Galloway v The Queen - [2011] NZCA 309

IN THE COURT OF APPEAL OF NEW ZEALAND

CA23/2011
[2011] NZCA 309

BETWEEN DAVID SHAUN GALLOWAY
Appellant

AND THE QUEEN
Respondent

Hearing: 15 June 2011

Court: Wild, Keane and Miller JJ

Counsel: R J Stevens for the Appellant
C A Brook for the Respondent

Judgment: 7 July 2011 at 10.30 am

JUDGMENT OF THE COURT

A The appeal is allowed.

BThe sentence of 10 years’ imprisonment with a minimum period of imprisonment of five years is quashed. A sentence of nine years’ imprisonment with a minimum period of imprisonment of four years is substituted.

REASONS OF THE COURT
(Given by Wild J)

Introduction

Mr Galloway appeals against a sentence of 10 years imprisonment, with a minimum period of imprisonment (MPI) of five years, imposed on him by Dobson J in the Wellington High Court on 10 December last.[1] The jury had found both Mr Galloway and his co-accused Mr Sanders guilty of manslaughter after they inflicted fatal injuries on an older man in his Upper Hutt flat.
[1] R v Sanders and Galloway HC Wellington CRI 2009-078-824, 10 December 2010.
The broad ground of appeal is that the sentence is manifestly excessive as a result of the Judge:
(a)adopting too high a starting point;
(b)failing properly to assess Mr Galloway’s culpability relative to that of his co-accused, Mr Sanders;
(c)giving too much weight to the aggravating factors; and
(d)failing to give sufficient weight to the mitigating factors.

For Mr Galloway, Mr Stevens also submits that no MPI was necessary.

Factual background

The victim was Mr Richard Jones. He was a slight (50 kilogram) 64 year old living alone in a flat in Upper Hutt. He was a beneficiary, but also a small-time cannabis dealer. Mr Jones was a transvestite. He dressed in women’s clothes and liked to be called “Diksy”.
Mr Sanders had lived in Upper Hutt for some time. From a number of witnesses the jury heard evidence that Mr Sanders had a growing animosity to Mr Jones over the weeks preceding the killing. This stemmed from several complaints made by Mr Jones. He had complained to the police that Mr Sanders had stolen his wallet. To the coordinator of the residential establishment in which Mr Sanders lived, Mr Jones had complained that Mr Sanders was threatening him. Mr Sanders was spoken to as a result. Mr Jones also complained to Mr Sanders’ probation officer that Mr Sanders was selling drugs. As a result, the probation officer ordered Mr Sanders not to associate with Mr Jones.
Witnesses at the trial gave evidence of threats Mr Sanders voiced to them as a result of Mr Jones’ complaints. He told one witness he was going to “waste” Mr Jones for informing on him. He told another witness he was going to get even with Mr Jones for dobbing him in to the police and was “going to bash her fucking head in” and that “fucking thing is going to get what it fucking deserves”. Witnesses also gave evidence they had overheard…

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 Queen

Details

AGLC: Galloway v The Queen [2011] NZCA 309
Case: [2011] NZCA 309
Decision Date: 7 July 2011

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal from David Shaun Galloway against his sentence of 10 years' imprisonment, with a minimum period of imprisonment (MPI) of five years, imposed by Dobson J in the Wellington High Court. The appeal was against a sentence imposed after Galloway and his co-accused, Mr Sanders, were found guilty of manslaughter by a jury. The broad ground of appeal was that the sentence was manifestly excessive, particularly due to the starting point being too high, the Judge failing to properly assess Galloway’s culpability relative to Sanders, giving too much weight to aggravating factors, and failing to give sufficient weight to mitigating factors. The Court of Appeal found the appeal to be allowed, with the sentence of 10 years' imprisonment with a MPI of five years being quashed, and a sentence of nine years' imprisonment with a MPI of four years being substituted. The Court of Appeal considered that the sentencing starting point should have been nine years at most, with a range of six to twelve months below that for Sanders. The Court also considered that the hate crime aspect overly influenced the sentencing outcome for Galloway, and that a discount of seven months for Galloway’s youth was too light. The Court considered the prospects of rehabilitating Galloway to be a significant factor in setting the MPI at 44 per cent of the substituted end sentence.

Orders