Pulete v R - [2013] NZCA 216

IN THE COURT OF APPEAL OF NEW ZEALAND

CA521/2012 [2013] NZCA 216

BETWEEN ULAIASI (ROCKY) PULETE Appellant

AND

THE QUEEN Respondent

Hearing: 15 May 2013

Court:

French, Goddard and R Young JJ

Counsel:

C J Tennet for Appellant
P K Feltham for Respondent

Judgment:

11 June 2013 at 10.00 am

JUDGMENT OF THE COURT

AAn extension of time to appeal is granted.
BThe appeal against sentence is allowed.
CThe sentence of six years and three months’ imprisonment with a minimum period of imprisonment of three years and six weeks is quashed and replaced by a sentence of five years and six months’ imprisonment with a minimum period of imprisonment of two years and nine months.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

Mr Pulete was convicted at trial in the High Court of one count of conspiring to supply methamphetamine. On 19 May 2011 the presiding Judge, Wylie J, sentenced him to a term of imprisonment of six years and three months.[1]
[1]R v Taylor HC Auckland CRI-2010-404-355, 19 May 2011.
Mr Pulete now appeals his sentence. He does so on the ground that this Court has since reduced the sentence of his co-conspirator Mr Taylor (the Taylor decision) for reasons which apply equally to him.[2]
[2]Taylor v R [2012] NZCA 332.
The key issue raised by the appeal is the most just way to give effect to the Taylor decision, having regard to the fact that Mr Pulete was also sentenced in July 2011 on other drug related offences by Wylie J.[3]

Factual Background

The conspiracy charge

[3]R v Pulete HC Auckland CRI-2008-044-7390, 15 July 2011.

The conspiracy charge against Mr Pulete arose out of a police investigation code named Operation Spider. The investigation commenced in March 2006.
Mr Pulete was serving a sentence in Paremoremo Prison at the time, as was Mr Taylor. Over a 32 hour period in June 2007, police intercepted a number of cell phone and text communications between Mr Pulete, Mr Taylor and a third person. The communications evidenced a conspiracy between the three men to supply three ounces (85 grams) of methamphetamine valued at approximately $12,000 an ounce. Mr Pulete was to provide the methamphetamine, while Mr Taylor was to negotiate and facilitate its onselling through the third person.
The conspiracy was never implemented because the end purchaser was unable to obtain sufficient funds.
At the High Court sentencing on 19 May 2011, Wylie J characterised the supply which the conspirators had conspired to commit as being in band two of Rv Fatu.[4] Taking account of the fact this was a conspiracy and not a supply charge, he adopted a provisional starting point of four years’ imprisonment for both Mr Pulete and Mr Taylor, which he then uplifted by two years on account of the offending having occurred in a prison.
[4]R v Fatu [2006] 2 NZLR 72 (CA) at [34].
Having arrived at a starting point of six years, the Judge then…

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 Pulete v R

Details

AGLC: Pulete v R [2013] NZCA 216
Case: [2013] NZCA 216
Decision Date: 11 June 2013 at 10.00 am

CaseChat Overview and Summary

Ulaisi (Rocky) Pulete appealed against his sentence of six years and three months for conspiracy to supply methamphetamine, arguing that the Court should reduce his sentence in line with a recent Court of Appeal decision which had reduced the sentence of his co-conspirator, Mr Taylor. The key issue was how to give effect to the Taylor decision while considering Mr Pulete’s other drug related convictions, which were sentenced separately. The Court held that the most principled approach was to apply the Taylor decision to the conspiracy charge and then cross-check by considering what the appropriate sentence would have been had both sets of offending come before the sentencing Judge together. The Court determined that a reduction of nine months in the conspiracy sentence was appropriate, resulting in a new sentence of five years and six months with a minimum period of imprisonment of two years and nine months. The Court granted an extension of time for the appeal and allowed the appeal against sentence.

Orders