Pomale v R
[2022] NZCA 343
•28 July 2022 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA304/2021 [2022] NZCA 343 |
| BETWEEN | SALESIO POMALE |
| AND | THE QUEEN |
| Hearing: | 14 July 2022 |
Court: | Miller, Lang and Cull JJ |
Counsel: | M J Taylor-Cyphers for Appellant |
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.
____________________________________________________________________
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 conspired to supply a total of approximately 2.1 kilograms of methamphetamine.
The sentence
The Judge considered Mr Pomale had engaged in drug dealing activity with full knowledge of what he was involved in. He did so because of the financial return available from the offending. He therefore engaged in it as a commercial activity or a form of business from which significant returns were available.[5]
[5]At [13].
The Judge also accepted the Crown’s submission that Mr Pomale’s role as a middleman was an important one. He acted as a liaison between Mr To’a at the upper end of the supply chain and Mr Puhara, who was dealing at street level. The Judge considered Mr Pomale had “an active and central role” in both the conspiracy charges and those involving the supply of methamphetamine.[6]
[6]At [15].
The Judge considered Mr Pomale’s offending sat on the cusp between bands four and five identified in Zhang v R.[7] Band four applies to offences involving the supply of up to two kilograms of methamphetamine, whilst band five applies to offending involving more than that amount. Depending on the role of the offender, offending within band four will attract a starting point of between eight and 16 years’ imprisonment. Offending within band five will justify a starting point between ten years and life imprisonment.[8]
[7]At [19], referring to Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[8]Zhang v R, above n 7, at [125].
The Judge noted that the total involved in the conspiracy and supply charges exceeded two kilograms, but at least two of the conspiracies were not at a particularly advanced stage.[9] The Judge also took note of the starting point of 10 years’ imprisonment adopted when Mr Puhara was sentenced.[10] At that stage Mr To’a had not been sentenced.
[9]R v Pomale, above n 3, at [19].
[10]At [20], referring to R v Puhara [2018] NZHC 3271 at [14].
Not surprisingly, the Judge regarded Mr Pomale’s offending as more serious than that of Mr Puhara. He therefore took a starting point of 13 and a half years’ imprisonment to reflect the overall culpability of Mr Pomale’s offending.[11]
[11]At [23].
The Judge noted that Mr Pomale has a long-standing drug addiction but did not consider the offending to have been driven by this. He noted that Mr Pomale was “no small-time street dealer selling drugs to feed a habit”.[12] Rather, he was a major commercial dealer in drugs. Although he may have been afflicted by an addiction to methamphetamine, the Judge did not consider this to be the reason he engaged in this offending.[13]
[12]At [25].
[13]At [25].
The Judge also referred to information contained in a report tendered at sentencing under s 27 of the Sentencing Act 2002. This confirmed Mr Pomale’s connection with his Tongan heritage. His early development was relatively positive and supportive. Matters went awry when Mr Pomale was 12 years of age and his father left New Zealand to live and work in Australia, from where he intended to support his family. His father’s departure led to a breakdown in the family unit and Mr Pomale became involved with gang-related activity. This led to him becoming involved in criminal activity of different types.[14]
[14]At [26]–[27].
The Judge noted a submission by Mr Pomale’s counsel that he was remorseful, but did not consider any tangible expression of remorse to be evident in the cultural report.[15] Although Mr Pomale had referred to being regretful the Judge did not consider this to be true remorse. Nor was the fact that he now regretted the situation he was in. The Judge therefore declined to provide Mr Pomale with any discount for remorse.[16]
[15]Mr Pomale declined to be interviewed for a pre-sentence report.
[16]R v Pomale, above n 3, at [28].
The Judge concluded that a “modest reduction” of six months was appropriate to reflect Mr Pomale’s personal circumstances.[17] He then applied a credit of 15 per cent to reflect his guilty pleas.[18] This led to the end sentence of 11 years’ imprisonment. The Judge considered that at 26 years of age Mr Pomale was still relatively young and had good rehabilitative prospects. This meant it was not necessary to impose a minimum term of imprisonment.[19]
The starting point
[17]At [29].
[18]At [29].
[19]At [31].
Ms Taylor-Cyphers did not press this aspect of the appeal strongly, submitting only that the Judge could have adopted a slightly lower starting point. That may be so given that the appropriate starting point for any offending will generally lie within a discernible range. However, this does not mean the starting point was too high. A starting point will only be amenable to challenge on appeal where this Court thinks it is too high and finds the end sentence manifestly excessive.
In the present case we consider the Judge was correct to find that the offending fell on the cusp of bands four and five identified in Zhang given the quantity of methamphetamine that Mr Pomale supplied, offered to supply or conspired to supply. Depending on his role, the starting point was therefore towards the upper end of band four or at the lower end of band five. We consider the starting point of 13 and a half years’ imprisonment accurately reflected Mr Pomale’s important role as a middleman who dealt with both the main supplier of the drug and those selling at street level.
The starting point for Mr Pomale was also in line with the approach taken in the sentences imposed on Mr To’a and Mr Puhara. Starting points of 14 and a half and ten years’ imprisonment respectively were selected when they were sentenced.[20]
[20]R v To’a [2019] NZHC 3232 at [40]; R v Puhara, above n 10, at [14].
We are therefore satisfied the starting point of 13 and a half years’ imprisonment was available.
Discount for mitigating factors
As we have already observed, the Judge applied a discount of six months, or approximately 3.7 per cent, to reflect mitigating factors personal to Mr Pomale other than his guilty pleas. Ms Taylor-Cyphers contends a discount of around ten per cent was warranted to reflect mitigating factors identified in the s 27 report, together with three per cent for remorse and seven per cent to reflect the fact that the offending was caused at least in part by Mr Pomale’s addiction to methamphetamine.
We do not consider the Judge erred in declining to provide a discount to reflect remorse, and for the reasons he gave. There is also limited evidence about Mr Pomale’s addiction, and most of this relies on Mr Pomale’s self-reporting.
However, we accept Ms Taylor-Cyphers’ submission that a greater discount was warranted to reflect mitigating factors identified in the s 27 report. As noted above, this reveals that the departure of his father when Mr Pomale was just 12 years of age had a major impact on the family as a whole and on Mr Pomale in particular. His father stopped providing financial support for the family when Mr Pomale was 16 years of age, which resulted in considerable pressure to provide money to support his family’s basic needs. This, rather than personal gain, was a major factor in him becoming involved in criminal activity, including drug dealing. At 24 years of age he was also still relatively young at the time of this offending.
The Judge was undoubtedly correct to say that the family’s financial predicament did not justify Mr Pomale becoming involved in activities of this type and that he ought to have found a legitimate means of earning income. We nevertheless consider the family’s financial needs provide an explanation for Mr Pomale becoming involved in criminal activity, although it cannot explain the scale of his offending. It is not enough to say that but for addiction or poverty an offender would not have become involved in crime; the question is whether any causal connection between background and the particular offending that is being sentenced is sufficient to warrant a discount. It is an evaluative decision for the sentencing judge. In this case the offending was on a large scale and accordingly difficult to excuse. But the connection was nonetheless close enough to merit a significant allowance for Mr Pomale’s background.
We therefore see a causal connection between the offending and the factors identified in the s 27 report that would justify a discount of at least ten per cent. His relative youth and prospects of rehabilitation, recognised by the Judge when he declined to impose a minimum term of imprisonment, would justify a further discount of five per cent, bringing the total discount for personal mitigating factors to 15 per cent.
When combined with the discount of 15 per cent for guilty pleas the starting point of 13 and a half years’ imprisonment is reduced by 30 per cent, or four years and one month, to produce an end sentence of nine years, five months’ imprisonment.
Result
The application for leave to appeal out of time is granted.
The appeal against sentence is allowed. The sentences of 11 years’ imprisonment imposed on all charges are quashed. In their place we impose concurrent sentences of nine years, five months’ imprisonment.
Solicitors:
Crown Law Office, Wellington for Respondent
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