Galloway v Police - [2019] NZHC 3363

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000471

[2019] NZHC 3363

BETWEEN
CHRISTOPHER GALLOWAY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 10 December 2019

Appearances:

S Dickson for the Appellant D Taylor for the Respondent

Judgment:

17 December 2019

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Tuesday, 17 December 2019 at 4:00 pm

Registrar/Deputy Registrar

Solicitors: Public Defence Service (S Dickson), Waitakere

Meredith Connell (Office of the Crown Solicitor), Auckland

GALLOWAY v NZ POLICE [2019] NZHC 3363 [17 December 2019]

Summary

[1] On 5 November 2019, Christopher Peter Galloway was sentenced to a total of 27 months’ imprisonment by Judge A C Roberts in the Waitakere District Court.1 He was also disqualified from holding or obtaining a driver’s licence for two years. The sentence was made up as follows:

Date Offence Outcome

1 20 December 2018
Breach of release conditions –

(One year maximum)
Four months’ imprisonment (concurrent)

2 26 January 2019 Conversion of vehicle – (Seven years maximum) 20 months’ imprisonment

31 January 2019 Driving while disqualified (3rd or subsequent) – (Two years maximum)
Seven months’ imprisonment (cumulative)

12 months’ disqualification

(concurrent)

31 January 2019 Failing to stop – ($10,000 maximum) Conviction and discharge

31 January 2019
Dangerous driving

(Three months maximum)

Two months’ imprisonment (concurrent)

Six months’ disqualification (concurrent)

3 10 October 2019
Failing to stop (Third or subsequent)

(Three months maximum)
Two years’ disqualification (concurrent)

[2] Mr Galloway now appeals on the ground that the sentence was manifestly excessive.

Facts

[3] On 20 December 2018, Mr Galloway breached his conditions of release from prison by failing to reside at an approved address.

[4] On 26 January 2019, a car (worth $7000) was unlawfully taken from outside an address on the North Shore. On 31 January 2019, Mr Galloway was driving that vehicle and failed to stop when the Police attempted to pull him over for speeding by activating their lights. He was disqualified from driving at the time. He drove dangerously (far exceeding the speed limit and crossing to the wrong side of the road)

1 Police v Galloway [2019] NZDC 22276.

to evade the police. After three minutes he stopped and was taken into custody. He said he bought the vehicle for $1000 and did not know it was stolen.

[5] On 10 October 2019, the appellant was again driving, and the police attempted to pull him over by activating their lights. He failed to stop and was located later on foot.

Sentencing

[6] The Judge noted the pattern of similar offending in the appellant’s criminal history and his repeated failure to follow release conditions and rehabilitative programmes. The appellant has the following driving convictions from 2003 onwards: one conviction for sustained loss of traction, conversion, and excess breath alcohol; two convictions for driving carelessly and two for driving recklessly; eight for driving while disqualified; three for failing to stop; and two for unlawfully getting into a vehicle. He has nine…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Galloway v Police

Details

AGLC: Galloway v Police [2019] NZHC 3363
Case: [2019] NZHC 3363
Decision Date: 17 December 2019

CaseChat Overview and Summary

The appellant, Christopher Peter Galloway, was sentenced to 27 months' imprisonment by the Waitakere District Court for a series of motoring and other offences. He appealed against the sentence on the ground that it was manifestly excessive. The High Court was required to determine whether the District Court erred in its sentencing of the appellant, specifically whether the starting point for the lead offence of conversion of a motor vehicle was correctly set and whether the sentence as a whole was excessive. The High Court found that the starting point of 20 months' imprisonment for conversion was too high and that the sentence imposed by the District Court was manifestly excessive. The High Court substituted a sentence of twelve months' imprisonment for the conversion offence, resulting in an end sentence of 20 months' imprisonment. The appeal was allowed, and the original sentence was quashed and replaced with the new sentence.

Orders