THE QUEEN v KEVIN JOHN CAMPBELL [1999] NZCA 322 (16 December 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca473/99

THE QUEEN

V

KEVIN JOHN CAMPBELL

Hearing:	16 December 1999
Coram:	Richardson P Henry J Blanchard J
Appearances:	N J Sainsbury for the Appellant S P France for the Crown
Judgment:	16 December 1999

judgment of the court DELIVERED BY HENRY J

[1] The appellant pleaded guilty in the District Court at Auckland, to a charge of causing injury in circumstances where if death had been caused he would have been guilty of manslaughter. He was sentenced to and now appeals a term of 10 months imprisonment.

[2] On 3 October 1997 the appellant was riding his bicycle towards his home when he was halted by the Police who had cordoned off an area due to an armed incident in the vicinity. The appellant became agitated and developed concern for the safety of his partner who was at their home which was situated in that area. He decided to take an alternative route to his home and sped off along the footpath. He was still on the footpath and travelling at speed when he came up behind the victim who was walking with a friend. The appellant yelled at the victim to get out of his way, but she was unable to take evasive action and the appellant crashed into her from behind, causing her to fall forward onto the footpath.He says that he was endeavouring to go through a gap between two pedestrians.The victim suffered very serious injuries to her face that required the insertion of metal plates and plastic surgery to her face.The injuries had a devastating affect on her.The District Court Judge accepted that what happened was accidental and that the appellant had not intended to injure the victim, but observed that he had been reckless in his use of the bicycle.

[3] The matter has a long history.Although the incident occurred on 3 October 1997, the appellant was not charged until 21 December 1998 when he faced an information under s188(2) of the Crimes Act 1961 of causing grievous bodily harm with reckless disregard for the safety of others.It had been laid summarily, but was withdrawn and replaced on 2 February 1999 by two indictable informations, one under s188(2) and another under s145 of committing a criminal nuisance by doing an unlawful act knowing it would endanger the safety of others.On 3 June 1999 the appellant was committed for trial.The indictment presented against him contained only the s188(2) charge, which was amended on 20 September 1999 to a charge under s190 of injuring in such circumstances that if death had occurred he (the appellant) would have been guilty of manslaughter.It is relevant that in the early stages the prosecution indicated a willingness to accept a plea on the comparatively minor charge of committing a criminal nuisance which carries a maximum penalty of one year's imprisonment, but the appellant declined the opportunity to have the matter then disposed of on that basis.Notwithstanding the reprehensible nature of the appellant's conduct which led to an innocent pedestrian suffering serious injuries, when placed in the context of driving offences involving motor vehicles which frequently come before the Courts, the institution of these charges which carry maximum terms of 14 years and 10 years imprisonment respectively seems somewhat out of proportion to the facts of the case.

[4] The Judge's conclusion that s5 of the Criminal Justice Act 1985 applies was not argued in depth before us, and we think it preferable to proceed on the basis that it does.However in an appropriate case it may be desirable to reconsider the applicability of s5(1)(b) to qualifying offences simply because serious danger to safety resulted from the offender's activities, even if entirely accidental.The sentencing Judge referred to counsel's submissions that there were special circumstances, but without rejecting that submission concluded that there was no basis for not imposing a prison sentence, or for suspending such a sentence under s21A.

[5] In the present case we are persuaded that a combination of unusual factors which overlap in the sense that they relate both to the offence and the offender, do constitute special circumstances for s5 purposes

[6] The appellant was genuinely concerned as to the safety of his partner, and in an upset state he took impulsive although reprehensible action in order to reach his home;the incident, arising from the use of a bicycle, is itself an unusual circumstance when considered in the context of the s5 "violent offenders" provision;the collision with the pedestrian was accidental and her safety was not intentionally endangered;the unfortunate consequences were more severe than would be expected in the circumstances and the preparedness of the prosecution at an earlier stage to accept that the offending could properly be represented by a far less serious charge and one which does not come under the s5 umbrella tends to indicate the unusual nature of the offence for s5 purposes.These factors all go to the level of culpability, the seriousness of the danger to safety and the manner in which that was caused.Then there is the considerable delay which has ensued, which extended far beyond what could reasonably be expected in the circumstances, and led to an application for dismissal of the prosecution as an abuse of process, which although unsuccessful demonstrated a level of real concern in this regard.The overall delay is not satisfactorily explained.

[7] Having reached that point, it is necessary to consider afresh whether it is appropriate in all the circumstances to exercise the discretion not to impose a full time custodial sentence.The appellant is aged 51 years, and has a lengthy history of previous offending.Significantly however, violence does not feature in that history, which is also ameliorated to an extent by references provided to the Court which confirm his assistance in recent times to community affairs.Taking all relevant matters into consideration, we have reached the view that a community based sentence was the appropriate response and will meet the overall interests of justice.

[8] The appeal is therefore allowed, the sentence of 10 months imprisonment is quashed.We take into account the appellant has already served 1 month of the imposed sentence.The term of imprisonment is substituted by a sentence of 4 months periodic detention.The appellant is to report to the New Lynn PD Centre, 18 Portage Road, New Lynn, Auckland, on Friday 21 January, 2000, between 4pm and 6pm and thereafter as directed by the Warden.His attendance is not to exceed 10 hours on any one occasion.

Solicitors

Crown Law Office