R v Puhara
[2018] NZHC 3271
•12 December 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI 2018-092-4045
CRI 2018-004-0221
[2018] NZHC 3271
THE QUEEN v
JAMES PUHARA
Hearing: 12 December 2018 Appearances:
FMT Culliney for the Crown
R L Thomson for the Defendant
Judgment:
12 December 2018
ORAL JUDGMENT OF JAGOSE J
Solicitors/Counsel:
Meredith Connell, Crown Solicitor, Auckland R L Thomson, Barrister, Auckland
R v PUHARA [2018] NZHC 3271 [12 January 2018]
Introduction
[1] Mr Puhara, you have pleaded guilty to three charges of conspiring to supply, and one representative charge of actually supplying, methamphetamine.
[2] You pleaded shortly after my sentence indication to you on 6 November 2018.1 I indicated to you a sentence of imprisonment for a period of no more than seven years and six months, less any available discounts arising from the pre-sentence reports, which I now have before me. What I have now to say relies on that indication – I am not going to move away from that indication.
[3] In addition, however, three further methamphetamine-related charges, not subject to my earlier indication, have been transferred from the District Court for my sentencing today. They are for possession of utensils, methamphetamine use, and possession of methamphetamine for supply.
The alleged offending
[4] The charges I dealt with in my indication arise out of a police investigation, beginning in January 2018, into a methamphetamine supply chain. That chain was said to involve your co-defendant Mr To’a as the main supplier; two associates and another co-defendant, Mr Pomale, as ‘middle-men’; and you, Mr Puhara, selling and supplying methamphetamine.
[5] There are three charges for conspiring to supply. You twice conspired with Mr Pomale to sell: four ounces (or 112 grams) on 21 August 2017 and 10 ounces (or 280 grams) on 1 September 2017. The planning here was at a fairly early stage.
[6] The final conspiracy, however, came much closer to actual execution. You conspired with Mr To’a and Mr Pomale on 1 September 2017 to supply unknown persons with 504 grams of methamphetamine (that comprising the bulk of the total amount you conspired to supply). The would-be customer seems to have pulled out of the deal at the last minute.
1 R v Puhara [2018] NZHC 2883.
[7]As for the representative charge, you supplied unknown persons with at least
79 grams of methamphetamine during the 17 days between 21 August and 6 September 2017.
[8] Now there are also the three new charges to which you have pleaded guilty. On 10 January 2018, your car was stopped by police and one of the people you were with was arrested for breaching his bail conditions. Police found on his person multiple small plastic snap lock bags and a gas burner, items commonly used in the sale and consumption of methamphetamine. In the following search of the vehicle, police located a glass pipe, digital scales, a large quantity of small plastic snap lock bags,
$200 cash, and a metal tin containing 20.23 grams of methamphetamine in a crystallised form.
Approach
[9] I now describe my approach to this sentencing. It involves three steps. I determine what starting point your offending attracts, then adjust that up or down to take into account your personal circumstances, and finally apply a discount for your guilty plea.
[10] Deterrence is the “fundamental requirement” for sentencing drug offending of this kind.2 There is a strong need to denounce your offending, and promote in you an understanding of the harm caused by methamphetamine. Finally, your sentence must be the least restrictive outcome appropriate in all the circumstances. Here, that means a term of imprisonment. I noted in my indication the involvement and overall culpability of your co-offender and partner, Ms Cassidy, was substantially less than yours, so little can be made of the fact that she received home detention.
2 R v Terewi [1999] 3 NZLR 62 at [13].
Sentencing
—starting point
[11] My indication landed you in band four of R v Fatu, given you supplied or conspired to supply a total of 903 grams.3 But a reduction was then called for because of the lower statutory maximum sentence for the conspiracy to supply charges.
[12] I noted two of your conspiracies were at a very low level of planning, but still far from ‘daydreams or fantasy’,4 while the third was very advanced. In any respect, the summary of facts makes it clear you were part of an ongoing operation, with an established supply chain, from which you actually supplied on at least one occasion.
[13] In terms of your involvement, your co-offenders, Mr Pomale and especially Mr To’a, were higher up the chain of command. But I considered it of some significance you had direct lines of communication with them; you backed your ability to offload smaller quantities of methamphetamine over a few days, presumably not all directly to end-users.
[14] Ultimately, I fixed a starting point of 11 years’ imprisonment, reduced by 10 percent to reflect the lesser culpability of the conspiracy charges. That comes to 10 years. I agree with the Crown, and your counsel does not disagree, a modest uplift is warranted for the additional charges. I uplift by two months to 10 years, 2 months.
—personal discounts
[15] As previously indicated, there are no aggravating factors personal to you. I also remarked your mother’s letter suggests there may be some basis for further discount, but I was limited at that point by not having a pre-sentence report before me, as I do now.
[16] Your mother recounts your troubled upbringing and how it has contributed to your “wrong choices”. Nonetheless, she says you remain a “bright, intelligent,
3 R v Fatu [2006] 2 NZLR 72.
4 Gao v R [2018] NZCA 69 at [13].
respectful, caring young man”. Similar comments are made by your aunt, Melissa Ngati, your aunt Delaraine Puhara and her husband Derek Whitehead, and most recently by your aunt Louisa Karena. Those letters tell a striking change in the person that they know, from the person who appears before me. They are a testament to your essential humanity and your prospects for the future. I hope you get copies of these and I hope you read them and understand the commitment that these people are making in your future.
[17] The picture that they illustrate is bolstered by the pre-sentence report I have before me. The writer says you accepted responsibility for, and displayed insight into, your offending. You commented on methamphetamine’s damaging effects for communities and especially children, including your own. You recounted how you have been waylaid by negative influences, especially your involvement with a local gang, and by your desire to (in your words) “get rich”. You presented to the writer as remorseful and willing to change. You want to do better for your two-year-old son.
[18] You are still relatively young, Mr Puhara, only 24 years old, with much life ahead of you. Of course, words are one thing but actions another. I give you the benefit of the doubt. I encourage you to follow through on your intentions to engage in drug treatment while in prison. I understand you have already commenced some of that programme, although I recognise there is much to go.
[19] I am going to apply a global discount of 15 per cent for these personal factors. That brings your sentence to eight years, eight months’ imprisonment.
—guilty plea
[20] From that, I further deduct the full 25 per cent for your guilty plea. The resultant end sentence is six years and six months’ imprisonment.
Result
[21]Mr Puhara, please stand:
(a)on the charges before this court, I sentence you to six years and six months’ imprisonment;
(b)on the transferred charges, I also order the destruction of the drug- related items and forfeiture of the cash to the Crown;
[22] The two-month uplift for the additional charges transferred from the District Court is comparably discounted to one month, to be served concurrently with your sentence on the principal offending.
[23]You may stand down.
—Jagose J