R v Spicer
[2017] NZHC 1899
•10 August 2017
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2016-029-000351 [2017] NZHC 1899
THE QUEEN
v
IAN DAVID SYDNEY RUEBAN SPICER
Hearing: 10 August 2017 Appearances:
M B Smith for the Crown
N Town on behalf of W McKean for the DefendantSentence:
10 August 2017
SENTENCING NOTES OF HINTON J
Solicitors:
Marsden Woods Inskip & Smith, Whangarei
Webb Ross McNab Kilpatrick Ltd, Whangarei
R v IAN SPICER [2017] NZHC 1899 [10 August 2017]
[1] Ian David Sydney Reuban Spicer, you appear for sentence after having accepted a sentence indication provided by me on 7 June 2017. You have pleaded guilty to one charge of wounding with intent to injure1 and two counts of aggravated
robbery.2
Facts
[2] Your offending occurred over the course of two separate events, both on the same night.
Wounding with intent to injure
[3] At around 2.00 am on 25 March 2016, you arrived at an address in Kaitaia, driven in a vehicle. Although you knew the female occupant, you had not been invited to the address. You approached the female occupant, asking her what she was up to. You told her you had come from the Kauri Arms Hotel and that you were wasted. The occupant advised you to go home, but you walked towards the garage.
[4] The occupant finished smoking a cigarette and told the group she was off to bed. You began yelling “Yo, Yo, Yo” and stood over the victim who was sitting on the couch, also yelling “Yo, Yo, Yo”. You then began punching him in the face with your fists. The occupant ran inside and called the Police. You continued the attack, during which the victim was badly beaten. You then jumped back into the vehicle in which you had arrived and left the address.
[5] When the Police arrived, they found the victim lying outside. He was bleeding heavily from his head and face, and he suffered multiple facial contusions,
lacerations, and bruising.
1 Crimes Act 1961, s 188(2) (maximum penalty – seven years’ imprisonment).
2 Crimes Act, s 235(c) (maximum penalty – 14 years’ imprisonment).
[6] Later that night, at around 4.00 am, you, assisted by two companions, assaulted and robbed two overseas tourists who were asleep in a campervan parked on the foreshore at Ahipara.
[7] You began by rocking the van of the two tourists, almost to the point of tipping it over. The male victim opened the door of the van to see what was happening, thinking at first that it was an earthquake. He called out to ask what was going on, and was punched in the face with a closed fist, resulting in a cut to his chin.
[8] You and your companions demanded money from the victims. When they said they did not have any, the male victim was punched to the ground with multiple blows to the head by more than one of you. He was kicked a number of times once he was on the ground. The female victim was also punched.
[9] While it is not clear exactly who did what in terms of the punching and kicking, you played a direct role in assaulting at least one of the victims. Further demands for money were made. When none was provided, one of you opened the van door and removed a storage drawer which contained grocery and food items, and placed it in your vehicle.
[10] The victims called for help, but no one heard them. The female victim managed to escape to a house approximately 50-100 metres away and raised the alarm with the occupants. The male victim also managed to escape. You and your associates left in your vehicle.
Victim Impact Statement
[11] In relation to the wounding with intent to injure charge, there is no victim impact statement available.
[12] However, both victims of the aggravated robbery charges have provided statements.
[13] Both were admitted to hospital for treatment. The male victim suffered a fractured rib; serious bruising to his face, chin and torso; as well as the cut to his chin, which required stitches. He states that he cannot remember some of the events that occurred, and parts of what happened to him are still a blank. The female victim suffered serious bruising to her nose and a black eye. Very luckily, neither has suffered long-lasting effects.
[14] The female victim says she was terrified and shocked by the attack on her partner and her. She reports that she felt powerless. The male victim, who was also frightened, was unable to work for a period because of pain from his injuries. They both noted that you are an embarrassment to yourself, your culture and your country. Without doubt, in terms of what you did, that is correct.
Personal circumstances
Pre-Sentence report
[15] The pre-sentence report was, as is standard, not available at the time of the sentence indication.
[16] You are 27 years of age. You identify as New Zealand Māori and your iwi are Te Rarawa and Te Aupouri. Your mother passed away eight years ago and your father resides in Kaitaia. You have five siblings. You also have a partner with whom you have a one-year-old son.
[17] You have a varied history of employment, ranging from the army to landscaping to working at a timber yard. You were unemployed for almost a year at the time of the offending and were in receipt of the job seeker’s benefit.
[18] You are also a patched member of the Black Power gang. You stated to the report-writer that you were drawn to the lifestyle, wanting to be part of something and that you enjoyed that they were anti-establishment. However, you also spoke of wanting to change your life and to “start to do your own thing”. It appeared to the report-writer that this would require a complete lifestyle shift, and that only time would tell if you were genuine in your desire to change.
[19] The report-writer noted that you take full responsibility for your actions, and have some insight into your behaviour. You have also offered to engage in the restorative justice process. However, they also stated it is clear you do not have the skills necessary to self-regulate, especially when you become angry or frustrated. You acknowledge this.
[20] The pre-sentence report-writer assessed you as being at a medium risk of reoffending and a high risk of harm. Your offending-related factors are assessed as being your offending-supportive attitude, substance abuse (both alcohol and drugs), and your associates.
[21] The report-writer stated that you meet the eligibility criteria for the short rehabilitative programme and the medium-intensity rehabilitation programmes in prison.
Prior convictions
[22] You have fourteen prior convictions, three of which are for assault.
Character references
[23] Two letters of reference have been provided to the Court. The first is from your father, Mr Sydney Nathan, and the second is from Mr Sonny Christie, who is a family friend.
[24] Both speak of you being a keen sportsman growing up and that you were a positive role model to others growing up, captaining the senior rugby team of the Te Aupouri rugby club for two years, despite there being others who had more experience and were older.
[25] Your father writes that you joined the Army as an adult, but that during your training your mother became sick from cancer. You reacted against the Army, as it would not permit you to spend time with your mother beyond a four-day visit that you were granted. You were discharged from the Army and spent one month in prison. Your mother died three weeks after your release. Your father considers that you still carry the pain of being denied proper time with your mother, which has left
you bitter and angry with the Army and resulted in your making poor life choices, such as taking-up a gang lifestyle. Your family was struck with further tragedy when your brother died, aged 24, from a brain tumour. You were in prison at that time.
[26] Your father states that he believes you have reached a turning point, and that you realise your support comes from your family, not your gang associates. Your father states that he has noticed positive changes in you when he has visited you in prison - that you have looked at career opportunities and have intentions to enrol in a rehabilitation programme. He sees your caring nature returning and believes that input from whānau will result in a positive outcome.
[27] Mr Christie states that he believes, given the trauma you have endured, your traits of tenacity, leadership and compassion will assist you in bridging the gap between your emotional understanding and awareness.
[28] I particularly appreciate receiving those thoughtful and supportive reports from your father and Mr Christie. I hope you appreciate the efforts they are making to assist you.
Purposes and principles of sentencing
[29] The relevant purposes of sentencing under s 7 of the Sentencing Act 2002 are accountability; holding you responsible for your actions and the effect on the victims; denunciation; personal and general deterrence; community protection; and assistance in your rehabilitation and reintegration.
[30] The relevant principles under s 8 of the Act are the need to take into account the gravity of the offending; the seriousness of the offending; the general desirability of consistency in appropriate sentencing levels; and the need to impose the least restrictive outcome appropriate.
Sentencing approach
[31] A three-stage approach is taken to sentencing. First, the appropriate starting point is set. Secondly, allowance is made for personal aggravating and mitigating factors. Lastly, a discount is given for your guilty plea.
Analysis
Setting a starting point
[32] The lead charges are the aggravated robbery charges. An appropriate starting point for those charges is four years and three months’ imprisonment.3 This is because, as I said in your sentence indication, you should be treated on the same basis as your co-offender, Mr Williams, who also received a starting point of four years and three months’ imprisonment. Both of you were involved in the key elements of the offending. In particular, both of you were actively engaged in
assaulting at least one victim. This was a random and terrible attack on vulnerable tourists enjoying one of New Zealand’s most popular holiday spots. A lot of damage was done by the three of you who were involved.
[33] The remaining charge, wounding with intent to injure, falls into band three of the guideline judgment of R v Nuku.4 That is because of the presence of a number of aggravating features:
(a) the assault was gratuitous and unprovoked;
(b) it involved an attack to the head of the victim; (c) it was prolonged and brutal; and
(d) it caused serious injury requiring hospital treatment.
3 R v Williams [2017] NZHC 776 at [14]-[18].
4 Nuku v R [2012] NZCA 584, [2013] 2 NZLR 39 at [38].
[34] The wounding with intent to injure offending is towards the lower end of band three, and a starting point of three years’ imprisonment is appropriate for that charge.
[35] Bearing in mind the principle that the total period of imprisonment should be in proportion to the gravity of the overall offending,5 it is appropriate to uplift your sentence from the starting point on the lead offences of aggravated robbery by nine months, which results in an adjusted starting point of five years’ imprisonment.
Adjusting the starting point
[36] As you know, Mr Spicer, from the sentence indication, I have decided not to uplift your sentence on the basis of your previous convictions. You do have a number of previous convictions, including two for common assault and one for assault with a blunt instrument. However, your history is not as extensive as that of Mr Williams and you have not previously been sentenced to imprisonment.
[37] With respect to the mitigating factors that are personal to you, I consider that a discount for your remorse and personal circumstances is appropriate. You have offered to make amends and reparation to the second and third victim, and you have shown significant insight into your offending, taking full responsibility for what you did. While you have had a lot of advantages in your life, I accept you have had a difficult time over more recent years. I have the impression that you have wallowed in alcohol as a result. It is encouraging to hear that you are wishing to move away from your current lifestyle. You must take advantage of the support of your family and family friends, and the rehabilitative opportunities that are available to you.
[38] In my view, a discount of seven months is appropriate for your personal mitigating factors, which brings your sentence down to four years, five months’ imprisonment. That is a generous discount, Mr Spicer. Make your whānau and iwi proud of you. Do good things with your life, as you did earlier on. Try to make up for the harm that you did to two innocent tourists and your other victim. Try to make
up for the harm you did by dragging your younger brother into the Ahipara
5 Sentencing Act 2002, s 85; Haywood v R [2015] NZCA 551; Ogden v R [2016] NZCA 214 at [64].
offending. I believe that you are genuinely ashamed. It is clear to me that you have ability. You should use it for good, not for bad, both the rest of the time that you are in prison and when you come out. We do not expect to see you back in this Court, Mr Spicer.
Guilty plea discount
[39] As I indicated in your sentence indication, I consider that a discount of 20 per cent for your guilty plea is appropriate. That brings your sentence to three years, six months’ imprisonment.
Conclusion
[40] I will now impose your sentence.
[41] For the two charges of aggravated robbery, I sentence you to three years and
six months’ imprisonment.
[42] For the charge of wounding with intent to injure, I sentence you to three years’ imprisonment.
[43] All sentences are to be served concurrently.
[44] You are discharged on charge one, on which the Crown offers no evidence.
Three strikes warning
[45] Given that both wounding with intent to injure and aggravated robbery are qualifying offences under s 86A of the Sentencing Act 2002, you are subject to what is known as the “three strikes regime”. I must therefore warn you of the following.
[46] If you are convicted of further serious violent offences, with the exception of murder, you will be required to serve the full sentence of imprisonment you receive without parole or early release. If you are convicted of murder after this warning,
you will receive a life sentence of imprisonment without parole unless the Court decides that would be manifestly unjust.
[47] You will be given a written notice outlining the consequences which I have just described and which also lists the qualifying serious violent offences.
[48] You may stand down Mr Spicer.
--------------------------------------------------- Hinton J
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