Police v Spiers DC Tauranga CRI-2011-070-4759 [2011] NZDC 1492 (12 September 2011)

Last Updated: 3 January 2020

IN THE DISTRICT COURT AT TAURANGA

CRI-2011-070-004759

NEW ZEALAND POLICE

Informant

v

ALAN DAVID SPIERS

Defendant

Hearing: 12 September 2011

Appearances: Sergeant B Woon for the Informant W Nabney for the Defendant

Judgment: 12 September 2011

NOTES OF JUDGE P S ROLLO ON SENTENCING

[1] Alan David Spiers, you have pleaded guilty today to charges of Crimes Act 1961 assault and intentional damage of a camera viewfinder and sound recording equipment.

[2] These events took place at and outside your car sales yard at Mount Maunganui on 29 July this year. The victim of the assault is Gordon Harcourt, a well-known media personality in New Zealand who fronts the Fair Go programme and it was within the context of a programme on your car sales yard that these events happened.

[3] It is to be seen in context. I am told that some months previously, there had been earlier programme by Mr Harcourt about your car sales yard. I know none of the details of that but Mr Nabney, your counsel, in his carefully crafted written

POLICE V SPIERS DC TAU CRI-2011-070-004759 [12 September 2011]

submissions, says that as a result of the broadcast of that programme, you were subject to a number of harassing phone calls of a serious nature that included threats to yourself but also members of your family and Mr Nabney says a death threat, directed at a four year old grandchild of yours. The police were involved and were unable to identify who the caller was. Mr Nabney says that those circumstances were in the back of your mind when Mr Harcourt and his cameraman arrived at your business premises on 29 July this year.

[4] The summary of facts refers to this event taking place, essentially, on the pavement off your forecourt. Mr Nabney says that the video film taken by the cameraman would show that Mr Harcourt and the cameraman entered, perhaps two to three metres only, onto the forecourt before your attention was drawn to their filming and you approached and told them to leave the premises.

[5] I have not seen that film but as I understand from the summary and from what Mr Nabney has said, you have escorted them off the property, if I use that terminology. You had other staff present. They were not directly involved in this incident. Once they were on the pavement, you have obviously lost your temper, Mr Spiers, because you have struck Mr Harcourt three punches to the face. That has caused his glasses to cut into the bridge of his nose and his glasses have been broken. He has obviously suffered some pain and humiliation from what you did.

[6] Then you have turned your attention to the cameraman who was present. I assume he was still endeavouring to film what was going on. You have struck out at the camera. That has caused some damage to the viewfinder and the sound system. A tax invoice for repairs records the damage at $616.80. There is a handwritten addendum to that invoice referring to damage to the microphone and headphones totalling just in excess of another $500. There is no basis, in the information before me, that outlines how that latter damage actually occurred.

[7] Mr Nabney, your counsel, applies on your behalf for me to discharge you without conviction under s 106 Sentencing Act 2002. That requires me to look at the culpability of your actions, the direct and indirect consequences of a conviction and whether that would be out of all proportion to the gravity of the offences themselves. It is not the offences that are important but the facts of the case.

[8] Mr Nabney says that with the intrusion onto your car sales yard of Mr Harcourt and the cameraman, you have exercised the right, in essence, to remove them from the premises and you acknowledge that what you did outside was wrong. You immediately telephoned the police. It seems Mr Harcourt did likewise. You have been co-operative with the police. You have made an immediate offer of amends to repair the damage that occurred. You have expressed your remorse for what you have done.

[9] Mr Nabney refers to your good standing within the Mount Maunganui community as a businessman and as a citizen. He tells me in his submissions that you are the second generation of Spiers to be running this car sales yard. Your children are now involved. There are customers who have come back over three generations to trade vehicles and buy them from your car sales. Mr Nabney implies that you are therefore to be considered as a respectable car dealer with a worthy reputation in this community.

[10] He also emphasises the positive contribution you have made to the wider community, not just through providing employment through your car sales business but through donation of vehicles to worthy causes within the community to assist them in those undertakings. He has filed, with his written submissions, 47 testimonials from people within the Tauranga and Mount Maunganui communities who know you well. Some of those persons are customers, some of them are business people who have dealings with you, some of them are family friends and acquaintances of you and your family. All of them speak of you in very high terms as to your integrity as a businessman and the contributions which you otherwise make to the community.

[11] Mr Nabney correctly identifies that in any sentencing in a criminal case, a Judge is required under the provisions of the Sentencing Act 2002 to look first of all at whether this is a case which properly can be dealt with by way of a discharge without conviction. In support of that contention, Mr Nabney refers to your immediate offer of amends that I have referred to as a factor that should influence me to consider that this might be such a case. He has outlined a number of previous decisions of the higher courts where discharges without conviction have been

granted, sometimes for more serious offences than these. He properly makes the point, as I have commented on, that it is the facts of the case rather than the charge itself which is to be determinative within the tests which I have outlined of balancing the gravity of the offence with the consequences of conviction.

[12] Mr Nabney says, as has been identified in one of those High Court cases that he has referred me to, that a conviction for assault is always a serious matter. He also refers to the potential impact on your ability to conduct your business, which involves you travelling overseas, presumably to Japan, to purchase vehicles for sale within your car sales yard. He is not required to identify with particularity how that will impact, just to provide an appropriate basis on which I can see there is a potential in that regard.

[13] Mr Nabney submits that when I take all of those factors into account, your acceptance of wrongdoing immediately, your offer of amends, your otherwise good character and absence of previous convictions for assaultative behaviour and your preparedness to pay reparation, that this is a case where I can appropriately exercise my discretion to discharge you without conviction.

[14] Sergeant Woon appears for the police. He has had limited time to consider the submissions of Mr Nabney but he has provided some insightful comments on the facts of the case. He has emphasised that this incident took place on the footpath. The victim does not accept that he went onto your car sales yard. Can I say that in that regard, even if he did, it has only been a minor intrusion onto what otherwise would be a public place for the purpose of viewing vehicles and you have pushed him off, it would seem, or urged him off the premises. It is what happened on the footpath that is important.

[15] Sergeant Woon emphasises that you have been supported by other staff. There was no necessity for you to become involved in a violent confrontation with Mr Harcourt nor to then turn your attention to the cameraman. It was unnecessary for you to punch him three times to the head in the way in which you did.

[16] I take those factors into account. I also have regard to a lengthy victim impact statement provided by Mr Harcourt that sets out the practical effects for him as a victim, including his physical injuries and the financial cost to him. He has also referred to the emotional harm which he has suffered.

[17] It is a matter of judgement and a question of the exercise of a Judge’s discretion. The Sentencing Act requires me, in all cases, to impose the least restrictive outcome but sentencing is not just about the circumstances solely of the person standing before the Court. There is a wider social purpose that must be fulfilled and that is that, consistent with provisions of the Sentencing Act, like cases should be treated in a like fashion where that is appropriate.

[18] So the sentencing is not just about you, Mr Spiers, and what you have done. At another level, it is about every young man who comes before the District Court who has got himself involved in acts of violence in the streets that were gratuitous and unwelcome. Of course, we have far too much violence in our community and it ill behoves someone of your responsibility and standing within the community to have become involved in it in this way. In saying that, I acknowledge the pressures which you felt you were under because of the previous involvement and what had resulted from it, unrelated to Mr Harcourt, but originating from his earlier programme.

[19] I am not satisfied, Mr Spiers, despite the matters which Mr Nabney has referred to, including the comments as to your general character in the voluminous testimonials on your behalf, that this is an appropriate case where I should exercise discretion not to convict you. I consider that the seriousness of the incident itself is too great. I am not satisfied that the consequences of conviction, in your case, would be out of all proportion to the gravity of the offence itself. I can well imagine the frustration which you would have felt at a return visit by Mr Harcourt with his camera crew and the fact that they were outside or were coming onto your premises. One of your courses of action, of course, would have been to turn on your heel and walk and go into your office and have your staff tell him that they were not welcome on your car yard. That would have resolved the matter at one level; it may not have resolved the focus of the programme, but it would have avoided any act of violence.

[20] I acknowledge the point Mr Nabney has made that you were entitled to escort them off the property in those circumstances because the right to come onto a car yard is to view cars, not to harass the owner with a TV camera for the purposes of a television show but your actions, I consider, were clearly excessive, unwarranted and despite your otherwise good character and lack of previous convictions of this type, I am not satisfied that this is an appropriate case for me to exercise the discretion not to discharge you without conviction.

[21] Accordingly, on both charges, you will be convicted but I intend to deal with the matters by way of payments of reparation, which I consider, in all of the circumstances, is an adequate response.

[22] In respect of the charge of assault on Mr Harcourt, you are convicted and ordered to pay reparation of $1000 to him within seven days of today’s date. You are ordered to pay Court costs of $132.89.

[23] In respect of the charge of intentional damage of the camera viewfinder and sound recording equipment, I accept the reparation figure of $616.80. That sum is to be paid also within seven days.

[24] So you are convicted on that charge, ordered to pay that sum, together with Court costs of $132.89.

[25] I note that I have not dealt with the glasses issue, the lenses, the replacement lens and the eye examination of $573. I intend to amend the figure of reparation payable to Mr Harcourt since you accept that damage, Mr Nabney. I increase the reparation payable to Mr Harcourt to $1573, payable within 14 days.

[26] So Mr Spiers, that is conviction and reparation in respect of the assault on Mr Harcourt and the repairs to the camera. I make no order for reparation in respect of the microphone and the headphones. They are not substantiated by the evidence before me.

P S Rollo

District Court Judge

Addendum to Sentencing Notes

[27] Subsequent to this sentencing, Mr Nabney has acknowledged to me, by written memorandum, that that part of his submissions, referred to by me in [4], [5] and [8] of my sentencing notes, that says that Mr Harcourt and his cameraman actually entered onto the forecourt of the defendant’s car yard, is factually incorrect.

[28] He accepts, having reviewed the video surveillance camera footage, that he inadvertently misled me on that point and he acknowledges that neither Mr Harcourt nor his cameraman actually entered the defendant’s premises.

[29] I accept Mr Nabney’s explanation that his factual error was unintentional and I accept his apology for his mistake.

[30] I simply note that my sentencing decision was focussed on the two assault and the intentional damage incidents that actually happened on the footpath, as I refer to in [14] of my sentencing notes. Mr Nabney’s error has therefore not affected the outcome of the case in any regard.

P S Rollo

District Court Judge 26 March 2012