Lambert v The Queen - [2015] NZHC 159

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 Respondent

Judgment:

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…

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] NZHC 159
Case: [2015] NZHC 159
Decision Date: 12 February 2015

CaseChat Overview and Summary

Mark Lambert appeals against his conviction for one charge of wounding with intent to cause grievous bodily harm. The appellant argues that the starting point of the sentence is manifestly excessive and that the judge did not provide a sufficient discount for an earlier attack on the appellant by the victim. The court examined the relevant case law and found that the starting point of eight years and six months was not manifestly excessive. The court also found that the judge was in the best position to assess if provocation was available on the facts and that the victim’s assault should not be considered to significantly reduce the appellant’s culpability given the duration and extremity of the response. The appeal is dismissed.

Orders