JOY v POLICE [2022] NZHC 2391

JOY v POLICE [2022] NZHC 2391 [19 September 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2022-409-000113[2022] NZHC 2391BETWEEN PUNEET JOYAppellantAND NEW ZEALAND POLICERespondentHearing: 1 September 2022Appearances: H C Coutts for the AppellantG E R Alloway for the RespondentJudgment: 19 September 2022JUDGMENT OF NATION JIntroduction[1] Puneet Joy was sentenced1 to seven months' home detention in the DistrictCourt on a charge of driving with excess breath alcohol third or subsequent.2 TheJudge also imposed an alcohol interlock licence. Mr Joy appeals. He says the sentenceimposed was manifestly excessive.Facts[2] Mr Joy was convicted of driving with excess breath alcohol in 2004 and 2011and refusing to provide a blood specimen in 2019.1 Police v Joy [2022] NZDC 11240.2 Land Transport Act 1998, ss 56(1) and 56(4); maximum penalty two years' imprisonment.[3] At approximately 10:30 am on 15 September 2021, Mr Joy was driving onPapanui Road. He completed a U-turn in front of oncoming traffic, causing them totake evasive action to avoid collision. Mr Joy was swerving within his lane. Hecontinued south on Papanui Road, then turned right into Bealey Avenue and ontoHarper Avenue driving erratically. He was travelling at approximately 70 km/h in a50 km/h zone, swerving across both lanes and almost collided with a median island.He continued onto Deans Avenue and turned into a driveway to reverse out and turnaround. A member of the public blocked his vehicle in the driveway by parking hercar behind his. He got out of the car, handed her his keys and said he was going to themosque. He was located by police at the mosque and required to undergo breathtesting. His result was 1408 mg of alcohol per litre of breath. The legal limit is 250mg.District Court decision[4] The Judge noted this was Mr Joy's fourth conviction for driving with excessbreath alcohol.3 She took as aggravating the extraordinarily high reading, more thanfive times the legal limit. She noted Mr Joy was subject to a sentence of intensivesupervision when he offended.[5] As mitigating circumstances, she considered Mr Joy's alcohol dependency, thefact he was experiencing difficult personal circumstances at the time of the offendingand that he had been almost nine months alcohol free. Rehabilitative steps he wastaking were set out. She accepted there were lengthy gaps between some of hisconvictions, though noted this was not the case with his most recent.[6] The Judge adopted a starting point of 18 months' imprisonment accounting forMr Joy's history. He received 20 per cent credit for his guilty plea entered "fairly earlyon", leaving an adjusted starting point of 14 months. She considered the aims andobjectives of sentencing were satisfied by an electronically monitored sentence ratherthan imprisonment, so sentenced Mr Joy to seven months' home detention. The Judgeimposed an alcohol interlock licence. She also made a confiscation order in relationto his vehicle. That order was removed via rehearing on the papers.3 One of the convictions was for refusing an officer's request for a blood specimen.Principles on appeal[7] Appeals against sentence are allowed as of right by s 244 of the CriminalProcedure Act 2011 and must be determined in accordance with s 250 of that Act. Anappeal against sentence may be allowed by this Court only if it is satisfied that therehas been an error in the imposition of the sentence and that a different sentence shouldbe imposed.4 It is appropriate for this Court to intervene and substitute its own viewsonly if the sentence being appealed is "manifestly excessive" and not justified by therelevant sentencing principles.5SubmissionsAppellant's submissions[8] Ms Coutts, for Mr Joy, submitted the starting point adopted by the Judge wastoo high; the Judge did not adequately recognise Mr Joy's personal circumstances,remorse and efforts at rehabilitation by sentencing credit; and the Judge erred in givingno or insufficient weight to the least restrictive outcome. She submitted that resultedin a manifestly excessive sentence.[9] Ms Coutts set out Mr Joy's personal circumstances and the background tosentencing in some detail. She referred to authorities to support a submission the fullrange of sentences is available to the court on the charge of driving with excess breathalcohol third or subsequent.[10] Addressing the starting point, Ms Coutts noted the Judge did not explicitlyrefer to Clotworthy v Police6 or Samson v Police7 which set out common aggravatingand mitigating factors of driving with excess breath alcohol offending and containbroad generalisations as to starting points. She submitted, with reference to thesecases, the fact this was Mr Joy's fourth conviction and the fact he only faced a singlecharge, the appropriate starting point was in the range of 10-12 months' imprisonment.4 Criminal Procedure Act 2011, ss 250(2) and 250(3).5 Ripia v R [2011] NZCA 101 at [15].6 Clotworthy v Police (2003) 20 CRNZ 439.7 Samson v Police [2015] NZHC 748.[11] Ms Coutts submitted it appeared the Judge did not apply the two-step methodfor sentencing but instead combined all aggravating and mitigating factors of theoffence in coming to the starting point without applying appropriate credit for remorse,personal circumstances and rehabilitation before applying credit for Mr Joy's guiltyplea.[12] Ms Coutts submitted the Judge did not address why home detention was theleast restrictive outcome appropriate in the circumstances as opposed to a sentencesuch as intensive supervision, as recommended by the PAC report, or even communitydetention. She submitted one of these sentencing options would better support Mr Joyto continue to work, support his family and attend rehabilitation requirements. Shesubmitted Mr Joy had previously completed all previous sentences without incident8including community detention, community work, supervision and disqualificationfrom driving. She said he had completed 12 months' intensive supervision at the timeof sentencing.[13] Ms Coutts submitted Mr Joy's huge achievement in remaining abstinent fromalcohol for nearly a year now, among other rehabilitative factors, should have beenrecognised by sentencing credit.[14] Turning to the type of sentence appropriate, Ms Coutts submitted homedetention places considerable restraint on a person's liberty and makes it difficult toretain employment, attend job interviews and appointments as every one of these mustbe approved by probation well in advance. She submitted the offending did notwarrant a sentence of home detention.Respondent's submissions[15] In written submissions for the Crown, Ms Hallaway said the Judge's approachwas consistent with Clotworthy, where aggravating and mitigating factors arediscussed in setting a starting point, and was consistent with the approach of bothparties in their written submissions. She submitted it could be inferred from theJudge's decision they accounted for personal mitigating factors in setting the startingpoint. She submitted it was open to the Judge to find home detention was the least8 The obvious exception is this offending.restrictive outcome appropriate. She noted Mr Joy was subject to a sentence ofintensive supervision when he committed the present offending. She submitted, givena sentence of community detention had been imposed less than two years prior forsimilar offending, there would be little to no deterrence in imposing such a sentenceagain.Analysis[16] Samson and Clotworthy provide the frame for sentencing driving with excessbreath alcohol (third or subsequent) offending. In Samson, Whata J set out broadgeneralisations as to supportable starting points, though was careful to emphasise thisoffending is not amenable to tariff-like categorisation:9(a) No seriously or only moderately aggravating factors, 9-12 months;(b) One or more seriously aggravating factors, 12-18 months;(c) Multiple offences with serious aggravating factors, 18-20 months; and(d) Multiple offences and very serious aggravating factors (i.e. offending ofthe worst kind), 20-24 months.[17] Serious aggravating factors were identified as a high level of intoxication,dangerous driving, very close proximity to previous EBA offending and/or aprolonged and continuous history of driving-related offending.10[18] Several of these factors are present. Mr Joy's level of intoxication was veryhigh, more than five times the legal limit. He drove dangerously, swerving betweenlanes, speeding and forcing other road users to take evasive action to avoid collision.I note in particular that Mr Joy was only prevented from continuing to drive by amember of the public seeing fit to block his vehicle with theirs. That indicates thelevel of danger that member of the public deemed he posed. There is proximity(though not close proximity) to his conviction for refusing a blood specimen relatingto offending in February 2019. I accept Mr Joy was only charged with a single offenceand his history of driving offending is not particularly continuous/prolonged. Theoffending was aggravated by the fact Mr Joy was subject to a sentence of intensivesupervision imposed on 18 February 2021.9 Samson v Police, above n 7, at [15].10 At [16].[19] The starting point was justifiable by reference to Samson. A review of theseveral authorities fortifies that conclusion.[20] In particular, in Henderson v Police, the offender was charged with her thirddriving with excess breath alcohol offence, driving in a dangerous manner and drivingcontrary to a zero-alcohol licence.11 She drove dangerously in a manner comparableto Mr Joy and had a similar alcohol level. She had one less previous conviction andoffended while subject to a zero alcohol-licence rather than a sentence of intensivesupervision. A starting point of 15 months was considered high (though fitting readilywithin the generalisations identified in Samson) but not excessive. In Bechan vPolice,12 a case referred to in Henderson, the offender committed his fifth excessbreath alcohol offence in four and a half years with a lower alcohol level than Mr Joy.Dangerous driving was suggested but Mr Bechan did not offend while subject tosentence. Whata J observed a starting point of 14-16 months would appearcommensurate with the offending but did not disturb a starting point of 18 months.[21] It should be emphasised that there will be a range of appropriate starting pointsfor offending and, while consistency is desirable, Mr Joy must ultimately be dealt withon his own offending. Mr Joy's offending was slightly more serious than the offendingin Henderson and Bechan. I consider, having regard to the particular features of MrJoy's offending, the Judge's starting point of 18 months' imprisonment was stern butappropriate.[22] The Judge discussed Mr Joy's personal circumstances but did not grant Mr Joyany explicit sentencing credit for these circumstances.[23] Mr Joy provided an affidavit in the District Court dated 19 May 2022. He is54 with two children aged 27 and 26 (now 27). His younger child has special needsand still requires some significant care.11 Henderson v Police [2015] NZHC 3249.12 Bechan v Police [2015] NZHC 747.[24] Mr Joy said he suffers from clinical depression, anxiety and alcoholism. Hedeposed he has been abstinent from alcohol since 17 September 2021. He is on manymedications, one of which deals with anxiety and numbness in his body.[25] He said he fell off the wagon on the days prior to the offending and begandrinking excessively, mixing alcohol with his medication. He attached his visastatement which indicated significant trips to liquor stores, a check in to a hotel andfast-food/restaurant expenditure. He explained why he drove, though acknowledgedit was an unfortunate decision.[26] Mr Joy provided a letter from a psychiatrist Dr Mulder who said Mr Joy didnot have access to his medication and was likely to have been in withdrawal. Anotherletter referred to symptoms that could appear with withdrawal. Although Dr Muldersaid those symptoms might be associated with reduced functioning anduncharacteristic behaviour, his letter did not suggest that, with withdrawal, Mr Joywould have had an impaired ability to understand what he was doing.[27] Mr Joy also attached to his affidavit a letter from a Dr Todd of 13 September2011. Dr Todd was then a specialist in psychiatry and addiction medicine. Dr Toddalso referred to the same possible effects of withdrawal and its possible impact oncharges Mr Joy was then facing relating to his arrest for driving with excess breathalcohol on 13 March 2011. Dr Todd referred to a range of possible symptoms, similarto those described by Dr Mulder. Dr Todd did not suggest those symptoms wouldaffect Mr Joy's understanding of what he was doing. Dr Todd said the symptoms, asdescribed to him by Mr Joy, could have prompted him strongly to seek his medicationto alleviate the symptoms.[28] Mr Joy deposed he has taken the following steps since his offending:(a) regular attendance to Te Awhina run by the Salvation Army for recoveringalcoholics and addicts;(b) counselling sessions at Canterbury Men's Centre for mental health, traumaand childhood sexual abuse;(c) Grace Vineyard Church active participation and volunteering;(d) attendance to Hapori Ora sessions;(e) attendance to Alcoholics Anonymous meetings;(f) educative programme on alcoholism run by Salvation Army; and(g) counselling sessions with a psychologist on a pro-bono basis.[29] Mr Joy attached a letter from the Salvation Army dated 18 May 2022confirming his engagement there since 2021. A letter from the Canterbury Men'sCentre indicated he had attended a free initial appointment then 15 subsequentcounselling sessions.[30] A brief report from Dr Staite, the Grace Vineyard Church counsellor, stated hehad seen Mr Joy on 12 occasions for 50-minute counselling sessions. Dr Staite statedthe primary theme of Mr Joy's formative years was severe trauma including abusesustained from multiple sources. This abuse was outlined by Mr Joy in emails attachedto the report. Dr Staite said Mr Joy turned to alcohol use and abuse as a teenager tonumb the pain. This led to "inevitable" neurological changes.[31] Despite that, Dr Staite said most of Mr Joy's adult life appears to have beenmarked by "success in family life and business in New Zealand and previously inIndia. His trajectory is of increasing mastery over his addiction." Dr Staite indicatedMr Joy accepts responsibility, desperately wants to stop relapsing and feels deep regretand shame.[32] Another document on the file is a report from Dr Brandram-Adams of theSalvation Army Bridge Programme dated 31 August 2020 (prior to this offending butin the leadup to the offending for which he was sentenced to intensive supervision).This document confirms Mr Joy has been diagnosed with psychotic symptoms (whichmay be related to trauma or alcohol abuse), severe alcohol use disorder, majordepressive disorder and complex PTSD. It lists his current medications andsymptoms. There is a comment that Dr Brandram-Adams got the impression Mr Joywas interested in having extra treatment because of his forthcoming court appearance.There is also comment that he has had various periods of abstinence for one to twoand a half years, though Dr Brandram-Adams commented this self-report was "notcompletely borne out when looking at his clinical records". This report is consistentin its detail of the abuse Mr Joy suffered as a child with the other information provided.[33] Mr Joy's wife said they had been married for over 20 years. They now livetogether separated but amicable. She confirmed he was immensely remorseful for hisslip into alcohol and had bounced back into his programme swiftly this time around.She confirmed Mr Joy has been a big help with their autistic son and that son had notcoped very well in his absence.[34] It is abundantly clear Mr Joy is a man with severe alcohol issues andrehabilitative needs. It is also clear he has benefited from the support of variousinstitutions and people who endeavour to assist him to meet those needs. Theinformation provided suggests Mr Joy is a man of some sophistication, intellect andpotential despite the adversity he faced as a child and adolescent. He has a degree inpolitical science and defence studies. It is suggested he undertook further study atCanterbury University. A letter attached to his affidavit indicates he previouslyworked in a senior role at an "incubator company" creating joint ventures overseasand working in business development.[35] Because of his previous incidents and the advice he had received from variousmedical practitioners, Mr Joy was aware he had issues with alcohol and needed to stayaway from it. He knew he needed to continue taking his medication. He especiallyknew he was not to drink and drive. Alcohol appears to have been a lifelong issue forhim. The problems he had while growing up may well account for his addiction issues.The offending for which he had to be sentenced was not however his use of alcohol.It was the fact he chose to drive when his ability to do so safely was seriously impairedby the very high level of alcohol identified.[36] Notwithstanding that, Mr Joy's rehabilitative needs appear to have been met inthe year between his offending and the District Court sentencing. He seems to bemaking progress. In particular, Ms Coutts advised Mr Joy has been abstinent fromalcohol for nearly a year now. I note Thomas J's comment in Ruru v Police, where asentence of imprisonment was quashed and replaced with a sentence of homedetention, that "the most effective protection of the community is successfulrehabilitation so that behaviour is not repeated".13[37] It was suggested the Judge took Mr Joy's personal mitigating factors intoaccount in setting the starting point. That may have been the case. I acknowledge thepolice at sentencing appear to have submitted an 18-month starting point wasappropriate having regard to Mr Joy's "personal circumstances as outlined ". Hiscounsel at sentencing also appears to have proceeded on that basis.[38] Under the Moses v R approach, while a starting point should take into accountaggravating and mitigating factors of offending, it should not take into account thosepersonal to an offender.14 Sentencing for driving with excess breath alcohol offendingfollows the same approach except for the fact previous convictions can be taken intoaccount when setting a starting point (as they were here). In Samson, Whata J analysedthe list of relevant factors discussed in Clotworthy and allocated them as aggravatingfactors relevant to a starting point, personal aggravating factors and personalmitigating factors.15 Nothing in that decision endorses an approach by which allfactors are included in a starting point.[39] It is not certain in the circumstances that the starting point adopted by the Judgeaccounted for Mr Joy's personal circumstances. Having regard to Samson and theauthorities discussed above, the starting point of 18 months was stern.[40] In pleading guilty, Mr Joy accepted responsibility for his offending and, in thatway, expressed remorse for his offending. For that, he received a credit of 20 per cent.There was however a tangible expression of remorse through the steps Mr Joy hadtaken to deal with his addiction. There should have been express recognition of thatby way of a credit, which could have been 10 per cent. I do not consider Mr Joy couldhave expected a further credit through the way abuse while growing up had been acontributing factor to his addiction issues. It is apparent from the information Mr Joyput before the Judge that he had the intelligence, ability and understanding to knowhow his past put him at risk of further offending and what he needed to do to avoidboth succumbing to his addiction but, more importantly, to refrain from driving when13 Ruru v Police [2018] NZHC 114 at [21].14 Moses v R [2020] NZCA 296, [2020] 3 NZLR 583.15 Samson v Police, above n 7, at [14].under the influence of alcohol, especially so with the way offending of the sort thatoccurred here was a danger to others.[41] Had the Judge expressly provided for a discount of 10 per cent on a startingpoint of 18 months' imprisonment, with the 20 per cent discount for his guilty plea,the notional sentence would have been a little over 12 and a half months'imprisonment. That would commute to a little over six months home detention.[42] Ms Coutts argued the Judge erred in imposing a sentence of home detentionrather than a sentence of community detention and supervision as recommended bythe PAC report. She emphasised home detention is a sentence which placesconsiderable restraint on a person's liberty and can make it difficult in practice forthem to retain employment, attend job interviews and attend medical/counsellingappointments as every appointment must be approved well in advance by a probationofficer.[43] Ms Coutts submitted a sentence of home detention practically prevents Mr Joyfrom assisting his wife, who is unable to drive, with chores including supermarketshopping and prevents him taking care of his autistic son. In particular, Mr Joy wouldnormally take his son to cello and keyboard lessons, tennis and Frisbee practice, libraryvisits, mall visits, swimming and occasional visits to the cinema. He would alsosupervise him in his running, sprinting and jogging in the park. Mr Joy lost his job asa result of being sentenced to home detention.[44] I acknowledge a sentence of intensive supervision would have someadvantages in facilitating Mr Joy's support for his wife and autistic son while allowinghis continued engagement with rehabilitative sources. I also acknowledge the Judge'swritten decision does not disclose reasons for preferring home detention over a lessrestrictive sentence.[45] However, I am not persuaded the sentence of home detention wasinappropriate. The Crown rightly observed Mr Joy had just received a sentence ofcommunity detention and supervision for comparable offending. He was in factsubject to a sentence of intensive supervision when he offended. Mr Joy's offendingwas serious, attracting a starting point of imprisonment and involving danger to thepublic. The Judge was required to consider both personal and community deterrence.I consider a sentence of home detention was the least restrictive outcome that couldprovide meaningful deterrence to Mr Joy.[46] I am not persuaded the sentence of home detention excludes Mr Joy'srehabilitation. As Ms Coutts has acknowledged, Corrections may approve absencesfor him to attend job interviews and medical/counselling appointments. Indeed,Corrections is likely to encourage such productive absences from his detention. Thepost detention conditions will support his rehabilitation following the detentioncomponent. Ultimately it was open to the Judge to find home detention was the leastrestrictive outcome in the circumstances.[47] As has been stated by the Court of Appeal on a number of occasions, on anappeal against sentence, the ultimate issue is whether the sentence imposed wasmanifestly excessive. Although the Judge should have expressly given Mr Joy creditfor the steps he has taken and will continue to take to deal with his addiction, I havenot been satisfied that, had she done so, the sentence would have been reduced to alevel where it can be said the sentence actually imposed was manifestly excessive.[48] I also consider Mr Joy's commendable efforts to deal with his addiction hadbeen adequately recognised in the Judge's decision to sentence him to home detentionrather than impose a sentence of imprisonment.Conclusion[49] Mr Joy's appeal is dismissed.Solicitors:H C Coutts, Barrister, ChristchurchCrown Solicitor's Office, Christchurch.