JOYCE v NEW ZEALAND POLICE [2022] NZHC 3277

JOYCE v NEW ZEALAND POLICE [2022] NZHC 3277IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI-2022-488-000075[2022] NZHC 3277BETWEEN BLURAY JOYCEAppellantAND NEW ZEALAND POLICERespondentHearing: 6 December 2022Counsel: MC Nicholls for AppellantA Goodwin and R Annandale for RespondentJudgment: 7 December 2022JUDGMENT OF DOWNS JThis judgment was delivered by me on 7 December 2022 at 3pmRegistrar/Deputy RegistrarSolicitors/Counsel:MC Nicholls, Kerikeri.Crown Solicitor, WhangareiThe appeal[1] Bluray Joyce received a sentence of 23 months' imprisonment for firearmsoffending.1 Mr Joyce appeals sentence. An appeal in this context must be allowed ifthere was an error in the sentence and a different one should be imposed.2 Or, in short,if the sentence is manifestly excessive.3Background[2] Mr Joyce was driving in Kaikohe on the afternoon of 25 May 2022. He wasstopped by Police. Officers noticed a firearm wedged between the front passengerseat and the centre console. Mr Joyce was arrested for possession of the firearm, aWinchester pump-action shotgun. A search revealed live shotgun rounds, spentrounds, and several live bullets. Mr Joyce told Police he had "just" purchased thefirearm to protect himself.[3] Mr Joyce was promptly charged with unlawful carriage or possession of afirearm 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 inrelation 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 thatday.[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 deducted15 percent for Mr Joyce's guilty pleas, which the Judge described as "late".61 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 51.795 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 thestarting point and the guilty plea credit was too low; 25 percent should have beenapplied.Analysis[7] No guideline judgment exists in relation to offending of this nature, so somebrief analysis of the case law is necessary.[8] In R v Fonotia,7 Police found a loaded shotgun in the boot of the defendant'scar. 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 therange.[9] In Torea v R,8 the defendant was arrested in possession of a loaded .455 calibrepistol. The defendant had further ammunition too. A two and a half year starting pointwas upheld by the Court of Appeal. That Court cited an earlier decision in describingloaded firearms as "an anathema within our community".9[10] This leaves the recent decision of Campbell v R.10 Mr Campbell was foundguilty 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 thelower 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 sidewhen compared to similar cases. Although there are few decisions wherestarting points have been set on the basis firearms offending was the leadcharge, possession of a single firearm with no mitigating circumstances7 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 hadammunition readily available. That the weapon was allegedly to defend Mr Joycedoes not make the offending less serious. Were things otherwise, the law of the junglewould prevail rather than the rule of law. It follows no complaint can be made aboutthe starting point. Indeed, it appears generous. I return to this topic shortly for reasonsthat will become apparent.[12] As is well known, the timing of a guilty plea is an important consideration indetermining the level of discount for the plea.13 While Mr Joyce signalled a possiblechallenge to the admissibility of the evidence of the discovery of the firearm, no suchchallenge was brought. Mr Joyce was charged 25 May 2022; he pleaded guilty16 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 theprosecution case: Mr Joyce was caught red-handed.14 However, even taking this factorinto account would still leave a discount of not less than 20 percent. The Judgededucted 15 percent.[14] The Judge appears to have added 10 percent to the starting point on theassumption 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 arithmeticimplies it was 10 percent. So too the earlier sentence indication. Mr Nicholls is correctthe Judge erred on this aspect as a close reading of Mr Joyce's record reveals nofirearm was involved in the convictions for breaching a protection order. Indeed, therespondent now accepts as much.[15] This raises the decisive question: given these errors, is the sentence manifestlyexcessive?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 beencomfortably within range, as will be apparent from the cases mentioned earlier. Thatstarting point and a 20 percent discount for the guilty plea would produce a 24-monthterm of imprisonment; that starting point and full credit for the plea would produce aterm of 22 and a half months' imprisonment. In other words, the adoption of anorthodox starting point and guilty-plea discount would produce a sentence almostidentical to that imposed.[17] This leaves one thing. Mr Joyce told the pre-sentence report writer his househad been shot at by the Tribesman gang and he was a member of Killer Beez, anopposing gang. The summary of facts did not refer to Mr Joyce's gang membershipand the respondent did not advance this factor, or gang warfare, as aggravating atsentencing. Argument extended to whether this Court should consider these aspectson appeal, a point complicated by Mr Joyce's assertion, through counsel, he has leftthe Killer Beez. As will be apparent, the sentence is not manifestly excessiveirrespective of whether the offending was aggravated by gang membership, gangwarfare, or both. Given this, it is not necessary to resolve this point.Result[18] The appeal is dismissed...Downs J