Galloway v The Queen

Case [2015] NZHC 1026


IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000094 [2015] NZHC 1026

BETWEEN

DANIEL MALCOLM GALLOWAY

Appellant

AND

THE QUEEN Respondent

Hearing: 12 and 14 May 2015

Counsel:

R Mansfield for Appellant
K Cooper for Respondent

Judgment:

15 May 2015

JUDGMENT OF ASHER J

This judgment was delivered by me on Friday, 15 May 2015 at 10am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

R Mansfield, Auckland. Crown Law, Wellington.

GALLOWAY v THE QUEEN [2015] NZHC 1026 [15 May 2015]

Introduction

[1]      On  27  March  2015  the  appellant,  Daniel  Galloway,  was  sentenced  by Judge N R Dawson to two years and four months’ imprisonment on one charge of possession of methamphetamine for supply, one representative charge of supplying methamphetamine and one charge of possession of utensils.  He now appeals against that sentence.   In essence this appeal concerns whether the correct sentence was home detention.

[2]      Mr Galloway was being arrested on 26 August 2013 on an unrelated matter at his home address in Kumeu.  The police arrived and found him engaged in a methamphetamine transaction with an associate.  This was a methamphetamine buying and selling exchange, although it was not clear who was the buyer and who was the purchaser, or the exact quantity involved in the sale.  Both Mr Galloway and the associate were taken to the police station in a patrol vehicle.

[3]      The next day the police located a package in the patrol vehicle.  That package contained  three  plastic  snaplock  bags  of  methamphetamine  totalling  11  grams. Mr Galloway’s  fingerprints  were found on  the black  tape on  the  outside of the package containing the methamphetamine.

[4]      It is agreed between counsel that either Mr Galloway or his associate placed that methamphetamine in the police car and that they jointly possessed the amount for the purposes of supply.

[5]      On 3 October 2013 the Police executed a search warrant on Mr Galloway’s address.  They located a large quantity of “point” bags, digital scales and $6095 in cash.     They  also  located  a  glass  pipe.     Text  message  data  that  related  to Mr Galloway’s cellphone revealed that Mr Galloway had supplied small amounts of methamphetamine to 14 persons in the preceding two and a half weeks.

Procedural history

[6]      Mr  Galloway  was  initially  charged  with  supplying  methamphetamine, possession of methamphetamine for supply, possession of cannabis, possession of

utensils and the unlawful possession of a firearm (a taser).  On 23 January 2015 a sentence indication was given by Judge D Harvey.  The Judge indicated a starting point of three years’ imprisonment on the supplying methamphetamine charges with an uplift of six months for the cannabis and firearms charges.  He uplifted the three years by a further six months’ imprisonment because of Mr Galloway’s previous convictions, and because the offending took place while Mr Galloway was on bail and had been ordered to come up for sentence if called upon.  The end starting point was therefore four years’ imprisonment, which was then reduced by 10 per cent for…

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Galloway v The Queen [2015] NZHC 1026
Case
[2015] NZHC 1026
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CaseChat Overview and Summary

The case of Galloway v The Queen involved an appeal against a sentence of two years and four months' imprisonment imposed on Daniel Galloway, who was convicted of possession of methamphetamine for supply, supplying methamphetamine, and possession of utensils. The primary legal issue was whether the correct sentence for Galloway was home detention. The court considered the arguments made by both parties, with the appellant's counsel submitting that a discount for remorse and rehabilitation, as well as a discount for the guilty plea, should have been greater, leading to a sentence of less than two years' imprisonment and the availability of home detention. The Crown argued that the sentence was appropriate and that there was a presumption in favour of imprisonment for such offenses.

The court found that the starting point of three years' imprisonment was within the range given the joint possession of the methamphetamine and Galloway's status as a small-time dealer. The uplift for previous convictions and offending while on bail was considered appropriate, and the discount for the time spent on electronically monitored bail was deemed generous. The discount for the guilty plea was considered at the bottom of the range, with up to 20% being justified. The court found that the discount for remorse and rehabilitation was not sufficient, with 20% being within the range. The court concluded that home detention should have been the sentence applied, given the advantages of such a sentence for Galloway and the community if his rehabilitation was successful. The appeal was allowed, and the matter was adjourned for a home detention report to be prepared. The court also granted Galloway bail pending the outcome of the appeal, with conditions including a 24-hour curfew and permission to travel to and from his educational program under supervision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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