Ching-Joyce v Police - [2016] NZHC 1019

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

CRI-2016-409-000028

[2016] NZHC 1019

JAMES DANIEL CHING-JOYCE

v

NEW ZEALAND POLICE

Hearing: 17 May 2016

Appearances:

D Matthews for the Appellant C J Boshier for the Respondent

Judgment:

18 May 2016

JUDGMENT OF MANDER J

[1] The appellant, James Ching-Joyce, was apprehended on 30 September 2015 driving a motor vehicle with an excess breath-alcohol level of 898 micrograms. Eight days earlier, on 22 September, he had driven with an excess breath-alcohol level of 675 micrograms. As a result he was suspended from driving. In an unrelated incident Mr Ching-Joyce was found with a flick-knife on his person in a public mall and charged accordingly.

[2] The appellant pleaded guilty to two charges of driving with excess breath alcohol in an aggravated form (being the appellant’s third or subsequent offence),1 a charge of driving while suspended,2 and one of possession of a knife in a public

1 Land Transport Act 1998, s 56(1) and (4).
2 Section 32(1)(c) and (3).

CHING-JOYCE v NEW ZEALAND POLICE [2016] NZHC 1019 [18 May 2016]

place.3 He was sentenced by Judge Saunders to an effective sentence of 17 months’ imprisonment.4 He appeals the length of that sentence.

District Court sentence

[3] Mr Ching-Joyce was for sentence before Judge Saunders on his seventh and eighth charges of driving with excess breath alcohol. In February 2012 he had previously been sentenced to nine months’ imprisonment on his sixth conviction. He had a prior conviction from 2007, and had regularly offended between 2001 and 2004.

[4] Judge Saunders referred to Clotworthy v Police which reviewed sentencing levels for repeat drink drivers and factors to be considered when imposing an appropriate sentence for that type of recidivism.5 Judge Saunders emphasised relevant sentencing considerations required to be given effect, namely the protection of the public from the risk drink drivers present and the need for deterrence. His Honour observed the aggravating features of the 30 September offending to be the high breath alcohol level and the repetition of the offending within the short space of eight days.

[5] Judge Saunders considered an uplift of six months from a 15 month sentence for the 30 September offence was required in addition to a further two months to mark the separate offending of possession of the knife and the fact that Mr Ching-Joyce drove while suspended. From a starting point of 23 months Mr Ching-Joyce was extended full credit for his guilty pleas which resulted in the sentence of 17 months.6 The sentencing Court declined to impose home detention and no appeal lies from that decision.

[6] Judge Saunders remarked on the need for Mr Ching-Joyce to address his alcohol dependency. He recommended the appellant be assessed for the Drug Dependency Unit in prison and that he undertake treatment offered to him. Special

3      Summary Offences Act 1981, s 13A.
4      Police v Ching-Joyce [2016] NZDC 5709 at [9].
5      Clotworthy v Police (2003) 20 CRNZ 439 (HC).
6      In formally passing sentence…

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 Ching-Joyce v Police

Details

AGLC: Ching-Joyce v Police [2016] NZHC 1019
Case: [2016] NZHC 1019
Decision Date: 18 May 2016

CaseChat Overview and Summary

James Ching-Joyce was convicted of multiple driving-related offences, including driving with an excess breath-alcohol level and driving while suspended. He was also charged with possession of a knife in a public place. He was sentenced to 17 months' imprisonment, which he now appeals. The central issue before the court was whether the sentence imposed was manifestly excessive. Ching-Joyce argued that the starting point of 15 months for the 30 September offence was too high, while the Crown maintained the sentence was within the range available to the sentencing judge.

The court examined the principles for sentencing repeat drink drivers, particularly the need for protection of the public and deterrence. It also considered the high breath-alcohol levels and the repetition of the offending within a short period. The court found that while the sentence may be considered stern, it was not outside the range available to the sentencing judge. The combination of factors, including Ching-Joyce's history of drink driving, high breath-alcohol level, and reoffending while suspended, justified the length of the sentence imposed. The court also noted Ching-Joyce's limited commitment to addressing his alcohol dependency issues. Therefore, the appeal was dismissed.

The final orders were that the appeal against the sentence of 17 months' imprisonment was dismissed.

Orders