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…

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 R v Pomale

Details

AGLC: R v Pomale [2019] NZHC 2798
Case: [2019] NZHC 2798
Decision Date: 31 October 2019

CaseChat Overview and Summary

Salesio Pomale was sentenced by the High Court of New Zealand for his involvement in a methamphetamine supply chain. He pleaded guilty to charges of conspiracy to supply, offering to supply, and supplying methamphetamine. The maximum penalties for these offences are life imprisonment for offering to supply and supplying, and 14 years for conspiracy. The court had to decide on an appropriate sentence that reflected the seriousness of the offences and the principles of the Sentencing Act 2002, particularly deterrence and denunciation.

The court considered the maximum penalties, the gravity of the offending, and Pomale's role as a middleman in a sophisticated supply chain. It also referred to recent Court of Appeal judgments and sentences for similar offending. Pomale's offending was on the cusp of band four and band five, with the total methamphetamine involved exceeding two kilograms. The court accepted the Crown's submission for a starting point of around 14 years, and the defence's realistic acceptance of a combined starting point in the region of 12 years. Given the factors discussed, the court took as a starting point for Pomale 13½ years' imprisonment.

The court also considered personal aggravating and mitigating circumstances. There were no particular aggravating circumstances, but Pomale had previous convictions, though unrelated. The court did not consider his offending was driven by a longstanding drug addiction, as he was a major commercial dealer. There was no tangible evidence of remorse, and Pomale failed to engage with the Probation Service. A modest reduction of six months was made for personal circumstances, and a credit for guilty pleas was applied, leading to an end sentence of 11 years' imprisonment. The court decided against imposing a minimum non-parole period.

Pomale was sentenced to imprisonment for 11 years on all offences, with the sentences running concurrently.

Orders