R v Lambess - [2012] NZHC 97

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-019-6110 [2012] NZHC 97

THE QUEEN

v

LESLEY RACHAEL LAMBESS

Hearing: 9 February 2012

Counsel: J O'Sullivan for Crown
S Green for Prisoner

Judgment: 9 February 2012

SENTENCING REMARKS OF LANG J

R V LAMBESS HC HAM CRI-2011-019-6110 9 February 2012

[1] Ms Lambess, you appear for sentence today having pleaded guilty in the District Court to charges of being in possession of cannabis for supply and selling cannabis. The maximum sentence for both charges is one of eight years imprisonment.

The facts

[2] The facts giving rise to your offending fall within a very narrow compass. On 10 August 2011 the police executed a search warrant at your home in relation to an unrelated matter. You lived at that address with two other family members. When the police spoke to you after their arrival, you told them that you had cannabis in your bedroom. You then took the police to the bedroom, where you uplifted a black plastic rubbish bag and gave it to the police. Inside the bag was a plastic bucket with a lid. Inside the bucket were plastic bags containing a total of 764 grams of dried cannabis head material.

[3] Nine of those bags were of a snaplock variety commonly used by drug dealers to sell smaller quantities of cannabis. Each of these contained approximately an ounce of cannabis, which is a common quantity for street level dealers to sell. In addition, the police found a wad of currency at the bottom of the bucket totalling
$2050.00.

[4] You initially said that you were holding on to the cannabis and money for a friend, but your early pleas of guilty make it clear that that was not the case. When you were interviewed by the probation officer, you admitted quite frankly that you were selling cannabis in an endeavour to move out of an intolerable residential lifestyle.

Sentencing Act 2002

[5] In any case involving drug dealing, as I am sure you know, issues of deterrence and denunciation are to the forefront. The only way in which the courts can contribute meaningfully to drug use and dealing is to impose stern sentences when drug dealers are apprehended. Having said that, the key in your case is to

select a sentence that is commensurate with those imposed in broadly similar cases and to provide a sentence that is the most restrictive outcome in the circumstances.

[6] In your case, as I shall explain and as you have heard discussed during submissions, the only realistic outcome is a sentence of imprisonment. I need to determine what the shortest sentence of imprisonment can be to reflect both the gravity of your offending and also the need to impose the least restrictive outcome possible in the circumstances.

Starting point

[7] Counsel agree that the starting point for any sentence in your case is governed by a decision of the Court of Appeal in R v Terewi.[1]They also agree that…

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 R v Lambess

Details

AGLC: R v Lambess [2012] NZHC 97
Case: [2012] NZHC 97
Decision Date: 9 February 2012

CaseChat Overview and Summary

The case before the court was that of Lesley Rachael Lambess, who had pleaded guilty to being in possession of cannabis for supply and selling cannabis. The maximum penalty for both charges was eight years imprisonment. The court had to determine the appropriate sentence for Ms Lambess, taking into account various factors such as the seriousness of the offence, the offender's criminal history, and any mitigating circumstances.

The legal issues the court needed to decide included the starting point for sentencing, any aggravating or mitigating factors, and the appropriate sentence length. The court considered the quantity of cannabis and cash found in Ms Lambess's possession, her previous convictions for drug-related offences, and her early guilty plea. The court also took into account the offender's engagement in volunteer work and efforts towards rehabilitation.

The court decided that the starting point for sentencing was two and a half years imprisonment, based on the quantity of cannabis and cash found in Ms Lambess's possession. The court also considered her previous convictions for drug-related offences, which were a significant aggravating factor. The court found that an uplift of six months was appropriate to reflect Ms Lambess's decision to reoffend so soon after her release from prison and completion of drug treatment. On the other hand, the court decided to give a 25% discount for Ms Lambess's early guilty plea and a further two-month discount for her engagement in volunteer work. The court ultimately decided on a sentence of two years and one month imprisonment for each charge, to be served concurrently.

The court also made an order for the forfeiture of the cash found in Ms Lambess's possession. The final orders of the court were that Ms Lambess was to serve two years and one month imprisonment for each charge, with the sentences to run concurrently, and that the cash found in her possession be forfeited.

Orders