Campbell v R [2020] NZCA 631 (8 December 2020)

Last Updated: 15 December 2020

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA142/2020 [2020] NZCA 631

	BETWEEN	LUCKY TE WAATA CAMPBELL Appellant
	AND	THE QUEEN Respondent

Hearing:	2 November 2020
Court:	Clifford, Woolford and Mander JJ
Counsel:	E J Forster for Appellant M L Wong and L E Cacace for Respondent
Judgment:	8 December 2020 at 10.30 am

JUDGMENT OF THE COURT

A 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 methamphetamine for supply and one charge of unlawful possession of firearms. The offending involved the trafficking of approximately 6.3 kg of the drug over a two-year period. He was sentenced by Judge Cathcart to 14 years and seven months’ imprisonment and ordered to serve a minimum of half his sentence.^[1]
• [2] Mr Campbell appeals his sentence on the single ground that the Judge failed to take proper account of the mitigating effect of a cultural report.
• [3] The appeal was filed some 27 days out of time. However, the delay was relatively short and the Crown is not prejudiced. In the absence of opposition leave is granted.

The offending

• [4] Mr Campbell was arrested at the conclusion of an electronic surveillance operation that targeted methamphetamine dealing in the Gisborne area. In sentencing Mr Campbell, the Judge referred to him as the “principal offender within [the] drug distribution network”.^[2] No issue is taken with that description, nor is there any dispute that Mr Campbell’s offending fell at the “top end of the leading role” category of the dealing hierarchy set out in the guideline judgment of Zhang v R.^[3]
• [5] Typically, Mr Campbell would source large quantities of methamphetamine from an Auckland-based distributor which he then on-supplied in both wholesale and retail amounts in his local area. He would keep drugs and cash at a retail unit and at a storage facility that he leased on a long-term basis. When the police operation was terminated Mr Campbell was found in possession of 96.8 g of methamphetamine and some $10,000 in cash. A further $460,160 was located at the storage unit, together with two sawn-off shotguns.

Personal circumstances

• [6] At the time of his sentencing Mr Campbell was 43 years old. He had been in a 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 and exposure to alcohol and cannabis. He compared his life at that time to the movie Once Were Warriors and that he and his siblings were left to “fend for themselves”.
• [7] Mr Campbell was expelled from his local secondary school at 13, although he continued his education at a centre for “problematic children”. Despite those difficulties, until becoming involved in the methamphetamine trade, Mr Campbell maintained regular employment and was able to provide for his family. He worked as a 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 having commenced at the age of five when he was caught stealing chocolates from a petrol station. His criminal record, however, is relatively limited. Until the present offending he had not previously been sentenced to imprisonment and for a period of more than 10 years between 2005 and 2016 he remained offence-free. As a younger man he was involved in lower end offending that included possession of cannabis, assaults and various behavioural and driving offences. A more recent conviction in March 2017 was for possessing cannabis for supply for which he was sentenced to community work and supervision. It appears this dealing activity escalated to involvement in the more lucrative methamphetamine trade.
• [9] As is apparent from his criminal record, Mr Campbell was a regular cannabis user up until 2017. While use by family members and friends was common, he is described as having previously given up cannabis for a period of several years before resuming 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 starting point. Nor to the 12-month uplift added for the firearms charge, and the further two months imposed in recognition of the offending having been committed whilst subject to a sentence, and for his previous convictions.
• [11] A reduction of six months was made for time spent on electronically monitored bail and a discount of three years and seven months extended in recognition of Mr Campbell’s guilty pleas. In addition, the Judge gave a discount “for general circumstances” of six months.^[4] On appeal, Mr Campbell says that was an inadequate response to his personal circumstances, in particular to those set out in a report prepared 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 development due to exposure to domestic violence et cetera, and a creeping acceptance of the validly of criminality and exploitation of others.

[43] In Zhang, the Court underscored that a demonstrative nexus between such factors and the offending must be established.

[44] The points raised by the author of that report constitute important background material, but the factors mentioned were not causative of your offending. In fact, you appear to me to be the illustration or example of the reverse proposition. You have been highly successful in your employment. That is echoed in all the character references. So, the Crown must be correct that in logic this suggests you have not been led into this offending because of systemic deprivation but because you chose to enter this drug dealing trade for substantial financial gain.

[45] Essentially therefore, there is too little material from which I can confidently conclude you are someone truly vulnerable as is the case in many reports I received under s 27.

[46] However, your personal circumstances remain relevant. That is echoed in R v Jarden and again in Zhang v R.

[47] There is some force to [Mr Campbell’s counsel’s] position that you have adopted a survival of the fittest attitude to life. In the round, there needs to be some adjustment for your general circumstances to reduce this otherwise high sentence. A discount of six months is appropriate.

(Footnote omitted.)

The appeal

• [13] On behalf of Mr Campbell, Mr Forster submitted that the sentencing Judge erred by not reducing the sentence by specific reference to the s 27 report. He relied on this Court’s decision in Carr v R, where a 15 per cent discount was provided for social, cultural and economic deprivation.^[5] In that case the s 27 report detailed the appellant’s disadvantaged life from a young age. His upbringing had been 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 his submission that Mr Campbell’s upbringing and personal circumstances were linked to his offending:

We can summarise the likely causal factors behind Lucky Campbell’s offending patterns as being:

• Systemic Māori deprivation
• Compromised childhood development due to exposure to domestic violence, early life use of alcohol and marijuana, and the disability of deafness
• A creeping acceptance of the validity of criminality and the exploitation of 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 on sentencing:^[6]

[159] First, ingrained, systemic poverty resulting from loss of land, language, culture, rangatiratanga, mana and dignity are matters that may be regarded in a proper case to have impaired choice and diminished moral culpability. Where these constraints are shown to contribute causatively to offending (whether associated with addiction or not), they will require consideration in sentencing.

• [17] The Court endorsed the practice of bringing to the sentencing court’s attention information about the presence of systemic deprivation in an offender’s background and its linkage to the offending.^[7] Where there is a credible account of social and cultural dislocation in an offender’s background, marked by poverty, alcohol and drug abuse, unemployment, educational underachievement and violence, those matters should be taken into account.^[8]
• [18] However, in order for such social, cultural or economic deprivation to be relevant it must, the Court said, have “a demonstrative nexus with the offending”.^[9] As was recognised by this Court in Arona v R, the influence of information set out in a s 27 report rests on the premise that systemic deprivation affecting Māori generally is traceable 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 in Carr. In that case the appellant had been convicted of a range of offences that included multiple robberies, assault and instances of dishonesty. In finding that a discount for the matters set out in the s 27 report should have been provided, this Court remarked that the assessment of an appropriate allowance is very fact-specific. The appellant in that case had grown up in poverty and had unavoidably associated with a criminal fraternity and engaged in a life of crime.
• [20] Features identified by the report writer included Mr Carr’s severe disconnection from te ao Māori, family violence, sexual abuse by a family member and early exit from the education system. His first term of imprisonment was imposed at the age of 17 years. Alcohol and drug abuse as well as methamphetamine addiction and affiliation with gangs were marked aspects of his background. This Court observed that Mr Carr’s early experiences contributed to the course his life subsequently took and that he continued to be affected by his drug taking and early entry into the justice system. Importantly, it was concluded that these matters led to impaired choice and causatively contributed to his offending.^[11]
• [21] In an effort to draw parallels with the present case, Mr Forster highlighted aspects of the s 27 report. As a child Mr Campbell had been subject to a whāngai arrangement that, it was submitted, had resulted in him becoming alienated from his parents. His upbringing in an environment where drugs and alcohol were abused in overcrowded accommodation was also emphasised, as was the family violence, although it was acknowledged that Mr Campbell’s father never physically assaulted his mother. Many relatives were members of gangs. Mr Forster argued that Mr Campbell’s social and cultural upbringing in which contact with gang members and 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 the entrenched and systematic issues canvassed in a wider context in the s 27 report that had disadvantaged Māori, noted that Mr Campbell is well-connected with his cultural roots. He has maintained strong links with his whānau and is both familiar with his whakapapa and fluent in te reo Māori. It is also apparent that despite the difficulties Mr Campbell faced in his formal schooling, including his deafness, he has gone on to obtain a number of qualifications and maintained a strong employment record, having successfully engaged in various occupations.
• [23] Mr Campbell has never been a gang member and has been able to remain free from such influences. His criminal history discloses moderate to low-level offending with long offence-free periods. As earlier observed, at the age of 44 years he has not previously been sentenced to imprisonment. He has in the past been a regular user of cannabis, which no doubt is a result of the drug’s prevalence in his family and social circles, but, should he so choose, he has demonstrated his ability to abstain for long periods. He has been in a stable relationship with his partner since his late teenage years and is described as a supportive and loving father.
• [24] When set against that background, Ms Wong submitted that Judge Cathcart was entitled to conclude that there was no “real nexus” between his personal background and his decision to engage at a high level in the business of trafficking methamphetamine.

Decision

• [25] There are obvious aspects of Mr Campbell’s background that are no doubt the product of systemic deprivation. These include marginalised educational outcomes, the exposure to and normalisation of the heavy consumption of alcohol and cannabis and early economic disadvantages. However, when regard is had to the nature of Mr Campbell’s involvement in methamphetamine dealing for profit and how he came to involve himself in that criminal activity, we agree with the Judge it is difficult to draw a sufficient causal connection to warrant a specific additional discount.
• [26] Mr Campbell has given varying and contradictory explanations for his offending. However, the accounts he has provided are rooted in having made a deliberate decision to engage in the commercial methamphetamine trade. None are referable to a background that might be considered to have impaired his choice or could be held to have diminished his moral culpability for such offending. Mr Campbell is not described as having had any previous involvement in methamphetamine either as a user or as a lower-level dealer. Despite his disadvantaged upbringing it is apparent that Mr Campbell had largely overcome those difficulties when he decided to involve himself with methamphetamine.
• [27] When Mr Campbell has chosen to, he has been able to distance himself from the influences of alcohol and cannabis despite the prevalence of those substances in his social environment. His involvement with methamphetamine has been limited to viewing it as a commodity and he has proved himself able to exercise his own choices by not involving himself in gangs despite whānau connections. He has proven adept in gaining qualifications and participating in various forms of employment in order to advance his position and maintain his stable family relationships.
• [28] When set against Mr Campbell’s personal situation at the time he commenced dealing in methamphetamine and his place in the distribution hierarchy, we, like the sentencing Judge, find it difficult to identify a causal connection with his disadvantaged past and/or the systemic deprivation affecting Māori more generally. It is apparent that his involvement in the supply of methamphetamine was an enterprise upon which he deliberately embarked as a relatively mature person because of the lucrative returns it offered and as a matter of choice.
• [29] We do not overlook the likely factors identified by the report writers upon which Mr Forster relied in advancing his argument, but we note that those matters related to Mr Campbell’s “offending patterns” more generally. While they may well be referable to the type of offending that Mr Campbell was convicted of as a younger man, for the reasons we have set out, we do not consider a similar causative link can be made with the present charges of trafficking in methamphetamine.
• [30] Apart from his preceding involvement in the supply of cannabis that may have been an entrée into the more lucrative methamphetamine trade, a decade had passed since his prior offending as a young man. Mr Campbell’s present offending does not represent a continuation of that earlier criminal behaviour which could readily be linked to his marginalised upbringing. His drug dealing represents quite distinct behaviour that does not have the same connection.
• [31] Mr Campbell did, nevertheless, receive a modest deduction for the personal factors set out in the pre-sentence and s 27 reports. The six-month credit could perhaps have been greater and there may have been some room to afford recognition of the positive aspects of Mr Campbell’s background that point to the prospects of rehabilitation. However, we consider the Judge was entitled to take the approach that he 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

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^[1] R v Campbell [2019] NZDC 26383.

^[2] At [4].

^[3] At [24]; and Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [126].

^[4] At [47].

^[5] Carr v R [2020] NZCA 357.

^[6] 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].

^[8] 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].