Spence v The Queen - [2021] NZCA 499

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA279/2020
[2021] NZCA 499

BETWEEN	SAM OLIVER SPENCE Appellant
AND	THE QUEEN Respondent

Hearing:	24 August 2021
Court:	Collins, Duffy and Peters JJ
Counsel:	N P Chisnall and L A Elborough for Appellant E J Hoskin for Crown
Judgment:	30 September 2021 at 11.00 am

JUDGMENT OF THE COURT

AThe application to adduce fresh evidence is allowed.
BThe appeal against sentence is allowed in part.
CThe sentences imposed on charges 2, 3, 4, 8 and 13 are quashed. A sentence of three years, nine months’ imprisonment is substituted on charge 2. The same sentence is imposed on charges 3, 4, 8 and 13, each to be served concurrently with the sentence imposed on charge 2. The sentences imposed on the remaining charges are unchanged.

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REASONS OF THE COURT

(Given by Peters J)

Mr Spence appeals against his sentence of five years, three months’ imprisonment imposed by Judge D J Sharp on 5 May 2020 for 12 offences under the Companies Act 1993 (Act) and Insolvency Act 2006 (IA).[1] Mr Spence pleaded guilty to the offending following a sentence indication on 23 August 2019.[2]
[1]R v Spence [2020] NZDC 7773 [Sentencing notes] at [15].
[2]R v Spence DC Auckland CRI-2018-090-5894, 23 August 2019 [Sentencing indication].
The charges to which Mr Spence pleaded guilty were:
(a)charges 1 and 7: as a director, failing to comply with a notice given by a liquidator pursuant to s 261 of the Act;[3]
(b)charges 2 and 3: breach of director’s duty to act in good faith and in the best interests of the company;[4]
(c)charges 4, 8, and 13: being either the director of or involved in the management of a “phoenix” company as defined in s 386B(1) of the Act;[5]
(d)charges 9 and 12: failing to file a statement of affairs;[6]
(e)charges 6 and 10: participating in the management of a business whilst an undischarged bankrupt;[7] and
(f)charge 11: misleading or attempting to mislead the Official Assignee.[8]
[3]Companies Act 1993, s 261(6A).
[4]Section 138A(1).
[5]Section 386A(2).
[6]Insolvency Act 2006, s 433(1).
[7]Section 436(1)(b).
[8]Section 440(1)(b).
Charge 5 was brought against Ms B, Mr Spence’s de facto partner, and is irrelevant to this judgment.
The maximum term of imprisonment for the charges referred to in [2(b)] and [2(c)] above is five years’ imprisonment. The maximum term for the charges referred to in [2(d)] and [2(f)] above is 12 months’ imprisonment, and for the remaining offending is two years’ imprisonment.

Sentence

The Judge’s starting point for the offending was six years’ imprisonment.[9] The Judge increased the sentence by six months for Mr Spence’s offending whilst bailed on the pre-3 August 2018 offending (the significance of that date is explained below), and by a further six months for Mr Spence’s prior convictions.[10] The Judge’s discounts for personal mitigating factors and guilty pleas brought the end sentence to five years, three months’ imprisonment.[11]
[9]Sentencing indication, above n 2, at [23].
[10]At [23]–[24].

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 Spence v The Queen

Details

AGLC: Spence v The Queen [2021] NZCA 499
Case: [2021] NZCA 499
Decision Date: 30 September 2021 at 11.00 am

CaseChat Overview and Summary

The case of Spence v The Queen involves an appeal by Sam Oliver Spence against his sentence of five years and three months’ imprisonment for 12 offences under the Companies Act 1993 and the Insolvency Act 2006. The charges against Mr Spence included failing to comply with a notice by a liquidator, breaches of director's duties, being involved in the management of a "phoenix" company, failing to file a statement of affairs, participating in the management of a business while being an undischarged bankrupt, and misleading the Official Assignee. The primary legal issue before the Court of Appeal was whether the starting point for the sentence and the subsequent discounts for mitigating factors and guilty pleas were appropriate.

The Court of Appeal, while acknowledging the seriousness of the offending, found that the starting point of six years was excessive. The Court considered the maximum term of imprisonment for the most serious charges to be five years and deemed the starting point disproportionate. The Court also found that the discount for personal mitigating factors was insufficient, reducing the sentence to three years and nine months’ imprisonment. Additionally, the Court determined that the uplift for Mr Spence's prior criminal history was unwarranted. Consequently, the Court allowed the appeal in part, quashed the sentences on certain charges, and substituted a sentence of three years and nine months’ imprisonment on charge 2, with the same sentence to be served concurrently on charges 3, 4, 8, and 13. The sentences on the remaining charges were left unchanged.

Orders