Ganley v The Queen - [2011] NZCA 449

IN THE COURT OF APPEAL OF NEW ZEALAND

CA299/2011
[2011] NZCA 449

BETWEEN LUKE SEAN GANLEY
Appellant

AND THE QUEEN
Respondent

Hearing: 7 September 2011

Court: Glazebrook, MacKenzie and Asher JJ

Counsel: G Boot for Appellant
L C Preston for Respondent

Judgment: 8 September 2011 at 11.00 am

JUDGMENT OF THE COURT

A The appeal is allowed.

B The sentence of two years three months imprisonment is quashed.

CIn its place a sentence of six months community detention and 12 months supervision, with the special conditions detailed in [16], is imposed. The start date of the sentence is 9 September 2011.
DMr Ganley is to proceed directly upon being released from prison to 466 Puketarata Road, Otorohanga and must be available to meet the probation officer there at 2 pm on 9 September 2011 and, if necessary, wait until the officer arrives.

REASONS OF THE COURT
(Given by Glazebrook J)

Introduction

Mr Ganley pleaded guilty to a representative charge of supplying methamphetamine in the period between 1 December 2009 and 3 July 2010. He was sentenced on 1 April 2011 by Judge Tompkins to a term of imprisonment of two years and three months.[1] He appeals against that sentence.

Background

[1]R v Ganley DC Hamilton CRI-2010-019-5523, 1 April 2011.

On 3 July 2010 Mr Ganley was stopped at a police checkpoint in Te Kuiti. He was driving the car and his passenger was his step-brother. On a search of the car a number of items connected with commercial dealing in methamphetamine were located and some $2,620 in cash.

Sentencing remarks

Judge Tompkins accepted that some of the methamphetamine might have been for Mr Ganley’s own use but said that, by his guilty plea, Mr Ganley had accepted that he had supplied others in the period covered by the indictment. The Judge set the starting point for the offending at three years, the midpoint of the first band in R v Fatu.[2]
[2]R v Fatu [2006] 2 NZLR 72 (CA).
The Judge noted that the guilty plea occurred after committal but in circumstances where the Crown agreed to offer no evidence on the other two counts in the indictment (for possession of methamphetamine for supply and possession of a pipe), leading to Mr Ganley’s discharge on those counts. The Judge acknowledged the positive aspects of the pre-sentence report and the mitigating factors, including Mr Ganley’s youth (19 years of age at the time of the offending) and absence of previous convictions.
For those factors and the guilty plea he gave a discount of nine months, leading to the end sentence of two years and three months imprisonment. The Judge did not consider that he could properly bring the sentence down to the level where home detention was available.

Grounds of sentence appeal

Mr Boot, on behalf of Mr Ganley, accepts that the starting point was appropriate for the offending. He submits, however, that insufficient discount was given for the mitigating factors. He stresses the lack of previous convictions,…

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 Ganley v The Queen

Details

AGLC: Ganley v The Queen [2011] NZCA 449
Case: [2011] NZCA 449
Decision Date: 8 September 2011

CaseChat Overview and Summary

Luke Sean Ganley has appealed against his sentence for supplying methamphetamine between 1 December 2009 and 3 July 2010. The Court of Appeal of New Zealand heard the appeal on 7 September 2011 and delivered its judgment on 8 September 2011. The appeal court comprised Glazebrook, MacKenzie and Asher JJ. The legal issues before the court were whether the original sentence imposed was appropriate and whether sufficient discount was given for the mitigating factors. Ganley had been sentenced to two years and three months imprisonment. The court found that the sentencing judge did not follow the standard three-stage sentencing procedure. The court found that the mitigating factors in Ganley's case warranted a greater discount than was given. The court found that the appropriate sentence should have been home detention, but since Ganley had already served five months in prison, a sentence of six months community detention combined with a period of 12 months supervision was appropriate. The appeal was thus allowed and the original sentence was quashed.

Orders