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Annear v The the Queen

Annear v The the Queen

Case [2022] NZHC 2135 25 August 2022

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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…

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 Annear v The the Queen

Details

AGLC: Annear v The the Queen [2022] NZHC 2135
Case: [2022] NZHC 2135
Decision Date: 25 August 2022

CaseChat Overview and Summary

Joshua Murray Annear appeals his sentence for multiple charges, including assault with a weapon, theft over $1,000, intimidation, drug possession, and breach of home detention. The High Court considered whether the starting point for the assault with a weapon charge was too high, if sufficient allowance was made for totality, and if a discount should have been applied. The District Court had sentenced Annear to two years and four months’ imprisonment. The court examined whether the starting point and adjustments for totality, as well as the discounts applied, were appropriate.

The High Court found that a starting point of 20 months for the assault with a weapon was at the upper end of the appropriate range, considering the attack on the head, victim vulnerability, use of a weapon, facilitation of crime, and premeditation. While the court found the starting point for theft and intimidation charges was open to the Judge, it concluded the Judge overstated Annear's culpability in those charges by comparing them to aggravated robbery. The High Court found the appropriate starting point for all charges to be 33 months. The court also found discounts for guilty pleas, addiction, and remorse to be appropriate, resulting in a final sentence of 23 months' imprisonment.

The appeal was allowed, and Annear's sentence was substituted for one of 23 months' imprisonment. The High Court concluded that the District Court's sentence was significantly different from the appropriate sentence, warranting the appeal being allowed.

Orders