|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Court of Appeal of New Zealand |
Last Updated: 13 July 2011
|
|
|
CA23/2011
[2011] NZCA 309 |
|
BETWEEN DAVID SHAUN GALLOWAY
Appellant |
|
AND THE QUEEN
Respondent |
|
Hearing: 15 June 2011
|
|
Court: Wild, Keane and Miller JJ
|
|
Counsel: R J Stevens for the Appellant
C A Brook for the Respondent |
|
Judgment: 7 July 2011 at 10.30 am
|
JUDGMENT OF THE COURT
REASONS OF THE COURT
(Given by Wild J)
Introduction
[1] Mr Galloway appeals against a sentence of 10 years imprisonment, with a minimum period of imprisonment (MPI) of five years, imposed on him by Dobson J in the Wellington High Court on 10 December last.[1] The jury had found both Mr Galloway and his co-accused Mr Sanders guilty of manslaughter after they inflicted fatal injuries on an older man in his Upper Hutt flat.
[2] The broad ground of appeal is that the sentence is manifestly excessive as a result of the Judge:
- (a) adopting too high a starting point;
- (b) failing properly to assess Mr Galloway’s culpability relative to that of his co-accused, Mr Sanders;
- (c) giving too much weight to the aggravating factors; and
- (d) failing to give sufficient weight to the mitigating factors.
For Mr Galloway, Mr Stevens also submits that no MPI was necessary.
Factual background
[3] The victim was Mr Richard Jones. He was a slight (50 kilogram) 64 year old living alone in a flat in Upper Hutt. He was a beneficiary, but also a small-time cannabis dealer. Mr Jones was a transvestite. He dressed in women’s clothes and liked to be called “Diksy”.
[4] Mr Sanders had lived in Upper Hutt for some time. From a number of witnesses the jury heard evidence that Mr Sanders had a growing animosity to Mr Jones over the weeks preceding the killing. This stemmed from several complaints made by Mr Jones. He had complained to the police that Mr Sanders had stolen his wallet. To the coordinator of the residential establishment in which Mr Sanders lived, Mr Jones had complained that Mr Sanders was threatening him. Mr Sanders was spoken to as a result. Mr Jones also complained to Mr Sanders’ probation officer that Mr Sanders was selling drugs. As a result, the probation officer ordered Mr Sanders not to associate with Mr Jones.
[5] Witnesses at the trial gave evidence of threats Mr Sanders voiced to them as a result of Mr Jones’ complaints. He told one witness he was going to “waste” Mr Jones for informing on him. He told another witness he was going to get even with Mr Jones for dobbing him in to the police and was “going to bash her fucking head in” and that “fucking thing is going to get what it fucking deserves”. Witnesses also gave evidence they had overheard Mr Sanders threatening Mr Jones himself “Diksy you’re dead mate” and “you’d better watch your back, I’m going to get you”.
[6] It seemed that the last straw for Mr Sanders was a telephone call he received from his doctor’s surgery on the morning of the homicide informing him that his medication was being reduced. Mr Sanders’ girlfriend, Ms Amanda Beck, gave evidence that Mr Sanders became speechless with anger during that telephone call, and she had to take the phone from him. Although Mr Sanders, in evidence at the trial, denied suspecting that it was Mr Jones who had caused the reduction in his medication, it is apparent that was his belief.
[7] At trial a number of witnesses recounted what they had seen and heard of the two accused on the day of the homicide. Shortly after 10 am Messrs Sanders and Galloway and Ms Beck threw verbal insults and gave the fingers to a police constable in the main street of Upper Hutt. The three of them then went to the Police Station to complain about the constable and came away having been warned about their threatening behaviour. From the Police Station they went to a liquor outlet and by early afternoon were observed drinking in public areas in Upper Hutt. A receptionist at the medical centre moved them on because of their swearing and disruptive behaviour. A little later two members of the public encountered the two accused and Ms Beck. They saw Mr Sanders, who was in an angry and aggressive mood, throw a Coke bottle which narrowly missed one of the two observers. Those two were sufficiently concerned for the safety of Ms Beck to inquire whether she felt safe and to offer her a ride.
[8] A little later, the trio were seen by two different members of the public. The behaviour of the two accused was such that these two people were also concerned for Ms Beck, so much so that they drove around the block and came back to make sure she was all right. In evidence they described Mr Sanders screaming at Ms Beck, in an angry and aggressive mood. A little before 3 pm a further member of the public noticed the younger of the two men (obviously Mr Galloway) yelling at Ms Beck right in her face. This woman said she had to brake to avoid hitting Mr Sanders who lurched in front of her car, looking menacing and angry. The concern of this member of the public prompted her to call the police.
[9] Yet another member of the public also saw Mr Sanders yelling and behaving in an angry way, and a few minutes later saw a policeman speaking to Mr Galloway and Ms Beck. This policeman, Sergeant Russell, gave evidence that he had seen a person matching Mr Sanders’ description about 30 metres ahead of Mr Galloway and Ms Beck. After speaking with Sergeant Russell, Mr Galloway and Ms Beck carried on toward Mr Jones’ house. Shortly afterwards, a different member of the public saw a woman (probably Ms Beck) standing on the footpath near Mr Jones’ flat and a younger man (probably Mr Galloway) wandering across the car park that served the flats toward Mr Jones’ flat. A few minutes later Sergeant Russell, who had driven around the block, saw Ms Beck walking away from the area where Mr Jones lived.
[10] Ms Beck gave evidence. She confirmed that a variety of things had built up to put Mr Sanders in a foul mood on the day of the homicide. She said that Mr Sanders was angry and upset as he walked down the road towards Mr Jones’ flat and that her heart sank at the prospect of what might happen. It seems Ms Beck may have had asked Mr Galloway to go to the flat to check up on Mr Sanders and Mr Jones.
[11] In his sentencing, Dobson J referred to the critical evidence given by one of Mr Jones’ neighbours.[2] When this woman returned home from an appointment with her optometrist, she noticed the first man (Mr Sanders) going into the grounds of the flats. As she walked to her flat she heard unpleasant noises coming from Mr Jones’ flat. In closing to the jury, the Crown suggested that what she heard was consistent with Mr Sanders ransacking the flat and abusing Mr Jones, doubtless about the complaints he had been making about Mr Sanders. After putting her bag inside her flat, this neighbour went back outside and screamed out for the commotion in Mr Jones’ flat to stop. She asked another neighbour to call the police before she went back into her own flat. At that point she saw a second person (obviously Mr Galloway), at the door of Mr Jones’ flat. This woman neighbour then walked back towards the road. As she did that she looked into Mr Jones’ bedroom window. She said she could see Mr Jones on the floor with his head and shoulders resting above the bed. He was wearing his beret and glasses and appeared to the witness to be uninjured. She thought she saw a person behind Mr Jones before another person pulled the bedroom curtains. Although counsel challenged the sequence of events recounted by that witness, Dobson J accepted it and made the important finding:[3]
I am satisfied from a careful review of all the evidence that you were both present in the flat when the fatal injuries were inflicted, and that both of you made a material contribution to them.
[12] Having been waved down by the woman neighbour, police officers were at Mr Jones’ flat within a few minutes. These officers gave evidence that they could hear yelling and noise from within. Initially there was no response when the police called for the door to be opened. When the police advised they would break it down Mr Sanders opened the door. Mr Sanders and Mr Galloway were both inside. The police witnesses observed that they were breathing heavily and looked as if they had been exerting themselves. Their appearance was dishevelled with clothing untucked and in disarray. Both had blood on their clothing and Mr Sanders had grazed knuckles. The police found Mr Jones lying on the floor of his bedroom unconscious with extensive injuries to his head, chest, abdomen, back, limbs and genitals. The injuries were consistent with punching, stomping and kicking, particularly stomping and kicking. Mr Jones died soon afterwards.
[13] Both Mr Galloway and Mr Sanders were immediately arrested.
[14] While waiting outside Mr Jones’ flat with Constable McGee, Mr Galloway was noted as saying:
I came here because there is a transvestite and I don’t like that sort of thing.
I’ve come over to beat up a transvestite. I don’t agree with the Adam and Steve thing. You must have your work cut out trying to protect a fucking transvestite.
Mr Galloway made similar comments to another constable in the police car on the way to the station. After arriving at the police station he was noted as saying:
I’ve been arrested for beating up a transvestite who doesn’t deserve to live.
What happened today is I went around to beat up a transvestite. You must hate transvestites as much as I do.
[15] The police interviewed both Mr Galloway and Mr Sanders at the Upper Hutt Police Station on the afternoon or evening of the day of the homicide, 29 April 2009. These interviews were videotaped. We requested the videotapes and have viewed and listened to them.
[16] The first interview was with Mr Galloway, starting at 3.56 pm. The tenor of this interview was a clearly intoxicated and very hyped up Mr Galloway hurling foulmouthed abuse at Mr Jones and telling the police that he had gone to Mr Jones’ flat to bash him. For example, there were these two exchanges:[4]
- Okay, and ah, and so today you went there for what reason?
- To bash it.
- To bash?
- It.
- Whose that?
- It. Diksy.
And:[5]
Q So you, you went round there to, to bash him?
[17] Clearly audible during this interview is a commotion in an adjoining room, where another police officer or officers were attempting to interview or deal with Mr Sanders. About 20 minutes before this interview was terminated there was a knock on the door and the interviewing detective left the interview room. When he came back he told Mr Galloway (albeit with difficulty, because of numerous interruptions) that Mr Jones had died. An initially disbelieving Mr Galloway eventually responded:[6]
Ooh, ooh, well that’s some serious shit ... But it deserves it. At the end of the day it deserves it, you know. ...
[18] The interview was terminated when Mr Galloway requested “I wanna smoke where I can sit down and chill out and have a fucking smoke and then I can fucking talk to you properly. Alright”.[7] This first interview ended at 4.24 pm.
[19] A second videotaped interview with Mr Galloway began at 10.32 pm that evening, and ended at 11.56 pm. In the interim several things have happened. Mr Galloway had considerably sobered up. He had spoken to a lawyer. He had been formally charged with the murder of Mr Jones. After being charged Mr Galloway told the police that he was not guilty but otherwise had nothing to say. Then, after again speaking to his lawyer, he agreed to a further videotaped interview with the police. In this interview Mr Galloway initially told the police that he had gone to Mr Jones’ flat to get a tinnie of marijuana because he knew Mr Jones sold tinnies.[8] He claimed the door of the flat was half open but he had still knocked and Mr Sanders had come to the door. He said he had gone in to the flat and seen Mr Jones lying on the floor with his head “sort of sat up on the bed” and he had gone in and kicked him twice in the head (he said he was wearing sneakers). Then he had gone back into either the lounge or the kitchen and pulled out a drawer to have a look for tinnies and at that point the police had arrived.[9] Mr Galloway said that it seemed that Mr Sanders had already given Mr Jones a hiding and searched through his flat because “there was drawers and everything on the ground” when he went in.[10] He claimed that Mr Jones:[11]
... was obviously either dead or knocked unconscious when I kicked her, because like you know, her head just, her head moved, but you know she didn’t make any noise or anything like that ...
[20] Toward the end of this second interview the following exchange took place:[12]
Q And it just seems odd to me that you know nothing ...
[21] At the scene, after being arrested, Mr Sanders was noted as commenting “it was her fault”, pointing to Mr Jones. The video interview with Mr Sanders ended at 9.59 pm (the start time is not given on the transcript). Mr Sanders told the police that he and “this other dude” “felt like a smoke so we decided to go for a walk down Diksy’s and grab a tinnie”.[13] The following passage captures the gist of what Mr Sanders told the police then happened:
- So once you’ve asked him for a tinnie, he’s gone from where?
- Well we were standing in his bedroom doorway at this stage and um, yeah he walked into his, I don’t know around the corner somewhere and, and grabbed the knife and then came back out and sa, and fucking ah, so I took the knife off him and um, there was a bit of a struggle and he got knocked to the ground and then like I say he was lying on his bed and on the ground and then um, something else happened which I don’t want, I don’t want to talk about and um, I didn’t want no part of it, so by this time you know I was just standing back and by the time I realised what was going on, I looked up and there’s already police there, so.
The interview went backwards and forwards over the same ground, but Mr Sanders very much reiterated this story. Asked specifically whether he had only struck Diksy once he said “Yeah”, and when asked whether he had kicked Diksy he replied “No”.[14]
[22] Mr Sanders gave evidence at the trial to similar effect. He said that it was Mr Galloway who had inflicted the fatal injuries to Mr Jones. Mr Galloway did not give evidence but the nub of his defence was to put the blame for Mr Jones’ death squarely on Mr Sanders.
The Crown case
[23] In closing to the jury the Crown contended each accused was a principal offender and was guilty of murder. To place both accused in Mr Jones’ flat at the time of the fatal attack, the Crown relied particularly on the evidence of the woman neighbour which we have summarised in [11] above. As to motive, the Crow[15]said this:15
... Mr Sanders’ motive was borne of the history that existed between he and Mr Jones, and Mr Galloway’s motive was borne of his vehement distaste for the lifestyle Mr Jones led as a transvestite. ...
Sentencing of Dobson J
[24] On the basis of this Court’s decision in R v Tai,[16] Dobson J used both the guidelines in R v Taueki[17] and comparable sentences to fix his sentencing starting point. He identified seven of the 14 Taueki factors as relevant to a greater or lesser extent. He referred to four comparable sentences.[18] He identified similarities as well as differences with those four cases, and commented that the present case was more serious than all of them except R v Jamieson, where the Court of Appeal had upheld the sentencing starting point of nine years’ imprisonment.
[25] On the basis that both prisoners were principals in a killing that involved brutal and sustained violence against a defenceless victim, Dobson J did not differentiate the starting point used for each, “but [left] the hate crime factor to one side”.[19] He took a starting point of 10 years’ imprisonment.
[26] The Judge dealt with Mr Sanders first. He noted that Mr Sanders had a history of violent offending in Australia, but did not give that any real weight as an aggravating factor, given that it was decades old. However, he uplifted the sentence by five per cent to reflect the fact that Mr Sanders had committed the crime while serving a sentence of community detention. Accepting that Mr Sanders was “genuinely remorseful”,[20] the Judge then allowed a 10 per cent discount to reflect that remorse and also the prospects of rehabilitation. The result was a net reduction of five per cent from the starting point of 10 years, yielding a final sentence for Mr Sanders of nine and a half years’ imprisonment.
[27] Turning to Mr Galloway, Dobson J first uplifted the sentence by 10 per cent to reflect the fact that Mr Galloway’s “participation was a form of hate crime”. He commented that he was bound to treat that as a serious aggravating factor.[21] He imposed a further uplift of two and a half per cent because Mr Galloway had committed the crime while on bail, in breach of a condition that he not drink alcohol.[22] The Judge allowed a six per cent discount “on account of (Mr Galloway’s) relative youth”.[23]
[28] Dobson J then turned to remorse. He noted letters, in prison from Mr Galloway and from another prisoner who had observed his conduct in prison, indicating that Mr Galloway was remorseful. He noted that the pre-sentence report acknowledged that Mr Galloway had expressed remorse and claimed no longer to hate trans gender people. He commented that that appeared to be borne out by the letter from the other prisoner. The Judge then expressed scepticism about the genuineness of Mr Galloway’s remorse. He commented:[24]
... A virtually constant theme in your videoed interviews was your long-standing hate of transvestites and homosexuals. You repeated a mantra that you were brought up to believe in Adam and Eve, not Adam and Steve.
[29] Although the Judge did not discount Mr Galloway’s show of remorse entirely, he reiterated his reservations about it. He concluded:[25]
When added to a modest allowance for your harsh childhood, I give you credit of a further five per cent on account of the qualified remorse and your difficult background.
[30] As the allowances he had made for aggravating and mitigating circumstances more or less cancelled each other out, Dobson J settled on an end sentence of 10 years’ imprisonment for Mr Galloway.
[31] The Judge then cross-checked whether nine and a half years for Mr Sanders and 10 years for Mr Galloway was “an appropriate extent of difference for the overall comparative culpability of each of you”.[26] After further consideration the Judge concluded that the disparity of six months was justified and imposed the end sentences: nine years six months for Mr Sanders, 10 years for Mr Galloway.
[32] Finally, Dobson J considered whether he should impose an MPI. Guided by the MPIs imposed in Jamieson, Laungaue and Sullivan,[27] the Judge considered an MPI of one half of each prisoner’s sentence was required and imposed that. For Mr Galloway, that MPI was five years. The Judge commented:[28]
I am satisfied that that is warranted to mark the seriousness of this brutal and tragic manslaughter.
Submissions on appeal
[33] As these are reflected in our decision, we will not separately summarise them.
Our view and decision
Sentencing starting point
[34] In closing to the jury the Crown placed much emphasis on the events that had preceded the killing. These are the events we have summarised in [4] to [11] above. The prosecuto[29]said this to the jury:29
Now inherent in some of this evidence was a feeling that Galloway was being led, to an extent, by Mr Sanders – the younger man following the leader. In a text message that Mr Galloway sent, and this is in your chronology, he describes Sanders as, “my mate and as being like my dad”. Now that may be relevant when you consider whether Galloway would have acted as he did without help or encouragement from Sanders.
[35] Mr Stevens submitted that the Judge should not have ignored the events that preceded the homicide. Certainly, Dobson J did not dwell on those preceding events. And it is not clear to us from the Judge’s sentencing notes,[30] what view he took of those events. Our view is that this homicide would not have occurred, but for Mr Sanders’ animus toward Mr Jones. The passage we have set out at [34] above suggests that that was also the Crown’s view. For example, had Mr Galloway arrived at Mr Jones’ flat to find Mr Sanders peaceably buying cannabis from Mr Jones, we think the outcome would have been very different. As it was, it is clear that Mr Galloway arrived to find Mr Sanders ransacking the flat and hurling abuse at Mr Jones. At this point, although Mr Jones was on the floor of his bedroom, he was injured little if at all. As Dobson J noted, Mr Sanders accepted in his evidence that he was the first to strike Mr Jones, although he blamed Mr Galloway for inflicting the further and f[31]al damage.31
[36] We accept Mr Stevens’ submissions that Dobson J ought to have drawn a distinction between the culpability of the two prisoners in fixing sentencing starting points. Mr Stevens submitted that the sentencing starting point for Mr Galloway should have been nine years at most, and six to 12 months below that for Mr Sanders.
[37] We make it clear that we are not disagreeing with the Judge’s finding[32] that both men were principals in the offending. Indeed, Mr Stevens responsibly accepted this finding. The evidence did not permit a different finding.
Hate crime
[38] Dobson J was appalled by the hateful invective of Mr Galloway’s tirade against transvestites following the homicide and particularly – but not only – in his first videotaped interview with the police. Having viewed the videotapes of the three interviews with Mr Galloway and Mr Sanders, we understand the Judge’s concern. But we think there are six counter points to be considered. First, Mr Galloway was heavily intoxicated and very hyped up following the homicide and during his first videotaped interview, at least until he was informed that Mr Jones had died. In closing to the jury, Mr Galloway’s counsel pointed out that the expert evidence was that Mr Galloway’s blood alcohol level at the time of that first interview was between five and six and a half times the legal limit for a driver aged under 20.[33] We think there is more than a little truth in counsel’s description in closing to the jury that the first interview was “the foolish mouthing off of a drunk young man”.[34] The effect on Mr Galloway of being told by the interviewing detective that Mr Jones had died was dramatic. Mr Galloway ultimately pleaded with the detective “I wanna smoke where I can sit down and chill out and have a fucking smoke and then I can fucking talk to you properly. Alright?”.[35] The interview was terminated shortly afterwards.
[39] Secondly, there was no evidence that Mr Galloway had previously committed hate crimes, or any crimes involving violence.
[40] Thirdly, the letter Dobson J had from Mr Galloway’s co-prisoner, who was a transvestite, was to the effect that Mr Galloway was conducting himself properly toward the prisoner. Dobson J referred to that letter.[36] We acknowledge that it needed to be viewed with appropriate caution.
[41] Fourthly, the pre-sentence report Dobson J had recorded that Mr Galloway had been sexually abused by his step-father when a young child. It may be that that sexual abuse had something to do with his attitude to what he considered were sexually deviant people.
[42] Fifthly, Mr Sanders was not interviewed until much later on 29 October 2009. Yet his out of control screaming and yelling in an adjacent room in the police station could clearly be heard during Mr Galloway’s first videotaped interview. Mr Galloway commented on it to the interviewing detective on three or four occasions.[37] The Crown also commented on it in closing to the jury, mentioning that Mr Sanders had injured himself by bashing his own head continuously on the walls of the room. We have asked ourselves: how would Mr Sanders have appeared had he been interviewed at around 4 pm, as was Mr Galloway?
[43] Sixthly, Mr Sanders had also expressed anti-transvestite sentiments. We have referred to some of his comments in [5] above. The witness to whom some of these comments were made particularly recalled what Mr Sanders had said, because she herself was trans gender.
[44] For these six reasons, we consider that the Judge overstated the seriousness of the hate crime aspect of the homicide.
[45] In fixing his 10 year sentencing starting point for both men, Dobson J stated that he was “leaving the hate crime factor to one side”.[38] That meant that Mr Sanders’ vengeful motives were factored into the starting point, but not Mr Galloway’s hate of transvestites. Ms Brook volunteered for the Crown that the result was perhaps that the hate crime factor for Mr Galloway was, though inadvertently and under another guise, factored into the Judge’s sentencing starting point which was the same for both men. Dobson J then expressly applied a 10 per cent (one year) uplift for the hate crime aspect for Mr Galloway alone.[39]
[46] When it came to remorse, the hate crime aspect again featured. Dobson J did not give Mr Galloway a discount reflecting full remorse because he did not accept that Mr Galloway was genuinely remorseful. The reason for the Judge’s scepticism was Mr Galloway’s “long standing hate of transvestites and homosexuals”. We referred to that in more detail in [28] above. So it could be argued that the Judge factored the hate crime aspect in again at this stage. However, we think that is not the case. The Judge was dealing with remorse – or the lack of it. The reason for any lack of remorse on Mr Galloway’s part was, strictly, irrelevant.
[47] We have not overlooked that Dobson J also considered the hate crime aspect in the context of pre-meditation, one of the Taueki factors.[40] But the Judge was not satisfied, of either prisoner, that “pre-meditation was present in the sense the Court of Appeal contemplated in Taueki.”
[48] We consider that the result of all this is that the hate crime factor overly influenced the sentencing outcome for Mr Galloway. Mr Stevens contended that the uplift for the hate crime aspect should be no more than three to six months.
Youth
[49] The Judge gave Mr Galloway a six per cent (seven months) discount for his relative youth, relative that is to Mr Sanders who was 42 years old. The Judge’s view was that the law was not prepared to make the same allowance for youth in a case of serious offending such as this, as it was for less serious offending. The Judge expressed his agreement with the discount range of five to seven and a half per cent suggested by the Crown, on the basis of that allowed to the young principal offenders in Jamieson.
[50] We think a discount of seven months for Mr Galloway’s youth was too light. First, we recognise that Mr Galloway’s youth featured in our consideration of the Judge’s starting point. When dealing with this in [34], we referred to what the Crown said in closing to the jury, namely that the evidence suggested that Mr Galloway had followed the lead of Mr Sanders. In [35] we expressed our agreement with the Crown’s view that Mr Sanders’ animus toward Mr Jones was the genesis of this homicide. The Crown was doubtless correct in putting it to the jury that Mr Galloway followed Mr Sanders’ lead because Mr Sanders was much the older man, and something of a father figure to Mr Galloway. But, in fixing the sentencing starting point for Mr Galloway, the reason why he was led along by Mr Sanders is irrelevant. For example, the situation could have been that Messrs Sanders and Galloway were of similar age, Mr Galloway being led along simply because he was a weak personality, dominated by Mr Sanders. Thus, the fact that Mr Galloway was a young man aged 18 needed to be factored in at sentencing as a discrete factor, and we think as a significant one.
[51] Secondly, the pre-sentence report to Dobson J contained this assessment of Mr Galloway’s motivation to change:[41]
Mr Galloway would benefit from undertaking prison-based interventions to address his violence and substance abuse. Such would be available at Rimutaka Prison via the Violence Prevention Unit and Drug Treatment Unit programmes respectively. Mr Galloway expressed interest in completing such interventions. It would be beneficial for a psychological assessment to be completed to determine the most appropriate way forward, and this is likely at around the time of Mr Galloway’s first Parole Board appearance. He stated “if that’s what I need, I’m all for it”.
Mr Galloway has never been subject to a community based sentence and hence his likely response to such is unknown.
This reflected that Mr Galloway was a young man capable of being reformed and willing to try, rather than a hardened criminal beyond redemption.
[52] Consistent perhaps with his view as to the limited allowance he could make for Mr Galloway’s comparative youth, Dobson J did not refer to the prospects of rehabilitation for this young man aged 18. While the Judge rightly put other sentencing imperatives, in particular deterrence, to the fore, we think he did not give sufficient consideration to the prospects of rehabilitating Mr Galloway.
Outcome
[53] We consider, relative to the sentence of nine and a half years’ imprisonment imposed on Mr Sanders, that the correct sentence for Mr Galloway was nine years’ imprisonment. Broadly, we think the starting point including the hate crime factor should have been 10 years’ imprisonment, with a net reduction of one year to reflect all of the breach of bail condition proscribing alcohol, youth and being led by Mr Sanders, remorse and the prospects of rehabilitation.
MPI
[54] We agree with Dobson J that an MPI was required, and for the reasons identified by the Judge. But we think four years is the appropriate MPI. Again, it is Mr Galloway’s youth and the prospects of rehabilitating him that influence us in setting the MPI at about 44 per cent of the substituted end sentence.
Result
[55] The appeal is allowed. The sentence of 10 years’ imprisonment with an MPI of five years is quashed. A sentence of nine years’ imprisonment with an MPI of four years is substituted.
Solicitors:
Crown Law Office, Wellington for the
Respondent
[1] R v Sanders and Galloway HC Wellington CRI 2009-078-824, 10 December 2010.
[2] Dobson J’s
sentencing notes at [6].
[3] At
[28].
[4] Transcript
of first DVD interview with Mr Galloway at
9.
[5] Transcript of
first DVD interview with Mr Galloway at
10.
[6] Transcript
of first DVD interview with Mr Galloway at
16.
[7] Transcript
of first DVD interview with Mr Galloway at
17.
[8] Transcript
of second DVD interview with Mr Galloway at
9.
[9] Transcript of
second DVD interview at 10, 24–25, 26, 28–29,
30–31.
[10]
Transcript of second DVD interview at
27.
[11]
Transcript of second DVD interview at 30, and also at
35.
[12]
Transcript of second DVD interview at
33–34.
[13]
Transcript of interview with Mr Sanders at 10 and
11.
[14]
Transcript of intervier with Mr Sanders at
27.
[15]
Crown’s closing at
18.
[16] R v
Tai [2010] NZCA 598, 8 December
2010.
[17] R v
Taueki [2005] 3 NZLR 372 (CA).
[18] R v
Jamieson [2009] NZCA 555; R v Pahau HC New Plymouth
CRI-2008-043-4555, 16 August 2010; R v Laungaue HC Auckland CRI
2004-092-11142, 15 December 2005; Kupa-Caudwell v R [2010] NZCA
357.
[19] At
[29].
[20] At
[32].
[21] At
[36].
[22] At
[37].
[23] At
[39].
[24] At
[41].
[25] At
[41].
[26] At
[43].
[27] R v
Sullivan HC Gisborne CRI-2005-016-2100, 25 August
2006.
[28] At
[51].
[29] Crown
closing at 24.
[30]
Particularly [4] and
[5].
[31] At
[27].
[32] To
which we refer at [25].
[33]
Closing address for the accused Galloway at
4.
[34] Closing
address for the accused Gallway at
10.
[35]
Transcript of DVD interview at
17.
[36] At
[40].
[37] For
example transcript of DVD interview at 4, 5, 7 and
9.
[38] At
[29].
[39] At
[36].
[40] At
[17](b).
[41] Case
on appeal at 14.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2011/309.html