Joyce v Police

[2012] NZHC 330

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2012-443-005 [2012] NZHC 330

BETWEEN  ERIC CLIFTON JOYCE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         27 February 2012

Counsel:         N Bradley and M Hawkes for Appellant

S Law for Respondent

Judgment:      27 February 2012

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, PO Box 8217, New Plymouth

Thomson O’Neil & Co, PO Box 22, Eltham

JOYCE V NEW ZEALAND POLICE HC NWP CRI 2012-443-005 [27 February 2012]

[1]      Mr Joyce appeals against a sentence of two months imprisonment imposed in the  District  Court  at  Hawera  on  21  February  2012.    Mr  Joyce  was  sentenced following his plea of guilty to a charge of driving a motor vehicle while disqualified. The offence occurred on 2 January 2012.

[2]      Mr  Joyce  has  been  convicted  on  nine  occasions  previously of  the  same offence.  Those convictions were entered between 22 June 1999 and 16 July 2010. The sentence appeal is pursued on the grounds that the sentence was inappropriate. Ms Bradley, for Mr Joyce, contends that the appropriate sentence was one of home detention.

[3]      The summary of facts is brief. At about 4.30pm on 2 January 2012, Mr Joyce was driving along Brecon Road, in Stratford.   A passing police patrol recognised him.    He  was  stopped  subsequently on  Page  Street.    He  admitted  to  being  an indefinitely disqualified driver.  In explanation, Mr Joyce said that he was going to uplift his brother from the local pub.

[4]      The case is very sad.  Mr Joyce has terminal cancer and may not have more than a few months to live.  The information before me suggests that his lifespan is likely to be no more than another 12 months.

[5]      Previously Mr Joyce has been the subject of an electronically monitored sentence.  However, in the pre-sentence report that was available for sentencing, the probation officer (after recording that electronically monitored sentences had not been fully canvassed) expressed the view that, having regard to Mr Joyce’s required level of medical care and lack of support networks, he may struggle to comply with the “tight restrictions” of the home detention sentence “should his health further deteriorate”.

[6]      The nature of Mr Joyce’s condition is captured in the recommendation that the Court impose a sentence ordering him to come up for sentence if called upon, despite the recidivist offending.

[7]      On 21 February 2012, Judge Roberts sentenced Mr Joyce.   The Judge was well aware of his difficult personal circumstances.  At the time of sentence Mr Joyce was aged 60 years.  Two children aged 21 and 16 years respectively live with him and his partner.   Each has intellectual disabilities.   Mr Joyce’s partner is currently receiving dialysis treatment at Taranaki Base Hospital.   The nature of those circumstances are likely to have led the probation officer to reach the view expressed about the inadequacy of support networks.

[8]      Judge Roberts referred to an earlier pre-sentence report dated 29 June 2010, when Mr Joyce had come before the Court on a similar charge.  Home detention was recommended on the basis that it would give Mr Joyce the opportunity to address counselling issues and would ensure that he maintain a level of motivation to lead an offence-free life.   In context, the Judge considered (rightly in my view) that that referred  to  not  driving  while  disqualified.     Having  regard  to  the  additional information available, Judge Roberts was of opinion that Mr Joyce had not learnt his lesson and continued to “push boundaries”.

[9]      As before me today, Ms Bradley, in compelling submissions, urged a non- custodial  sentence  to  take  account  of  the  health  considerations  and  to  adopt  a humane approach.

[10]     The Judge considered that had Mr Joyce been fit and healthy, he would have imposed a sentence of one year imprisonment.  However, to take account of other humanitarian   factors,   Judge   Roberts   imposed   a   sentence   of   two   months imprisonment as well as an order for continued disqualification from driving.   He took the view that the offending was far too serious to justify home detention even having regard to Mr Joyce’s health.

[11]     If Mr Joyce were imprisoned there are other routes he may take to seek early release if circumstances so dictated and medical evidence supports them.  One is if he is regarded as seriously ill and unlikely to recover: see s 41(1) of the Parole Act

2002.  The other vested in the Chairperson of the Parole Board is a reference to the

Board for early release on “exceptional circumstances”: s 125(1).

[12]    Although the sentence may seem harsh, the circumstances in which the offending continues, the absence of a firm medical opinion as to his prognosis and the unsuitability of home detention means that the Judge had little option but to impose a very short term of imprisonment in respect of which Mr Joyce would in any event be eligible for parole after one month.   Thereafter, he would have no restrictions on his liberty, save for the disqualification from driving.   In those circumstances, I can see no basis on which to interfere with the decision of the District Court Judge.

[13]     The appeal against sentence is dismissed.

[14]     Mr  Joyce  was  granted  bail  pending  appeal.    As  the  appeal  has  been unsuccessful, he will need to surrender to a police station in order to commence the sentence of imprisonment.  Mr Joyce shall surrender to the police station at Stratford no later than 10am tomorrow.  In the unlikely event that he did not, any further issues

will need to be addressed by the District Court.

P R Heath J