Spence v R [2011] NZCA 209 (23 May 2011)

Court of Appeal of New Zealand

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Spence v R [2011] NZCA 209 (23 May 2011)

Last Updated: 2 June 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA601/2010 [2011] NZCA 209

BETWEEN SHELWYN JOY SPENCE Appellant

AND THE QUEEN Respondent

Hearing: 18 May 2011

Court: Harrison, Simon France and French JJ

Counsel: RAB Barnsdale for Appellant M E Ball for Respondent

Judgment: 23 May 2011 at 10.15 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT
(Given by French J)

Introduction

[1] Ms Spence appeals her sentence of six years and three months’ imprisonment imposed on two counts of kidnapping and two counts of aggravated robbery.[1] She was convicted following trial before a Judge and jury in the District Court at Hamilton.
[2] The sole ground of appeal is disparity, with the sentence imposed on her co-offender. The co-offender, who is 15 years of age, pleaded guilty to all charges and was sentenced by a different Judge to 22 months’ imprisonment.

Facts of the offending

[3] All counts arose out of a single incident.
[4] The two victims were teenagers, one male, one female. They had been attending a party at a rural address and decided to sleep overnight in the back of their vehicle. Ms Spence and the co-offender forced their way into the vehicle. The co-offender threatened the victims and punched the male victim. Ms Spence laughed when the threats were issued and rifled through a handbag belonging to the female victim, helping herself to its contents. Ms Spence and her co-offender then commandeered the vehicle, Ms Spence at the wheel with the two victims still in the back, fearful for their safety. The male victim was assaulted for a second time by the co-offender. Eventually Ms Spence stopped the car on a country road, left the victims behind and drove off. The whole incident lasted more than two hours.
[5] Unfortunately, Judge Clark, who sentenced the co-offender, did not keep notes, and the recording of the sentencing had been lost. That left Judge Maze, who sentenced Ms Spence, in the position of having to attempt to reconstruct the co-offender’s sentencing.
[6] Having regard to the age of the co-offender, her early guilty plea, expressions of remorse and lack of previous convictions, Judge Maze reasoned that a likely starting point would have been five years.
[7] Judge Maze identified the aggravating factors of the offending as including:

• (i) The invasion of privacy.
• (ii) Threatened violence and the actual use of violence to which Ms Spence was party.
• (iii) The fact the victims’ safety was jeopardised by erratic driving.
• (iv) The duration of the offending.
• (v) The detention occurring in isolated places.
• (vi) The attempt to continue detention of the female victim, leaving the male victim behind at one point.
• (vii) The impact on the victims and their vulnerability.

[8] Having regard to those aggravating factors and the decision of R v Mako,[2] Judge Maze considered that the starting point should be five years, with an uplift of an additional six months for Ms Spence’s previous conviction for violence and the fact she was on bail at the time of the offending.
[9] Judge Maze then turned to mitigating factors relating to Ms Spence personally.
[10] Judge Maze considered there was little tangible sign of remorse and was only prepared to make what she described as a very modest allowance of three months.
[11] That resulted in an end sentence of five years and three months.

Grounds of appeal

[12] Since the sentencing, further information has been obtained about the sentencing of the 15 year old co-offender.
[13] It has been confirmed that Judge Clark’s starting point was four and a half years taking account of the aggravating factors. That was then discounted to 22 months on account of the early guilty plea, youth and “other mitigating factors” which must have incorporated absence of previous convictions and what the pre-sentence report described as genuine remorse.
[14] Mr Barnsdale submitted that a disparity of six months between the respective starting points was not justified, given that it was the 15 year old co-offender who had uttered the threats and who had punched one of the victims.
[15] We do not accept that submission. Before a Court will intervene on the grounds of disparity it must be satisfied the disparity is both gross and unjustifiable, and that “a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice”.[3]
[16] Ms Spence was aged 31 at the time of the offending, ie twice the age of her co-offender. Further, she was a person who was supposed to be in charge of the 15 year old, whom she knew to have a troubled background. While she may not herself have uttered threats or violence, she was part of a joint enterprise. As we have also mentioned, there was also evidence that instead of intervening to restrain the 15 year old, she simply laughed when the threats were issued.
[17] A difference of six months in respect of starting points could not, in our view, possibly be characterised as gross, and in our view was justifiable having regard to Ms Spence’s greater culpability
[18] We are also satisfied that Judge Maze’s treatment of the personal factors was appropriate and cannot give rise to any disparity argument. Not only was there a very significant age difference, but Ms Spence had previous convictions, had offended while on bail and was not entitled to any discount on account of a guilty plea.
[19] The appeal is without merit and is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Spence DC Hamilton CRI-2009-019-3061, 3 May 2010.
[2] R v Mako [2000] 2 NZLR 170 (CA).
[3] R v Lawson [1982] 2 NZLR 219 (CA) at 223.