Pomale v R - [2022] NZCA 343

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA304/2021
[2022] NZCA 343

BETWEEN	SALESIO POMALE Appellant
AND	THE QUEEN Respondent

Hearing:	14 July 2022
Court:	Miller, Lang and Cull JJ
Counsel:	M J Taylor-Cyphers for Appellant RMA McCoubrey for Respondent
Judgment:	28 July 2022 at 11.30 am

JUDGMENT OF THE COURT

AThe application for leave to appeal out of time is granted.
BThe appeal against sentence is allowed.
CThe sentences of 11 years’ imprisonment are quashed and concurrent sentences of nine years, five months’ imprisonment are imposed in their place.

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REASONS OF THE COURT

(Given by Lang J)

Mr Pomale pleaded guilty to three charges of conspiring to supply methamphetamine,[1] one charge of offering to supply methamphetamine and one charge of supplying methamphetamine.[2] On 31 October 2019, Venning J sentenced Mr Pomale to 11 years’ imprisonment.[3]
[1]Misuse of Drugs Act 1975, s 6(2A).
[2]Section 6(1)(c).
[3]R v Pomale [2019] NZHC 2798.
Mr Pomale appeals against sentence. He contends the Judge erred by adopting a starting point for the sentence that was too high and then failed to provide an adequate discount for mitigating factors. He says this led to a sentence that was manifestly excessive.

Leave to appeal out of time

The appeal was not filed until 1 June 2021 and is therefore well out of time. However, the Crown is not prejudiced by the delay and does not oppose leave to appeal out of time being granted. Leave is granted accordingly.

The offending

The police arrested Mr Pomale following an investigation into the activities of a methamphetamine supply network over a period of several weeks during 2017. The evidence that the police relied on to prosecute members of the network largely comprised intercepted communications between 21 August 2017 and 6 September 2017. The main supplier within the network was a Mr To’a, whilst a Mr Puhara was involved with sales at street level. The Judge described Mr Pomale as being a “go‑between” or “middleman” between Mr To’a and Mr Puhara.[4]
[4]At [3].
Intercepted communications revealed that on or about 21 August 2017 Mr Pomale and Mr Puhara conspired to supply four ounces (112 grams) of methamphetamine for the sum of $8,500 per ounce. This followed other discussions earlier in the day about the sale of methamphetamine.
Between 21 August and 1 September 2017 Mr Pomale offered to supply at least 499 grams of methamphetamine to several people, including Mr Puhara. Between 21 August and 6 September 2017 Mr Pomale supplied Mr Puhara with at least 721 grams of methamphetamine and received the sum of approximately $117,370 for doing so.
On 1 September 2017 Mr Pomale and Mr Puhara, together with others, conspired to supply a total of 28 ounces (784 grams) of methamphetamine. An unknown associate of Mr Puhara was to be the purchaser of 504 grams of this amount. This arrangement was called off when it was at an advanced stage.
Mr Pomale therefore supplied, offered to supply or…

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 Pomale v R

Details

AGLC: Pomale v R [2022] NZCA 343
Case: [2022] NZCA 343
Decision Date: 28 July 2022 at 11.30 am

CaseChat Overview and Summary

Salesio Pomale appealed against the sentence imposed by Venning J, which was 11 years’ imprisonment for drug-related offences. Pomale argued that the starting point for the sentence was too high and that the Judge did not adequately discount the sentence for mitigating factors, resulting in a manifestly excessive sentence. The appeal was filed out of time, but the Crown did not oppose leave to appeal out of time, which was granted. The Court found that the starting point of 13 and a half years’ imprisonment was appropriate, given the quantity of methamphetamine that Pomale supplied, offered to supply or conspired to supply and his role as a middleman. However, the Court found that a greater discount was warranted for mitigating factors identified in the cultural report, including the impact of the departure of his father when Pomale was just 12 years of age, which resulted in considerable pressure to provide money to support his family’s basic needs. The Court also found that Pomale’s relative youth and prospects of rehabilitation justified a further discount. The sentences of 11 years’ imprisonment imposed on all charges are quashed and concurrent sentences of nine years, five months’ imprisonment are imposed in their place.

Orders