Lampp v Police - [2013] NZHC 1351

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-131 [2013] NZHC 1351

BETWEEN NATHAN LAMPP Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 10 June 2013

Counsel: J W Griffiths for the Appellant
L M Mills for the Respondent

Judgment: 10 June 2013

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors:
Mr J W Griffiths, Public Defence Service, Manukau
Mr L M Mills, Meredith Connell, Office of the Crown Solicitor, Auckland

LAMPP v POLICE [2013] NZHC 1351 [10 June 2013]

[1] This is an appeal against a sentence of 2 years imprisonment for attempted burglary.1 Concurrent sentences were imposed for some other offences.

[2] The offences may conveniently be summarised in three groups. The first group mainly involves property offences. There was a theft committed in August
2012. Items were stolen from a service station. There is no information as to the value of the items stolen except that the charge was theft to a value under $500. The maximum penalty is 3 months imprisonment. There were further offences on 10
December 2012, including the attempted burglary. The appellant acted as a lookout in a car when an associate tried to force a window in a house. The associate was disturbed by a neighbour, left and was driven away by the appellant. The maximum penalty for attempted burglary is 5 years imprisonment. There were two receiving charges committed on the same date. Police found an empty wallet and an empty purse in the car when it was stopped following the attempted burglary. The maximum penalty is 3 months imprisonment. The wallet and the purse had been stolen earlier that night but the appellant was not charged with theft or burglary in that regard. There were also offences of driving while suspended that night and possession of a methamphetamine pipe.

[3] The second group contains one offence of assault. This occurred on 24

January 2013 when the appellant was on 24 hour curfew at his home having been bailed for the other offences. It was an assault on his partner. He pushed her head into the floor for a few seconds then pushed her onto a bed. When she ran outside he dragged her back into the house. There was no injury. The maximum penalty is imprisonment for 1 year.

[4] The third category involved a sentence review and re-sentencing for an offence of threatening behaviour. The appellant had served only 2 hours of 160 hours of a community work sentence.

[5] The appellant has a reasonably substantial list of previous convictions. There are by my count seven property offences. This includes one burglary by day in 2007
and two burglaries by night a few days apart in 2008. The appellant was sentenced

1 Police v Lampp DC Pukekohe CRI-2013-057-000126, 27 March 2013.

to 2 years imprisonment for the 2008 burglaries and what appears to have been a concurrent sentence of 1 year for the 2007 burglary. There was one receiving offence in 2008, two shoplifting offences in 2006 and 2008 and theft from…

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 Lampp v Police

Details

AGLC: Lampp v Police [2013] NZHC 1351
Case: [2013] NZHC 1351
Decision Date: 10 June 2013

CaseChat Overview and Summary

Nathan Lampp appealed against his sentence for attempted burglary and related offences, which was 2 years imprisonment. The case was heard in the High Court of New Zealand. Lampp argued that the sentence was manifestly excessive, primarily due to an alleged double counting of previous convictions and an excessively high starting point for the attempted burglary. The respondent argued that there was no double counting and that the starting point was within the appropriate range.

The court found that while there was some element of double counting, the main issue was that the starting point for the attempted burglary was too high. The court noted that the maximum penalty for attempted burglary is 5 years, and the appellant was a party to the offence rather than the principal offender. The court found that the starting point should be 7 months, and the maximum uplift for other offences should be 9 months, leading to a total of 22 months before reductions. The court concluded that a sentence of 24 months was manifestly excessive, and the appeal was allowed. The sentence for the attempted burglary was quashed, and a sentence of 17 months imprisonment was substituted. The sentences for the other offences were affirmed, as were the release conditions imposed by the Judge.

Orders