Galloway v The Queen
[2015] NZHC 1026
•15 May 2015
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 RespondentJudgment:
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 remorse and rehabilitation, and reduced by a further 15 per cent for a guilty plea. The end indication was a sentence of three years’ imprisonment.
[7] The indication was not accepted. However, following discussions it was agreed by the police that the cannabis and firearm charges would not be pursued, and the supply charges consolidated into one representative charge. Further, it was agreed that the summary of facts would be amended to show that the 11 grams of methamphetamine was in the joint possession of Mr Galloway and his associate and not in Mr Galloway’s sole possession.
The sentencing decision
[8] On this basis and guilty pleas being entered to the adjusted charges, Mr Galloway was sentenced by Judge Dawson in the District Court at Auckland on
27 March 2015. The Judge noted that he was proceeding without a home detention report as he did not consider home detention to be an appropriate outcome.1
[9] The Judge considered the offending to fall at the bottom of band two in R v Fatu.2 He saw no reason to depart from the three year starting point indicated by Judge Harvey for the methamphetamine offending. He uplifted that starting point by six months to reflect Mr Galloway’s offending history and the fact that the offending took place while on bail and while he was subject to a sentence. He then reduced the sentence by six months to reflect remorse and the strenuous efforts to rehabilitate
himself that Mr Galloway had made. A further four month discount was given for
the time Mr Galloway had spent on EM bail. He gave a four month discount for the
1 Police v Galloway [2015] NZDC 5952.
2 R v Fatu [2006] 2 NZLR 72 (CA).
guilty plea which he observed had been entered at a relatively late stage. This brought the final sentence down to two years and four months’ imprisonment for the two methamphetamine charges. Six months’ imprisonment was imposed concurrently for the possession of utensils charge.
Submissions
[10] Mr Mansfield for Mr Galloway did not contest the starting point reached by Judge Harvey and Judge Dawson. He submitted that the uplift for the previous offending and the offending while on bail of six months was too harsh, and that four months was appropriate. He suggested that the discount for EM bail could have been six months rather than four month. The real focus of his submission was on the quantum of the discount for remorse and rehabilitation, and the quantum for the discount for the guilty plea, which he submitted should have been 35 – 40 per cent and 20 per cent respectively, leaving a net sentence of less than two years’ imprisonment. This meant that home detention was available, and this was the sentence that should have been imposed.
[11] Ms Cooper for the Crown submitted that the three year starting point could be seen as generous. She stated that the uplift was appropriate given Mr Galloway’s conviction history and implicit flagrant disregard for the Court’s process by offending while on bail, and while under a suspended sentence. She supported the quantum of all the discounts given. She noted in particular that the guilty plea was not entered on the first possible occasion, and indeed quite late in the piece. She submitted that home detention was inappropriate and that there was a presumption in favour of imprisonment. She emphasised that Mr Galloway has been identified in the pre-sentence report as having a high risk of re-offending.
[12] In approaching these submissions I bear in mind the provisions of s 250(2) of the Criminal Procedure Act 2011, and the fact that despite this new section the previous approach to appeal taken by the courts under the Summary Proceedings Act
1957 still applies.3 The High Court will not intervene where the sentence is
justifiable, applying accepted sentencing principles and within the range, and
3 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
therefore not manifestly excessive. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than by the process by which the sentence is reached.4
The starting point
[13] Given that the 11 grams of methamphetamine were found to be in the joint possession of Mr Galloway, the methamphetamine offending clearly fell in the bottom area of band two of R v Fatu (three to nine years’ imprisonment). While the Crown’s submission that three years was generous is understandable, that starting point was within the range given the relatively small quantity, and the fact that there was joint possession. Mr Galloway was a small time dealer, feeding his habit and the lifestyle that went with it by dealing in methamphetamine.
The uplift for previous convictions and offending while on bail
[14] A prisoner should not be sentenced on the basis of past record for an offence which he has already expiated.5 The size of the uplift must be relative to the sentences imposed at the time of the past offending.6 However, an uplift for previous convictions is specifically a matter to be considered under s 9(1)(j) of the Sentencing Act 2002. Offending despite past convictions for similar offending demonstrates that the offender has not learned from his previous offending and
sentencing. It shows an increased likelihood of re-offending, given the earlier failure to learn. The failure to respond to the previous sentences means there is a greater need to protect the public, to deter the offender and to denounce the offending.7
[15] If the offending is carried out while the offender is on bail or completing a suspended sentence, the same factors apply. There is the added culpability arising from the disregard shown by the defendant for the court’s processes.
[16] Mr Galloway had nine previous convictions for drug-related offending which included two previous convictions for the possession of cannabis. He had no prior
4 Ripia v R [2011] NZCA 101 at [15], and Gibson v R [2015] NZCA 57 at [9].
5 Beckham v R [2012] NZCA 290 at [84].
6 O’Connor v R [2014] NZCA 328 at [41].
7 Sentencing Act 2002, s 7.
convictions for the supply of any drug. His previous wide ranging offending was minor to moderate, not of the most serious order, and the sentences he had previously imposed on him were also not of the most serious type. However, his convictions for drug use had been treated as being sufficiently serious to warrant a sentence of imprisonment of five months in 2013, and other drug-related sentences of community work. On their own the previous convictions would not have warranted more than a modest uplift, but coupled with the offending while on bail and while still subject to a sentence, the six month uplift imposed by the Judge while severe was within the range. I would not interfere with it.
Allowance for EM bail
[17] After a period in custody Mr Galloway spent approximately 12 months on EM bail. For nine months of that he was on a 24 hour curfew, and for the remaining time on a 7 pm to 7 am curfew. This was restrictive bail, but the Judge’s discount of four months on account of this could be seen as generous.
[18] Mr Mansfield argued that the discount could have been six months. That would seem to me to be too much, particularly given that Mr Galloway was able to enrol at Unitec to attend the course for a Certificate of Technology during the time period. The greater discount proposed by Mr Mansfield is out of the range.
Guilty plea
[19] I will deal with the guilty plea discount before considering rehabilitation, while recognising that it is the end deduction.8 In this case the discount allowed for the guilty plea was 12.5 per cent.
[20] What constitutes a plea entered at the first reasonable opportunity varies from case to case. The full 25 per cent discussed in Hessell v R can be available where a defendant pleads guilty following a sentence indication,9 or after a disputed facts
hearing.10 In this case the guilty plea came after the sentence indication, after the
8 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [73] and R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [57]-[60].
9 R v Reid [2014] NZHC 46 at [24].
10 Hessell v R, above n 8, at [61].
Crown agreed not to pursue two of the charges and after it agreed to an amendment of facts showing that there was joint possession.
[21] I recognise the observation in Hessell v R:11
Guilty pleas are often the result of understandings reached by accused and prosecutors on the charges faced and facts admitted. To give the same percentage credit invariably for an early guilty plea in sentencing without regard to the circumstances can amount to giving a double benefit. For example if the Crown agrees to accept a plea to manslaughter and drops a charge of murder in relation to offending, the acceptance of the plea can be a concession in itself. If the full credit for an early plea is then also given, the sentence may not properly reflect the offending. The only way in which the many variable circumstances of individual cases which are relevant to a guilty plea can properly be identified is by requiring their evaluation by the sentencing judge, and allowing that judge scope in light of the conclusion he or she reaches to give the most appropriate recognition of the guilty plea in fixing the sentence.
[22] However, in this case I accept that a lengthy remand was desirable from the perspective of Mr Galloway, who was attending a rehabilitative course.
[23] Taking these factors into account, and in particular in this case the rehabilitative nature of the remand, the late acceptance by the Crown that some charges should not proceed, and the summary of facts changed for the benefit of Mr Galloway, I consider that the discount of 12.5 per cent was right at the bottom of the range, and a discount of up to 20 per cent could have been justified.
Discount for remorse and rehabilitation
Approach
[24] In this case the six month discount applied to the starting point, was 14 per cent, and the Judge had rejected the sentencing option of home detention.
[25] The Court of Appeal has repeatedly emphasised that the considerations of
denunciation and deterrence dominate over an offender’s personal circumstances in drug sentencing.12 There is a presumption of imprisonment for this type of offending,
11 At [62].
12 R v Wallace [1999] 3 NZLR 159 (CA) at [25], R v Chen [2009] NZCA 445 at [174], R v Wang
[2014] NZCA 409 at [28].
set out in s 6(4) of the Misuse of Drugs Act 1975. However, this does not mean that personal circumstances can never be relevant, particularly when the offending is not of a serious order,13 and sentences can be imposed which are aimed to break addiction and rehabilitate the offender.14 In Jarden v R the Supreme Court said that personal factors may be relevant if they contributed in some way to the offending or on purely compassionate grounds.15 In addition to the need to denounce and deter, there is the sentencing principle of achieving the least restrictive outcome that is appropriate,16 and the purpose of assisting in the offender’s rehabilitation and
reintegration into the community.17 Needless to say, if the opportunity is available to
reintegrate a long term offender by a particular sentencing outcome, and the Court can have a degree of confidence that reintegration will be achieved, that option can be taken providing this is in accord with other sentencing principles and other factors.
[26] This approach was specifically recognised in R v Hill, a case which has similarities to the present case in relation to the methamphetamine and cash found (although it was in a transition period when a short term period of imprisonment was not necessary). The Court of Appeal referred to High Court cases where home detention had been imposed on persons convicted of the supply of methamphetamine, where the offender had accepted responsibility for the offending by entering a guilty plea, and the sentencing Judge was persuaded that the prospect
of rehabilitation was sufficient to justify home detention.18 Personal circumstances
in this context are relevant in two ways, both in relation to the end sentence and in relation to whether home detention is an appropriate sentence.19 As was stated in R v Hill:20
In the present case, the Judge applied a discount of 35% to the starting point to reflect the appellant’s efforts at, and prospects for, rehabilitation. Clearly, such rehabilitative considerations will be important in determining whether to sentence to home detention. Where an offender is motivated to change,
13 R v Chen, above n 12, at [174].
14 R v Wallace, above n 12, at [25(6)]. I note that the comments here were made in the context of class B drug offending.
15 Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [12]–[14].
16 Sentencing Act 2002, s 8(g).
17 Section 7(1)(h).
18 R v Hill [2008] NZCA 41, [2008] 2 NZLR 381 at [30].
19 At [37].
20 At [37].
and where there is a realistic prospect that he or she will be able to change, there are obvious benefits in a sentence of home detention, both from society’s perspective and from that of the offender.
[27] There has been no Court of Appeal decision which has set out guidelines for deductions where there has been significant rehabilitation, and the end assessment must always be very case specific. In the course of submissions a number of cases involving sentences for low level methamphetamine dealing were discussed, where the defendant appeared to have made efforts towards rehabilitation. I put to one side two cases cited by Mr Mansfield, R v Kau Kau21 and R v Russell,22 as in those two cases the large discounts were influenced by factors in addition to rehabilitation that do not arise here. I note that in R v Hill a 35 per cent discount for unusual and clear remorse and rehabilitation was allowed. I briefly summarise the discounts allowed
in some other cases that were discussed in submissions, where the Court was satisfied there was a significant turn-around of remorse and real rehabilitation. These cases represent only a random selection of results in a sentencing area where there will be a very great number of other decisions, and varied results:
(a) Sun v Police – starting point four years, three months rehabilitation at
Odyssey House: 15 per cent discount.23
(b)R v Moore – starting point nine years’ imprisonment, discount of just over 20 per cent (two years), one year period in Odyssey House and significant efforts to achieve rehabilitation.24
(c) R v Shirtliff – starting point two years and six months’ imprisonment,
17 year old with unusually good rehabilitative prospects having completed 16 months at Odyssey House: discount of 11 months
(approximately 37 per cent).25
21 R v Kau Kau [2013] NZHC 2688 at [28].
22 R v Russell HC Auckland CRI-2006-044-8275, 24 June 2008 at [22] and [23].
23 Sun v Police [2015] NZHC 414.
24 R v Moore [2013] NZHC 1972.
25 R v Shirtliff HC Auckland CRI-2006-092-16818, 24 April 2008.
(d)R v Lloyd – starting point three years, genuine remorse and efforts at rehabilitation (and some EM bail): 20 per cent discount.26
(e) R v Crompton – starting point three years, completion of Salvation Army course, real remorse and rehabilitation: discount of approximately 15 per cent for remorse and rehabilitation.27
[28] Home detention is only available where the Court would otherwise have sentenced the defendant to a “short-term” sentence of imprisonment.28 The words “short-term sentence” in s 15A(1)(b) of the Sentencing Act are defined in s 4. They have the same meaning as in s 4(1) of the Parole Act 2002. Relevantly, s 4(1) of the Parole Act defines “short-term sentence” to include “a determinate sentence of 24 months or less”.
[29] It is to be emphasised that sentencing principles cannot be put to one side to achieve the prerequisite short term sentence of imprisonment. Sentences are not to be artificially “tailored” to enable offenders to have the benefit of the home detention option.29 However, for all offending there will be a range within which a correct sentence can be imposed. If home detention is otherwise the appropriate sentence, a Judge may legitimately choose to calculate the term of imprisonment to which it will be an alternative, to be at the bottom of the legitimate range, influenced by the fact that if the end sentence qualifies as a “short-term sentence”, home detention will be available. The Court of Appeal observed in R v Kennedy:30
In borderline cases a Judge is often able to recognise the real prospect of rehabilitation by an unusually high discount to justify imposing something less than a custodial sentence.
[30] Therefore, it is possible to take into account the desirability of home detention as the sentencing outcome in fixing discounts providing the sentence of imprisonment that is calculated is within the available range, and in accord with
sentencing purposes and principles.
26 R v Lloyd [2014] NZHC 1373.
27 R v Crompton [2013] NZHC 3347.
28 Sentencing Act, s 15A.
29 R v Edwards [2006] 3 NZLR 180 (CA) at [24].
30 R v Kennedy [2011] NZCA 109 at [27].
Mr Galloway’s remorse and rehabilitation
[31] In this case Mr Galloway while on remand had completed a 12 month rehabilitation programme with Patua te Ngangara ki Hoani Waititi Marae. There was a very positive client report stating that Mr Galloway has been drug free over the period, his motivation levels are high and that he has successfully completed their course. He is said to have become a positive influence on other participants in the programme.
[32] Mr Galloway, who has worked as a part time mechanic, has started at the age of 27 years while on remand a course at Unitec to complete the preliminary course to obtain a Certificate of Technology to enable him to take up regular employment as a mechanic. A letter from Unitec records that he has been fully engaged and demonstrated a strong aptitude. His continuation in the programme is fully endorsed. The Unitec Associate Dean, Mr D Nummy, who has taken a commendable interest in his welfare, is committed to his success and will mentor him.
[33] I am influenced by Mr Mansfield’s strong submission, having acted for Mr Galloway for some years, that there has been a genuine turn around in his life. This proposition is supported by the pre-sentence report which notes that ongoing treatment for the abuse of substances is recommended. That report does assess Mr Galloway as being at a high risk of re-offending, but this will be based in considerable part on his bad record. The report notes that should Mr Galloway remain abstinent, the risk of re-offending and risk of causing harm to others is likely to reduce. The proposition is supported by a second report relating to EM bail from Hoani Waititi Marae.
Decision on correct sentence
[34] In summary the following factors emerge:
(a) Mr Galloway is clearly a significant consumer of methamphetamine and other drugs, and can be fairly described as a heavy user. This has been reflected in his long history of relatively minor drug offending.
(b)He has turned his life around, and while on bail for approximately 12 months has been offence-free and drug-free.
(c) He has completed a rehabilitative course and has a strong endorsement from those who were in charge.
(d)He is partway through the successful attendance of a course of education at Unitec.
[35] In my assessment it is better for Mr Galloway to be in the community completing his course and in a supportive environment, rather than in prison. He has been to prison before and it has not resulted in his rehabilitation. While he has been living in the community and attending the Unitec course, he has achieved something at the age of 27 that he has not been able to achieve previously. If he does achieve true rehabilitation, our community is far better off than it would be if he stays in prison and fails.
[36] While the Judge was not out of range when he was prepared to grant a 14 per cent deduction on the grounds of rehabilitation, the range available to him was greater, and 20 per cent was within range.
[37] It is relevant in assessing the suitability of a sentence of home detention that prior to being sentenced he had spent approximately four months in custody while on remand.
[38] An objective of the change of law in 2007 creating home detention as a stand alone sentence,31 was to reduce the prison population. The explanatory note identified the “acknowledged advantages” of home detention as including “low rates of re-conviction and re-imprisonment, high compliance rates and positive support for
offender’s reintegration and rehabilitation”.
31 Section 80A of the Sentencing Act 2002 was inserted by s 44 of the Sentencing Amendment Act
2007.
[39] Here there are good prospects for rehabilitation based not simply on conjectural or expressions of intent or hope. There is evidence which demonstrates that Mr Galloway has made a real commitment to change.
[40] A short-term of imprisonment is available. This is because if a 20 per cent discount is allowed for rehabilitation and remorse, and a 20 per cent discount for the guilty plea, the end sentence is two years’ imprisonment. For the reasons that I have set out, those discounts, although at the top of the range, are properly available. When coupled with the other three sentencing components set by the Judge, applying these discounts a sentence of two years’ imprisonment is available.
[41] The Judge gave no specific reasons for rejecting home detention as an option, presumably because he did not consider a short term sentence of imprisonment was available. In my view an orthodox sentencing exercise shows a short term sentence to be within the range, and home detention should have been the sentence option applied given the advantages of such a sentence for Mr Galloway, and the community if his rehabilitation is successful. A sentence of two years and four months’ imprisonment was manifestly excessive and the correct sentence was home detention.
[42] Mr Galloway has already served on remand approximately four months initially (after deduction for a month that was being served on his previous convictions) and approximately one and a half months since his sentence on
27 March 2015. There must be some credit given for time served.
[43] The Crown submitted that if there was to be home detention it should be 12 months’ home detention. Mr Mansfield proposed five to six months’ home detention.
[44] Undoubtedly if no time had been served on these charges, 12 months’ home detention would have been the appropriate term. However, while I take into account time served, I avoid a formulaic approach to equating time in custody with time on home detention. I look at the correct sentence overall. In all the circumstances I consider that taking into account the time in custody on remand, and the two months
he has spent in custody, a sentence of eight months’ home detention would be appropriate.
Conclusion
[45] I am proposing to allow the appeal. However, I cannot quash the sentence and direct home detention as at present there is no home detention report before the Court. I direct that a home detention report be prepared. I understand it will take two weeks for that report to be completed so I adjourn this matter to Friday, 29 May
2015 at 9 am.
[46] I am satisfied on the material that I have that unless Mr Galloway is able to attend the Unitec course over the next few weeks he will, for the second time, lose the ability to complete this course. This may have long term ramifications for his ability to do the course at all, and for the student loan that is available.
[47] I therefore propose granting him bail pending the outcome of the appeal. I do so using this Court’s inherent jurisdiction to grant bail as there appears to be no statutory authority for this Court to grant bail in these circumstances, once an appeal has commenced. Section 54 of the Bail Act 2002 does not apply. I take into account the circumstances set out in s 14 of the Bail Act, in particular the likelihood of the appeal being successful and the sentence of imprisonment being quashed and home detention being imposed.
[48] I have discussed suitable terms of bail with Mr Mansfield and Ms Cooper and it will be satisfactory if he resides at his aunt’s address and that she takes him to and from Unitec.
Result
[49] The appeal is adjourned.
[50] I grant Mr Galloway bail on the following terms:
(a) He is to reside at the home of Ms Marion Torpy at 549 Glenfield Road on a 24 hour curfew, and to answer the door and co-operate with the police if requested by the police to do so.
(b)The curfew is lifted so that he may on Tuesday to Friday inclusive travel to and from Unitec in order to attend the programme for the Unitec Certificate of Technology (automotive programme), when it is proceeding, but for no more than the hours between 7am and 7pm each day, and only if accompanied while travelling to and from Unitec by Ms Marion Torpy, or any other adult approved by the New Zealand Police.
(c) He is not to possess or consume any alcohol or any controlled drug.
(d)The appellant through his counsel is to provide the Crown with written details of any course attendance requirements at Unitec.
[51] I call for a home detention report.
……………………………..
Asher J
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