbell was overborne by her husband to the extent she claimed. But he didaccept that it was a controlling relationship and it is reasonable to infer that she wasdrawn into the offending by him, even if, ultimately, the offending was a product ofher own will. In our view these were conclusions that were open to the Judge, whowas best placed, having heard all the evidence at trial. In our view a discount of 10per cent would have been fair.Total discount[48] A total discount in the order of 45 per cent would have been reasonable toreflect the various factors discussed above, including the discount for time spent onelectronically-monitored bail. This would have resulted in an end sentence of threeyears rather than the three and a half years imposed. This is a sufficiently significantdifference such that we should allow the appeal on this ground.37Result[49] The appeal is allowed. The sentence of three and a half years' imprisonment isquashed and substituted with a sentence of three years' imprisonment.37 Criminal Procedure Act 2011, s 250(2).Solicitors:Rishworth Wall & Mathieson, Gisborne for AppellantCrown Law Office, Wellington for Respondent