Lambert v Police
[2022] NZHC 49
•27 January 2022
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2021-443-51
[2022] NZHC 49
KORY CHRISTOPHER LAMBERT v
NEW ZEALAND POLICE
Hearing: 27 January 2022 Appearances:
J Mooney for Mr Lambert
L A Blencowe for the Crown
Judgment:
27 January 2022
JUDGMENT OF COOKE J
[1] Kory Lambert appeals against the sentence of 28 months’ imprisonment imposed by the District Court on the following charges following his entry of guilty pleas:1
(a)breach of release conditions;2
(b)unlawful possession of ammunition;3
(c)failing to appear on police bail;4
1 Police v Lambert [2021] NZDC 21465.
2 Sentencing Act 2002, s 96(1); maximum penalty one year imprisonment or a fine not exceeding
$2,000.
3 Arms Act 1983, s 22B; maximum penalty $10,000 fine.
4 Bail Act 2000, s 24; maximum penalty three months’ imprisonment or a fine not exceeding $1,000.
LAMBERT v NEW ZEALAND POLICE [2022] NZHC 49 [27 January 2022]
(d)two counts of failing to appear on court bail;5
(e)two counts of driving while disqualified (third or subsequent);6
(f)possession of offensive weapons;7
(g)unlawfully on premises;8 and
(h)failure to stop for police (third or subsequent).9
[2] Mr Lambert was also disqualified from holding or obtaining a driver’s licence for 12 months. He does not challenge this aspect of his sentence.
[3] Mr Lambert appeals his sentence on the grounds the end sentence was manifestly excessive. Ms Mooney, his counsel, argues that the uplifts imposed by the Judge were excessive, the Judge failed to consider totality and failed to take into account Mr Lambert’s remorse.
[4] The Crown appropriately acknowledges that the end sentence is excessive due to the uplifts imposed by the Judge and due to the Judge not considering the totality principle. I agree that the sentence was excessive. For this reason the primary focus of the appeal is on the appropriate substitute sentence.
The offending
[5] The relevant offending occurred over an approximately six month period when Mr Lambert was homeless following his release from prison on 16 December 2020. Several release conditions were imposed upon Mr Lambert’s release, including a
5 Bail Act 2000, s 38; maximum penalty one year imprisonment or a fine not exceeding $2,000.
6 Land Transport Act 1998, ss 32(1)(a) and 32(4); maximum penalty two years’ imprisonment or a fine not exceeding $6,000, and a mandatory disqualification from holding or obtaining a driver licence for one year or more.
7 Crimes Act 1961, s 202A(4)(b); maximum penalty three years’ imprisonment.
8 Summary Offences Act 1981, s 29(1)(a), maximum penalty three months’ imprisonment or a fine not exceeding $2,000.
9 Land Transport Act 1998, ss 52A(1)(a)(ii), 52A(5) and 114(2) ; maximum penalty three months’ imprisonment or a fine not exceeding $10,000, and a mandatory disqualification from holding or obtaining a driver licence for two years or more.
condition that he report to a probation officer within 72 hours of his release. Mr Lambert failed to report to the probation officer. This resulted in the conviction for breach of release conditions.
[6] Mr Lambert was released on Court bail on 12 February 2021. He was required to appear at the New Plymouth District Court on 24 February 2021. He failed to do so.
[7] On 1 March 2021, Mr Lambert was found unlawfully at a residential address. Police searched Mr Lambert pursuant to the Search and Surveillance Act 2012 and found three live rounds of .22 calibre ammunition in his pocket. Mr Lambert does not hold a firearms licence. Mr Lambert was charged with unlawful possession of ammunition and released on police bail that day.
[8] Mr Lambert failed to appear at the New Plymouth District Court on 10 March 2021 in breach of the conditions of his police bail. Mr Lambert also failed to appear in Court on 15 March 2021 in breach of the conditions of his Court imposed bail.
[9] On 19 April 2021, Mr Lambert was driving while disqualified. Police signalled for him to stop, Mr Lambert pulled into a driveway and ran away on foot. When police searched the vehicle they found several offensive weapons including a large pruning knife, a baseball bat, a white metal bar and a knife.
[10] On 27 June 2021, Mr Lambert was found unlawfully at an unoccupied Housing New Zealand House. Police observed him leave the house and drive away in a vehicle, they flashed red and blue lights at him and signalled for him to stop. Mr Lambert was still disqualified from holding a driver’s licence at this time. Mr Lambert did not stop the vehicle, rather he drove a short distance and ran away from police on foot. He was caught and arrested by police.
District Court decision
[11] Mr Lambert was sentenced on 2 November 2021 by Judge Grieg in the New Plymouth District Court. The Judge outlined the offending and noted that Mr Lambert had 11 previous convictions for driving while disqualified and a number
of other convictions for dishonesty offending, violence offending, driving related offending, drug offending and non-compliance offending.10
[12] The Judge imposed an 18 month starting point for the driving while disqualified charges.11 He uplifted the starting point by six months to reflect the failing to appear charges,12 he imposed a further six month uplift for the offensive weapon charges and a four month uplift for breach of release conditions.13
[13] On the remaining charges, possession of ammunition, unlawfully on premises and failing to stop, the Judge convicted and discharged him.14 This resulted in an adjusted starting point of 34 months’ imprisonment.15
[14] The Judge then uplifted the sentence by a further four months to reflect Mr Lambert’s previous convictions other than previous driving convictions as those are accounted for by the higher penalty for third or subsequent offences.16 Finally the Judge awarded Mr Lambert a 10 month discount for his early guilty plea. This resulted in the end sentence of 28 months’ imprisonment. The Judge also disqualified Mr Lambert from holding or obtaining a driver’s licence for 12 months.
Approach on appeal
[15] The appeal is brought under s 244 of the Criminal Procedure Act 2011. Under s 250(2) the appeal must be allowed if the court is satisfied that there is an error in the sentence imposed on conviction, and that a different sentence should be imposed. The ultimate question is whether the sentence is manifestly excessive.17 Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than the process by which the sentence is reached.18
10 Police v Lambert, above n 1, at [6].
11 At [8].
12 At [8].
13 At [9].
14 At [10].
15 At [9].
16 At [11].
17 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482, at [33] and [35].
18 Ripia v R [2011] NZCA 101, at [15].
[16] The Crown acknowledges that the end sentence is excessive due to some of the uplifts imposed by the Judge and the failure to consider the totality principle. The Crown says an appropriate end sentence would be 24 months’ imprisonment.
Assessment
[17] This offending was not easily addressed by the conventional approach of identifying a starting point based on a lead offence with uplifts then given for other offending. That is because there was not a single offence that could squarely be identified as a primary offence, with others addressed by way of uplift. What the Judge was faced with was a spree of offending, none of which was minor, but none of which was very serious. The main concern is that Mr Lambert appears to have been out of control, and engaged in continuous offending. It occurred immediately following his release from serving a term of imprisonment for similar offending. So this was a slightly challenging sentencing exercise.
[18] But I accept the Judge erred by adopting what can be described as a stern starting point of 18 months on the driving while disqualified charges, and then by introducing a series of high uplifts for the other offending and his previous convictions. Neither did the Judge consider the totality principle when imposing the sentence as required by s 85 of the Sentencing Act 2002. This principle is important, as recognised by decisions of the Court of Appeal such as R v Xie.19 The ultimate end sentence of two years and two months was excessive as a consequence.
[19] When addressing the sentencing principles the Judge noted that Mr Lambert was 38 years of age and indicated that he was at a stage where protecting the community was the primary consideration. I accept that this is an important consideration in this case, but the degree of community protection involved in the additional months’ imprisonment associated with a sterner approach could only protect the community for a short further period, and it is important not to lose sight of other sentencing principles, including the totality principle.
19 R v Xie [2007] 2 NZLR 240 at [16]–[18].
[20] As I say the sentencing exercise was a difficult one, partly because it is not self-evident which offending should be taken as the lead offending. The maximum penalty on the offensive weapons charge is higher than the driving whilst disqualified charges. It may also be a little artificial to seek to rely on other cases as relevant precedents for the sentence, as it is ultimately a task of finding an appropriate sentence for the overall series of offences, as the Court of Appeal indicated in Xie.20
[21] But taking the driving while disqualified charges as a lead offence. I adopt the starting point of 18 months’ imprisonment notwithstanding it is a stern starting point for this offending by itself.
[22] I accept that there should be uplifts for the other offending, and potentially also because of Mr Lambert’s conviction history. Uplifts should be proportionate and be directly relevant to the offending for which the sentence is being imposed. But that is present in this case given that the offending seems to be an interrelated series of offences, and similar to previous offending for which Mr Lambert has been convicted.
[23] The breach of release conditions and his failure to appear offending can be addressed separately by way of uplift in the sense that a failure to properly engage with requirements imposed by the Court and police has its own discrete implications. I accept that a three month uplift can be justified here because of Mr Lambert’s almost complete and repeated disregard of the requirement to comply with requirements lawfully imposed. An uplift of six months, and the further uplift for four months for breach of release conditions as imposed by the Judge could not be justified, however.
[24] A further uplift is then appropriate for the other charges, including the weapons and ammunition charges. That is particularly so given that they might be seen to have similar seriousness to the driving while disqualified charges, particularly with offending that is part of a series of offences. But again I see a further six month uplift imposed by the Judge as being excessive. In my view three months is all that could be justified as a further uplift.
20 At [17].
[25] The Judge then engaged in another four month uplift for Mr Lambert’s previous convictions. I accept that an uplift is justified because this offending can be seen as a continuation of the same kind of offending that Mr Lambert has previously engaged in. As the Judge noted Mr Lambert is not a young man. But only a further three months could be justified in my view.
[26] In the present case a 25 per cent discount for the early guilty plea would be appropriate, which should be deducted from the starting point prior to the personal aggravating circumstances arising from the prior convictions, as confirmed by the Court of Appeal in Stuart v R.21 So the 25 per cent is deducted from the 24 month uplifted starting point, resulting in a reduction of six months.
[27] That takes the final sentence to one of 21 months’ imprisonment. The appeal is allowed, the sentence of 28 months’ imprisonment is quashed and is substituted with a sentence of 21 months’ imprisonment, to be formally entered on the following basis:
(a)on the two counts of driving while disqualified a sentence of 21 months’ imprisonment;
(b)on the charge of being in possession of offensive weapons a sentence of six months’ imprisonment to be served concurrently;
(c)on the charges of failing to appear in accordance with Court bail, police bail and breaching release conditions, three months’ imprisonment on each charge to be served concurrently;
(d)on the remaining charges convictions and discharges;
(e)the disqualification for 12 months is confirmed.
[28] The substituted sentence is a sentence of short duration, such that the Court should consider release conditions. Recommendations are provided in the pre- sentence report. I am mindful of Mr Lambert’s previous difficulty in meeting release
21 Stuart v R [2021] NZCA 539.
conditions, and of the need not to set him up to fail. It is significant that he was homeless on release leading to the current offending. But on the other hand it is important that he understands that if he does not establish a more stable life upon his release and he re-offends the consequence is that he will likely return to prison. In light of these considerations, and having discussed the conditions with counsel, in addition to the standard conditions I determine the following special conditions which are to continue until the sentence expiry date:
(a)Attend a psychological assessment with a departmental psychologist as directed by a Probation Officer and complete any treatment and/or counselling as recommended by the assessment to the satisfaction of a Probation Officer.
(b)To attend and complete an appropriate Substance Abuse programme to the satisfaction of a Probation Officer. The specific details of the appropriate programme shall be determined by a Probation Officer.
(c)To attend an assessment for Te lhu Waka as directed by a Probation Officer. To attend and complete any counselling, treatment or programme as recommended by the assessment as directed by and to the satisfaction of a Probation Officer.
(d)To attend any other programme as directed by a Probation Officer.
Cooke J
Solicitors:
Crown Solicitors, New Plymouth for New Zealand Police
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