The Queen v Lambert

[2006] NZCA 57

IN THE COURT OF APPEAL OF NEW ZEALAND

CA456/05

THE QUEEN

v

CARLA MARY LAMBERT

Court:Glazebrook, Hammond and Chambers JJ

Counsel:S I Robinson for Appellant

S B Edwards for Crown

Judgment (On the papers):     4 April 2006 

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.

____________________________________________________________________

REASONS

(Given by Glazebrook J)

Introduction

1. Ms Lambert was convicted, after guilty pleas, in the High Court at Wellington of one count each of burglary, wounding with intent to injure and threatening to kill, and of two counts of assault.  She was sentenced on 4 November 2005 to four years imprisonment for wounding with intent to injure, three years imprisonment for burglary, one year imprisonment for threatening to kill and six months imprisonment on the two assault charges, all to be served concurrently.  She appeals against that sentence on the basis that it is manifestly excessive.

2. This appeal against sentence has been heard on the papers under s 392B of the Crimes Act 1961.  The relevant materials, including written submissions which have been received in accordance with r 29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

Facts

1. Ms Lambert was living in a set of flats with her boyfriend.  The victim moved into this set of flats.  Ms Lambert formed the (mistaken) belief that the victim was having a relationship with her boyfriend.  On 6 March 2005, Ms Lambert and her boyfriend argued about this.  He denied that any such relationship was taking place.  Ms Lambert then physically attacked her boyfriend before leaving her flat and running to the victim’s flat. 

2. Ms Lambert gained entry to the victim’s flat by smashing a glass pane on the front door.  The victim was asleep at the time.  Ms Lambert burst into the victim’s bedroom, grabbed a handful of her hair, and dragged her around before punching her around the face and head with both fists.  The victim was dazed and lying on the floor.  Ms Lambert then attacked the victim with a glass candlestick holder, hitting her approximately four to five times until the holder broke.

3. The victim yelled out “You’re going to kill me”, to which Ms Lambert replied “Yeah, I’m going to fucken kill you”.  She then resumed hitting the victim, this time with a plastic CD player, which she used to hit the victim approximately five times until it broke.  At this stage the victim was dazed and beginning to lose her vision.  The incident ended when Ms Lambert’s boyfriend entered the flat and physically dragged her off the victim.  The victim was bleeding profusely, with multiple cuts to her head.  She was taken to hospital suffering from injuries which took up to two months to heal.

4. The assault charges arose from Ms Lambert’s behaviour later that day at the police station following her arrest.  She was being escorted to the charge room when she attacked a police officer, grabbing her by the collar of her shirt and attempting to punch her about the head while kicking out at her.  Ms Lambert then spat at another police officer who came to his colleague’s aid.

Summary of sentencing remarks

1. In sentencing, Ronald Young J made it clear that he viewed this as a very serious incident.  Ms Lambert broke into another person’s home, intent on attacking her, and brutally assaulted her with a glass candlestick, which could easily have killed her.  The Judge referred to the significant impact that this offending had on the victim.  She had to shift homes, is scared for her safety, had numerous cuts and scratches and afterwards suffered the humiliation of cleaning her own blood off the walls of her flat.

2. Ronald Young J considered that the offending was essentially in the second category of R vHereora [1986] 2 NZLR 164, but accepted that this sentencing range must be reduced to reflect the maximum penalty for this offence. He thought that a starting point of five years imprisonment for the offending was appropriate, including the aggravating features of Ms Lambert’s past record and the fact that this offending was committed while on supervision. In his view, the only mitigating feature was the “somewhat belated” guilty pleas. She was entitled to a significant discount for those.

3. The Judge noted that Ms Lambert has previously been identified as having, and obviously still has, serious alcohol and anger management problems.  Although Ms Lambert identified a willingness to attend programmes and counselling, this has been tried before without success.  In the Judge’s view, Ms Lambert’s expressed remorse played “little part” in the sentencing, as she has 26 previous convictions for violent or disorderly conduct and this offending occurred while she was subject to a sentence of supervision for violent offending.

4. Accordingly, Ms Lambert was sentenced as set out in [1] above.  By fine margin, the Judge did not think it justified in the circumstances to impose a minimum non-parole period.

Parties’ submissions

Ms Lambert

1. Mr Robinson, for Ms Lambert, submitted that the sentence of four years imprisonment imposed in relation to the count of wounding with intent to injure is manifestly excessive.

2. His first submission was that the starting point of five years was too high as Ronald Young J did not make an appropriate reduction from the starting point set out in Hereora to reflect the lesser seriousness of an offence under s 188(2).  He submitted that, as the maximum penalty for an offence under s 188(2) is half of the maximum penalty for an offence under s 188(1), the starting point set out in Hereora should be halved before consideration of aggravating and mitigating features.

3. Mr Robinson went on to refer to sentencing decisions in other cases involving wounding with intent to injure which, in his submission, illustrate inconsistency between sentencing levels in those cases and in the present case.  He referred in particular to R v Poi CA39/05 2 June 2005 and R v Johnstone CA368/03 29 March 2004.

4. Mr Robinson’s second submission was that the Judge gave insufficient credit for Ms Lambert’s guilty plea.  In this case, the effective discount was twelve months, or 20%, from the starting point of five years imprisonment.  Mr Robinson submitted that, in assessing the appropriate discount, it is relevant that charges of attempted murder and wounding with intent to cause grievous bodily harm were withdrawn and that Ms Lambert then entered guilty pleas to the amended indictment immediately.  Further, the victim was spared the ordeal of giving evidence at trial and the cost of the matter proceeding to trial was avoided.  He submitted that, in those circumstances, a credit greater than 20% should have been made.

5. Mr Robinson’s final submission was that the Judge erred in failing to take Ms Lambert’s remorse into account as a mitigating feature, as required by s 9(2)(f) of the Sentencing Act 2002.  In his submission, taking into account the plea of guilty and Ms Lambert’s expression of remorse, the discount of 12 months was insufficient and the overall sentence was, therefore, manifestly excessive.

The Crown

1. Ms Edwards, for the Crown, submitted that the final sentence of four years imprisonment is not manifestly excessive.  In her submission, the sentencing Judge appropriately applied Hereora.  He considered that the lead offence of wounding with intent to injure fell within the second category of Hereora but noted that an appropriate adjustment was required to reflect the lesser maximum penalty.  This does not, in Ms Edwards’ submission, require the Court to focus on the maximum penalty to the exclusion of the seriousness and aggravating features of the particular offending.  She also submitted that Johnstone was not comparable and that, although the injuries in Poi were more serious, the aggravating features were similar.

2. Ms Edwards submitted that the aggravating features of the offending include the element of premeditation, the unlawful entry into the victim’s home while she was sleeping, the vulnerability of the victim, the sustained nature of the attack to the victim’s head, the significant emotional and physical impact on the victim, Ms Lambert’s extensive criminal history for violent offending and the fact that Ms Lambert committed these offences while subject to a sentence of supervision imposed for violent offending. 

3. Ms Edwards submitted further that the overall sentence imposed also reflected the totality of the offending.  Ms Lambert broke into the victim’s home in order to attack her and threatened to kill her during the course of the attack.  As the sentencing Judge remarked, cumulative sentences for the two subsequent assaults on the police officers would have been justifiable. 

4. Ms Edwards’ next submission was that the 20% discount given for Ms Lambert’s guilty pleas, which were properly described as “belated”, was open to the sentencing Judge in the exercise of his discretion.  In quantifying the discount, the Judge acknowledged that the pleas were to amended charges.  However, as the pleas were not entered until just prior to the trial, the victim was not spared the ordeal of giving evidence at depositions or the anxiety of awaiting trial.  In her statement to police, Ms Lambert denied being the person responsible for the attack on the victim, a stance she continued to maintain at the preliminary hearing.  In those circumstances, it cannot, in Ms Edwards’ submission, be said that the 20% discount given was not meaningful.

5. Ms Edwards’ final submission was that s 9(2)(f) of the Sentencing Act does not oblige a sentencing Judge to give a reduction for an expression of remorse in the absence of any concrete actions demonstrating contrition.   It was submitted that the Judge was entitled to view the remorse that Ms Lambert expressed to the probation officer with scepticism, in light of her history of violent offending and her poor response to previous sentences, including the rehabilitative sentence of supervision.

Discussion

1. In our view, an effective sentence of four years imprisonment was within the range available to Ronald Young J for a gratuitously violent and premeditated attack, which included a threat to kill, committed by Ms Lambert against a young woman in the sanctity of her own home.

2. It cannot be said that a term of four years imprisonment was manifestly excessive in the circumstances for the charge of wounding with intent to injure.  An appropriate discount from the Hereora (now R v Taueki [2005] 3 NZLR 372) bands to reflect the actual charge does not, in our view, entail a mathematical exercise whereby the sentencing ranges identified are reduced in proportion to the difference between the maximum available penalties.

3. In addition, we accept the Crown submission that the sentence, taken as a whole, reflected the totality of Ms Lambert’s offending and the significant aggravating factors involved, including those personal to Ms Lambert.  We also accept the Crown submissions relating to Johnstone and Poi.

4. As to Mr Robinson’s second submission, in our view the discount of one year imprisonment given by Ronald Young J for Ms Lambert’s guilty pleas was entirely appropriate.  The pleas were very late.  Despite this, the Judge recognised that the guilty pleas were made in response to amended charges and, for that reason, nevertheless gave a significant discount. 

5. As to Mr Robinson’s third submission, s 9(2)(f) of the Sentencing Act does not oblige a sentencing Judge to give a reduction for an expression of remorse if the circumstances indicate that this remorse is not genuine.  Ronald Young J did not simply disregard Ms Lambert’s expressed remorse but considered that this should play “little part” in sentencing, given her extensive history of violent offending and the fact that this offending occurred while she was subject to a sentence of supervision for violent offending.  We agree.

6. Indeed, we note that in a letter Ms Lambert sent to us in support of her appeal, she continues in effect to blame the victim in a manner which is inconsistent with remorse.  She asserts that the victim had been found sleeping with her (Ms Lambert’s) partner, despite having, it appears, accepted at sentencing that this was not the case.  In any event, even if true, this would not have rendered the attack justified in any way.

Result

1. We are satisfied that the sentence of four years imprisonment was not manifestly excessive.  We accordingly dismiss Ms Lambert’s appeal against sentence.

Solicitors:
Paino & Robinson, Upper Hutt for Appellant
Crown Law Office, Wellington