Lambert v Police - [2022] NZHC 49

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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lambert v Police

Details

AGLC: Lambert v Police [2022] NZHC 49
Case: [2022] NZHC 49
Decision Date: 27 January 2022

CaseChat Overview and Summary

Kory Christopher Lambert appealed against the sentence of 28 months' imprisonment imposed by the District Court on various charges. Lambert had entered guilty pleas on charges including breach of release conditions, unlawful possession of ammunition, failing to appear on police bail, failing to appear on court bail, driving while disqualified, possession of offensive weapons, unlawfully on premises, and failure to stop for police. Lambert was also disqualified from holding or obtaining a driver's licence for 12 months. The appeal was limited to the sentence, not the disqualification.

The legal issues were whether the sentence was manifestly excessive, if the uplifts imposed by the Judge were excessive, if the Judge failed to consider the totality principle, and if the Judge failed to take into account Lambert's remorse. The Crown acknowledged that the end sentence was excessive due to some of the uplifts imposed by the Judge and the failure to consider the totality principle.

The Court found that the end sentence was indeed excessive. The Court accepted that there should be uplifts for the other offending and potentially also because of Lambert's conviction history, but the uplifts should be proportionate and directly relevant to the offending. The Court found that the uplifts imposed by the Judge were excessive. The Court substituted the sentence of 28 months' imprisonment with a sentence of 21 months' imprisonment. The Court also imposed special conditions for Lambert's release.

Orders