R v Puata HC Tauranga CRI 2008-070-3002

[2010] NZHC 1190

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2008-070-003002

THE QUEEN

v

MARK HAMILTON PUATA

Charges:         Manufacturing methamphetamine x8

Offering to supply methamphetamine x2

Plea:               Guilty

Hearing:         9 July 2010

Appearances: S E Simmers for Crown

A C Balme for Prisoner

Sentenced:     9 July 2010

Manufacturing   methamphetamine   x8   –   4   years   9   months’

imprisonment

Offering to supply methamphetamine x2 – 4 years 9 months’ imprisonment concurrent but cumulative on existing sentence being served

SENTENCING NOTES OF VENNING J

Solicitors:           Crown Solicitor, Rotorua

Copy to:            A C Balme, Rotorua

R V PUATA HC TAU CRI-2008-070-003002  9 July 2010

[1]      Mark Hamilton Puata, you are for sentence in this Court having pleaded guilty to eight counts of manufacturing methamphetamine and two counts of offering to supply methamphetamine.   The maximum penalty for the offending is life imprisonment.

[2]      The offending in this case came to the attention of the police following an operation in which they intercepted a number of telephone conversations and text messages between you and your co-accused Mr Bowater and Mr Rizvi between 4

March 2008 and 9 April 2008.   During that period the intercepts reveal that you sourced ingredients required to manufacture methamphetamine, were involved in the manufacture  of  methamphetamine  and  offered  to  supply methamphetamine  to  a number of unknown persons.   When you were spoken to at the conclusion of the operation you said you sort of knew Mr Bowater.  When asked how many times you had manufactured methamphetamine at your address in Te Puke you denied you had manufactured methamphetamine and you declined the opportunity to listen to the intercepted conversations.  You only pleaded guilty four days before the start of your scheduled trial but you had indicated you intended to plead guilty about a week earlier.

[3]      The intercepts of the telephone conversations and text messages disclosed both a manufacturing operation and also the offers to sell.   During that time the intercepts disclosed you and your co-accused discussing how to obtain pseudoephedrine and manufacturing methamphetamine.  In one, on 7 March 2008, Mr Bowater asked you if you remembered how you had last cooked methamphetamine.   Code names and slang were used to describe ingredients of methamphetamine  and  its  components,  such  as  “T”  or  “Toly”  for  Toluene,  a chemical used in the process.   There were numerous communications to arrange sourcing, pick-ups of and payment for ingredients and supply of manufactured methamphetamine  amongst  the  three  of  you.    The  communications  relate  to  a number of several discrete episodes.   For present purposes I accept Mr Balme’s submission that the offer to supply counts occurred on the one night on two separate occasions.

[4]      You are 52 years old.   You are currently serving a prison sentence with a statutory release date of 9 August next year.  The current sentence you are serving was imposed in June 2008 for offending that had occurred in October 2006.   It includes the possession and use of utensils with methamphetamine.

[5]      In  the  pre-sentence  report  you  say  you  were  formerly  a  member  of  the Mongrel Mob but you have disassociated yourself from that gang in prison and on your eventual release you would like to make a fresh start.

[6]      You say you became involved in the use of methamphetamine when you were a truck driver and that it was common practice amongst long haul drivers to use uppers to keep themselves awake.  You also face two charges in relation to a murder for which you are to go to trial.  While you agreed with the summary of facts you said that Mr Bowater was the cook and Mr Rizvi supplied the ingredients and you were effectively the look-out and helped.  I think that downplays your role for the reasons that I have referred to earlier in terms of the material disclosed by the intercepts.

[7]      There are, however, some positive features in the probation report before me. You have remained drug free while in prison and accept the need to undertake rehabilitative courses.   You have tested negative for drug use in prison and you intend to lower your security risk classification by being compliant.  In the probation officer’s view you now demonstrate some insight into your offending.  Up until 1988 your history of offending could be properly described as prolific.  But your offending since then has been less regular although with the current charges obviously more serious.

[8]      In  sentencing  you  I  am  required  to  take  account  of  the  purposes  and principles of the Sentencing Act.  The particular purposes relevant are to hold you accountable for the harm done to the community by drug offending and your involvement  in  the  manufacture  of  methamphetamine  which  makes  the  drug available to the community.

[9]     The  sentence  must  also  promote  in  you  responsibility for  and acknowledgement of that harm.

[10]     The sentence must also denounce your conduct and deter you and others from committing similar offending in the future.

[11]     I am also directed to take account of the principles of the Act, in particular the desirability of consistency with other sentences for similar offending and I am directed to have regard to your rehabilitation.

[12]     Mr Puata the only appropriate sentence for you is imprisonment as Mr Balme properly acknowledged.

[13]     In R v Fatu[1] the Court of Appeal identified appropriate sentencing bands for those involved in the manufacture of methamphetamine.   Band 2 applies for manufacturing operations involving up to 250 grams.  A start point for sentence of between four and 11 years’ imprisonment is appropriate for offending within that band.

[1] R v Fatu [2006] 2 NZLR 72 (CA).

[14]     I accept, as Mr Balme has submitted, that your offending falls towards the bottom end of that particular band but I do not accept it is right at the bottom.  This was an ongoing operation involving a number of separate manufacturing operations, which is reflected in the eight counts that you have pleaded guilty to.

[15]     The start point for your sentence must largely be driven off the sentences imposed on your co-accused Mr Bowater in particular and Mr Rizvi and the need for consistency.

[16]     The Crown submits that in your case an appropriate start point for the totality of all your offending, including the offering to supply charges, is a sentence in the region of five to five and a half years’ imprisonment.

[17]     In Mr Bowater’s case the Judge sentenced him on the basis of 13 to 17 separate  manufacturing  operations  and  on  the  basis  that  on  each  occasion  the quantity manufactured was probably between three and four grams.  The Judge took a start point of five years’ imprisonment for manufacturing and uplifted that by one year for the actual supply charges.

[18]     In your case you are to be sentenced on the basis of the eight counts you have pleaded guilty to, which is somewhat less than the 13 to 17 manufactures that Mr Bowater was involved in.   Mr Rizvi was sentenced on two manufacturing counts, one of possession of a pre-cursor and one of supplying a pre-cursor.  The Judge in his case took a start point of two and a half years on the lead count of one count of manufacturing methamphetamine and then uplifted for the other counts before him.

[19]     In  your  case Mr Puata,  as  you  are for sentence on less  counts and  less instances of manufacturing than Mr Bowater was, I take a lesser start point in your case of four and a half years for the manufacturing charges, but given the nature of the operation and the number of charges, it cannot be less than that.  I apply an uplift of eight months for the two counts of offering to supply which leads to a start point for the offending overall of five years two months.  I have considered whether there should be an uplift to that, given your previous offending, but as you heard in my discussion with Mr Balme I accept in your case it is unnecessary to do so.   I am influenced by the fact that you are currently serving a sentence and that the sentence I impose on you must be cumulative on that existing sentence because it is different in kind and occurred in a different timeframe.  But I do take into account the totality principle and the need to effectively give you light at the end of the tunnel.

[20]     As to your personal mitigating factors, while there are some positive features in the pre-sentence report that I have discussed, it is apparent you still have a long way to go to turn things around.  I am, however, able to give you a discount for your guilty plea, which I accept is a tangible acknowledgement of your acceptance of your offending and a tangible indication of your remorse.

[21]     For that late guilty plea and those other factors, a discount of just over five per cent is appropriate in my view.  In addition I apply a small further rounding to

reflect  the  totality  principle  and  the  fact  you  are  currently  serving  an  existing sentence.

[22]     Mr Puata please stand.  On the counts to which you have pleaded guilty you are   sentenced   in   each   case   to   imprisonment   for   four   years   nine   months’ imprisonment.   They are concurrent with each other but the sentence is, however, cumulative on the existing sentence you are serving.  On the remaining counts 2, 4, 9 and 12 in the indictment the Crown offers no evidence and you are discharged on

those counts.  Stand down.

Venning J