Lambert v Police - [2013] NZHC 1292

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2013-443-000021 [2013] NZHC 1292

BETWEEN WILLIAM HENRY LAMBERT Plaintiff

AND

NEW ZEALAND POLICE Defendant

Hearing: 30 May 2013

Counsel:

A Dallison for Appellant
S A Law for Respondent

Judgment:

30 May 2013

ORAL JUDGMENT OF MILLER J

Introduction

[1] This appeal is brought against a sentence of 22 months imprisonment on charges of driving while disqualified and driving and driving with excess alcohol, in each case a third or subsequent offence. Mr Lambert complains that he was given insufficient discount for his early guilty pleas.

[2] At about 1.30 am on 6 December 2012 he was seen to drive a car while intoxicated. The police were called, and they stopped the car. He was found to be both disqualified and drunk; his breath alcohol level was 1190mg of alcohol per litre of breath.

[3] Mr Lambert, who is 43 and unemployed, has eight previous convictions for driving with excess alcohol, two for refusing a request for blood, and five for driving while disqualified. He pleaded guilty at the second appearance in this instance and explained that he drove because his friend, a passenger in the car, had made him do
it.

LAMBERT v N Z POLICE [2013] NZHC 1292 [30 May 2013]

[4] Sentencing was delayed when Mr Lambert appeared on 4 April because he was drunk. He was eventually sentenced on 1 May. The Judge recorded that the probation report confirmed the obvious; Mr Lambert has serious dependency issues that he is reluctant to address. He presents a risk to the community, and will continue to do so as long as he remains resistant to help.

[5] When constructing the sentence the Judge simply recorded that taking all matters into account Mr Lambert would be sentenced to 22 months imprisonment on the excess alcohol charge, that sentence having been fixed on the basis of totality. For driving while disqualified he received a concurrent of nine months imprisonment. He was also disqualified, and special release conditions were imposed relating to treatment. The Judge noted earlier in the sentence that a guilty plea had been entered, but no reference was made to a discount for that or indeed for any mitigating factor when constructing a sentence.

[6] A guilty plea is a mitigating factor, and a mandatory consideration for a sentencing Judge. It is an error to overlook it. However, two points must be made. The first is that under the Supreme Court judgment in Hessell it is no longer the case that a guilty plea invariably attracts a full discount when entered early. And while
there are good reasons for making the discount predictable,1 the quality of the plea

may also be taken into account. By that I mean that the Judge may adjust the discount according to the strength of the prosecution case.2 I observe that there is authority that in cases such as this, where conviction was certain, little or no discount need be given.3

[7] The second…

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 [2013] NZHC 1292
Case: [2013] NZHC 1292
Decision Date: 30 May 2013

CaseChat Overview and Summary

The case of Lambert v Police involved William Henry Lambert, the appellant, who was appealing against a sentence of 22 months imprisonment for charges of driving while disqualified and driving with excess alcohol, both of which were third or subsequent offences. Lambert's appeal centred on the contention that his early guilty plea had not been adequately discounted by the sentencing Judge. Lambert was apprehended by the police at approximately 1:30 am on 6 December 2012, found to be driving while intoxicated and disqualified from driving. His breath alcohol level was recorded at 1190mg of alcohol per litre of breath. Lambert, who had a history of eight previous convictions for driving with excess alcohol, two for refusing a request for blood, and five for driving while disqualified, pleaded guilty at his second appearance and attributed his actions to peer pressure from a friend who was a passenger in the car.

The central legal issue in this case was whether the Judge had erred in the methodology for sentencing, specifically by not adequately accounting for Lambert's early guilty plea as a mitigating factor. The appeal court considered whether the ultimate sentence was plainly excessive, despite potential errors in the sentencing process. The court acknowledged that while a guilty plea is a mitigating factor and a mandatory consideration for a sentencing Judge, the quality of the plea and the strength of the prosecution case could influence the discount. The court noted that there is authority suggesting that in cases where conviction was certain, little or no discount need be given for an early guilty plea.

The court concluded that while the Judge did refer to the guilty plea, it was impossible to determine whether a discount was actually applied. However, the court found that the starting point for the excess alcohol charge alone should be around 20-22 months, and an additional six months should be added for the driving while disqualified charge, leading to an effective starting point of 26-28 months. The court noted that a discount must be given for the guilty plea, but it need not be the full 25 per cent allowed for an early plea. Even with such a discount, the resulting sentence would not be significantly different from the one imposed. The appeal court ultimately dismissed the appeal, finding the sentence to not be plainly excessive.

Orders