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Joyce v R

Joyce v R

Case [2020] NZCA 124 30 April 2020

Sentencing

Aggravating and Mitigating Factors

Rehabilitative Efforts

Culpability

Totality Principle

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA312/2018
[2020] NZCA 124

BETWEEN	MARSHALL JAMES DENNIS JOYCE Appellant
AND	THE QUEEN Respondent

Hearing:	2 March 2020
Court:	Collins, Simon France and Lang JJ
Counsel:	J-A Kincade QC for Appellant E J Hoskin for Respondent
Judgment:	30 April 2020 at 4.00 pm

JUDGMENT OF THE COURT

AThe application for leave to adduce fresh evidence is granted.
BThe appeal against sentence is allowed.
CThe sentence of 6 years’ imprisonment on the charge of being in possession of methamphetamine for supply is quashed. The concurrent sentences of 6 months’ imprisonment for each offer to supply methamphetamine and supply methamphetamine charge are also quashed. In their place we substitute a sentence of 4 years and 3 months’ imprisonment to be served concurrently on each charge.
DThe minimum term of 3 years’ imprisonment on the charge of being in possession of methamphetamine for supply is quashed.
EIn all other respects the appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Lang J)

Mr Joyce was found guilty by a jury in the District Court on charges of supplying,[1] offering to supply,[2] and being in possession of methamphetamine for supply.[3] He was also found guilty of being in possession of cannabis[4] and unlawful possession of two airguns and a sawn-off shotgun.[5]
[1]Misuse of Drugs Act 1975, ss 6(1)(c) and 6(2).
[2]Sections 6(1)(c) and 6(2).
[3]Sections 6(1)(f) and 6(2).
[4]Sections 7(1)(a) and 7(2).
[5]Arms Act 1983, s 45(1).
On 15 May 2018, Judge Gibson sentenced Mr Joyce to 6 years’ imprisonment.[6] The Judge also made an order requiring him to serve a minimum term of 3 years’ imprisonment before being eligible to apply for parole.
[6]R v Joyce [2018] NZDC 9544.
Mr Joyce appeals against sentence on the basis that, taking into account the principles recently enunciated by this Court in Zhang v R, the Judge selected starting points that were too high and allowed insufficient credit for mitigating factors.[7] He contends this resulted in the Judge imposing an end sentence that was manifestly excessive. Mr Joyce also contends it was not necessary for the Judge to impose a minimum term of imprisonment.
[7]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
Mr Joyce filed his appeal against sentence prior to the delivery of the judgment in Zhang and the appeal must therefore be determined having regard to the principles contained in that judgment.[8]
[8]This Court confirmed in Zhang that the judgment was to apply to all cases where appeals had been filed against sentence prior to the delivery of the judgment: Zhang v R, above n 7, at [10(p)], [188]–[191].
Mr Joyce seeks leave to adduce fresh evidence in the form of material confirming rehabilitative efforts made by Mr Joyce following his arrest. The Crown has no objection to us receiving this material and we grant leave accordingly.

Facts

The police stopped a vehicle being driven by Mr Joyce…

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 R

Details

AGLC: Joyce v R [2020] NZCA 124
Case: [2020] NZCA 124
Decision Date: 30 April 2020 at 4.00 pm

CaseChat Overview and Summary

Marshall Joyce appeals against the sentence imposed on him by Judge Gibson in the District Court. The appeal concerns the sentence imposed on Mr Joyce for his convictions on charges of supplying, offering to supply and being in possession of methamphetamine for supply, as well as charges relating to cannabis and firearms. Mr Joyce contends the sentence imposed on him was manifestly excessive and that it was not necessary to impose a minimum term of imprisonment. The Court of Appeal agreed with Mr Joyce's contentions.

The starting point for the sentence of Mr Joyce on the methamphetamine charges was determined by the quantity of methamphetamine involved in the offending and Mr Joyce's role in the offending. The Court considered Mr Joyce's culpability on the methamphetamine charges fell within band two as adjusted by Zhang v R. The starting point on the methamphetamine charges was 4 years' imprisonment. The firearms charges warranted an uplift of 18 months. Mr Joyce's previous convictions and the fact that he committed the present offences while serving a sentence of supervision warranted an uplift of 4 months. The Judge also applied a discount of 1 year to reflect the restrictive bail conditions to which Mr Joyce had been subjected prior to trial. Mr Joyce had also made rehabilitative efforts to address his dependency on methamphetamine. The Court considered these efforts warranted a further discount of 7 months. This produced an end sentence of 4 years and 3 months' imprisonment. The Court considered it was not necessary to impose a minimum term of imprisonment. The appeal against sentence was therefore allowed. The Court substituted a sentence of 4 years and 3 months' imprisonment. It also quashed the order requiring Mr Joyce to serve a minimum term of imprisonment.

Orders