Lambert v The Queen
[2015] NZHC 159
•12 February 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-449 [2015] NZHC 159
MARK LAMBERT
v
THE QUEEN
Hearing: 9 February 2015 Appearances:
P Syddall for the Appellant
K Cooper for the RespondentJudgment:
12 February 2015
JUDGMENT OF THOMAS J
This judgment was delivered by me on 12 February 2015 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Solicitors:
Public Defence Service, North Shore. Meredith Connell, Auckland.
LAMBERT v R [2015] NZHC 159 [12 February 2015]
Summary
[1] On 21 October 2014, the appellant Mr Lambert was found guilty at a judge- alone trial of one charge of wounding with intent to cause grievous bodily harm.1
[2] The appellant was sentenced to eight years and six months’ imprisonment. He appeals the sentence on the grounds that the Judge’s starting point is manifestly excessive and that the Judge did not provide a substantial enough discount for an earlier attack on the appellant by the victim.
Facts
[3] The appellant and the victim were neighbours. They had a history of significant animosity towards each other. On 13 April 2014, the appellant woke up annoyed at noises made by the victim and his wife while they were tending to their garden. The appellant and the victim exchanged verbal abuse over their boundary fence.
[4] The victim then proceeded to poke a broken broomstick through the fence, causing minor bruising on the appellant’s chest and upper arm. The appellant then threatened to retrieve, and then lifted over the fence his American bulldog. He encouraged the dog to attack the victim.
[5] The appellant knew the dog had a vicious propensity. Signage on the steal gate across the appellant’s property indicated that the “Dog is aggressive” and “Dangerous”. The dog had also attacked other dogs. On 19 December 2011, the dog deeply wounded another dog. On 13 February 2012, the dog attacked a further dog and caused severe injuries. Further, the owner of the attacked dog received a cut and several puncture wounds to his hand when attempting to separate his pet from the appellant’s dog.
[6] The dog was seized by Auckland Council and, on 30 March 2012, classified as a dangerous dog under s 31 of the Dog Control Act 1996. On 4 December 2013
1 Crimes Act 1961, s 188(1). The maximum penalty for this offence is 14 years imprisonment; R v
Lambert DC North Shore CRI-2014-044-001428, 21 October 2014.
the appellant was sentenced and the Court ordered that the dog be destroyed.2
However the dog was not destroyed pending an appeal.
[7] The dog attacked and ripped “large chunks of flesh” from the upper part of one of the victim’s legs.3 The victim attempted to defend himself by using a hammer he happened to have in his hand to strike at the dog. The appellant, having heard the victim’s screams, became concerned for his dog’s safety. In response, he climbed over the fence to take the hammer off the victim. While trying to rescue the dog, the appellant head-butted and manhandled the victim in order to retrieve the hammer. The appellant hit the victim on the head in what is described as a “king hit”.4 In response, the victim hit the appellant with the hammer, including on the head.
[8] The attack continued, with the dog continuing to latch onto the victim’s leg. The attack ceased only when the appellant wrestled the hammer away from the victim. At this stage, by an order, tap or command, the appellant made the dog stop the attack and left the premises with the dog. No attempt was made to gain assistance for the victim.
[9] The victim’s wounds included a 10 cm by 10 cm jagged wound, and another smaller wound, on his right lower thigh. A large piece of tissue was removed by the dog bite and surgery was required to close the wound. The victim also received other injuries and the impact on him is discussed in paragraph [53] below.
[10] The victim is 52 years old. He has a prosthetic lower leg as a result of a work accident. The major wound inflicted by the dog was to this leg.
[11] The appellant is 36 years old. He is six foot four and weighs 142 kgs.
2 Auckland Council v Lambert DC North Shore CRI-2012-044-002916, 4 December 2013.
3 R v Lambert DC North Shore CRI-2014-044-001428, 16 December 2014.
4 R v Lambert DC North Shore CRI-2014-044-001428, 21 October 2014 at [38].
District Court Decision
[12] On 16 December 2014, the appellant was sentenced to eight years six months’ imprisonment for one charge of wounding with intent to cause grievous bodily harm.5
[13] The Judge canvassed the background facts before adopting a starting point of eight years six months’ imprisonment. The Judge compared the circumstances in this case with those in Rangihuna v R, a similar case involving grievous bodily harm deliberately caused by a dog.6 However, the Judge, after setting the starting point, gave a “modest discount” of six months for the victims’ attack on the appellant with the broken broomstick, without finding that this attack amounted to provocation. Provocation, in R v Taueki, was considered as reducing the seriousness of the offending and lowering the starting point.7
[14] The Judge classed the offending in the upper range of the Band 2 categories identified in R v Taueki.8 The aggravating factors included extreme violence, serious injury (which the Judge considered life-threatening), use of a weapon (the dog) and the victim’s vulnerability.
[15] The Judge considered it was an aggravating factor that the appellant deliberately set the dog on the victim and maintained its ability to continue the attack by trying to rescue the dog, rather than trying to help the victim. The appellant’s head-butt was included as part of this aggravating factor.
[16] The Judge rejected the submission that there were multiple attacks, or that there was a home invasion in the true sense of the word.
[17] Taking account of the appellant’s previous convictions, including recent assault charges for assault on the police, the Judge uplifted the starting point by six
months. The appellant was also on bail at the time of the offence.
5 R v Lambert, above n 3.
6 Rangihuna v R [2010] NZCA 540.
7 R v Taueki [2005] 3 NZLR 372 (CA) at [32].
8 At [36]-[41].
[18] The Judge identified no mitigating factors concerning the appellant.
[19] The Judge did not make an order relating to a minimum period of parole.
Appellant’s Submissions
[20] Mr Syddall, for the appellant, submits that the sentence is manifestly excessive because:
(a) the Judge applied an excessive starting point when compared to similar offending in similar circumstances; and
(b)the Judge erred in allowing for only a modest discount for the earlier attack on the appellant by the victim, finding it did not amount to provocation.
[21] The appellant does not object to the uplift reflecting the appellant’s previous
convictions.
[22] Mr Syddall submits that the starting point was manifestly excessive compared to the Court of Appeal’s decision in Rangihuna v R (24 months higher) because the appellant did not use weapons and there was only one attacker.
[23] In Mr Syddall’s submission the appropriate starting point should have been in the vicinity of six years six months’ to seven years’ imprisonment reduced by 12 months for provocation.
[24] Furthermore, the appellant submits that the Judge erred in his finding that the victim’s attack did not amount to provocation. The appellant was provoked and should have received a greater reduction than the “modest discount” of six months provided. The injuries suffered by the appellant because of the victim’s attack amounted to serious provocation, it was submitted.
[25] Mr Syddall says that, despite the ongoing feud between the neighbours, there was an absence of violence, either threatened or actual, in their relationship. The
lack of previous situations of violence gives weight to the submission that the victim’s actions amounted to provocation that was the operative and ongoing cause of the violence. The appellant points to the Judge’s statement that the dog was only engaged by the appellant “in response to his injuries.”
Respondent’s Submissions
[26] The respondent submits that the starting point of eight and a half years imprisonment was the correct application of R v Taueki, Rangihuna v R and Saber v R9 and that the Judge considered in detail a number of the aggravating factors identified in Taueki: extreme violence; serious injury; use of a weapon; and vulnerability.
[27] Ms Cooper points out that limited weight was given to the fact that the attacks were to the head and to home invasion, and that no weight was given to the idea that there were multiple attackers.
[28] In Ms Cooper’s submission, because six and a half years’ imprisonment in Rangihuna was considered to be “well within range and probably at the lower end of it”,10 it could not inform the starting point to be adopted here.
[29] The respondent also submits that the Judge was in the best position to assess if provocation was available on the facts, citing the decision in Saber.11 Ms Cooper says the facts in Saber are similar to the present circumstances, aside from the type of weapon used. The victim in that case suffered serious injuries from a knife attack involving extreme violence during the course of an altercation stemming from personal acrimony. Despite this history and the conduct of the victim it did not
amount to provocation.
9 Saber v R [2010] NZCA 603.
10 Rangihuna v R, above n 6, at [43].
11 At [21].
Approach to Appeal
[30] Section 250 of the Criminal Procedure Act 2011 governs sentence appeals from the District Court to the High Court. Section 250(2) states that the Court must allow the appeal if it is satisfied that:
(a) for any reason, there is an error in the sentence imposed on conviction; and
(b) a different sentence should be imposed.
[31] In any other case, the Court must dismiss the appeal.12
[32] In Tutakangahau v R, the Court of Appeal confirmed that s 250(2) was not intended to alter the previous approach taken by the courts under the Summary Proceedings Act 1957.13 Further, although s 250 makes no express reference to “manifestly excessive”, this principle is “well-engrained” in the courts’ approach to sentence appeals.14
[33] The approach taken under the former Summary Proceedings Act was set out in R v Shipton:15
(a) There must be an error vitiating the lower Court’s original sentencing discretion. The appeal must proceed on an “error principle.”
(b) To establish an error in sentencing it must be shown that the Judge in the lower Court made an error whether intrinsically or as a result of additional material submitted to the appeal Court.
(c) It is only if an error of that character is involved that the appeal
Court should re-exercise the sentencing discretion.
[34] The High Court will not intervene where the sentence is within the acceptable range having regard to the purposes and principles of the Sentencing Act 2002.16
12 Criminal Procedure Act 2011, s 250(3).
13 Tutakangahau v R [2014] NZCA 279 at [26]-[27].
14 At [33] and [35].
15 R v Shipton [2007] 2 NZLR 218 (CA) at [138]-[140].
16 Ripia v R [2011] NZCA 101 at [15].
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.
Sentencing approach
Tariff Case
[35] The tariff case for grievous bodily harm is R v Taueki.17 Serious violent offending is to be categorised into one of three bands depending on the presence or absence of aggravating and mitigating factors. The Court of Appeal identified these factors.18
[36] The Court gave guidance on where each band is appropriate:19
Band one
[36] This band will be appropriate for offending involving violence at the lower end of the spectrum of GBH offences. It is not an appropriate band for offences of extreme violence or violence which is actually life threatening.
Band two
[38] This band will be appropriate for GBH offending which features two or three of the aggravating factors referred to in [31] above.
Band three
[40] Band three would normally encompass serious offending which has three or more aggravating features referred to in [31] above, where the combination of aggravating features is particularly grave.
[37] The starting points are as follows:
(a) Band one: between 3-6 years;
(b) Band two: between 5-10 years; and
(c) Band three: between 9-14 years.
17 R v Taueki, above n 7.
18 At [31].
19 At [36]-[41].
[38] In R v Taueki, the Court of Appeal recognised that provocation may lead to a lower starting point:20
Where the offender has been provoked, that may justify a lower starting point. It is not enough simply to claim to have been incensed by the actions of the victim or another: rather, the sentencing Judge will need to be satisfied that there was serious provocation which was an operative cause of the violence inflicted by the offender, and which remained an operative cause throughout the commission of the offence.
Relevant Case Law
[39] In Rangihuna v R, the Court of Appeal considered an appeal where a dog was used as a weapon.21 Two offenders were convicted of wounding with intent to cause grievous bodily harm. They violently attacked a neighbour who had been detained on their property. There was a history of acrimony. One offender proceeded to punch the victim then hit the victim several times on the head with a plastic pipe. After the neighbour stumbled to the ground and picked up a brick, the offender wrestled the brick away from him and hit him twice on the back with the brick. The offender also strangled the victim for a time.
[40] The other offender then brought out a large bull mastiff and encouraged the dog to attack the victim as both offenders held him down on the ground. One offender continued to punch the neighbour as he did so. Eventually, they pulled the dog off and a third associate hit the victim on the head with a metal torch. One offender shouted to the neighbour that if he called the police, he would shoot him.
[41] The victim’s injuries included a badly lacerated arm, loss of muscle tissue, and bruising and cutting to the face. He required surgery and spent a week in hospital.
[42] The Judge identified five of the Taueki aggravating factors as relevant –
serious injury, use of a weapon (the dog), multiple attackers, vulnerability of the victim, and an element of stand over tactics.
20 At [32].
21 Rangihuna v R, above n 6.
[43] The Court of Appeal agreed that the Judge applied the correct standards in Taueki to place the sentence within band two and take a starting point of six years six months’ imprisonment. The injuries inflicted by the bull mastiff were serious, as were the fact of multiple attackers and the vulnerability of the victim. It was a case of stand over tactics meted out to a neighbour who was genuinely seeking an open
dialogue over recent neighbourhood difficulties.22
[44] The Court of Appeal held that the starting point was “well within range and probably at the lower end of it”.23
[45] In Saber v R, the appellant and victim were from feuding families.24 The appellant approached the victim in a public place and a verbal altercation resulted. The victim, seeing what he thought was keys in the appellant’s hands, punched the appellant in the face and a tussle commenced. The appellant then used a knife to stab the victim in the stomach and chest area, resulting in six stab wounds. The wounds were serious, causing part of the victim’s intestine to protrude, and requiring surgery to repair the small intestine. The appellant rendered no assistance to the victim after the attack and hid the knife beneath a tree some distance from the scene of the attack. The victim was in hospital for six days and spent three months recuperating at home before being able to look after himself. The victim’s promising bodybuilding career was ruined.
[46] The Judge did not find any element of provocation. The Court of Appeal agreed. The Court of Appeal acknowledged that the trial judge was in an excellent position to assess whether that case was one of provocation.25
[47] The Court of Appeal considered an eight and half year starting point (reduced from 10) to be appropriate.26
[48] Bayley v R involved an attack on a victim’s head and face using stone chess
pieces.27 The appellant’s pitbull terrier also became involved. The victim sustained
22 At [42].
23 At [43].
24 Saber v R, above n 9.
25 At [21].
26 At [24].
serious injuries, some of which were inflicted by the dog. Whether the appellant had deliberately set the dog upon the victim disputed.
[49] A seven year starting point was adopted and accepted by the Court of Appeal. As the jury was undecided on whether the dog was deliberately set upon the victim and it was not put to the appellant whether she failed to pull off the dog and restrain it, the Court refused to increase the culpability of the appellant because some of the injuries were caused by the dog.
Analysis
Aggravating Factors
[50] The Judge correctly identified four relevant aggravating Taueki factors.
[51] The appellant used his dog as a weapon. He deliberately incited his dog to attack the victim. He also assisted the dog in its attack by head-butting the victim and taking the hammer which he was using to defend himself. While the appellant attacked the victim, the dog continued to bite the victim’s leg.
[52] The attack was clearly extremely violent. It involved an aggressive attack of a violent dog as well as attacks by the appellant to the victim’s head and body.
[53] The injury caused was serious, involving significant wounds and loss of blood. This is clear from the photographs taken of the victim’s leg wounds. In the Victim Impact Statement, the victim describes the extent of muscle and tissue loss, requiring three surgeries, 109 days of daily dressing, 145 days in a wheelchair and 74 days without a shower. The victim also had to have a new prosthetic leg made because the shape of his leg had changed significantly. He was also unable to work for six months and claims that he and his wife have ongoing post-traumatic stress issues.
[54] The victim was also vulnerable. He has a prosthetic limb as a result of a lower leg accident. There was no evidence that the victim was scared of the
appellant. However, the appellant, as the Judge stated, knew that the leg restricted the victim’s ability to move and defend himself, particularly against an agile creature like a dog.28 Further, the appellant was much larger and stronger than the victim.
[55] While it was not expressly mentioned by the Judge in his sentencing notes, the appellant also attacked the victim in the head. This attack was described as a “king-hit” by the victim and the Judge. The victim had several injuries to his head and face. While the appellant did not use a weapon other than the dog, the “king-hit” should be considered an aggravating factor.
[56] With at least four, and possibly five, aggravating factors, the offending clearly falls within band two of Taueki. Considering the number of aggravating factors, and the brutality of an attack on the vulnerable victim, a starting point of eight years’ six months imprisonment, although stern, is not manifestly excessive.
[57] In Rangihuna v R, there were multiple human attackers alongside the dog, attacks with other weapons aside from the dog and elements of stand over tactics. However, the attack in Rangihuna and the attack by the appellant were both brutal and dangerous. In this case, the dog had been classified as dangerous and in the past had wounded a person trying to separate it from a dog it was attacking. However, the Court of Appeal in Rangihuna noted that the starting point was “well within range and probably at the lower end of it.” It is difficult to derive guidance from a starting point which the Court of Appeal evidently regarded as generous. The Judge was referred to the case by both the Crown and the defence. He, having heard all the evidence and convicted the appellant, was best placed to gauge the true extent of the appellant’s culpability.
[58] Saber v R involves a family feud, a mild provocative attack by the victim followed by a brutal knife attack leaving serious stab-wounds. A starting point of eight years six months’ imprisonment was imposed. It is arguable that a knife attack is worse than a dog attack because a knife is more likely to cause fatal or life- threatening harm. On the other hand, it is also arguable that an offender at least has immediate control over a knife, whereas a dog attack can be unpredictable and
difficult to stop. In any case, the attack in Saber and the attack by the appellant here were both life-threatening to the extent that a similar starting point is justified.
[59] In Bayley, a starting point of seven years was adopted in a case of injuries arising from a combination of a dog attack and attacks to the victim’s head and face by the offender. Seven years’ imprisonment was adopted despite the Court refusing to increase culpability for the injuries inflicted by the dog. This reinforces the serious nature of a deliberate dog attack in the present case and justifies a starting point above seven years’ imprisonment.
Provocation
[60] The appellant also claims that the victim’s attack on the appellant justifies a greater reduction than the six months provided because it amounted to provocation. It is clear from Saber that discretion is left to the judge in the assessment of provocation on the facts.29 In this case, the Judge did not consider the attack amounted to provocation but, in any case, reduced the starting point by six months.
[61] The victim’s assault paled in seriousness to the appellant’s attack on the victim. There is no reason to think that the victim intended to cause serious injury, and poking the appellant with a jagged metal broken broomstick through a fence was unlikely to cause life threatening harm. The Judge described his injuries as minor bruising. On the other hand, the appellant’s response was brutal, life-threatening, disproportionate and against a vulnerable victim. The fact that the relationship between the appellant and the victim had not previously been violent can hardly be said to have increased the likelihood that the victim’s attack provoked such a disproportionate response.
[62] The fact that the appellant was incensed by the attack is not sufficient for provocation, particularly where any provocative actions were not serious enough to justify the extent, length and brutality of the actual attack. While the dog may have immediately begun to rip out parts of the victim’s leg, I do not accept the appellant’s submission that the wounding at that time was complete. The facts make it clear that
the victim managed to get the dog off him at some stage but then the dog latched on to his thigh again and continued with the assault. Indeed the Judge described the following:
The victim was trying to get the dog off and was hitting it with a hammer. He dropped the hammer down and tried to get the dog’s jaws with his hands. Meanwhile, the defendant got up and was hitting him again with punches to the head.
The complainant said the he ended up by getting jammed between the wash basin and the wall and at that time he was head butted by the defendant, he slid down the wall. The dog ripped a piece of meat out of him. He passed out. He said that when he regained consciousness he discovered that his dentures had been broken.
[63] The victim’s assault should not be considered to significantly reduce culpability given the duration and extremity of the response. The Judge’s assessment of the victim’s conduct as insufficient to establish provocation was therefore appropriate, and the sentence reduction sufficient.
Minimum period of imprisonment
[64] The Crown had requested a minimum period of imprisonment of 50 per cent of the length of the term imposed in order to comply with the statutory test in s 86(2) Sentencing Act. The Judge dealt with the question in a rather perfunctory way saying that he would leave it to the Parole Board to assess. The Crown has pointed out that Judges must consider whether a minimum period of imprisonment be imposed and cannot simply leave the matter to the Parole Board.
[65] I accept the appellant’s submissions in this regard. That is, that the sentencing Judge gave thorough consideration to his sentencing decision and would have factored the relevant considerations pursuant to s 86 into his decision.
[66] Whilst I accept that minimum periods of imprisonment will not be rare or even uncommon for this level of violent offending, I am not satisfied, particularly given the term imposed, that the sentence will be insufficient for the purposes set out in s 86(2).
Result
[67] The appeal is dismissed. The starting point of eight years six months’
imprisonment was not manifestly excessive. The victim’s conduct did not amount to
provocation.
Thomas J
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