Ching-Joyce v Police [2016] NZHC 1019 (18 May 2016)

Last Updated: 3 August 2019

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000028 [2016] NZHC 1019

JAMES DANIEL CHING-JOYCE

v

NEW ZEALAND POLICE

Hearing:	17 May 2016
Appearances:	D Matthews for the Appellant C J Boshier for the Respondent
Judgment:	18 May 2016

JUDGMENT OF MANDER J

[1] The appellant, James Ching-Joyce, was apprehended on 30 September 2015 driving a motor vehicle with an excess breath-alcohol level of 898 micrograms. Eight days earlier, on 22 September, he had driven with an excess breath-alcohol level of 675 micrograms. As a result he was suspended from driving. In an unrelated incident Mr Ching-Joyce was found with a flick-knife on his person in a public mall and charged accordingly.

[2] The appellant pleaded guilty to two charges of driving with excess breath alcohol in an aggravated form (being the appellant’s third or subsequent offence),¹ a charge of driving while suspended,² and one of possession of a knife in a public

¹ Land Transport Act 1998, s 56(1) and (4).

² Section 32(1)(c) and (3).

CHING-JOYCE v NEW ZEALAND POLICE [2016] NZHC 1019 [18 May 2016]

place.³ He was sentenced by Judge Saunders to an effective sentence of 17 months’ imprisonment.⁴ He appeals the length of that sentence.

District Court sentence

[3] Mr Ching-Joyce was for sentence before Judge Saunders on his seventh and eighth charges of driving with excess breath alcohol. In February 2012 he had previously been sentenced to nine months’ imprisonment on his sixth conviction. He had a prior conviction from 2007, and had regularly offended between 2001 and 2004.

[4] Judge Saunders referred to Clotworthy v Police which reviewed sentencing levels for repeat drink drivers and factors to be considered when imposing an appropriate sentence for that type of recidivism.⁵ Judge Saunders emphasised relevant sentencing considerations required to be given effect, namely the protection of the public from the risk drink drivers present and the need for deterrence. His Honour observed the aggravating features of the 30 September offending to be the high breath alcohol level and the repetition of the offending within the short space of eight days.

[5] Judge Saunders considered an uplift of six months from a 15 month sentence for the 30 September offence was required in addition to a further two months to mark the separate offending of possession of the knife and the fact that Mr Ching-Joyce drove while suspended. From a starting point of 23 months Mr Ching-Joyce was extended full credit for his guilty pleas which resulted in the sentence of 17 months.⁶ The sentencing Court declined to impose home detention and no appeal lies from that decision.

[6] Judge Saunders remarked on the need for Mr Ching-Joyce to address his alcohol dependency. He recommended the appellant be assessed for the Drug Dependency Unit in prison and that he undertake treatment offered to him. Special

³ Summary Offences Act 1981, s 13A.

⁴ Police v Ching-Joyce [2016] NZDC 5709 at [9].

⁵ Clotworthy v Police (2003) 20 CRNZ 439 (HC).

6. In formally passing sentence on Mr Ching-Joyce, Judge Saunders imposed a 15 month term of imprisonment for the excess breath alcohol charge of 30 September and a cumulative two month period of imprisonment on the driving while suspended charge. Concurrent sentences of one month and six months were imposed respectively on the charges of possession of a knife and the 22 September excess breath alcohol charge.

release conditions were also imposed to allow Mr Ching-Joyce to be assessed for his alcohol dependency and any treatment programmes or counselling that may be necessary when he returned to the community.

The appeal

[7] Mr Ching-Joyce appeals against the end sentence of 17 months’ imprisonment on the basis it is manifestly excessive. He acknowledges the uplift to reflect the totality of the offending for the additional breath-alcohol offence, and the suspension and weapon charges, was appropriate, but maintains the starting point of 15 months for the 30 September offending was too high. It was submitted the appropriate starting point should have been one of 12 months. Affording Mr Ching-Joyce full credit for his guilty pleas it was submitted an end sentence in the vicinity of 13 – 14 months should have been imposed.

The respondent’s position

[8] The Crown’s fundamental position is the sentence was not manifestly excessive and fell within the range available to the sentencing Judge in the exercise of his discretion. It emphasised the high breath-alcohol levels in the two instances of drink driving which occurred in very close succession. The Crown submitted the pre- sentence report disclosed that Mr Ching-Joyce has significant alcohol issues and in the absence of fully addressing those difficulties he presents as a risk to the public about which the sentencing Court was rightly concerned.

Approach to appeal

[9] This is an appeal against sentence and as such may only be allowed if I am satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.⁷ If the sentence is one properly justified having regard to relevant sentencing principles and does not admit of an error requiring this Court to re-exercise the sentencing discretion, it is not my place to intervene and substitute my view for that of the sentencing Court. In the context of the present appeal it is only if the sentence is manifestly excessive that the appeal Court may interfere with the

⁷ Criminal Procedure Act 2011, ss 244 and 250.

exercise of the Judge’s discretion.⁸ The focus of the appeal must be on the actual sentence imposed rather than the process by which the sentence is reached or its component parts.⁹

Discussion

[10] Mr Ching-Joyce submitted the sentencing Court had fallen into error in its reliance on the Court of Appeal’s decision in R v McQuillan and mis-applied the guidance provided in Clotworthy v Police by effectively placing his offending into the most serious category of repeat drink driving offenders.¹⁰

[11] In R v McQuillan a sentence of two years’ imprisonment was upheld by the Court of Appeal in respect of two aggravated excess blood/alcohol offences. There were aggravating features in that case which are not present in Mr Ching-Joyce’s offending. In particular, he did not abscond and seek to avoid the consequences of his offending, nor does he have a previous conviction for dangerous driving causing death which was a part of Mr McQuillan’s persisting history of driving offending. Each case however will inevitably be different and it is not immediately apparent when viewed across the spectrum of sentences imposed on recidivist drink drivers that the 17 month term imposed on Mr Ching-Joyce is inconsistent with the two year sentence upheld in respect of Mr McQuillan.

[12] In relation to the relevant factors bearing upon the length of sentence viewed in Clotworthy v Police, Mr Ching-Joyce emphasised the hiatus in his offending of some five years after his last conviction in 2012 and an apparent decline in the frequency of his offending as he has grown older. It was submitted that there was no greater risk to the public arising from Mr Ching-Joyce’s conduct other than that already inherent in the charges themselves.

[13] Mr Matthews, who appeared on the appellant’s behalf and made comprehensive submissions in support of the appeal, contended the starting point for the 30 September offence should have been 12 months rather than 15 months, and

⁸ Tutukangahau v R [2014] NZCA 279, [2014] 3 NZLR 482.

⁹ Larkin v Ministry of Development [2015] NZHC 680 citing Ripia v R [2011] NZCA 101 at [15].

¹⁰ R v McQuillan CA 129/4, 12 August 2004; Clotworthy v Police, above n 5.

placed reliance on the gap in Mr Ching-Joyce’s recent history of offending. I accept that is to some degree a factor which needs to be taken into account, but its effect is considerably diluted when considered against the fact Mr Ching-Joyce reoffended only days after being apprehended for the same offending and suspended from driving.

[14] Any confidence the Court may have obtained from that period of “non- offending” has to be balanced against the concern, that whatever advances Mr Ching-Joyce had previously made regarding his alcohol problem, he current presents with very real alcohol difficulties, manifested in the multiple offending for which he was before the Court.

Decision

[15] I accept the sentence of 17 months’ imprisonment may be considered a stern one, however I have not been brought to the point where I can conclude the sentence was outside the range available to the sentencing Court. A combination of factors justify the length of the sentence imposed. Mr Ching-Joyce was facing his eighth breath alcohol charge. The reading was high. Only eight days previously he had been apprehended in similar circumstances for the same offending. Despite being suspended from driving he ignored the prohibition and drove again while intoxicated. Care was required to ensure the 6 month uplift for the earlier offending (the seventh conviction) did not result in any double counting, however, the increase was sufficiently moderated to avoid that concern.

[16] When set against Mr Ching-Joyce’s history it is apparent he currently has a deep seated alcohol dependence which is at the root of his offending and which he appears unable to control. In the updated pre-sentence report presented to the sentencing Court, advice was received that Mr Ching-Joyce had relapsed into a pattern of problematic drinking on a daily basis. It was submitted on the appellant’s behalf that he has made genuine efforts to address the underlying causes of his offending and that his difficulties in being able to progress entry into residential rehabilitation programmes were not all of his own making. It was also stressed that Mr Ching-Joyce had not reoffended during the lengthy remand period since the offending.
[17] However, the pre-sentence report described Mr Ching-Joyce as having limited commitment to addressing his alcohol dependency issues. Absent the availability or willingness of Mr Ching-Joyce to make himself available for a residential treatment programme, imprisonment was recommended. It was against that background Mr Ching-Joyce presented for sentence before Judge Saunders. For the reasons canvassed, I do not consider the length of the sentence imposed was beyond the range available to the Judge.

Result

[18] The appeal is accordingly dismissed.

Solicitors:

D J Matthews, Public Defence Service Raymond Donnelly & Co