[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…

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 [2015] NZHC 1026
Case: [2015] NZHC 1026
Decision Date: 15 May 2015

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