Galloway v The King - [2024] NZHC 40

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-418 CRI-2023-404-419

CRI-2023-404-420 [2024] NZHC 40

BETWEEN
DANIEL MALCOLM GALLOWAY

Appellant

AND

THE KING

Respondent

Hearings: 4 December 2023 and 30 January 2024

Appearances:

M J Taylor-Cyphers for Appellant S L Vreeburg for Respondent

Judgment:

31 January 2024

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 31 January 2024 at 10 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
M J Taylor-Cyphers, Barrister, Auckland Meredith Connell, Auckland

GALLOWAY v R [2024] NZHC 40 [31 January 2024]

[1] Mr Galloway (the appellant) appeals against the sentence imposed on him after he pleaded guilty following a sentence indication.

[2] On 20 July 2023, Judge A M Skellern imposed a sentence of four years and 10 months’ imprisonment in relation to a number of charges:

(a)The first set were drugs and receiving charges, and the second were violence and threatening charges.

(b)While on electronically monitored (EM) bail awaiting sentence, Mr Galloway absconded and reoffended, resulting in two new sets of charges including manufacturing methamphetamine, possession of a firearm and possession of ammunition.

(c)There was also another single charge of unlawfully getting into a motor vehicle.

[3] The appellant initially appealed the sentence on the grounds that it was too high, due to a failure to take into account a discount that should be applied in respect of the $78,170 forfeiture order.

[4] At the resumed hearing of this appeal, the appellant contended that the entire issue of sentencing should be remitted to the District Court, given that the legal basis for the forfeiture order was not expressly stated, nor were there any factual findings necessary to support a proper forfeiture order.

District Court process

[5] The sentencing indication was given on 1 June 2023. Mr Rhodes represented the defendant at that hearing, and at the subsequent sentencing hearing. As recorded at [30] of the sentencing indication notes, it was accepted on behalf of the defendant that an inference can be drawn as to some degree of commerciality from the cash located, but the sentencing indication proceeded on the basis of a summary of facts that could not specify the amount of methamphetamine manufactured. It was not

accepted by the defence that the cash located was solely or even predominantly from the sale of methamphetamine.

[6] Subsequently, at the sentencing that occurred on 20 July 2023, this issue is touched on in a transcript of the legal discussion that took place before sentencing. On page three of the transcript, the Judge asked about the question of forfeiture and asked if that had been the subject of discussion with the Crown. Mr Rhodes responded that he had not specifically taken instructions and needed time to do so. However, he certainly could not concede that the cash was the proceeds of sale, “but it would be hard to escape a conclusion that it was, I think the other part of…

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 The King

Details

AGLC: Galloway v The King [2024] NZHC 40
Case: [2024] NZHC 40
Decision Date: 31 January 2024

CaseChat Overview and Summary

Daniel Malcolm Galloway (the appellant) appeals against the sentence imposed on him after he pleaded guilty following a sentence indication. The appellant initially appealed the sentence on the grounds that it was too high, due to a failure to take into account a discount that should be applied in respect of the $78,170 forfeiture order. At the resumed hearing of this appeal, the appellant contended that the entire issue of sentencing should be remitted to the District Court, given that the legal basis for the forfeiture order was not expressly stated, nor were there any factual findings necessary to support a proper forfeiture order.

The court considered the legal basis for the forfeiture order and whether there was an error in the imposition of the sentence. The court held that there was no realistic doubt about the statutory provision under which the forfeiture order was made, and it was made under s 32 of the Misuse of Drugs Act. The court found that the lack of express reference to the particular section in the sentencing decision was inadvertent because the forfeiture order was unopposed after an express discussion about the legal tests under "the Act". The court also held that there was no error on the part of the sentencing judge in failing to take into account the forfeiture order, as it was confined to instrument forfeiture orders, whereas this was a forfeiture order made under s 32 of the Misuse of Drugs Act. The court found that the District Court was entitled to conclude that there was no proportion that could fairly be inferred on the evidence as derived from legitimate sources so as to justify a discount for punitive consequences.

The court held that the sentence of four years and 10 months' imprisonment was not manifestly excessive. It was imposed as a global sentence in respect of all charges, and the starting point was well within range considering the offending was in the lower band two of Zhang v R. The overall outcome was well within range.

The appeal was dismissed.

Orders