Spicer v The Queen

[2004] NZCA 82

IN THE COURT OF APPEAL OF NEW ZEALAND

CA440/03

THE QUEEN

v

ROBERT JOHN SPICER

Hearing:25 May 2004

Coram:William Young J
Williams J
Wild J

Appearances:  D C Ruth for Appellant

G C de Graaff for Crown

Judgment:1 June 2004 

JUDGMENT OF THE COURT DELIVERED BY WILD J

[1]       Following a trial in the District Court at Christchurch the appellant was convicted on 27 June 2003 of aggravated burglary.  Judge Holderness sentenced him to nine years imprisonment.  He appeals against that sentence.  The nub of the appeal is that there was not a sound foundation for the Judge to impose sentence on the basis that the appellant was the instigator of the offence, the mastermind of it.  If we accepted that there was no such basis, Mr Ruth submitted that the nine year sentence was disparate in relation to the sentences of seven and a half and six years imposed on the appellant’s two co‑offenders, Healey and Watson, respectively.  Both had pleaded guilty.

Background

[2]       The offence was committed on a 53 year old victim in his home.  The victim, who was terminally ill, was recovering from major surgery.  He had been prescribed morphine to alleviate pain. 

[3]       The appellant was friendly with the victim.  He knew of the victim’s illness and that he was on morphine medication.  After meeting the victim at a supermarket and assisting him home with his shopping, the appellant declined an invitation to stay for a cup of tea and left somewhat abruptly.  Some ten minutes later the two co‑offenders knocked on the victim’s door.  They were disguised in balaclavas and armed, one with a chisel, the other with a knife.  Holding the knife to the victim’s throat, they demanded the victim’s morphine.  The victim took them into his bedroom and showed them where it was.  They then went through the victim’s drawers and stole $290 from his wallet. 

[4]       At this point the victim tried to fight off his attackers and raise the alarm.  He was manhandled and struck on the head.  An attempt was made to tie his hands.  A number of the metal stitches stapling his surgical wounds pulled out, resulting in internal bleeding. 

[5]       People visiting the neighbourhood saw what was happening and managed to detain one of the co‑offenders until the police arrived.  The other co‑offender was seen running back to the supermarket and getting into the appellant’s car.  There was no dispute that the appellant was the getaway driver.

Appellant’s submissions

[6]       Mr Ruth sought to persuade us that an equally tenable view of the evidence was that all three offenders were implicated to the same extent in the offending, or at least that the appellant’s involvement was not substantially greater.  He argued that the evidence did not compel a conclusion that the appellant had instigated the offending, recruiting Healey and Watson to do what Mr Ruth termed “the dirty work”.  Mr Ruth pointed to the motive for the offending being the drug addiction of all three offenders. 

[7]       If we accepted that the three offenders were more or less equally involved, then Mr Ruth contended there was disparity between the sentence imposed on the appellant and those imposed on Healey and Watson.

Crown submissions

[8]       Given the narrow focus of this appeal, and our view on the ‘threshold’ instigation point, we need refer only to the Crown’s submission that the appellant was the instigator of this offending.

[9]   Ms de Graaff made it clear that the Crown’s case at the trial was, and on this appeal remains, that the appellant was indeed the instigator, and had recruited Healey and Watson to rob the victim in his home of his morphine tablets, either for the use of the three of them or to sell.  We refer in the next paragraph to those points in the evidence which Ms de Graaff submitted establish that the appellant was the instigator. 

Decision

[10]     The main items of evidence pointing to the appellant as the instigator of the offence are these:

a)The appellant had been acquainted with the victim for some 15 years.

b)As a result of a chance meeting at the hospital dispensary, the appellant knew the victim had recently had major surgery for cancer and been prescribed morphine to deal with his post-operative pain. 

c)The appellant also knew Healey and Watson. The victim did not know Healey and Watson, nor they him.  The point is that the appellant could not himself rob the victim, because he almost certainly would have been recognised.

d)The appellant had visited the victim the previous day and indicated that he would call again on the day of the offence for a “cuppa”. 

e)The victim gave evidence about two unusual aspects of the appellant’s conduct immediately before the offence.  Firstly, noticing that the appellant’s car was not parked in front of the victim’s home as it usually was when he called, the victim said he had asked the appellant where his car was and the appellant had said he had parked it just around the corner.  Secondly, although the appellant had said the previous day that he would call round for a “cuppa”, he seemed in a hurry and left almost immediately after they arrived home from the supermarket.

f)Immediately the victim answered the door, Healey and Watson demanded the victim’s drugs.  The victim in evidence said “they wanted my morphine”.  Fairly obviously, they were given that information by the appellant. 

g)During the early stages of the ensuing police inquiry, the appellant telephoned the victim suggesting he “come back for his cuppa… He’d seen all these police cars there and wondered what was going on”.  

h)The appellant was the driver of the getaway car.

i)There was evidence from an independent witness that the appellant had been at Healey’s home the previous week along with Watson, and that the appellant had ferried Healey around in his car over the previous weekend.  Healey at the time could not drive. 

[11]     We accept the Crown’s submission that that evidence provides a solid footing for the Judge’s view that there was “no doubt” that the appellant was the instigator of the offence and was appropriately sentenced on that basis.

[12]     In the event that we came to that conclusion, Mr Ruth conceded that the nine years sentence imposed by the Judge was stern but within range.  Given that concession, we need not consider the second aspect of the appeal, the disparity argument.  We do observe that, in sentencing the appellant, Judge Holderness had the benefit of copies of the sentencing remarks Judge Noble made upon sentencing Healey, those of Judge Erber when sentencing Watson, and this Court’s decision dismissing Watson’s sentence appeal.  Judge Holderness referred to all of those in his own sentencing remarks, and clearly took them into account in fixing the appropriate relative sentence for the appellant.  This was far from being one of those situations which sometimes occur when two Judges sentence related offenders unaware of what the other is doing.  In those circumstances, the disparity argument would have been a difficult one for the appellant.  But, as we have said, we do not need to consider it.

[13]     It may be helpful to the appellant if we add a few comments.  The first is that we consider Mr Ruth’s assessment of the sentence under appeal to be exactly right.  Nine years imprisonment, although stern, was open to the Judge.  The Judge’s ten year starting point was that adopted by each of the Judges who had sentenced Healey and Watson.  In the course of dismissing Watson’s appeal on 24 October 2003 (R v Watson CA224/03), this Court has already held that that ten year starting point was within the range recognised by R v Rua (CA58/02, 24 October 2002) and R v Mako [2000] 2 NZLR 170.

[14]     Instigation of the offence, which in the circumstances can only be regarded as a nasty and callous crime in terms of the appellant’s involvement, plus the fact that the appellant committed it whilst on bail for serious drug offences, did not allow for much reduction below the ten year start point. 

[15]     The factor which appears to have persuaded the Judge to fix the sentence at nine years was the doubt or difficulty in knowing the extent to which the appellant could be held responsible for the degree of violence actually used on the victim.  That violence followed the theft of $290 from the victim’s wallet.  We regard as justified the Judge’s doubts as to whether theft of this money was part of the appellant’s plan. 

Result

[16]     For the reasons we have given, we regard the nine year sentence appealed against as unassailable. 

[17]     Accordingly, we dismiss the appeal.

Solicitors:
Crown Law Office, Wellington