Joy v Police

[2022] NZHC 2391

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2022-409-000113

[2022] NZHC 2391

BETWEEN

PUNEET JOY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

1 September 2022

Appearances:

H C Coutts for the Appellant

G E R Alloway for the Respondent

Judgment:

19 September 2022

JUDGMENT OF NATION J

Introduction

[1]    Puneet Joy was sentenced1 to seven months’ home detention in the District Court on a charge of driving with excess breath alcohol third or subsequent.2 The Judge also imposed an alcohol interlock licence. Mr Joy appeals. He says the sentence imposed was manifestly excessive.

Facts

[2]    Mr Joy was convicted of driving with excess breath alcohol in 2004 and 2011 and refusing to provide a blood specimen in 2019.

1      Police v Joy [2022] NZDC 11240.

2      Land Transport Act 1998, ss 56(1) and 56(4); maximum penalty two years’ imprisonment.

JOY v POLICE [2022] NZHC 2391 [19 September 2022]

[3]    At approximately 10:30 am on 15 September 2021, Mr Joy was driving on Papanui Road. He completed a U-turn in front of oncoming traffic, causing them to take evasive action to avoid collision. Mr Joy was swerving within his lane. He continued south on Papanui Road, then turned right into Bealey Avenue and onto Harper Avenue driving erratically. He was travelling at approximately 70 km/h in a 50 km/h zone, swerving across both lanes and almost collided with a median island. He continued onto Deans Avenue and turned into a driveway to reverse out and turn around. A member of the public blocked his vehicle in the driveway by parking her car behind his. He got out of the car, handed her his keys and said he was going to the mosque. He was located by police at the mosque and required to undergo breath testing. His result was 1408 mg of alcohol per litre of breath. The legal limit is 250 mg.

District Court decision

[4]    The Judge noted this was Mr Joy’s fourth conviction for driving with excess breath alcohol.3 She took as aggravating the extraordinarily high reading, more than five times the legal limit. She noted Mr Joy was subject to a sentence of intensive supervision when he offended.

[5]    As mitigating circumstances, she considered Mr Joy’s alcohol dependency, the fact he was experiencing difficult personal circumstances at the time of the offending and that he had been almost nine months alcohol free. Rehabilitative steps he was taking were set out. She accepted there were lengthy gaps between some of his convictions, though noted this was not the case with his most recent.

[6]    The Judge adopted a starting point of 18 months’ imprisonment accounting for Mr Joy’s history. He received 20 per cent credit for his guilty plea entered “fairly early on”, leaving an adjusted starting point of 14 months. She considered the aims and objectives of sentencing were satisfied by an electronically monitored sentence rather than imprisonment, so sentenced Mr Joy to seven months’ home detention. The Judge imposed an alcohol interlock licence. She also made a confiscation order in relation to his vehicle. That order was removed via rehearing on the papers.

3      One of the convictions was for refusing an officer’s request for a blood specimen.

Principles on appeal

[7]    Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may be allowed by this Court only if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.4 It is appropriate for this Court to intervene and substitute its own views only if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.5

Submissions

Appellant’s submissions

[8]    Ms Coutts, for Mr Joy, submitted the starting point adopted by the Judge was too high; the Judge did not adequately recognise Mr Joy’s personal circumstances, remorse and efforts at rehabilitation by sentencing credit; and the Judge erred in giving no or insufficient weight to the least restrictive outcome. She submitted that resulted in a manifestly excessive sentence.

[9]    Ms Coutts set out Mr Joy’s personal circumstances and the background to sentencing in some detail. She referred to authorities to support a submission the full range of sentences is available to the court on the charge of driving with excess breath alcohol third or subsequent.

[10]   Addressing the starting point, Ms Coutts noted the Judge did not explicitly refer to Clotworthy v Police6 or Samson v Police7 which set out common aggravating and mitigating factors of driving with excess breath alcohol offending and contain broad generalisations as to starting points. She submitted, with reference to these cases, the fact this was Mr Joy’s fourth conviction and the fact he only faced a single charge, the appropriate starting point was in the range of 10-12 months’ imprisonment.

4      Criminal Procedure Act 2011, ss 250(2) and 250(3).

5      Ripia v R [2011] NZCA 101 at [15].

6      Clotworthy v Police (2003) 20 CRNZ 439.

7      Samson v Police [2015] NZHC 748.

[11]   Ms Coutts submitted it appeared the Judge did not apply the two-step method for sentencing but instead combined all aggravating and mitigating factors of the offence in coming to the starting point without applying appropriate credit for remorse, personal circumstances and rehabilitation before applying credit for Mr Joy’s guilty plea.

[12]   Ms Coutts submitted the Judge did not address why home detention was the least restrictive outcome appropriate in the circumstances as opposed to a sentence such as intensive supervision, as recommended by the PAC report, or even community detention. She submitted one of these sentencing options would better support Mr Joy to continue to work, support his family and attend rehabilitation requirements. She submitted Mr Joy had previously completed all previous sentences without incident8 including community detention, community work, supervision and disqualification from driving. She said he had completed 12 months’ intensive supervision at the time of sentencing.

[13]   Ms Coutts submitted Mr Joy’s huge achievement in remaining abstinent from alcohol for nearly a year now, among other rehabilitative factors, should have been recognised by sentencing credit.

[14]   Turning to the type of sentence appropriate, Ms Coutts submitted home detention places considerable restraint on a person’s liberty and makes it difficult to retain employment, attend job interviews and appointments as every one of these must be approved by probation well in advance. She submitted the offending did not warrant a sentence of home detention.

Respondent’s submissions

[15]   In written submissions for the Crown, Ms Hallaway said the Judge’s approach was consistent with Clotworthy, where aggravating and mitigating factors are discussed in setting a starting point, and was consistent with the approach of both parties in their written submissions. She submitted it could be inferred from the Judge’s decision they accounted for personal mitigating factors in setting the starting point. She submitted it was open to the Judge to find home detention was the least

8      The obvious exception is this offending.

restrictive outcome appropriate. She noted Mr Joy was subject to a sentence of intensive supervision when he committed the present offending. She submitted, given a sentence of community detention had been imposed less than two years prior for similar offending, there would be little to no deterrence in imposing such a sentence again.

Analysis

[16]   Samson and Clotworthy provide the frame for sentencing driving with excess breath alcohol (third or subsequent) offending. In Samson, Whata J set out broad generalisations as to supportable starting points, though was careful to emphasise this offending is not amenable to tariff-like categorisation:9

(a)  No seriously or only moderately aggravating factors, 9-12 months;

(b)  One or more seriously aggravating factors, 12-18 months;

(c)  Multiple offences with serious aggravating factors, 18-20 months; and

(d)  Multiple offences and very serious aggravating factors (i.e. offending of the worst kind), 20-24 months.

[17]   Serious aggravating factors were identified as a high level of intoxication, dangerous driving, very close proximity to previous EBA offending and/or a prolonged and continuous history of driving-related offending.10

[18]   Several of these factors are present. Mr Joy’s level of intoxication was very high, more than five times the legal limit. He drove dangerously, swerving between lanes, speeding and forcing other road users to take evasive action to avoid collision. I note in particular that Mr Joy was only prevented from continuing to drive by a member of the public seeing fit to block his vehicle with theirs. That indicates the level of danger that member of the public deemed he posed. There is proximity (though not close proximity) to his conviction for refusing a blood specimen relating to offending in February 2019. I accept Mr Joy was only charged with a single offence and his history of driving offending is not particularly continuous/prolonged. The offending was aggravated by the fact Mr Joy was subject to a sentence of intensive supervision imposed on 18 February 2021.

9      Samson v Police, above n 7, at [15].

10 At [16].

[19]   The starting point was justifiable by reference to Samson. A review of the several authorities fortifies that conclusion.

[20]   In particular, in Henderson v Police, the offender was charged with her third driving with excess breath alcohol offence, driving in a dangerous manner and driving contrary to a zero-alcohol licence.11 She drove dangerously in a manner comparable to Mr Joy and had a similar alcohol level. She had one less previous conviction and offended while subject to a zero alcohol-licence rather than a sentence of intensive supervision. A starting point of 15 months was considered high (though fitting readily within the generalisations identified in Samson) but not excessive. In Bechan v Police,12 a case referred to in Henderson, the offender committed his fifth excess breath alcohol offence in four and a half years with a lower alcohol level than Mr Joy. Dangerous driving was suggested but Mr Bechan did not offend while subject to sentence. Whata J observed a starting point of 14-16 months would appear commensurate with the offending but did not disturb a starting point of 18 months.

[21]   It should be emphasised that there will be a range of appropriate starting points for offending and, while consistency is desirable, Mr Joy must ultimately be dealt with on his own offending. Mr Joy’s offending was slightly more serious than the offending in Henderson and Bechan. I consider, having regard to the particular features of Mr Joy’s offending, the Judge’s starting point of 18 months’ imprisonment was stern but appropriate.

[22]   The Judge discussed Mr Joy’s personal circumstances but did not grant Mr Joy any explicit sentencing credit for these circumstances.

[23]   Mr Joy provided an affidavit in the District Court dated 19 May 2022. He is 54 with two children aged 27 and 26 (now 27). His younger child has special needs and still requires some significant care.

11     Henderson v Police [2015] NZHC 3249.

12     Bechan v Police [2015] NZHC 747.

[24]   Mr Joy said he suffers from clinical depression, anxiety and alcoholism. He deposed he has been abstinent from alcohol since 17 September 2021. He is on many medications, one of which deals with anxiety and numbness in his body.

[25]   He said he fell off the wagon on the days prior to the offending and began drinking excessively, mixing alcohol with his medication. He attached his visa statement which indicated significant trips to liquor stores, a check in to a hotel and fast-food/restaurant expenditure. He explained why he drove, though acknowledged it was an unfortunate decision.

[26]   Mr Joy provided a letter from a psychiatrist Dr Mulder who said Mr Joy did not have access to his medication and was likely to have been in withdrawal. Another letter referred to symptoms that could appear with withdrawal. Although Dr Mulder said those symptoms might be associated with reduced functioning and uncharacteristic behaviour, his letter did not suggest that, with withdrawal, Mr Joy would have had an impaired ability to understand what he was doing.

[27]   Mr Joy also attached to his affidavit a letter from a Dr Todd of 13 September 2011. Dr Todd was then a specialist in psychiatry and addiction medicine. Dr Todd also referred to the same possible effects of withdrawal and its possible impact on charges Mr Joy was then facing relating to his arrest for driving with excess breath alcohol on 13 March 2011. Dr Todd referred to a range of possible symptoms, similar to those described by Dr Mulder. Dr Todd did not suggest those symptoms would affect Mr Joy’s understanding of what he was doing. Dr Todd said the symptoms, as described to him by Mr Joy, could have prompted him strongly to seek his medication to alleviate the symptoms.

[28]Mr Joy deposed he has taken the following steps since his offending:

(a)  regular attendance to Te Awhina run by the Salvation Army for recovering alcoholics and addicts;

(b)  counselling sessions at Canterbury Men’s Centre for mental health, trauma and childhood sexual abuse;

(c)  Grace Vineyard Church active participation and volunteering;

(d)  attendance to Hapori Ora sessions;

(e)  attendance to Alcoholics Anonymous meetings;

(f)  educative programme on alcoholism run by Salvation Army; and

(g)  counselling sessions with a psychologist on a pro-bono basis.

[29]   Mr Joy attached a letter from the Salvation Army dated 18 May 2022 confirming his engagement there since 2021. A letter from the Canterbury Men’s Centre indicated he had attended a free initial appointment then 15 subsequent counselling sessions.

[30]   A brief report from Dr Staite, the Grace Vineyard Church counsellor, stated he had seen Mr Joy on 12 occasions for 50-minute counselling sessions. Dr Staite stated the primary theme of Mr Joy’s formative years was severe trauma including abuse sustained from multiple sources. This abuse was outlined by Mr Joy in emails attached to the report. Dr Staite said Mr Joy turned to alcohol use and abuse as a teenager to numb the pain. This led to “inevitable” neurological changes.

[31]   Despite that, Dr Staite said most of Mr Joy’s adult life appears to have been marked by “success in family life and business in New Zealand and previously in India. His trajectory is of increasing mastery over his addiction.” Dr Staite indicated Mr Joy accepts responsibility, desperately wants to stop relapsing and feels deep regret and shame.

[32]   Another document on the file is a report from Dr Brandram-Adams of the Salvation Army Bridge Programme dated 31 August 2020 (prior to this offending but in the leadup to the offending for which he was sentenced to intensive supervision). This document confirms Mr Joy has been diagnosed with psychotic symptoms (which may be related to trauma or alcohol abuse), severe alcohol use disorder, major depressive disorder and complex PTSD. It lists his current medications and symptoms. There is a comment that Dr Brandram-Adams got the impression Mr Joy was interested in having extra treatment because of his forthcoming court appearance. There is also comment that he has had various periods of abstinence for one to two and a half years, though Dr Brandram-Adams commented this self-report was “not

completely borne out when looking at his clinical records”. This report is consistent in its detail of the abuse Mr Joy suffered as a child with the other information provided.

[33]   Mr Joy’s wife said they had been married for over 20 years. They now live together separated but amicable. She confirmed he was immensely remorseful for his slip into alcohol and had bounced back into his programme swiftly this time around. She confirmed Mr Joy has been a big help with their autistic son and that son had not coped very well in his absence.

[34]   It is abundantly clear Mr Joy is a man with severe alcohol issues and rehabilitative needs. It is also clear he has benefited from the support of various institutions and people who endeavour to assist him to meet those needs. The information provided suggests Mr Joy is a man of some sophistication, intellect and potential despite the adversity he faced as a child and adolescent. He has a degree in political science and defence studies. It is suggested he undertook further study at Canterbury University. A letter attached to his affidavit indicates he previously worked in a senior role at an “incubator company” creating joint ventures overseas and working in business development.

[35]   Because of his previous incidents and the advice he had received from various medical practitioners, Mr Joy was aware he had issues with alcohol and needed to stay away from it. He knew he needed to continue taking his medication. He especially knew he was not to drink and drive. Alcohol appears to have been a lifelong issue for him. The problems he had while growing up may well account for his addiction issues. The offending for which he had to be sentenced was not however his use of alcohol. It was the fact he chose to drive when his ability to do so safely was seriously impaired by the very high level of alcohol identified.

[36]   Notwithstanding that, Mr Joy’s rehabilitative needs appear to have been met in the year between his offending and the District Court sentencing. He seems to be making progress. In particular, Ms Coutts advised Mr Joy has been abstinent from alcohol for nearly a year now. I note Thomas J’s comment in Ruru v Police, where a sentence of imprisonment was quashed and replaced with a sentence of home

detention, that “the most effective protection of the community is successful rehabilitation so that behaviour is not repeated”.13

[37]   It was suggested the Judge took Mr Joy’s personal mitigating factors into account in setting the starting point. That may have been the case. I acknowledge the police at sentencing appear to have submitted an 18-month starting point was appropriate having regard to Mr Joy’s “personal circumstances as outlined …”. His counsel at sentencing also appears to have proceeded on that basis.

[38]   Under the Moses v R approach, while a starting point should take into account aggravating and mitigating factors of offending, it should not take into account those personal to an offender.14 Sentencing for driving with excess breath alcohol offending follows the same approach except for the fact previous convictions can be taken into account when setting a starting point (as they were here). In Samson, Whata J analysed the list of relevant factors discussed in Clotworthy and allocated them as aggravating factors relevant to a starting point, personal aggravating factors and personal mitigating factors.15 Nothing in that decision endorses an approach by which all factors are included in a starting point.

[39]   It is not certain in the circumstances that the starting point adopted by the Judge accounted for Mr Joy’s personal circumstances. Having regard to Samson and the authorities discussed above, the starting point of 18 months was stern.

[40]   In pleading guilty, Mr Joy accepted responsibility for his offending and, in that way, expressed remorse for his offending. For that, he received a credit of 20 per cent. There was however a tangible expression of remorse through the steps Mr Joy had taken to deal with his addiction. There should have been express recognition of that by way of a credit, which could have been 10 per cent. I do not consider Mr Joy could have expected a further credit through the way abuse while growing up had been a contributing factor to his addiction issues. It is apparent from the information Mr Joy put before the Judge that he had the intelligence, ability and understanding to know how his past put him at risk of further offending and what he needed to do to avoid both succumbing to his addiction but, more importantly, to refrain from driving when

13     Ruru v Police [2018] NZHC 114 at [21].

14     Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.

15     Samson v Police, above n 7, at [14].

under the influence of alcohol, especially so with the way offending of the sort that occurred here was a danger to others.

[41]   Had the Judge expressly provided for a discount of 10 per cent on a starting point of 18 months’ imprisonment, with the 20 per cent discount for his guilty plea, the notional sentence would have been a little over 12 and a half months’ imprisonment. That would commute to a little over six months home detention.

[42]   Ms Coutts argued the Judge erred in imposing a sentence of home detention rather than a sentence of community detention and supervision as recommended by the PAC report. She emphasised home detention is a sentence which places considerable restraint on a person’s liberty and can make it difficult in practice for them to retain employment, attend job interviews and attend medical/counselling appointments as every appointment must be approved well in advance by a probation officer.

[43]   Ms Coutts submitted a sentence of home detention practically prevents Mr Joy from assisting his wife, who is unable to drive, with chores including supermarket shopping and prevents him taking care of his autistic son. In particular, Mr Joy would normally take his son to cello and keyboard lessons, tennis and Frisbee practice, library visits, mall visits, swimming and occasional visits to the cinema. He would also supervise him in his running, sprinting and jogging in the park. Mr Joy lost his job as a result of being sentenced to home detention.

[44]   I acknowledge a sentence of intensive supervision would have some advantages in facilitating Mr Joy’s support for his wife and autistic son while allowing his continued engagement with rehabilitative sources. I also acknowledge the Judge’s written decision does not disclose reasons for preferring home detention over a less restrictive sentence.

[45]   However, I am not persuaded the sentence of home detention was inappropriate. The Crown rightly observed Mr Joy had just received a sentence of community detention and supervision for comparable offending. He was in fact subject to a sentence of intensive supervision when he offended. Mr Joy’s offending was serious, attracting a starting point of imprisonment and involving danger to the public. The Judge was required to consider both personal and community deterrence.

I consider a sentence of home detention was the least restrictive outcome that could provide meaningful deterrence to Mr Joy.

[46]   I am not persuaded the sentence of home detention excludes Mr Joy’s rehabilitation. As Ms Coutts has acknowledged, Corrections may approve absences for him to attend job interviews and medical/counselling appointments. Indeed, Corrections is likely to encourage such productive absences from his detention. The post detention conditions will support his rehabilitation following the detention component. Ultimately it was open to the Judge to find home detention was the least restrictive outcome in the circumstances.

[47]   As has been stated by the Court of Appeal on a number of occasions, on an appeal against sentence, the ultimate issue is whether the sentence imposed was manifestly excessive. Although the Judge should have expressly given Mr Joy credit for the steps he has taken and will continue to take to deal with his addiction, I have not been satisfied that, had she done so, the sentence would have been reduced to a level where it can be said the sentence actually imposed was manifestly excessive.

[48]   I also consider Mr Joy’s commendable efforts to deal with his addiction had been adequately recognised in the Judge’s decision to sentence him to home detention rather than impose a sentence of imprisonment.

Conclusion

[49]Mr Joy’s appeal is dismissed.

Solicitors:

H C Coutts, Barrister, Christchurch

Crown Solicitor’s Office, Christchurch.