R v Pomale

[2019] NZHC 2798

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-092-004045

[2019] NZHC 2798

THE QUEEN

v

SALESIO POMALE

Hearing:

31 October 2019

Appearances:

F Culliney for Crown

M Pecotic for Defendant

Judgment:

31 October 2019

SENTENCING NOTES OF VENNING J

Solicitors:           Meredith Connell, Auckland

M Pecotic, Auckland

R v POMALE [2019] NZHC 2798 [31 October 2019]

[1]    Salesio Pomale, you are for sentence in this Court having pleaded guilty to a number of serious drug offences. You have pleaded guilty to three charges of conspiring to supply methamphetamine, one charge of offering to supply methamphetamine, and one charge of supplying methamphetamine.

[2]    The maximum penalty for offering to supply and supplying methamphetamine is life imprisonment. The maximum for the conspiracy charges is 14 years.

[3]    You were arrested following a 2018 police investigation into a methamphetamine supply chain. The investigation was based on intercepted communications. The supply chain included Richie To’a, who was the main supplier, you, and James Puhara. Your role was as a go-between or middleman. You dealt with both Mr To’a as the initial supplier and Mr Puhara, who was involved with the sales at street level.

[4]    On or about 21 August 2017 you and Mr Puhara conspired together, with others, to supply four ounces (112 grams) of methamphetamine at $8,500 an ounce. That followed a number of earlier arrangements between you to sell methamphetamine that day.

[5]    On 1 September 2017 you and Mr Puhara with others, conspired to supply 10 ounces (280 grams) of methamphetamine at $7,500 an ounce.

[6]    On 1 September 2017, you and Mr Puhara, with others, conspired to supply 18 ounces (504 grams) of methamphetamine. An unknown associate of Mr Puhara was the potential purchaser. The buyer was about to confirm the deal when he encountered difficulties. Ultimately the deal did not go ahead. The conspiracy was however in an advanced stage before the deal was called off.

[7]    Between 21 August and 1 September you offered to supply at least 499 grams of methamphetamine to a number of people, including Mr Puhara.

[8]    Between 21 August and 6 September 2017 you supplied Mr Puhara with at least 721 grams of methamphetamine and in return received $117,370.

[9]When you were arrested you declined to make a statement.

[10]   In sentencing you, the Court is required to take account of the purposes and principles of the Sentencing Act 2002. The purposes of particular relevance include holding you accountable for the harm caused to the community and deterrence and denunciation. With drug offending of this nature deterrence and denunciation are particularly important considerations.

[11]   The Court of Appeal recently acknowledged in Zhang v R the importance of deterrence.1 The Court said it is wrong to wholly detach deterrence from denunciation, accountability and community protection when responding to a crime as harmful as dealing in methamphetamine.

[12]   The sentence the Court imposes should deter those who choose to engage in commercial drug dealing for profit. The sentence should make offenders such as you consider the risks of such offending. As the Court of Appeal observed, the failure to impose appropriate, but not unduly severe sentences of imprisonment, can only encourage the pernicious trade in human misery which dealing in methamphetamine is.

[13]   The short point is Mr Pomale you engaged in this drug dealing with full knowledge of what you were involved in. You did so because of the financial return available to you and others that you were associated with from such offending. You engaged in this offending as a commercial activity, as a business, from which significant returns were available. You took a risk you would be caught. You were and must face the consequences.

[14]The principles of sentencing that are of particular relevance are:

(a)the seriousness of offending as confirmed by the maximum penalties imposed by Parliament;

1      Zhang v R [2019] NZCA 507.

(b)the gravity of the offending, including in particular, your personal culpability.

[15]   I accept the Crown submission your role as a middleman was an important one. You acted as a liaison between Mr To’a and Mr Puhara, the street dealer. You had an active and central role in the conspiracy and the supply offending over a period of 17 days relating to the offending.

[16]   The intercepted communications confirm you were an important link in a sophisticated and organised supply chain that dealt in substantial quantities of methamphetamine and significant sums of money.

[17]   Your sentence should also be consistent with sentences for similar offending and informed by reference to the recent guideline judgment in Zhang.2

[18]   I have considered the cases referred to by counsel which deal with sentences for similar offending, but of course I do so in consideration of the recent Court of Appeal judgment in Zhang as Ms Pecotic properly referred to.

[19]   In Zhang the Court of Appeal set out a number of bands. I consider your offending to be on the cusp of band four and band five. The total methamphetamine you were involved in conspiring to supply or otherwise supplied or offered to supply exceeded two kilograms but I accept that two of the conspiracies were not at a particularly advanced stage. I also take into account, to the extent it can be said to be relevant, the sentence imposed on your co-offender Mr Puhara. Mr To’a is yet to be sentenced.

[20]   Mr Puhara was sentenced on 12 December 2018 on the same charges of conspiracy you face and on a representative charge of supplying 79 grams of methamphetamine, as well as some additional but more minor offending. In sentencing him  the  Court  took  a starting point  of 11  years’ imprisonment  for  the

2      R v Nguyen HC Auckland CRI-2008-092-2364, 1 December 2009; R v McGrath [2018] NZHC 1233; Wei v R [2012] NZCA 54; R v Hsu [2012] NZHC 931; R v Wellington [2018] NZHC 2196.

charges of conspiracy to supply and supplying methamphetamine reducing that to 10 years to reflect the conspiracy charges carried the maximum 14 as opposed to life.

[21]   In your case the Crown submit an appropriate starting point for your sentence is around 14 years.

[22]   Ms Pecotic realistically accepts that a combined starting point for you given your offending could be in the region of 12 years.

[23]   I regard your offending as more serious than that of Mr Puhara. Having regard to the factors I have discussed and to the fact the supply charges in your case exceeded 1200 grams, and bearing in mind the related conspiracy charges, I take as a starting point for you 13½ years’ imprisonment.

[24]   I then turn to personal aggravating and mitigating circumstances. There are no particular aggravating circumstances. You have previous convictions but they are unrelated.

[25]   It is said you have a longstanding drug addiction. That may be so, but I do not consider your offending was driven by that addiction. You are no small-time street dealer selling drugs to feed a habit. You were a major commercial dealer. You may also be afflicted by an addiction to methamphetamine but that is not the reason that you engaged in this offending.

[26]   Counsel has provided a cultural report to the Court, which I have had the opportunity to read and consider. The report writer also spoke to members of your family, two of your sisters. In summary it reflects your background. It confirms your connection with your Tongan heritage and your early development. Your early development was relatively positive and supportive.

[27]   It appears matters went off the rails for you when you were at the age of 12, your father left to work abroad. There appears to have been from then on a breakdown in the family unit. You saw as a substitute a connection with gangs. You became involved with gangs and looked to obtain means of obtaining money for your family.

By the time you were 16 years old, apparently you were already involved in crime. You considered your father had abandoned the family. You were searching for other role models. Your family suffered financially as a result of your father’s abandonment and you apparently considered you had a responsibility to provide money for the family. In that you are not alone Mr Pomale. A number of young Pasifika and Maori people feel such an obligation as indeed do others, but they meet that obligation by working in paid employment in the community. The obligation is not met by engaging in crime to obtain money.

[28]   Counsel suggests you are remorseful. There is a reference in the report provided that says you proved remorseful during the interview. However, the report does not provide any tangible evidence of that remorse. There is nothing in the report that suggests there is an acceptance and appreciation by you of the seriousness of the offending and the harm that it has caused to others. You have referred from time to time to regret but I do not consider that to be true remorse. You may now well be aware of the impact of your offending on you and your family. You may well regret the situation you are in but that is not true remorse. I do not accept there is any tangible evidence of remorse. You failed to engage with the Probation Service. You were provided with at least two opportunities to do so but declined both opportunities.

[29]   Only a modest reduction of six months can be made for your personal circumstances. The major credit available for you is a credit for your guilty pleas. The Crown case against you was a strong one. Your pleas came in the week before your trial. I accept counsel’s submission that you did indicate an intention to plead guilty earlier. For your guilty pleas you are entitled to a discount close to 15 per cent.

[30]   Applying that discount to the adjusted starting point leads to an end sentence of 11 years’ imprisonment.

[31]   I have considered whether a minimum non-parole period should be imposed. While the considerations of deterrence and denunciation may support a minimum period, in your case I consider it is unnecessary. I note a minimum non-parole period was not imposed on your co-offender, Mr Puhara. But also relevantly, I take account of your relatively young age at just 26 and the opportunity for rehabilitation for you

in the future, if you address the issues you must address. On balance I accept a minimum period greater than the one-third should not be imposed.

[32]   Mr Pomale please stand. On all offences you are sentenced to imprisonment for 11 years. The sentences are concurrent.

[33]Stand down.

Venning J