Ganley v The Queen
[2011] NZCA 449
•8 September 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA299/2011 [2011] NZCA 449 |
| BETWEEN LUKE SEAN GANLEY |
| AND THE QUEEN |
| Hearing: 7 September 2011 |
| Court: Glazebrook, MacKenzie and Asher JJ |
| Counsel: G Boot for Appellant |
| 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, Mr Ganley’s youth, his remorse, his rehabilitative prospects, the strong family support and the fact that Mr Ganley had come under the influence of an older step-brother who had a number of previous convictions for drug related offences (although not for supply).
Mr Boot also points out that Mr Ganley had been working part time at a meat packers and helping out on the family farm and so was capable of being a useful member of society. He also points to the very positive pre-sentence report and the view expressed in that report that Mr Ganley is remorseful and at a low risk of further offending.
In terms of the lateness of the guilty plea, Mr Boot submits that this was partly explained by the fact that, immediately on his arrest, the family’s response had been to remove Mr Ganley from the influence of his step-brother and send him to stay with a family member on Great Barrier Island where he had undertaken counselling for his substance abuse issues.
Discussion
In this case, the sentencing Judge did not follow the standard three stage procedure in sentencing.[3] In particular, the Judge did not identify the discount for the guilty plea.[4] This leaves us in the position of having to identify the appropriate deductions.
[3]The three stage procedure was endorsed by the Supreme Court in Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [73]. See also R v Clifford [2011] NZCA 360 at [60].
[4]In Hessell, the Supreme Court said that it should be “clear that the defendant is getting credit for the plea and what that credit is”: at [73].
We accept Mr Boot’s submission that there were powerful mitigating factors in Mr Ganley’s case. In our view Mr Ganley’s youth, the fact of no previous convictions, his remorse, his rehabilitative prospects and the steps Mr Ganley and his family have already taken for his rehabilitation would on their own have merited a discount of nine months. On top of this we would set the discount for the guilty plea at 15 per cent.
This assessment would have resulted in an end sentence of 23 months and would have meant that Mr Ganley was eligible for a sentence of home detention. The same mitigating factors, and in particular the steps Mr Ganley has already taken for his rehabilitation, mean that home detention would have been an appropriate sentence. We would have set the period of home detention at 11 months.
The difficulty is that Mr Ganley has already served five months in prison. Any replacement sentence we impose must take this into account but still provide the necessary element of punishment and deterrence. One option would have been to impose a short period of home detention. However, we consider it important to Mr Ganley’s rehabilitation that he find employment as soon as possible. Particularly in a rural setting, this could be problematic if Mr Ganley is on home detention.
We thus propose to impose a sentence of six months community detention combined with a period of 12 months supervision. The start date of the sentence is 9 September 2011.
Mr 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.
Curfews apply from 9 September 2011. Curfews are to be daily from 7 pm until 6 am the following day, seven days a week. Mr Ganley is to remain at the address of 466 Puketarata Road, Otorohanga for the duration of the sentence of community detention.
As to supervision, the standard conditions of supervision apply. The following special conditions apply to the sentence of supervision:
(a)Mr Ganley is to attend an assessment for a drugs and alcohol programme and to attend any such counselling, treatment or programme recommended by that assessment to the satisfaction of the service provider and his probation officer;
(b)Mr Ganley is to abstain from the use or possession of any illicit drugs for the duration of the sentence of supervision; and
(c)Mr Ganley is to reside at 466 Puketarata Road, Otorohanga for the duration of the sentence of supervision unless an alternative address is approved by his probation officer.
Result
The appeal is allowed. The sentence of two years three months imprisonment is quashed. In 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.
Solicitors:
Gavin Boot Law, Hamilton for Appellant
Crown Law Office, Wellington for Respondent