Agar v R

Case [2021] NZCA 350 29 July 2021

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA85/2021
[2021] NZCA 350

BETWEEN	LANCE KARL AGAR Appellant
AND	THE QUEEN Respondent

Hearing:	23 June 2021
Court:	Kόs P, Brewer and Davison JJ
Counsel:	M J Taylor-Cyphers and G D Burns for Appellant Z R Johnston for Respondent
Judgment:	29 July 2021 at 9 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe sentence imposed in the District Court is quashed.
CA sentence of 20 months’ imprisonment is substituted.
DAppellant given leave to apply to commute sentence of imprisonment to home detention.

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REASONS OF THE COURT

(Given by Davison J)

Lance Agar appeals the sentence of two years and two months’ imprisonment imposed by Judge Orchard in the District Court at Whangārei on 18 February 2021.[1] He had previously pleaded guilty to one charge of injuring with intent to injure,[2] and one charge of assault with intent to injure.[3] He had also been found guilty at trial on a charge of possession of an offensive weapon.[4] Those three charges related to events occurring at Pahi on the Kaipara Harbour in January 2018. The sentence also encompassed the appellant’s re-sentence on a burglary charge related to separate offending, also in January 2018, for which he had been sentenced to home detention, and for two charges of breaching his conditions of home detention.[5]

Background

[1]R v Agar [2021] NZDC 2907 [Sentencing notes].

[2]Crimes Act 1961, s 189(2) (maximum penalty five years’ imprisonment).

[3]Section 193 (maximum penalty three years’ imprisonment)

[4]Section 202A(4)(b) (maximum penalty three years’ imprisonment)

[5]Sentencing Act 2002, s 80(S) (maximum penalty one year’s imprisonment or a $2,000 fine).

The offending occurred during the annual Pahi Regatta. On the night of Saturday 27 January 2018 the appellant and the two complainants were among a gathering of people attending the regatta social function. The two male complainants were friends aged in their late 40’s. One of the complainants knew the appellant from having worked with him briefly several years beforehand. At around 11.30 pm the complainants were near the wharf listening to the live music and watching the fireworks display put on as part of the regatta celebrations, when they were approached by the appellant. When the appellant took his shirt off and began shouting and behaving in a belligerent manner they decided to move away and went out to the end of the wharf. The appellant followed them. When they reached the end of the wharf the first complainant stopped and turned to light a cigarette. As he turned, the appellant delivered a violent punch to his head and left eye. The first complainant fell onto the wharf. The appellant then approached the second complainant who was sitting nearby. The second complainant had not seen the attack on his friend and did not see the appellant approaching him. He too was struck by the appellant with a punch to the face which knocked him to the ground. The attacks were entirely unprovoked.…

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 Agar v R

Details

AGLC: Agar v R [2021] NZCA 350
Case: [2021] NZCA 350
Decision Date: 29 July 2021 at 9 am

CaseChat Overview and Summary

The appellant, Lance Karl Agar, appeals a two-year and two-month imprisonment sentence imposed by the District Court for charges of assault and possession of an offensive weapon. The appeal is brought as of right pursuant to s 244 of the Criminal Procedure Act 2011. The Crown submits that the sentence was within range and not manifestly excessive. The appellant argues that the District Court erred by failing to follow the two-step sentencing process prescribed in Moses v R and by failing to allow adequate discounts for his personal factors. The Court found that the District Court erred in its sentencing approach and that the sentence was manifestly excessive. The Court allows the appeal, quashes the sentence imposed in the District Court, and substitutes a sentence of 20 months’ imprisonment. The appellant is given leave to apply to commute the sentence of imprisonment to one of home detention.

Orders