R v Campbell HC Napier CIV-2009-069-2003 [2011] NZHC 322 (13 April 2011)

Last Updated: 1 June 2011

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

_{CIV-2009-069-2003}

THE QUEEN

v

_{RICKY CAMPBELL}

Hearing: 13 April 2011

Counsel: C R Walker for Crown

E R Fairbrother for Prisoner

Judgment: 13 April 2011

_{SENTENCING NOTES OF DOBSON J}

Introduction

[1] Mr Campbell, you are for sentence this afternoon following the entry of a guilty plea to being an accessory after the fact to an aggravated robbery committed by your son, Earl, and an associate, Mr Garnham, on an Armourguard van as its officers delivered money to the ANZ Bank in Hastings in June 2009. You were to have been sentenced on 15 December last year, but the extent to which you disputed the Police’s summary of facts as to your involvement after the robbery caused me to adjourn the sentencing and schedule a disputed facts hearing which we have had

_today.

R v CAMPBELL HC NAP CIV-2009-069-2003 13 April 2011

Facts

[2] As to the facts, your stance before giving evidence today was that you did not dispute the Police version of events up to the end of the day on which the robbery occurred. That records that you provided Earl and Mr Garnham with a “safe house”, which belonged to an acquaintance of yours, for the swapping of vehicles immediately after the robbery. Although you briefly resiled from the reference in the part of the summary of facts which you had not previously disputed, in the end you did accept that you assisted Earl in hiding the stolen cash at a scenic reserve north of Napier on the day of the robbery.

[3] Earl was in touch with you on the morning of the robbery before it occurred. You arranged to meet at the address of your acquaintance at 8am that morning, and Earl wanted you to have your mate’s shed open at that time. Shortly before 8am, there was an exchange between you as to whether the person who owned those premises could be trusted.

[4] You have stated that you thought a hiding place was needed for cannabis, rather than the proceeds of a robbery, and that references to money in later discussions with Earl were about a cannabis deal, rather than you providing him with money from the robbery that you were hiding for him. I reject that explanation for a number of reasons. First, there are no references, coded or otherwise, to cannabis in the intercepted communications between you. References of that type may have reflected a contemplated deal in methamphetamine. That of course is not relevant to the level of criminality on your present sentencing, but it does deprive you of a credible explanation for dealings with the money other than as the proceeds of a robbery.

[5] Secondly, when Earl offered to take the money from the robbery somewhere other than to a shed under your control at 9.30pm that night, you volunteered that he could bring it over to your address. If you had thought before they arrived that morning that they were going to be coming to store cannabis but were surprised by the fact that it was a robbery, you would hardly have helped hide the money

elsewhere during the day and then volunteer to hide it again at a site under your control that night.

[6] After that day, I find that you also delivered parts of the stolen cash to Earl as requested by him on later dates. In the context of what had gone before, I am satisfied beyond reasonable doubt that the references in texts between you and Earl on 15 July 2009 about buying a car, and in particular Earl’s request at 12.14 on that day to “bring 15”, is a reference to your providing $15,000 from the proceeds of the robbery that were then under your control.

[7] You suggested that the reference was to $1,500 of your own money in respect of a car that you were wanting to buy. I am satisfied that all the references to round numbers in the communications are to thousands, consistently with the one reference I discussed with you in your evidence of talking about “grand”.

[8] I am similarly satisfied that Earl’s text to you on 27 July 2009 about needing some “dosh today” was a communication about getting back from you more of the proceeds of the robbery.

[9] Then, on 13 August 2009, an intercepted telephone conversation included

Earl saying to you that:

...all good, well ah I’ll tell you what dad, I’ll come round and I’m gonna get get get some fucken thing off ya and then I’ll use the rest of my run money that I’ve got left and I’ll tie up that shed ah?

In the context of an arrangement for you to meet at the shed that afternoon this is a further instance of Earl asking you to retrieve and provide to him more of the proceeds of the robbery.

[10] Finally, on the day you were arrested, 17 August 2009, the observations of you at the wood yard by Detective Steed are consistent with your having retrieved a sum of $15,000 in cash from a hiding place in that yard. That action had been preceded by a call from Earl, which was intercepted at 12.16pm, and in that Earl advised that he was “gonna come get some dough”.

[11] You were seen by Police, who were carrying out surveillance on you, to place a package under the bonnet of your vehicle. Those officers pulled your vehicle over and a search eventually revealed that package containing $15,000. The evidence at the pre-trial in which you disputed the admissibility of the proceeds of that search, included reference to it being packaged in three separate packages, $5,000 each and all in $50 notes. I also heard evidence at that pre-trial hearing of your non-co- operative attitude and your abusive comments to the officers on that occasion. You obstructed the officers, consistently with discovery of the money implicating you in criminal activity.

[12] A major part of the evidence today was testing alternative explanations for that money or parts of it. I took your final explanation to be that $15,000 was made up of some money from timber sales and some from royalty payments in relation to redwood that had been paid to you by Kylie Baker and Mr Maindonald. I found Kylie Baker the most reliable of the witnesses on the sources of that money and the circumstances of payments to you. You were paid just short of $42,000 in the period between January 2009 and March 2010. I find that you were only paid one lump sum of $16,000 and that the other was in a number of payments. Although Mr Maindonald was less than certain, his stronger recollection was consistent with the evidence given by his sister. The one $16,000 amount had been paid to you on

16 June 2009. The next day, you paid the same amount to your brother, as confirmed by the bank entries. He being responsible for the royalties on the land, there was no reason offered as to why he might later pay it back to you. Your first conversation with Earl after you were released on bail later on 17 August, the day you were apprehended, was also only consistent with the money found in your car being part of the proceeds. Earl’s reaction suggests that it was his money. Its loss meant that he was broke. He talked in terms of “$4,000 or all of it” and you confirmed that it was all of it.

[13] Having reviewed all the evidence, I am satisfied that the money seized was indeed part of the proceeds of the Armourguard robbery.

Pre-sentence report

[14] Now, coming to your sentencing. I have read the pre-sentence report from December last year. It highlights your dispute with the fact that you have committed any offence. You say that you did not assist Earl. You accept little responsibility for your offending and you minimise your own involvement. It is hard to reconcile the attitude conveyed to the Probation Officer, and as addressed in Mr Fairbrother’s submissions for you, with the communications between you and Earl on the day of the robbery, and in the period up to your arrest.

[15] The Probation Officer stated that your motivation and ability to comply with any sentence imposed is assessed as favourable, and you are assessed as being at a low risk of re-offending.

Approach on sentence

[16] In imposing your sentence, I am guided first by the Sentencing Act 2002, and second by previous Court decisions. The Court is directed by the sentencing purposes and principles in ss 7 and 8 of the Sentencing Act. Those sections require provision of a sentence that will deter you and others from committing similar offences in the future, and to hold you accountable for your actions. The Sentencing Act also requires the Court to impose the least restrictive outcome that is appropriate in the circumstances and to assist with your rehabilitation.

Starting point

[17] The Crown seeks a starting point of at least two and a half to three years’ imprisonment. Mr Fairbrother suggests that if his optimistic plea for a community based sentence is rejected, then a starting point should be between 12 and 18 months’ imprisonment.

[18] Now the Crown’s submissions refer to R v Fuimaono.[1] There, the prisoner had pleaded guilty to a charge of being accessory after the fact to an aggravated robbery. The original offender had robbed an Armourguard security van. The prisoner had assisted in disposing of the proceeds of the crime. The prisoner was a person of considerable potential, and the Judge wished to give the offender a chance to rebuild his life. In light of the fact that the prisoner had “served quite enough time in prison”, he having been remanded in custody, the decision was made to give him a sentence of imprisonment that would enable immediate release, which was

18 months. That took account of an early guilty plea. So assuming a 25 per cent discount for the early guilty plea would suggest a starting point in R v Fuimaono of two years.

[19] I then will review two other cases that I have found helpful. One is R v Thompson where an Auckland dairy was robbed at gun point.[2] The next day, the appellant was stopped in his car and he told police that he was taking the car north because it had been used as the getaway car. He stated that an associate had borrowed the vehicle from him and that he was removing the car to enable the associate to avoid arrest. The two offenders who had carried out the robbery had not been identified. The appellant was middle aged, had a lengthy criminal record and was a member of the Black Power gang. The circumstances there were somewhat

different from yours but I find them a useful analogy. The Court of Appeal considered a starting point of three years’ imprisonment to be at the top of the range. The term had been reduced by six months for a guilty plea, providing a sentence of two and a half years. The case did had aggravating features, including participation in organised criminal behaviour and something of a recidivist offender, which are not present here.

[20] The next is R v Smith.[3] The prisoner pleaded guilty to one charge of being an accessory after the fact to an aggravated robbery in that she assisted the original offender by driving him away to enable him to avoid arrest. Asher J considered

_{certain factors that are potentially aggravating in such offending, that is making them}

worse. They were not necessarily present in that case. The first is whether the prisoner took active steps to conceal anything. Secondly, whether the offending would have taken place whether the prisoner was involved or not. Thirdly, the willingness to assist (ie was there any coercion by the principals). Fourthly, proximity of the act of the prisoner to the offending and fifthly the seriousness of the main offending (although in Fuimaono it was noted that the facts of the aggravated robbery themselves cannot be an aggravating feature when dealing with a person convicted of being accessory after the fact and I accept that that is the approach to adopt).

[21] In the end in R v Smith, Asher J fixed a starting point of 10 months’

imprisonment.

[22] In the present case, you did actively assist in concealing the money. Certainly I accept there is no suggestion in the evidence that you profited financially in a direct sense. Further, your assistance was on-going in that you transported some funds from your work premises, concealed in your vehicle, intending to give them to Earl. Mr Fairbrother submits that the offending would have occurred regardless of your involvement and that your assistance was a result of a difficult relationship with your son. You were, however, I find a willing helper as the texts reveal. I do not consider that you were under Earl’s thumb as Mr Fairbrother suggests. Your recorded dialogue is far nearer that of equals.

[23] In light of these comparable decisions, and treating the reconstructed starting point in R v Fuimaono as the closest to your offending, an appropriate starting point is two years’ imprisonment.

Aggravating and mitigating circumstances personal to the offender

[24] I have not overlooked the argument for comparability with Edwina Hema who pleaded guilty as a party to the aggravated robbery. I do agree on this aspect with Mr Walker that she represented a very different sentencing proposition. She was young, genuinely overborne by Earl, had no criminal record, there were prospects of rehabilitation and she had a young family to look after. And all of those

combined to steer her to a sentence of home detention. But unfortunately I do not see your case as being the same.

[25] I come then to review any aggravating or mitigating circumstances personal to you. You have 35 previous convictions. The majority of them pre-date 1989, and there are only three in the past 11 years. You obviously cannot claim any credit for past good character but your pattern of offending has dropped with age, and I certainly hope that that will continue.

[26] You have not expressed any remorse for your actions, and you deny that you have done anything wrong. The Probation Officer in the pre-sentence report suggests that you have pleaded guilty to the lesser charge because of the risk that you may, at trial, have been convicted of the more serious one that you were then facing.

Guilty plea

[27] Here, the guilty plea was entered after the Crown case was completely prepared. Mr Fairbrother argues that because your conviction was contingent on the conviction of Earl, you could not plead until a conviction was entered against him. Mr Fairbrother argues that if Earl had established his innocence, then on the indictment charging you as an accessory, you would have been entitled to an acquittal. Mr Fairbrother therefore infers that your plea was entered at an early opportunity after you discovered that Earl had pleaded guilty to aggravated robbery.

[28] I am sorry, but I cannot accept that analysis. There are a range of possible scenarios in which a principal offender – that is the position of Earl - is acquitted but an accessory can be convicted, and the other way round.[4] Although for tactical reasons you may have wanted to keep your options open, and you did pursue at an unusually late stage a challenge to the admissibility of the Police evidence arising from the stopping of your car, neither of those preclude a reasonable expectation that

_{you could have pleaded guilty at a much earlier stage.}

[29] As you heard Mr Wlaker recount this afternoon, when I was here in November Earl pleaded guilty on the Monday of the week before your trial. Thereafter you pursued at the end of that week an application for an adjournment of your own trial and you then pleaded guilty the following Monday on the eve of your trial.

[30] So, I am bound to treat you as having pleaded guilty at a late stage. As I discussed in sentencing Earl, the timing of your pleas means that the treatment of a discount for doing so could be considered on the terms of the Court of Appeal decision in R v Hessell.[5] The Supreme Court’s subsequent approach requires sentencing Judges to consider all relevant circumstances in giving a discount (which is subject to an upper limit of 25 per cent). The Supreme Court noted various circumstances that are relevant to the extent of a discount:

(a) whether the plea saved considerable resources;

(b) whether it saved witnesses and victims from the trauma of giving evidence;

(c) the strength of the prosecution case;

(d) whether there were facts that were disputed; (e) when a plea was entered; and

(f) whether the plea was the result of a reduced charge.

[31] Your late plea, therefore, did not save considerable resources. It was open to you from 11 June 2010 and I take that date from the note of a Minute of Miller J who recorded that the Crown acknowledged the availability of the more serious charge being dropped if you pleaded guilty to the lesser one at that time.[6] Your plea was

_{made in light of a very strong Crown case, which was strong throughout. I do accept}

that you did save witnesses from the time of giving evidence and you did save some resources. I therefore allow you a discount of 10 per cent.

Sentence

[32] Taking the starting point of two years and allowing the reduction of

10 per cent for your guilty plea, it gets rounded to 22 months’ imprisonment.

Home detention

[33] Because that end sentence is less than two years’ imprisonment, I have a discretion as to whether to grant you home detention. The home detention provision of the pre-sentence report was incomplete. I am advised by Mr Fairbrother this afternoon that there is an address that would be appropriate, but there is no report in respect of it.

[34] The Crown, however, oppose home detention on the basis of the seriousness of your offending and the need for a deterrent signal not being adequately met by a sentence of home detention. I have given that careful consideration but in the end I am bound to accept the Crown’s position and I am not prepared to contemplate home detention as an alternative to the sentence I imposed.

[35] So, in conclusion Mr Campbell, the result is that I sentence you to a period of

22 months’ imprisonment.

[36] You may stand down.

[37] Subsequent to my completing the sentencing of Mr Campbell, Mr Walker has raised an unresolved matter from the sentencing of Mr Earl Campbell. The balance of the $15,000 has made its way into the possession of the Inland Revenue Department but on terms acknowledging that if it was subsequently found to be part of the proceeds of the robbery, then IRD would have to cede its entitlement in favour of an order for reparation.

[38] In light of the findings I have made after a disputed fact hearing this afternoon, it is appropriate to recognise as a consequence of the money taken from Mr Ricky Campbell being part of the proceeds of the Armourguard robbery that Armourguard is entitled to an order for its reparation, and I make that order which is to be for the sum specified in the Crown’s Memorandum addressing this issue, together with interest, if any, which the amount may have earned whilst being held in suspense by IRD.

Dobson J

Solicitors:

Crown Solicitor, Napier

---

[1] _{R v Fuimaono HC Auckland T023755, 20 May 2003.}
[2] _{R v Thompson CA348/96, 23 October 1996.}
[3] R v Smith HC Rotorua CRI-2007-063-4888, 3 February 2009.

[4] Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers) at [CA71.03 and CA71.05].
[5] _{R v Hessell [2010] NZSC 135, (2010) 24 CRNZ 966.}
[6] As recorded in the Minute of Miller J in R v Campbell HC Napier CRI-069-2003, 11 June 2010.