CAMPBELL v R [2020] NZCA 631

CAMPBELL v R [2020] NZCA 631 [8 December 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA142/2020[2020] NZCA 631BETWEEN LUCKY TE WAATA CAMPBELLAppellantAND THE QUEENRespondentHearing: 2 November 2020Court: Clifford, Woolford and Mander JJCounsel: E J Forster for AppellantM L Wong and L E Cacace for RespondentJudgment: 8 December 2020 at 10.30 amJUDGMENT OF THE COURTA The application for an extension of time is granted.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] Mr Campbell pleaded guilty to seven charges of possessing methamphetaminefor supply and one charge of unlawful possession of firearms. The offending involvedthe trafficking of approximately 6.3 kg of the drug over a two-year period. He wassentenced by Judge Cathcart to 14 years and seven months' imprisonment and orderedto serve a minimum of half his sentence.11 R v Campbell [2019] NZDC 26383.[2] Mr Campbell appeals his sentence on the single ground that the Judge failed totake proper account of the mitigating effect of a cultural report.[3] The appeal was filed some 27 days out of time. However, the delay wasrelatively short and the Crown is not prejudiced. In the absence of opposition leave isgranted.The offending[4] Mr Campbell was arrested at the conclusion of an electronic surveillanceoperation that targeted methamphetamine dealing in the Gisborne area. In sentencingMr Campbell, the Judge referred to him as the "principal offender within [the] drugdistribution network".2 No issue is taken with that description, nor is there any disputethat Mr Campbell's offending fell at the "top end of the leading role" category of thedealing hierarchy set out in the guideline judgment of Zhang v R.3[5] Typically, Mr Campbell would source large quantities of methamphetaminefrom an Auckland-based distributor which he then on-supplied in both wholesale andretail amounts in his local area. He would keep drugs and cash at a retail unit and at astorage facility that he leased on a long-term basis. When the police operation wasterminated Mr Campbell was found in possession of 96.8 g of methamphetamine andsome $10,000 in cash. A further $460,160 was located at the storage unit, togetherwith two sawn-off shotguns.Personal circumstances[6] At the time of his sentencing Mr Campbell was 43 years old. He had been ina relationship with his partner, that had produced five children, for some 24 years.Mr Campbell related to the pre-sentence report writer an upbringing of violence andexposure to alcohol and cannabis. He compared his life at that time to the movie OnceWere Warriors and that he and his siblings were left to "fend for themselves".2 At [4].3 At [24]; and Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [126].[7] Mr Campbell was expelled from his local secondary school at 13, although hecontinued his education at a centre for "problematic children". Despite thosedifficulties, until becoming involved in the methamphetamine trade, Mr Campbellmaintained regular employment and was able to provide for his family. He worked asa shepherd and a truck driver and held a position as a gym instructor in Auckland.[8] Mr Campbell described his involvement in criminal activity as havingcommenced at the age of five when he was caught stealing chocolates from a petrolstation. His criminal record, however, is relatively limited. Until the present offendinghe had not previously been sentenced to imprisonment and for a period of more than10 years between 2005 and 2016 he remained offence-free. As a younger man he wasinvolved in lower end offending that included possession of cannabis, assaults andvarious behavioural and driving offences. A more recent conviction in March 2017was for possessing cannabis for supply for which he was sentenced to communitywork and supervision. It appears this dealing activity escalated to involvement in themore lucrative methamphetamine trade.[9] As is apparent from his criminal record, Mr Campbell was a regular cannabisuser up until 2017. While use by family members and friends was common, he isdescribed as having previously given up cannabis for a period of several years beforeresuming its use after the death of his brother.The sentencing[10] There is no challenge to the approach taken to the setting of the 18-year startingpoint. Nor to the 12-month uplift added for the firearms charge, and the further twomonths imposed in recognition of the offending having been committed whilst subjectto a sentence, and for his previous convictions.[11] A reduction of six months was made for time spent on electronically monitoredbail and a discount of three years and seven months extended in recognition ofMr Campbell's guilty pleas. In addition, the Judge gave a discount "for generalcircumstances" of six months.4 On appeal, Mr Campbell says that was an inadequate4 At [47].response to his personal circumstances, in particular to those set out in a reportprepared pursuant to s 27 of the Sentencing Act 2002.[12] It is worthwhile setting out aspects of the Judge's assessment of that report,and his response to it:[42] In short, it is said there are causal factors behind your offending,namely, systemic Māori deprivation, compromised childhood developmentdue to exposure to domestic violence et cetera, and a creeping acceptance ofthe validly of criminality and exploitation of others.[43] In Zhang, the Court underscored that a demonstrative nexus betweensuch factors and the offending must be established.[44] The points raised by the author of that report constitute importantbackground material, but the factors mentioned were not causative of youroffending. In fact, you appear to me to be the illustration or example of thereverse proposition. You have been highly successful in your employment.That is echoed in all the character references. So, the Crown must be correctthat in logic this suggests you have not been led into this offending because ofsystemic deprivation but because you chose to enter this drug dealing tradefor substantial financial gain.[45] Essentially therefore, there is too little material from which I canconfidently conclude you are someone truly vulnerable as is the case in manyreports I received under s 27.[46] However, your personal circumstances remain relevant. That isechoed in R v Jarden and again in Zhang v R.[47] There is some force to [Mr Campbell's counsel's] position that youhave adopted a survival of the fittest attitude to life. In the round, there needsto be some adjustment for your general circumstances to reduce this otherwisehigh sentence. A discount of six months is appropriate.(Footnote omitted.)The appeal[13] On behalf of Mr Campbell, Mr Forster submitted that the sentencing Judgeerred by not reducing the sentence by specific reference to the s 27 report. He reliedon this Court's decision in Carr v R, where a 15 per cent discount was provided forsocial, cultural and economic deprivation.5 In that case the s 27 report detailed theappellant's disadvantaged life from a young age. His upbringing had been5 Carr v R [2020] NZCA 357.characterised by poverty, family dislocation, gang involvement, poor education,exposure to violence, drugs and various other forms of abuse.[14] Mr Forster referred us to the s 27 report writers' conclusions in support of hissubmission that Mr Campbell's upbringing and personal circumstances were linked tohis offending:We can summarise the likely causal factors behind Lucky Campbell'soffending patterns as being:• Systemic Māori deprivation• Compromised childhood development due to exposure to domesticviolence, early life use of alcohol and marijuana, and the disability ofdeafness• A creeping acceptance of the validity of criminality and the exploitationof others[15] In Mr Forster's submission a 15 per cent deduction should have been applied.Discussion[16] In Zhang v R the full Court, in the context of methamphetamine offending,acknowledged the potential impact of social, cultural and economic deprivation onsentencing:6[159] First, ingrained, systemic poverty resulting from loss of land,language, culture, rangatiratanga, mana and dignity are matters that may beregarded in a proper case to have impaired choice and diminished moralculpability. Where these constraints are shown to contribute causatively tooffending (whether associated with addiction or not), they will requireconsideration in sentencing.[17] The Court endorsed the practice of bringing to the sentencing court's attentioninformation about the presence of systemic deprivation in an offender's backgroundand its linkage to the offending.7 Where there is a credible account of social andcultural dislocation in an offender's background, marked by poverty, alcohol and drug6 Zhang v R, above n 3 (footnote omitted).7 At [159], referring to Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241 at [50];and Arona v R [2018] NZCA 427 at [59].abuse, unemployment, educational underachievement and violence, those mattersshould be taken into account.8[18] However, in order for such social, cultural or economic deprivation to berelevant it must, the Court said, have "a demonstrative nexus with the offending".9 Aswas recognised by this Court in Arona v R, the influence of information set out in a s27 report rests on the premise that systemic deprivation affecting Māori generally istraceable to linkages between that deprivation, the offender and the offending.10[19] As noted, Mr Forster placed emphasis on the recent decision of this Court inCarr. In that case the appellant had been convicted of a range of offences that includedmultiple robberies, assault and instances of dishonesty. In finding that a discount forthe matters set out in the s 27 report should have been provided, this Court remarkedthat the assessment of an appropriate allowance is very fact-specific. The appellant inthat case had grown up in poverty and had unavoidably associated with a criminalfraternity and engaged in a life of crime.[20] Features identified by the report writer included Mr Carr's severedisconnection from te ao Māori, family violence, sexual abuse by a family memberand early exit from the education system. His first term of imprisonment was imposedat the age of 17 years. Alcohol and drug abuse as well as methamphetamine addictionand affiliation with gangs were marked aspects of his background. This Courtobserved that Mr Carr's early experiences contributed to the course his lifesubsequently took and that he continued to be affected by his drug taking and earlyentry into the justice system. Importantly, it was concluded that these matters led toimpaired choice and causatively contributed to his offending.11[21] In an effort to draw parallels with the present case, Mr Forster highlightedaspects of the s 27 report. As a child Mr Campbell had been subject to a whāngaiarrangement that, it was submitted, had resulted in him becoming alienated from hisparents. His upbringing in an environment where drugs and alcohol were abused in8 Carr v R, above n 5, at [60].9 Zhang v R, above n 3, at [162].10 Arona v R, above n 7, at [59], referring to Solicitor-General v Heta, above n 7.11 Carr v R, above n 5, at [65].overcrowded accommodation was also emphasised, as was the family violence,although it was acknowledged that Mr Campbell's father never physically assaultedhis mother. Many relatives were members of gangs. Mr Forster argued thatMr Campbell's social and cultural upbringing in which contact with gang membersand drug use was normalised were similar to the factors identified in Carr.[22] On behalf of the Crown, Ms Wong, while not seeking to minimise theentrenched and systematic issues canvassed in a wider context in the s 27 report thathad disadvantaged Māori, noted that Mr Campbell is well-connected with his culturalroots. He has maintained strong links with his whānau and is both familiar with hiswhakapapa and fluent in te reo Māori. It is also apparent that despite the difficultiesMr Campbell faced in his formal schooling, including his deafness, he has gone on toobtain a number of qualifications and maintained a strong employment record, havingsuccessfully engaged in various occupations.[23] Mr Campbell has never been a gang member and has been able to remain freefrom such influences. His criminal history discloses moderate to low-level offendingwith long offence-free periods. As earlier observed, at the age of 44 years he has notpreviously been sentenced to imprisonment. He has in the past been a regular user ofcannabis, which no doubt is a result of the drug's prevalence in his family and socialcircles, but, should he so choose, he has demonstrated his ability to abstain for longperiods. He has been in a stable relationship with his partner since his late teenageyears and is described as a supportive and loving father.[24] When set against that background, Ms Wong submitted that Judge Cathcartwas entitled to conclude that there was no "real nexus" between his personalbackground and his decision to engage at a high level in the business of traffickingmethamphetamine.Decision[25] There are obvious aspects of Mr Campbell's background that are no doubt theproduct of systemic deprivation. These include marginalised educational outcomes,the exposure to and normalisation of the heavy consumption of alcohol and cannabisand early economic disadvantages. However, when regard is had to the nature ofMr Campbell's involvement in methamphetamine dealing for profit and how he cameto involve himself in that criminal activity, we agree with the Judge it is difficult todraw a sufficient causal connection to warrant a specific additional discount.[26] Mr Campbell has given varying and contradictory explanations for hisoffending. However, the accounts he has provided are rooted in having made adeliberate decision to engage in the commercial methamphetamine trade. None arereferable to a background that might be considered to have impaired his choice orcould be held to have diminished his moral culpability for such offending.Mr Campbell is not described as having had any previous involvement inmethamphetamine either as a user or as a lower-level dealer. Despite hisdisadvantaged upbringing it is apparent that Mr Campbell had largely overcome thosedifficulties when he decided to involve himself with methamphetamine.[27] When Mr Campbell has chosen to, he has been able to distance himself fromthe influences of alcohol and cannabis despite the prevalence of those substances inhis social environment. His involvement with methamphetamine has been limited toviewing it as a commodity and he has proved himself able to exercise his own choicesby not involving himself in gangs despite whānau connections. He has proven adeptin gaining qualifications and participating in various forms of employment in order toadvance his position and maintain his stable family relationships.[28] When set against Mr Campbell's personal situation at the time he commenceddealing in methamphetamine and his place in the distribution hierarchy, we, like thesentencing Judge, find it difficult to identify a causal connection with hisdisadvantaged past and/or the systemic deprivation affecting Māori more generally.It is apparent that his involvement in the supply of methamphetamine was anenterprise upon which he deliberately embarked as a relatively mature person becauseof the lucrative returns it offered and as a matter of choice.[29] We do not overlook the likely factors identified by the report writers uponwhich Mr Forster relied in advancing his argument, but we note that those mattersrelated to Mr Campbell's "offending patterns" more generally. While they may wellbe referable to the type of offending that Mr Campbell was convicted of as a youngerman, for the reasons we have set out, we do not consider a similar causative link canbe made with the present charges of trafficking in methamphetamine.[30] Apart from his preceding involvement in the supply of cannabis that may havebeen an entrée into the more lucrative methamphetamine trade, a decade had passedsince his prior offending as a young man. Mr Campbell's present offending does notrepresent a continuation of that earlier criminal behaviour which could readily belinked to his marginalised upbringing. His drug dealing represents quite distinctbehaviour that does not have the same connection.[31] Mr Campbell did, nevertheless, receive a modest deduction for the personalfactors set out in the pre-sentence and s 27 reports. The six-month credit could perhapshave been greater and there may have been some room to afford recognition of thepositive aspects of Mr Campbell's background that point to the prospects ofrehabilitation. However, we consider the Judge was entitled to take the approach thathe did, and that the end sentence was not manifestly excessive.Conclusion[32] The application for an extension of time is granted.[33] The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent