Campbell v R [2022] NZCA 579 (25 November 2022)

Last Updated: 28 November 2022

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

CA295/2022 [2022] NZCA 579

	BETWEEN	EARL STRATHERN CAMPBELL Appellant
	AND	THE KING Respondent

Hearing:	30 September 2022
Court:	Miller, Brewer and Moore JJ
Counsel:	Appellant in person C R Walker for Respondent
Judgment:	25 November 2022 at 2.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Moore J)

Introduction

• [1] Earl Campbell was tried before a jury in the Napier District Court on one charge of aggravated robbery,^[1] one charge of aggravated burglary^[2] and five charges of unlawful possession of a firearm.^[3]
• [2] In the somewhat unusual circumstances described below, the jury found Mr Campbell guilty of the firearms charges but not guilty of the other two charges.
• [3] On 20 May 2022, Judge Mackintosh sentenced Mr Campbell to two years and six months’ imprisonment.^[4] Mr Campbell appeals his sentence.

Background facts

• [4] In order to provide context for how Mr Campbell claimed he came into possession of the firearms, it is necessary to set out the Crown case on the aggravated robbery and aggravated burglary charges.
• [5] On 29 January 2021, two men broke into an address in Havelock North. One of the men assaulted the occupant, B. The assault was serious. It included B being struck on the head with a hammer. The keys to the gun safe were demanded. B handed them over. The co-offender went to B’s gun safe and took three rifles, two shotguns, three airguns and some ammunition.
• [6] Nearly three weeks later, four of B’s guns (two .22 rifles and two shotguns) were found by police in a bivouac behind Mr Campbell’s mother’s property in Tuai, a small settlement in northern Hawke’s Bay. A fifth firearm of unknown origin was also found. It was a sawn-off rifle. Mr Campbell was living with his mother at the time.
• [7] The Crown case at trial was that Mr Campbell was the assailant and his brother was the co-offender. This was supported by a substantial body of circumstantial evidence which tended to implicate Mr Campbell as one of the offenders.
• [8] Mr Campbell elected to give evidence. He did not deny that the aggravated robbery and aggravated burglary occurred in the circumstances claimed by the Crown. His defence, however, was that he was not one of the offenders.
• [9] Mr Campbell called Hawira Duncan as a witness. Mr Duncan and Mr Campbell had shared a cell together. Mr Duncan admitted to committing the aggravated burglary and aggravated robbery with Mr Campbell’s brother.
• [10] The jury acquitted Mr Campbell of the charges relating to the home invasion, but found him guilty of the five charges of unlawful possession of a firearm.

District Court sentencing

• [11] Judge Mackintosh noted that there is no guideline judgment for firearms offending but noted that where the offending involves the possession of a single firearm with no mitigating circumstances, a starting point in the vicinity of two to three years’ imprisonment has typically been adopted.^[5] The Judge took into account the number of guns, the presence of ammunition and the inherent danger associated with Mr Campbell possessing firearms given his previous conviction for aggravated robbery and his allusions to committing other offending linked to the use of firearms.^[6] The Judge set a starting point of two years and six months’ imprisonment.^[7]
• [12] Mr Campbell had no available personal mitigating factors.^[8] The Judge rejected his counsel’s submission that he was deserving of credit for representing himself at his trial, thus saving the State in costs.^[9]
• [13] An end sentence of two years and six months’ imprisonment was imposed.^[10]

Approach on appeal

• [14] This Court must allow the appeal if it is satisfied that for any reason there was an error in the sentence imposed on conviction and a different sentence should be imposed.^[11] The focus is on the sentence imposed, rather than the process by which it is reached.^[12] The Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles.^[13] To this end the concept of a “manifestly excessive” sentence is well-engrained and there is no reason not to use it.^[14]

Grounds of appeal

• [15] Mr Campbell’s grounds of appeal are that the Judge erred by:

(a) adopting a starting point that was too high; and

(b) giving insufficient credit for personal mitigating factors.

Did the Judge err by adopting a starting point that was too high?

• [16] Mr Campbell continued to represent himself on appeal. His first argument was that the Judge erred by adopting a starting point which was too high. He submitted that the Judge failed to take into account his limited involvement in the offending. He referred to R v Cochrane and Police v Cranch in submitting that a lower starting point was called for.^[15]
• [17] We consider that the starting point of two years and six months’ imprisonment was within the available range. Our reasons follow.
• [18] First, the starting point adopted by the Judge appears to be on the lenient side when compared to similar cases. Although there are few decisions where starting points have been set on the basis that firearms offending was the lead charge, possession of a single firearm with no mitigating circumstances generally calls for a starting point in the vicinity of two to three years’ imprisonment.^[16]
• [19] Unsurprisingly, offending involving a greater number of firearms generally attracts a greater starting point. In Rawiri v R, the appellant was found in possession of five firearms and ammunition across three separate incidents.^[17] van Bohemen J upheld a starting point of three years and six months’ imprisonment, taking into account the readily available nature of the firearms, the fact that many were loaded, the volume of ammunition, the gang-related context of the offending, the military style nature of the weapons, and the circumstances suggesting that the offender was regularly in possession of readily accessible firearms and ammunition.^[18]
• [20] In Police v Cranch, the appellant was found in possession of 22 firearms (including 19 military style semi-automatic firearms), together with parts which, when combined, would form another three firearms.^[19] He claimed he was storing them for others.^[20] Fitzgerald J considered that the appropriate starting point was between three and half to four years’ imprisonment.^[21]
• [21] Mr Campbell placed some reliance on the end sentence of home detention in Cranch. That reliance is misplaced. The Solicitor-General appealed the sentence of home detention on the basis that the starting point of two years’ imprisonment was manifestly inadequate.^[22] Fitzgerald J agreed,^[23] but dismissed the appeal on the basis it would be inappropriate to interfere with the end sentence.^[24]
• [22] Nor do we accept Mr Campbell’s submission that R v Cochrane is a helpful comparator.^[25] There the defendant was found in possession of an assault rifle, a pump‑action shotgun and two cut-down pistol grip shotguns.^[26] Gendall J adopted a starting point of two years’ imprisonment.^[27] In our view this starting point could well have been higher. However, the context in which the sentence on the firearms charges was set may well explain the sentence. The starting point was only briefly considered in the course of the offender being sentenced to life imprisonment for murder. A concurrent sentence on lesser charges would have no pragmatic effect on the end sentence.
• [23] In contrast, Mr Campbell was found in unlawful possession of five firearms and ammunition. Although the Judge concentrated on the four guns linked to the aggravated burglary and robbery, our view is that possession of the sawn-off rifle is particularly concerning. By definition given its barrel length, Mr Walker, for the Crown, confirmed it is classified as a pistol under the Arms Act 1983. Such a weapon has no legitimate use. It cannot be used for sporting or recreational pursuits. Its sole utility is as a tool for criminogenic purposes.
• [24] We also consider the Judge was correct to take into account the particular danger posed by Mr Campbell being in possession of firearms. He has a relatively recent conviction for aggravated robbery involving the use of a firearm. His dangerous tendencies are well illustrated by text messages he sent to his partner after the aggravated burglary. Relevant and concerning excerpts include him saying that he is the “happiest crim alive” and “crime duz pay”; that he is a “real gangsta” who “live[s] by the gun” and “die[s] by the gun”; and that he was “high an[d] happy now off tha[t] powerthrust an[d] exhilaration of shooting guns”. These messages directly link Mr Campbell to the use of firearms in the context of criminal offending.
• [25] Taking these factors into account, we are of the view that the starting point of two years and six months’ imprisonment for the unlawful possession of five firearms, including one which is directly linked to criminal offending, sits at the lower end of the available range.
• [26] It follows that we are satisfied the Judge did not adopt a starting point which was too high.

Did the Judge give insufficient credit for personal mitigating factors?

• [27] Mr Campbell’s next ground of appeal was that the Judge erred by failing to give credit for personal mitigating factors. His principal ground was that referred to earlier, namely that he should have received a discount for self-representing at trial.
• [28] We disagree. It is an orthodox sentencing principle that a defendant who adopts measures to reduce the costs of trial, usually by conceding issues or agreeing to certain procedural measures designed to streamline the trial, may be entitled to some credit.^[28] However, that factor is not engaged here. It is correct that defendants who are eligible for legal aid may, theoretically, reduce the costs of the trial process when they self-represent. However, it is more often the case that self-represented defendants add to the costs of trial because they are unfamiliar with the criminal trial process, do not understand the complex procedural and evidential rules which apply or are ignorant of trial strategies and tactics. These inadequacies usually impose significant burdens on the Crown and the Court, both in time and expense. It is simply impractical to attempt any form of savings calculation to assess an appropriate level of discount.
• [29] That is particularly the case here. The Judge, in our view rightly, rejected this submission. She pointed out that Mr Campbell had several counsel available to him, including an Auckland silk.^[29] Despite this he elected to self-represent.
• [30] With no other available personal factors, the starting point remained unadjusted. Indeed, it could have been uplifted. It would have been open to the Judge to have added to the starting point on account of Mr Campbell’s relatively recent conviction for aggravated robbery, which relevantly involved the use of a firearm.
• [31] It follows we consider that the Judge did not err in giving no credit for personal factors.

Result

• [32] The appeal is dismissed.

Solicitors:
Crown Solicitor, Napier for Respondent

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^[1] Crimes Act 1961, s 235(a). Maximum penalty of 14 years’ imprisonment.

^[2] Section 232(1)(a). Maximum penalty of 14 years’ imprisonment.

^[3] Arms Act 1983, s 45(1)(b). Maximum penalty of four years’ imprisonment or a fine not exceeding $5,000, or both.

^[4] R v Campbell [2022] NZDC 9253 [Sentencing notes].

^[5] At [22].

^[6] At [25].

^[7] At [25].

^[8] At [26].

^[9] At [18].

^[10] At [26].

^[11] Criminal Procedure Act 2011, s 250(2).

^[12] Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

^[13] At [36].

^[14] At [35].

^[15] R v Cochrane [2020] NZHC 1485; and Police v Cranch [2022] NZHC 461.

^[16] Rawiri v R [2021] NZHC 1573 at [35] citing R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338 at [41] and Torea v R [2011] NZCA 96 at [13]–[14]; and Herewini v Police [2014] NZHC 2396 at [26]. See also Bowring v Police [2021] NZHC 3198 at [17]–[22].

^[17] R v Rawiri, above n 16, at [5]–[7].

^[18] At [38].

^[19] Police v Cranch, above n 15, at [13].

^[20] At [14]–[15].

^[21] At [51].

^[22] At [2].

^[23] At [40].

^[24] At [72].

^[25] R v Cochrane, above n 15.

^[26] At [93].

^[27] At [93].

^[28] Sentencing Act 2002, s 9(2)(fa).

^[29] Sentencing notes, above n 4, at [18].