Joyce v Police

[2022] NZHC 3277

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CRI-2022-488-000075

[2022] NZHC 3277

BETWEEN

BLURAY JOYCE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

6 December 2022

Counsel:

MC Nicholls for Appellant

A Goodwin and R Annandale for Respondent

Judgment:

7 December 2022

JUDGMENT OF DOWNS J

This judgment was delivered by me on 7 December 2022 at 3pm

Registrar/Deputy Registrar

Solicitors/Counsel:

MC Nicholls, Kerikeri. Crown Solicitor, Whangarei

JOYCE v NEW ZEALAND POLICE [2022] NZHC 3277

The appeal

[1]    Bluray Joyce received a sentence of 23 months’ imprisonment for firearms offending.1 Mr Joyce appeals sentence. An appeal in this context must be allowed if there was an error in the sentence and a different one should be imposed.2 Or, in short, if the sentence is manifestly excessive.3

Background

[2]    Mr Joyce was driving in Kaikohe on the afternoon of 25 May 2022. He was stopped by Police. Officers noticed a firearm wedged between the front passenger seat and the centre console. Mr Joyce was arrested for possession of the firearm, a Winchester pump-action shotgun. A search revealed live shotgun rounds, spent rounds, and several live bullets. Mr Joyce told Police he had “just” purchased the firearm to protect himself.

[3]    Mr Joyce was promptly charged with unlawful carriage or possession of a firearm in a public space, which is punishable by a maximum term of three years’ imprisonment.4 He was also charged with possession of an unlawful explosive in relation to the live ammunition, which carries a maximum penalty of four years’ imprisonment.5

[4]    Mr Joyce pleaded guilty 16 August 2022, following a sentence indication that day.

[5]    Judge P Rzepecky adopted a global starting point of 24 months’ imprisonment. The Judge added time for Mr Joyce’s apparent record  with firearms and deducted  15 percent for Mr Joyce’s guilty pleas, which the Judge described as “late”.6

1      Police v Joyce [2022] NZDC 21193.

2      Criminal Procedure Act 2011, s 250(2).

3      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

4      Arms Act 1983, s 51.79

5      Section 45(1).

6      Police v Joyce, above 1, at [10].

A précis of Mr Joyce’s case

[6]    Mr Joyce contends the sentence  is  manifestly  excessive.  On  his  behalf, Mr Nicholls contends the starting point should have been “no more than 18 months” imprisonment. Mr Nicholls also contends the Judge should not have uplifted the starting point and the guilty plea credit was too low; 25 percent should have been applied.

Analysis

[7]    No guideline judgment exists in relation to offending of this nature, so some brief analysis of the case law is necessary.

[8]    In R v Fonotia,7 Police found a loaded shotgun in the boot of the defendant’s car.  The defendant was a drug dealer and said she had the firearm for protection.    A two-year starting point was affirmed as within range, albeit at the lower end of the range.

[9]    In Torea v R,8 the defendant was arrested in possession of a loaded .455 calibre pistol. The defendant had further ammunition too. A two and a half year starting point was upheld by the Court of Appeal. That Court cited an earlier decision in describing loaded firearms as “an anathema within our community”.9

[10]   This leaves the recent decision of Campbell v R.10 Mr Campbell was found guilty of unlawful possession of five firearms: two .22 rifles, two shotguns and a sawn- off rifle. A starting point of two and a half years’ imprisonment was held to be “at the lower end of the available range”.11 The Court of Appeal added this:12

... the starting point adopted by the Judge appears to be on the lenient side when compared to similar cases. Although there are few decisions where starting points have been set on the basis firearms offending was the lead charge, possession of a single firearm with no mitigating circumstances

7      R v Fonotia [2007] NZCA 188.

8      Torea v R [2011] NZCA 96.

9      R v Richardson CA450/02, 25 March 2003.

10     Campbell v R [2022] NZCA 579.

11 At [25].

12     At [18] (emphasis added).

generally calls for a starting point in the vicinity of two to three years’ imprisonment.

[11]   Mr Joyce had the weapon in a public place. While not loaded, Mr Joyce had ammunition readily available. That the weapon was allegedly to defend Mr Joyce does not make the offending less serious. Were things otherwise, the law of the jungle would prevail rather than the rule of law. It follows no complaint can be made about the starting point. Indeed, it appears generous. I return to this topic shortly for reasons that will become apparent.

[12]   As is well known, the timing of a guilty plea is an important consideration in determining the level of discount for the plea.13 While Mr Joyce signalled a possible challenge to the admissibility of the evidence of the discovery of the firearm, no such challenge was brought. Mr Joyce was charged  25  May  2022;  he pleaded  guilty  16 August 2022. It is thus difficult to conceive the plea as late.

[13]   The one factor that might operate to reduce the discount is the strength of the prosecution case: Mr Joyce was caught red-handed.14 However, even taking this factor into account would still leave a discount of not less than 20 percent. The Judge deducted 15 percent.

[14]   The Judge appears to have added 10 percent to the starting point on the assumption Mr Joyce had repeatedly breached protection orders with firearms. I say “appears” as the sentencing remarks are silent on the size of the uplift, but arithmetic implies it was 10 percent. So too the earlier sentence indication. Mr Nicholls is correct the Judge erred on this aspect as a close reading of Mr Joyce’s record reveals no firearm was involved in the convictions for breaching a protection order. Indeed, the respondent now accepts as much.

[15]   This raises the decisive question: given these errors, is the sentence manifestly excessive?

13     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

14     See, for example, Wu v R [2022] NZCA 604.

[16]   A starting point of two and half years’ imprisonment would have been comfortably within range, as will be apparent from the cases mentioned earlier. That starting point and a 20 percent discount for the guilty plea would produce a 24-month term of imprisonment; that starting point and full credit for the plea would produce a term of 22 and a half months’ imprisonment. In other words, the adoption of an orthodox starting point and guilty-plea discount would produce a sentence almost identical to that imposed.

[17]   This leaves one thing. Mr Joyce told the pre-sentence report writer his house had been shot at by the Tribesman gang and he was a member of Killer Beez, an opposing gang. The summary of facts did not refer to Mr Joyce’s gang membership and the respondent did not advance this factor, or gang warfare, as aggravating at sentencing. Argument extended to whether this Court should consider these aspects on appeal, a point complicated by Mr Joyce’s assertion, through counsel, he has left the Killer Beez. As will be apparent, the sentence is not manifestly excessive irrespective of whether the offending was aggravated by gang membership, gang warfare, or both. Given this, it is not necessary to resolve this point.

Result

[18]The appeal is dismissed.

……………………………..

Downs J