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…

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 Joyce v Police

Details

AGLC: Joyce v Police [2022] NZHC 3277
Case: [2022] NZHC 3277
Decision Date: 7 December 2022

CaseChat Overview and Summary

Bluray Joyce appeals a 23-month imprisonment sentence for firearms offences. The appeal must be allowed if there was an error in the sentence and a different one should be imposed. The sentence is manifestly excessive. Mr Joyce was caught with a Winchester pump-action shotgun in his car. He told police he bought the weapon for self-protection. The starting point for the sentence was 24 months’ imprisonment, with a 15% reduction for his guilty plea. The judge added 10% to the starting point based on Mr Joyce’s record with firearms, though there was no evidence to support this. The starting point and a 25% reduction for the guilty plea would have resulted in a 22.5-month sentence. The appeal is dismissed.

Orders