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

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.
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.
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.
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].
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…

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 The Queen

Details

AGLC: Lambert v The Queen [2015] NZCA 382
Case: [2015] NZCA 382
Decision Date: 19 August 2015 at 12.30 pm

CaseChat Overview and Summary

Lambert was found guilty of wounding with intent to cause grievous bodily harm and sentenced to eight years and six months imprisonment. Lambert's appeal against the length of the sentence was dismissed. Lambert now applies for leave to bring a second appeal under section 253(1) of the Criminal Procedure Act 2011. 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. The application to extend the time in which to file an application for leave to bring a second appeal is granted. The application for leave to bring a second appeal is declined.

The legal issue before the court was whether the applicant should be granted leave to bring a second appeal. The court considered whether the appeal would involve a matter of general or public importance or whether a miscarriage of justice may have occurred. The court concluded that neither condition was satisfied. The starting point of eight years and six months' imprisonment was within the available range, and the amount of credit for reduced culpability stemming from the victim's prior actions was a case-specific assessment. There was nothing in the facts or the sentencing processes that caused the court to consider there was a risk of a miscarriage of justice if the matter was not further considered.

The court granted the application to extend the time in which to file an application for leave to bring a second appeal and declined the application for leave to bring a second appeal. The court concluded that neither condition for granting leave was satisfied. The starting point of eight years and six months' imprisonment was within the available range, and the amount of credit for reduced culpability stemming from the victim's prior actions was a case-specific assessment. There was nothing in the facts or the sentencing processes that caused the court to consider there was a risk of a miscarriage of justice if the matter was not further considered.

Orders