R v Bampton CA166/06 [2006] NZCA 506 (30 November 2006)

Last Updated: 6 February 2014

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA166/06

THE QUEEN

v

MICHAEL JOHN BAMPTON

Hearing: 21 November 2006

Court: Glazebrook, John Hansen and Harrison JJ Counsel: N Cooke and S Hamilton for Appellant

E M Thomas for Crown

Judgment: 30 November 2006 at 3pm

_{JUDGMENT OF THE COURT}

A The appeal is allowed.

B The minimum non-parole period is fixed at four years. C The sentence is otherwise confirmed.

REASONS OF THE COURT

_{(Given by Glazebrook J)}

R V BAMPTON CA CA166/06 30 November 2006

Introduction

[1] Mr Bampton pleaded guilty to one count of sexual violation (rape), one count of stupefaction for the purpose of facilitating the commission of a crime and one count of the unlawful taking of a motor vehicle. Judge Johnson, on 20 May 2003, sentenced Mr Bampton to eight years imprisonment on the rape charge (after taking into account the early guilty plea), to six years imprisonment on the stupefaction charge and to two years imprisonment on the theft of the motor vehicle. All of the sentences were concurrent. A minimum non-parole period of two-thirds of the sentence was set.

[2] Mr Bampton appeals against his sentence, having been granted an extension of time to appeal by this Court in R v Bampton CA166/06 31 October 2006. The only aspect of the sentence that is challenged is the imposition of the minimum non-parole period. Mr Cooke, for Mr Bampton, submitted that the Judge made an error of principle when deciding to impose a non-parole period. In his submission, there should either have been no minimum period or it should not have been more than half of the nominal sentence.

Did the Judge make an error of principle?

[3] Judge Johnson gave the following reasons for the imposition of the minimum non-parole period:

The other matter I need to address is the question of whether there should be a minimum non-parole period fixed on your sentence. The legislation authorises me to fix a period not exceeding two-thirds in the event the offending is sufficiently serious and beyond the normal. These cases involving the drugging of victims are becoming worryingly prevalent but fortunately they have not been the norm. Modern criminology now accepts that sexual offending is not a disease, it is not conduct which can be cured. Society is obliged to protect itself against people who attack its members. There is nothing about your history which suggests to me that we are safe from you. You have offended in ways which have involved violence and sex time and time again. This is an obvious escalation. In my view this is a sufficiently serious case. I fix the minimum non-parole period at two-thirds of eight years.

[4] This appeal falls to be determined in terms of the old form of s 86 of the Sentencing Act 2002. The correct approach to that section was set out by this Court in R v Brown [2002] 3 NZLR 670. In Brown this Court rejected an argument that the purpose behind s 86 was the protection of the community: see at [22]. It also held that the Court, when setting a minimum non-parole period, must first assess whether the offending itself is sufficiently serious so that the ordinary minimum period of one-third of the sentence would not be enough to punish, deter and denounce the offender: see at [23] and [35]. If that question is answered in the affirmative, the Court must then decide upon the length of any minimum non-parole period. In that second stage the personal characteristics of the offender, such as the offender’s criminal history, can be taken into account: see at [29] and [34].

[5] In this case, Judge Johnson, in setting the minimum non-parole period, was influenced by the need to protect the community. In addition, the assessment of whether it was a sufficiently serious case appears to have been primarily dictated by the personal characteristics of Mr Bampton rather than the characteristics of the offence itself. It is common ground between the parties that this means that the Judge made an error of principle in imposing the non-parole period.

Should there have been a minimum non-parole period imposed?

[6] As there was an error of principle in the Judge’s sentencing, this Court must examine the question afresh. Mr Cooke’s first submission was that this was not a sufficiently serious case for a minimum non-parole period to have been imposed at all. In order to assess this submission, it is necessary for us to set out the facts in some more detail.

[7] The complainant in the case was a 19 year old woman employed by Mr Bampton to assist in his business of commercial cleaning. On the day of the offending Mr Bampton told the complainant that it would be necessary to use her vehicle during the day as his van was with another worker. In the course of the day’s work Mr Bampton told the complainant of his use of prescription pills to stay awake during the long working hours. Mr Bampton gave the complainant a number of white pills advising that they would help her to stay awake. The complainant took

three of the pills and, far from helping her to stay awake, they made her dizzy and sleepy. The pills were in fact Zopiclone (a hypnotic sleeping pill).

[8] Mr Bampton stopped the vehicle on the side of the road saying it was time to change into overalls. The complainant then recalled Mr Bampton binding her ankles with duct tape saying it would stop the grease from getting on the overalls. He then bound her wrists with tape. He threatened her with a knife, masturbated himself and pinned her to the ground with his knee, raping her. He then began driving again. The complainant got out of the car at a petrol station and asked for her key. Mr Bampton drove away. He was apprehended some seven days later in possession of the vehicle.

[9] In our view there is no doubt that, if Mr Bampton served only one-third of his nominal sentence, this would be insufficient to punish, deter and denounce his offending. This was very serious offending, involving the following aggravating features:

(a) pre-meditation;

(b) abuse of a relationship of trust and confidence; (c) use of a stupefying substance;

(d) binding the victim’s hands and feet; (e) reference to a knife;

(f) callousness in abandoning the victim in an unfamiliar location; and

(g) the theft of the victim’s car.

[10] Mr Cooke’s backup position was that the minimum non-parole period set by the Judge was too high. He submitted that, taking into account the very early guilty plea, the period should not have been more than one-half of the sentence. We accept that submission.

Result

[11] For the reasons given, Mr Bampton’s appeal is allowed. The minimum non-parole period set by the Judge is set aside and replaced by a minimum non-parole period of four years. The sentence is otherwise confirmed.

Solicitors:

Crown Law Office, Wellington