Joyce v Police [2012] NZHC 330 (27 February 2012)

Last Updated: 12 March 2012

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2012-443-005 [2012] NZHC 330

BETWEEN ERIC CLIFTON JOYCE Appellant

AND NEW 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