Lambert v The Queen

[2015] NZCA 382

IN THE COURT OF APPEAL OF NEW ZEALAND

CA157/2015
[2015] NZCA 382

BETWEEN	MARK PAUL LAMBERT Applicant
AND	THE QUEEN Respondent

Hearing:	11 August 2015
Court:	Cooper, Simon France and Asher JJ
Counsel:	M A Stevens for Applicant S K Barr for Respondent
Judgment:	19 August 2015 at 12.30 pm

JUDGMENT OF THE COURT

AThe application to extend the time in which to file an application for leave to bring a second appeal is granted.

BThe application for leave to bring a second appeal is declined.

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REASONS OF THE COURT

(Given by Simon France J)

Introduction

1. Mr Lambert was found guilty following a trial before Judge Blackie of wounding with intent to cause grievous bodily harm.  He was sentenced to a term of imprisonment of eight years and six months.[1]  Mr Lambert’s appeal against the length of the sentence was dismissed.[2]  He now applies pursuant to s 253(1) of the Criminal Procedure Act 2011 for leave to bring a second appeal.  The application was filed slightly out of time, but there is no opposition to extending the time for filing and an order is made accordingly.  The second appeal court must not give leave unless satisfied that the appeal would involve a matter of general or public importance; or that a miscarriage of justice may have occurred, or may occur if leave to appeal is not given. 

   [1]R v Lambert DC Manukau CRI‑2014‑044‑1428, 16 December 2014 [sentencing notes].

   [2]R v Lambert [2015] NZHC 159.

2. Mr Lambert was on less than cordial terms with his neighbour.  One Sunday morning an altercation occurred.  The neighbour prodded Mr Lambert with a broken broom handle through a gap in the fence between them.  In response, Mr Lambert lifted his American mastiff-type dog over the fence.  The dog was already subject to a destruction order, but that order had been suspended pending an appeal.

3. The dog attacked the neighbour’s leg in a savage assault.  Mr Lambert observed the attack and took no steps to call off the dog.  The neighbour sought to defend himself by using a hammer he had with him in the garden.  Seeing this Mr Lambert himself climbed the fence, not in order to make the dog stop, but to get the hammer.  Mr Lambert hit the neighbour, a blow the neighbour described as a “king hit”.  The neighbour tried to hit Mr Lambert with the hammer but eventually lost control of the implement.  At that point, by a simple command, Mr Lambert caused the dog to cease.

4. The neighbour suffered severe leg wounds, was 145 days in a wheelchair and required daily dressings for 109 days.  He was off work for six months. When sentencing the Judge had observed that “large chunks of his flesh were ripped out by this dog”.[3]

   [3]Sentencing notes, above n 1, at [6].

5. Judge Blackie had regard to this Court’s decision in Rangihuna v R which involved the use of a dog as a weapon.[4]  The Judge also considered the R v Taueki factors before settling on a starting point of eight years and six months’ imprisonment.[5]  There was an uplift of six months for other recent offending which was then offset by an equivalent deduction for the initial minor provocation of being poked with the stick. 

   [4]Rangihuna v R [2010] NZCA 540.

   [5]R v Taueki [2005] 3 NZLR 372 (CA).

6. The sentence was fully reviewed on appeal.  It was held that the correct aggravating factors had been identified, and that the starting point was stern but within the available range.  Concerning the size of the discount for provocation, Thomas J considered the provocation minor in the context of what happened.  The victim’s conduct did not, in reality, amount to provocation in the Taueki sense and a six month reduction for what did occur was considered sufficient recognition.

7. The proposed appeal, if leave were given, would again focus upon the starting point, and the size of the discount for the victim’s conduct.  The applicant suggests the starting point will set a precedent for cases involving the deliberate use of dogs to inflict harm.  We do not agree.  The District Court Judge applied existing appellate authority to particular facts and was held on appeal not to have erred in the assessment.  No matter of general or public importance arises.  Likewise, the amount of credit for reduced culpability stemming from the victim’s prior actions is quintessentially a case-specific assessment giving rise to no wider point of general importance.

8. Finally, there is nothing in the facts or the sentencing processes that causes us to consider there is a risk of a miscarriage of justice if the matter is not further considered.  It was a brutal assault which resulted in serious consequences, and there were indeed several aggravating factors.

9. The application for leave to bring a second appeal is declined.

Solicitors:
Crown Law Office, Wellington for Respondent