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Marshall James Dennis Joyce v/s The Queen


Company & Directors' Information:- MARSHALL CORPORATION LTD. [Active] CIN = U70101WB1984PLC038237

Company & Directors' Information:- J N MARSHALL PRIVATE LIMITED [Active] CIN = U29111PN1958PTC011125

Company & Directors' Information:- JAMES & CO PVT LTD [Strike Off] CIN = U63090WB1943PTC011213

Company & Directors' Information:- I-QUEEN PRIVATE LIMITED [Active] CIN = U74999KL2017PTC048635

    CA No. 312 of 2018

    Decided On, 30 April 2020

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE COLLINS
    By, THE HONOURABLE MR. JUSTICE SIMON FRANCE & THE HONOURABLE MR. JUSTICE LANG

    For the Appellant: J-A. Kincade QC. For the Respondent: E.J. Hoskin, Advocate.



Judgment Text


REASONS OF THE COURT

(Given by Lang J)

[1] 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]

[2] 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.

[3] 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.

[4] 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]

[5] 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

[6] The police stopped a vehicle being driven by Mr Joyce shortly after 3 am on 18 October 2015. When they searched the vehicle, the police located 28.35 grams of methamphetamine, 15.9 grams of cannabis, a loaded sawn-off shotgun and two airguns. They also discovered other indications of commercial drug dealing activity including a “tick” book, a cell phone and $12,885 in cash. When the police subsequently analysed the data on the cell phone, they found messages suggesting Mr Joyce had supplied and offered to supply a total of 3.76 grams of methamphetamine.

[7] The only passenger in the vehicle was Mr Joyce’s girlfriend. Both were charged with being in possession of the items found in the vehicle. Each gave evidence at trial and claimed to have no knowledge of those items. Each attributed responsibility to the other. The jury acquitted Mr Joyce’s girlfriend and found Mr Joyce guilty on all charges.

The sentence

[8] The Judge took the charge of being in possession of methamphetamine for supply as the lead charge. He considered Mr Joyce’s culpability on this charge fell within band two identified by this Court in R v Fatu.[9] This called for a starting point of between 3 and 9 years’ imprisonment. The Judge selected a starting point of 4 years and 3 months’ imprisonment on this charge. He then applied an uplift of 6 months to reflect the remaining methamphetamine charges and a further uplift of 3 months on the cannabis charge.

[9] The Judge observed that the firearms offences were particularly serious given the context in which they were committed.[10] He therefore applied an uplift of 18 months to reflect those charges. This produced a sentence of 6 years and 6 months’ imprisonment.

[10] The Judge increased this by a further 6 months to reflect two aggravating factors personal to Mr Joyce. The first was the fact that Mr Joyce has previous convictions on charges relating to the manufacture and supply of methamphetamine and the cultivation and supply of cannabis. That offending had occurred in 2009 and he was sentenced to 12 months’ home detention on them in 2011. The second was the fact that Mr Joyce committed the present offences whilst he was serving sentences of supervision and community work imposed in June 2015 on charges of male assaults female and speaking in a threatening manner.

[11] The only mitigating factor for which the Judge applied a discount arose out of the fact that Mr Joyce had been subject to very restrictive EM bail conditions for a period of 2 years before trial. The Judge allowed a discount of 1 year to reflect this factor. This produced the end sentence of 6 years’ imprisonment.

[12] The Judge did not consider the usual parole provisions were sufficient to recognise the sentencing principles of denunciation, deterrence and the need to protect the community from further similar offending. He therefore made an order under s 86 of the Sentencing Act 2002 requiring Mr Joyce to serve a minimum term of 3 years, or 50 per cent, of his sentence before being eligible to apply for parole.

The argument on appeal

[13] On Mr Joyce’s behalf, Ms Kincade QC submitted that the sentence requires adjustment in several respects to recognise the principles referred to in Zhang. First, she contended there is ample evidence that Mr Joyce’s offending was driven by his longstanding addiction to methamphetamine. She submitted this reduced his culpability significantly, and that a global starting point of no more than 3 years’ imprisonment was warranted on all the drugs charges. Ms Kincade also argued that an uplift of no more than 12 months was necessary to reflect the firearms charges. Ms Kincade acknowledged an uplift of 6 months was appropriate to reflect Mr Joyce’s previous convictions, but contended the resulting sentence of 4 years 6 months’ imprisonment should be reduced to 4 years to reflect totality principles.

[14] In addition to the discount applied to reflect Mr Joyce’s restrictive EM bail conditions, Ms Kincade said a further reduction of at least 15 per cent was necessary to reflect Mr Joyce’s addiction to methamphetamine and the rehabilitative efforts he has undertaken to address it. She therefore submitted an end sentence of no more than 2 years and 10 months’ imprisonment was warranted.

[15] Ms Hoskin contended for the Crown that the present case did not raise any issues that needed to be revisited in light of Zhang. She acknowledged the Judge did not take Mr Joyce’s dependency on methamphetamine into account but said this did not mean the end sentence was manifestly excessive. Ms Hoskin submitted that if the issue was to be taken into account at all, it should be within the context of credit to be given for rehabilitative steps Mr Joyce has taken since his arrest.

Starting points

The drug offending

[16] In Zhang, this Court reconsidered the approach to be taken to sentences imposed for offending involving the importation, manufacture and supply of methamphetamine. It reviewed the sentencing bands identified in R v Fatu and adjusted these to meet the concerns it identified arising out of current sentencing practice.[11] The only change that is relevant for present purposes relates to band two, which applies to offending involving between five and 250 grams of methamphetamine. Offending in this band will now attract a starting point between 2 and 9 years’ imprisonment. Under Fatu such offending attracted a starting point of between 3 and 11 years’ imprisonment.[12]

[17] The Court confirmed that the quantity of methamphetamine involved is still an important consideration in fixing culpability.[13] This is because it remains a reasonable proxy for the social harm done by the drug and the illicit gains to be made from importing and selling it.[14] Quantity alone, however, cannot determine culpability. Another very important factor is the role performed by the offender in contrast to others sentenced earlier who fall within the same band and category.[15]

[18] The Court in Zhang indicated that sentencing Judges may derive assistance in this context from the following adaptation of the guidelines adopted by the United Kingdom Sentencing Council:[16]

[19] Ms Kincade submitted Mr Joyce’s role meant he fell within the description of a lesser offender in the above table because his offending was driven by his addiction to methamphetamine, he had no influence on those above him in the supply chain and he did not have any awareness of the scale of the operation. Ms Hoskin for the Crown contended the offending exhibited several of the hallmarks of a significant offender because it resulted in financial gain well beyond that necessary to fund Mr Joyce’s methamphetamine habit.

[20] We do not see Mr Joyce’s role as fitting neatly within either category referred to by counsel because it involves elements referable to both. Mr Joyce appears to have been an independent retail operator who chose to sell methamphetamine both to finance his drug habit and to meet his living costs. Although he managed and ran his own drug dealing business, his was a small operation functioning at a retail level. He was not part of a larger operation. There is no evidence to suggest his addiction to methamphetamine impaired his ability to make a rational choice as may sometimes diminish the culpability of an offender.[17] Furthermore, although his role may be described broadly as that of a street level dealer, it nevertheless involved the sale of reasonably significant quantities of methamphetamine and is likely to have generated a considerable cash income. That is evident from the quantities of both methamphetamine and cash found in his possession on 18 October 2015. The number of firearms in his possession at that time also provides an indicator as to the level of his dealing activities.

[21] We consider the starting point needed to reflect all three aspects of Mr Joyce’s methamphetamine offending. We see little point in distinguishing between them as the Judge did. The fact that Mr Joyce supplied or offered to supply 3.76 grams of methamphetamine is most appropriately recognised in a global starting point that reflects his overall culpability as a dealer in methamphetamine.[18]

[22] Mr Joyce’s role as a retailer of drugs and the quantity of methamphetamine involved place the offending towards the lower end of band two as adjusted by Zhang. We therefore consider a starting point of 4 years’ imprisonment is appropriate to encompass not only the charge of possession of methamphetamine for supply but also the charges of supplying and offering to supply methamphetamine.

[23] We see no reason to apply an uplift to reflect the cannabis charge because there is no element of supply in that charge. The cannabis must be taken to have been for Mr Joyce’s personal use. Furthermore, the maximum penalty for that charge was just 3 months’ imprisonment. We consider a starting point of 4 years’ imprisonment adequately reflects his culpability on the cannabis charge as well.

The firearms charges

[24] We do not accept Ms Kincade’s submission that a lesser uplift should have been applied for the firearms charges. Mr Joyce was found in possession of three weapons, one of which was a loaded sawn-off shotgun. As Ms Hoskin points out, this Court has consistently upheld uplifts of between 12 and 18 months’ imprisonment where those involved in drug dealing are found with firearms in their possession.[19] We agree with the Judge’s observation that the charge of being in possession of the sawn-off shotgun was a serious charge in its own right.[20] Zhang has not altered the approach to be taken in relation to firearms associated with drug offending. We therefore consider the uplift of 18 months’ imprisonment was within the available range.

[25] It follows that we are satisfied an overall starting point of 5 years and 6 months’ imprisonment was appropriate before taking into account aggravating and mitigating factors personal to Mr Joyce.

Aggravating and mitigating factors

Aggravating factors

[26] On 6 October 2011 Mr Joyce was sentenced to 12 months’ home detention on several cannabis and methamphetamine-related charges. These related to dealing in both methamphetamine and cannabis between March and October 2009. He would have completed that sentence in October 2012. The fact that he was prepared to become involved in significant drug dealing activity within 3 years of completing the earlier sentence is an obvious aggravating factor. Ms Kincade accepted this was so.

[27] The fact that Mr Joyce was serving a sentence of supervision at the time of the present offending is also an aggravating feature. The present offending occurred just five months after the imposition of the sentence of supervision, a sentence that was clearly designed to assist him to remain abstinent from drugs and away from drug dealing activity.

[28] The uplift is to be applied only in relation to the sentence on the methamphetamine charges because Mr Joyce has no previous convictions for offending involving firearms. We consider an uplift of 4 months, or slightly less than 10 per cent, to be appropriate to reflect these factors. This produces a sentence of 5 years and 10 months’ imprisonment before taking into account mitigating factors.

Mitigating factors

[29] Ms Kincade did not challenge the discount of 1 year to reflect the restrictive bail conditions to which Mr Joyce had been subjected prior to trial. She contended, however, that he should also be entitled to a further discount to reflect his addiction to methamphetamine and the rehabilitative efforts he has undertaken to date.

[30] We are prepared to accept Mr Joyce has established that he has longstanding dependency issues with methamphetamine. His offending in 2009 may well have been driven at least in part by this in the same way as the present offending. The pre sentence report confirmed Mr Joyce has considerable insight into these issues, and is motivated to address them. He is also well aware of the challenges he will face in addressing them.

[31] We have also received confirmation that Mr Joyce completed an intensive residential programme operated by the Salvation Army between 28 November 2017 and 15 February 2018. Thereafter, he attended six further appointments focussing on after care and relapse prevention. A letter provided by the Salvation Army confirms Mr Joyce responded well to these interventions.

[32] The Judge did not provide Mr Joyce with any discount to recognise these factors and we consider they require discrete recognition. We would apply a further discount of 7 months, or around 10 per cent, to reflect efforts Mr Joyce has made to address his dependency issues. This reduces the end sentence to one of 4 years and 3 months’ imprisonment.

Minimum term of imprisonment

[33] In Zhang, the Court reconsidered the approach taken to the imposition of minimum terms of imprisonment for drug offending. It emphasised that sentencing Judges should not impose minimum terms of imprisonment as a matter of routine or in a mechanistic way.[21] Where such orders are made they must be justified by reasoned analysis. Furthermore, as a general rule such orders are properly reserved for cases involving significant commercial dealing.[22]

[34] We do not see Mr Joyce as a recidivist drug dealer from whom the community requires protection in the future. Furthermore, we do not consider his offending involved commercial dealing of such significance that it required the response of a minimum term of imprisonment. We therefore see no reason to impose a minimum term in the present case.

Result

[35] The application to adduce fresh evidence is granted.

[36] The appeal against sentence is allowed.

[37] The existing sentence of 6 years’ imprisonment on the charge of being in possession of methamphetamine for supply and the concurrent sentences of 6 months’ imprisonment for each offer to supply methamphetamine and supply methamphetamine charge are quashed. In their place we substitute sentences of 4 years and 3 months’ imprisonment to be served concurrently. We also quash the order requiring Mr Joyce

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to serve a minimum term of imprisonment on that charge. [38] In all other respects the appeal against sentence is dismissed. ------------------------------------------------------------------------------ [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). [6] R v Joyce [2018] NZDC 9544. [7] Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648. [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]. [9] R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA). [10] R v Joyce, above n 6, at [11]. [11] Zhang v R, above n 7, at [125]. [12] R v Fatu, above n 9, at [34]. [13] Zhang v R, above n 7, at [10(b)], [103] and [104]. [14] At [103]. [15] At [105]. [16] At [126]. [17] Zhang v R, above n 7, at [147]. [18] On a standalone basis this offending would probably be similar to that of Ms Crighton, one of the appellants in Zhang. Ms Crighton supplied or offered to supply 3.75 grams of methamphetamine, and the Court held that a starting point of 2 years’ imprisonment was appropriate: Zhang v R, above n 7, at [196], [198] and [202]. [19] Mills v R [2016] NZCA 245 at [18]; citing Fonotia v R [2007] NZCA 188, [2007] 3 NZLR 338 and Haggie v R [2011] NZCA 221. [20] R v Joyce, above n 6, at [11]. [21] Zhang v R, above n 7, at [10(n)] and [169]. [22] At [171].
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