Annear v The the Queen

[2022] NZHC 2135

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CRI-2022-412-000018 2022-412-000019

[2022] NZHC 2135

BETWEEN

JOSHUA MURRAY ANNEAR

Appellant

AND

THE QUEEN

Respondent

Hearing:	25 August 2022
Appearances:	S Saunderson-Warner for Appellant C Flatley for Respondent
Judgment:	25 August 2022

JUDGMENT OF DOOGUE J

This judgment was delivered by me on 25 August at 3.00 pm

Registrar/Deputy Registrar Date:

ANNEAR v R [2022] NZHC 2135 [25 August 2022]

Introduction

[1]    The appellant, Joshua Annear, was sentenced in the District Court1 to two years and four months’ imprisonment in relation to charges of assault with a weapon,2 theft over $1,000,3 intimidation,4 possession of a class A drug (methamphetamine),5 possession of a class B drug (ecstasy),6 possession of a class C drug (cannabis),7 possession of utensils to consume methamphetamine,8 and breach of home detention conditions.9

[2]Mr Annear appeals this sentence on the basis that:

(a)the starting point adopted for the charge of assault with a weapon was too high;

(b)insufficient allowance was made for totality; and

(c)a discount should have been applied.

Facts

[3]    On 5 February 2021, the victim parked his newly acquired Mazda at an associate’s address in Milton before leaving on foot. Returning some hours later, the victim was walking down the driveway of the Milton address when Mr Annear came up behind him and struck him on the head with a baseball bat. The bat was the victim’s and had been taken from the Mazda. As the victim attempted to walk away, Mr Annear hit him again with the bat on his left shoulder and left elbow. Mr Annear struck the

1      R v Annear [2022] NZDC 9118.

2      Crimes Act 1961, s 202C; maximum penalty 5 years’ imprisonment.

3      Crimes Act, ss 219(1)(a) and 223(b); maximum penalty 7 years’ imprisonment.

4      Summary Offences Act 1981, maximum penalty 3 months’ imprisonment of a fine not exceeding

$2,000.

5      Misuse of Drugs Act 1975, s 7(1)(a) and (2)(a); maximum penalty 6 months’ imprisonment and/or a fine not exceeding $1,000.

6      Misuse of Drugs Act, s 7(1)(a) and (2)(b); maximum penalty 3 months’ imprisonment and/or a fine not exceeding $500.

7      Misuse of Drugs Act, s 7(1)(a) and (2)(b); maximum penalty 3 months’ imprisonment and/or a fine not exceeding $500.

8      Misuse of Drugs Act, s 13(1)(a) and (3); maximum penalty 1 year imprisonment and/or a fine not exceeding $500.

9      Sentencing Act 2002, s 80S; maximum penalty one yar imprisonment or a fine not exceeding

$2,000.

victim again on his right leg as he was sitting on the back step, attempting to protect his head. As a result, the victim suffered bruising to his left shoulder and right leg, bruising and a lump to his left elbow and a cut above his ear.

[4]    Mr Annear, pointing the bat at the victim, told the victim he was taking the Mazda and that the victim was to sign a note to the effect that Mr Annear owned the vehicle. The victim did so on an envelope.

[5]    A male at the address  drove  the  Mazda  away  at  Mr  Annear’s  request.  Mr Annear left in another vehicle. On 6 February 2021, the Mazda was registered in Mr Annear’s partner’s name.

[6]    Police conducted a search warrant at Mr Annear’s address on 9 February 2022. At the time, Mr Annear was on a sentence of home detention with a condition that he not possess or consume unprescribed alcohol or drugs. Police located the following at the address: a ‘point bag’ of MDMA weighing 0.74 grams (including the bag); a ‘point bag’ of methamphetamine weighing 0.36 grams (including the bag); utensils for smoking methamphetamine; and a bag of cannabis weighing 9.2 grams.

Principles on appeal

[7]    Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.10 The focus is not on the process by which the sentence was reached, but on the correctness of the end result.11 In making this assessment, appellate courts do not interfere with the legitimate exercise of judicial discretion or indulge in mere tinkering with the sentence.

10     Criminal Procedure Act, ss 250(2) and 250(3).

11     Ripia v R [2011] NZCA 101 at [15].

District Court decision

[8]    The Judge, in addressing the starting point, noted charges of aggravated robbery against Mr Annear had been dropped, but that his culpability in the offending was akin to that of aggravated robbery or robbery. While recognising a lack of premeditation, the Judge said:12

… In terms of the assault with a weapon, I accept this was not pre-planned but rather a spontaneous decision when you saw the baseball bat and decided to be a tough guy. But there were multiple blows to the victim who was attacked from behind and was therefore vulnerable. There were blows not only to the head but also to other parts of his body, even after he tried to walk away, and some injury was caused.

[9]    A starting point of 20 months’ imprisonment was adopted for the assault charge. In relation to the theft charge a starting point of 15 months’ imprisonment was adopted, with the intimidation with the bat recognised as an aggravating factor. This brought the starting point to 35 months, which was reduced to 32 to reflect totality.

[10]   Turning to the 2022 offending, the breach of home detention was taken as the lead charge with the drug offending as an aggravating factor. In total, these charges attracted an uplift of three months’ imprisonment.

[11]The total adjusted starting point was therefore 35 months.

[12]   The two sets of offending were committed while Mr Annear was subject to release conditions  and  bail  respectively.  This  offending  attracted  an  uplift  of  10 per cent.

[13]   A 20 per cent discount, rather than a 25 per cent discount, was applied for  Mr Annear’s guilty pleas, reflecting that Mr Annear had benefited from the charges having been reduced.

[14]   A further 10 per cent discount was applied to reflect the nexus between the offending and Mr Annear’s issues with substance abuse, resulting in an end sentence of 28 months or two years and four months’ imprisonment.

12     R v Annear, above n 1, at [17].

Submissions

Appellant’s submissions

[15]   Ms Saunderson-Warner, for Mr Annear, submitted first that the starting point adopted in relation to the assault charge was too high. In support of this she noted cases where lower starting points were adopted in circumstances where more serious injury was inflicted,13 and a similar form of attack was used.14 Ms Saunderson-Warner suggested a more appropriate starting point would have been between 12 to 15 months.

[16]   Second, Ms Saunderson-Warner submitted the Judge had taken an incorrect approach to the theft and intimidation charges which resulted in an insufficient accounting for totality.

[17]   Third, she submitted the Judge repeatedly equated Mr Annear’s offending and culpability with a robbery or aggravated robbery.15 While the Judge was entitled to impose a sentence which reflected what he considered to be Mr Annear’s overall culpability, she submitted it was not open to him to adopt a sentence as though      Mr Annear had been convicted of robbery.

[18]   Fourth, while a starting point of 15 months’ imprisonment for the theft charge was within range, Ms Saunderson-Warner submitted that, allowing for totality, a starting point for the combination of the assault, theft, and intimidation charges of  21 to 24 months’ imprisonment would have been appropriate. While the assault with a weapon and theft were different offences, they occurred as part of the same incident and were borne of the Mr Annear’s frustration with the victim’s failure to repay money owed.

[19]   Fifth, Ms Saunderson-Warner said the Judge erred in not applying a discount for remorse. She submitted a  discount  of  five  per cent  was  appropriate,  noting Mr Annear’s guilty pleas, offer of restorative justice, and letter of apology to the victim. In the letter to the victim in which Mr Annear apologised for his offending, he

13     Hurinui v R [2014] NZCA 290; and R v Wereta [2017] NZHC 1762. Also note the cases at [18] of Wereta.

14     Barrett v Police [2014] NZHC 1259.

15     R v Annear, above n 1, at [16]–[20].

said he felt “disgusted and ashamed of myself” and observed that his methamphetamine addiction had taken him to a place where he did “some really despicable things”.

[20]   Sixth, Ms Saunderson-Warner submitted that the credit of only 20 per cent for Mr Annear’s guilty pleas was given despite the pleas being entered as soon as the charges were amended. The Judge applied the lesser credit because he considered the appellant had had “a significant benefit in the reduced charges from aggravated robbery to theft and intimidation”.16

[21]   Finally, in light of the factors listed above, Ms Saunderson-Warner submitted the appropriate sentence was between 17 to 23 months’ imprisonment, calculated as follows:

(a)a starting point of between 21 to 24 months’ imprisonment to reflect the assault with a weapon, intimidation and theft offending;

(b)uplifted by three months’ imprisonment for breach of home detention/possession of drugs charges;

(c)uplifted by 10 per cent (two to three months imprisonment) for the appellant’s offending while subject to release conditions/bail;

(d)discounted by:

(i)20 per cent for guilty pleas;

(ii)10 per cent for addiction; and

(iii)5 per cent for remorse.

16     R v Annear, above n 1, at [23].

[22]   Ms Saunderson-Warner submitted an end sentence of between 17 to 20 months’ imprisonment would be a more appropriate sentence having regard to the purposes and principles of the Sentencing Act 2002.

[23]   In the circumstances of this case, if the Court were minded to reduce the term of imprisonment to less than 24 months Ms Saunderson-Warner informed the Court that the appellant is not seeking commutation to a sentence of home detention.

Respondent’s submissions

[24]   Ms Flatley submitted first that, in light of the location of blows with the bat, the vulnerability of the victim, the use of the weapon as a foundation for further offending, and, to a moderate degree, premeditation, the starting point for the assault with a weapon adopted in the District Court was appropriate. These factors, when considered against the bands identified in Nuku,17 would place the offending at the bottom of band three, attracting a starting point of at least two years’ imprisonment.

[25]   Second, Ms Flatley submitted the elements of premeditation in relation to the theft, in combination with the intimidation, meant the uplift of 15 months for those charges was appropriate. She noted two cases where items of similarly high value were stolen, in circumstances where aggravating factors were present, and higher starting points were adopted.18

[26]   Third, Ms Flatley submitted both this uplift, and the three months for the drugs and breach of conditions charges were generous, even accounting for totality. This measured approach demonstrated the Judge did account for totality and appropriately considered Mr Annear’s culpability, rather than sentencing him as if he had been charged with robbery as counsel for the appellant submitted.

[27]   Fourth, Ms Flatley argued the uplifts and discounts applied by the Judge were generous, remedying any proposed deficiencies in discounts applied. For instance, no uplift was applied for prior convictions despite Mr Annear’s extensive criminal history and recent violent offending.

17     Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39.

18     Kura v New Zealand Police [2020] NZHC 939; and Ngawhika v R [2017] NZCA 535.

Analysis

Starting point for assault with weapon

[28]   Although there is no guideline judgment for assault with a weapon, in Nuku v R the Court of Appeal considered the appropriate bands for offences with intent to injure. One of the relevant offences in Nuku v R, injuring with intent to injure, also carries a maximum penalty of five years. As such, it is a helpful guide for Mr Annear’s offending. It has previously been adopted for use in cases involving assault with a weapon. The bands are as follows:

(a)Band one: where there are few aggravating features, the level of violence is relatively low and the sentencing Judge considers the offender’s culpability to be at a level that might have been better reflected in a less serious charge, a sentence of less than imprisonment can be appropriate.

(b)Band two: a starting point of up to three years imprisonment will be appropriate where three or fewer aggravating features are present.

(c)Band three: a starting point of two years up to the statutory maximum (either five or seven years, depending on the offence) will apply where three or more aggravating features are present and the combination of those features is particularly serious. The presence of a high level of or prolonged violence is an aggravating factor of such gravity that it will generally require a starting point within band three, even if there are few other aggravating features.

[29]   I consider the following elements are aggravating factors of the present offending:

(a)The attack to the head;

(b)victim vulnerability;

(c)use of a weapon;

(d)facilitation of crime; and

(e)premeditation.

[30]   However, the weapon usage, facilitation of crime, and premeditation are not present to the most serious of degrees.

[31]   There is conflicting High Court authority as to whether the use of a weapon should be considered given it is an element of the offence.19 The most appropriate path, supported by the approach of the Court of Appeal in Hurinui, is to consider the nature of the weapon.20 Here, a baseball bat was used. Such bats are designed for swinging and striking, the length and rigidity both allowing considerable force to be exerted on whatever is hit.

[32]   I also include the facilitation of crime as a relevant aggravating factor. In doing so, I am careful of the need to avoid double counting for the theft and intimidation. As such, this factor is also not given its fullest weight.

[33]   The element of premeditation is present to some degree. Mr Annear had sufficient time to take the bat from the victim’s car and then wait for him to return. While the length of time he waited is unclear, when combined with his intent to recover money the offending is unable to be described as purely impulsive.

[34]   Considering these factors, and the degrees to which they are present, I find the assault with a weapon falls at the upper end of band two of Nuku.

[35]   Despite the arguably greater injuries in  Hurinui, where a starting point of   18 months’ imprisonment was adopted, the assault in the present case involved more aggravating factors. The extended attack, facilitation of crime, and premeditation also

19 Puriri v Police [2014] NZHC 2335; and Wharepapa v R [2021] NZHC 1011.

20   Hurinui v R [2014] NZCA 290 (here the Court relevantly highlighted the use of a baseball bat as a weapon); see also Silao v Police [2014] NZHC 3303 (here the Court considered the use of a clothes iron as a weapon); and R v Whaanga [2016] NZHC 2992.

distinguishes Mr Annear’s offending from the case cited by Ms Saunderson-Warner of

Barrett.21

[36]   In R v Wereta, Mr Wereta slashed a fellow inmate several times with a metal shank, causing a cut  to the head and a laceration to the hand requiring surgery.22     A starting point of 13 months was adopted. That offending was more of a fight situation, distinct from Mr Annear’s victim who only walked away from the assault and tried to cover vulnerable parts of his body.

[37]   In Wharepapa v R, which possessed fewer aggravating factors, Nation J adopted a starting point of 20 months to reflect the assault with a weapon and breach of a protection order.23

[38]   In light of the present offending’s place within the Nuku bands and analogous cases, I consider a starting point of 20 months’ imprisonment for the assault with a weapon charge to have been available to the Judge (even if at the sterner end of the range).

Starting point after assessing theft and intimidation

[39]   As recognised by Ms Saunderson-Warner, the starting point adopted in relation to the theft and intimidation was open to the Judge. The issue is whether an appropriate adjustment was made to reflect totality to the extent that the sentence is not wholly out of proportion to the gravity of the offending.24

[40]   It is trite law that the totality principle must be applied flexibly.25 While often performed when assessing the end of the sentence, this is not necessary so long as the end sentence is appropriate in light of the principle of totality.26 The Judge must reach a sentence which accurately reflects the culpability involved.27

21     Barrett v Police [2014] NZHC 1259.

22     R v Wereta [2017] NZHC 1762.

23     Wharepapa v R, above n 19.

24     D v R [2015] NZHC 2919 at [15].

25     Enoka v R [2018] NZCA 185 at [26].

26     Wairea v R [2012] NZCA 423.

27     R v Swain CA158/92, 8 July 1992.

[41]   While the Judge did direct himself to sentence Mr Annear on the theft and intimidation charges, the weight of the Judge’s  comments  leads  me to  conclude  Mr Annear’s culpability in the offending was overstated. The Judge stated “you must be sentenced on the theft and intimidation charges”. However, this statement is qualified by the Judge in the same sentence with, “I find your culpability … to be akin to that of an aggravated robbery”. Both robbery and aggravated robbery are charges carrying markedly higher penalties than those Mr Annear was charged with.

[42]   The police elected to not charge Mr Annear with robbery and he did not plead guilty to such a charge.

[43]   In Puriri v Police, the appellant stole a mobile phone cord from a store.28 Outside the store, the shop owner tried to stop her. The appellant slapped the owner twice to the head and pushed her to the ground. The shop owner got up and the appellant kicked her multiple times, causing the shop owner to fall to the ground. She was charged with aggravated assault and theft. The sentencing Judge considered the offending “would fit well within the statutory definition of a robbery”.

[44]Whata J said:29

… had the police considered the  offending amounted  to a  robbery,  then  Ms Puriri should have been charged with robbery. They did not, and Ms Puriri did not plead to a charge of robbery. I have little doubt she would have pleaded not guilty to a robbery charge. The Judge was therefore wrong, in law, to sentence Ms Puriri as if the aggravated assault “fit well within the definition of robbery”.

[45]   The appeal was allowed and the appellant in that case ultimately received a discharge without conviction.

[46]   A similar issue seems to have arisen in Reedy v Police.30 The lead offending related to the appellant stealing a dress and handbag, in the course of which she left her own handbag behind in the store. The store supervisor later questioned her about the theft. A verbal altercation escalated and the appellant pulled out a meat cleaver

28     Puriri v New Zealand Police [2018] NZHC 1682.

29 At [17].

30     Reedy v Police [2019] NZHC 2435.

and demanded the return of the bag she had left behind. She continued to advance on the store supervisor and another employee while brandishing the cleaver. The appellant smashed a chain securing a donation box and left the store with it. That incident resulted in charges of shoplifting x 2, assault with a weapon x 2, intentional damage and possessing a knife in a public place.

[47]   The sentencing Judge adopted a starting point of three years’ imprisonment for the assault with a weapon charges, commenting that “it was a very intimidating event and was tantamount to aggravated robbery”. An end sentence of two years and five months’ imprisonment was imposed. On appeal, Hinton J considered an end sentence of 12 months’ imprisonment was appropriate for all the offending. This considerable difference was chiefly due  to  the  fact  Hinton  J  considered  a  starting  point  of  13 months’ imprisonment was warranted for the assault with a weapon charges rather than three years.

[48]   On the basis of the matters set out in [41] and in light of the cases referred to at [43]–[47] I consider a final starting point for all offending is more appropriately 33 months.

Adjustments for personal factors

[49]   A discount for Mr Annear’s remorse of five per cent was available. Discounts for remorse are a question of fact and judgement,31 and while remorse does not need to be extraordinary to earn a discount there must be something more than the bare acceptance of responsibility inherent in a guilty plea. I accept Mr Annear’s letter and attempt at restorative justice do demonstrate genuine remorse.

[50]   While the presentence report indicates concerns about how long Mr Annear’s remorse acts as a force for behavioural change, it does not detract from the remorse at present. Ms Flatley’s submission that a lack of remorse is indicated by Mr Annear only pleading guilty to the amended lesser charges is unconvincing. Remorse for the offending itself is not diminished, as a defendant may validly dispute that with which they are charged yet remain contrite about what they have done.

31     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [24].

[51]   I do not accept Ms Saunderson-Warner’s submissions that the Judge had been particularly stern in applying uplifts of three months for the breach of home detention/drug possession and 10 per cent to reflect the assault offending occurred while Mr Annear was subject to release conditions. As the Judge noted, the drug offending was exacerbated by it being a breach of Mr Annear’s home detention conditions. An uplift of three months was appropriate, particularly in circumstances where the home detention breach pertained to possession of both methamphetamine and cannabis, both offences which Mr Annear has repeatedly appeared before courts for.

[52]   I turn to consider Mr Annear’s previous convictions. The Court of Appeal has held that previous convictions may be examined to establish the character of an offender and to assist in the determination of the punishment that is appropriate for a person of that character for the particular offence committed.32

[53]   While the volume of Mr Annear’s offending is concerning, the focus must be on the nature and gravity of that offending. It is largely minor, and I agree with the Judge that it is inappropriate to apply an uplift.

Conclusion

[54]On the above analysis, the sentence should be as follows:

(a)33 months’ imprisonment to reflect all the offending and adjust for totality.

(b)Uplifted by 10 per cent for offending while subject to release conditions.

(c)Discounts of:

(i)25 per cent for guilty pleas;

32     R v Ward [1976] 1 NZLR 588 (CA) at 591; and R v Casey [1931] NZLR 594 at 597.

(ii)10 per cent for addiction; and

(iii)Five per cent for remorse.

[55]   This would amount to an end sentence of 23 months’ imprisonment. That is five months less than the Judge’s sentence and could not in the circumstances be considered in the realm of “tinkering”. It is a significantly different outcome to warrant the appeal being allowed.

Result

[56]The appeal is allowed.

[57]Mr Annear’s end sentence is substituted for one of 23 months’ imprisonment.

Doogue J

Solicitors:

Crown Solicitor, Dunedin CC:

S Saunderson-Warner, Dunedin