R v Taylor HC Auckland CRI 2010-404-000355

[2011] NZHC 504

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-404-000355

THE QUEEN

v

ARTHUR WILLIAM TAYLOR ULAIASI PULETE

Hearing:         19 May 2011

Counsel:         B Northwood assisted by B Tantrum and S Locke for the Crown

A Taylor in person
P Winter assisted by M Meyer for the Accused Pulete

Judgment:      19 May 2011

SENTENCING NOTES OF WYLIE J

Distribution:

Mr B Northwood, Meredith Connell (email:  bruce.northwood@meredithconnell) Mr B Tantrum, Meredith Connell (email:  [email protected])

Ms S Locke, Meredith Connell (email: [email protected])

Mr D Jones QC, PO Box 1750, Shortland Street, Auckland 1140 (email: [email protected]) Mr P Winter, Barrister & Monique Meyer (Pulete) (email:  [email protected])

Mr Arthur William Taylor, Auckland Prison: Fax [phone]

R V AW TAYLOR & ANOR HC AK CRI 2010-404-000355 19 May 2011

[1]      You  appear  for  sentence  today  having  been  found  guilty  by  a  jury  on

15 February 2011 of one count of conspiring to supply the Class A controlled drug methamphetamine.  This is an offence pursuant to s 6(2A)(a) of the Misuse of Drugs Act 1975.  It is subject to a maximum penalty of 14 years’ imprisonment.

[2]      You   also   both   faced   three   other   charges   of   offering   to   supply methamphetamine to named individuals.  You were found not guilty in relation to those charges, I presume because the jury was not satisfied beyond reasonable doubt that the item you were offering to supply was, in fact, methamphetamine, or perhaps, in relation to count 3, because the jury was not satisfied beyond reasonable doubt that any offer to supply was made at all.

Background Facts

[3]      You were both sentenced prisoners at the time of your offending, serving your respective sentences in Paremoremo Prison.

[4]      In  March  2006,  the police commenced  an  investigation  which  was  code named  Operation  Spider  into  the  disappearance  of  a  man  in  Taupo.     That investigation ultimately resulted in another person being charged with murder.

[5]      During  that  investigation,  an  interception  warrant  was  authorised  by  the High Court  in  Rotorua  pursuant  to  the  Misuse  of  Drugs Act.    Pursuant  to  that warrant, the police intercepted various telephone conversations involving both of you and others which suggested to them that a drug syndicate was operating inside Paremoremo Prison.  The Police suspected you were both acting as facilitators for a drug organisation, receiving orders for methamphetamine from customers, communicating those orders to associates outside the prison, and then arranging for the delivery of the drug and for payment.

[6]      The charge in respect of which you have been found guilty revolves around a number of intercepted conversations involving both of you and a Mr Wayne Clarke.

[7]      The conversations commenced at 4.15 pm on 2 June 2007, and ended shortly after midnight on 3 June 2007.  Mr Taylor initially contacted Mr Clarke, telling him to “get his wallet out”, and saying that he had access to quantities of what everybody was looking for.  He indicated that the product had to be picked up from Auckland. In a later text message, Mr Taylor stated that he had been back in touch with his old contacts.   Mr Clarke then sent a text message to Mr Taylor asking how much he wanted for “a hundred of them”.  Mr Taylor replied that the smallest amount was a “round one” and that the price was “12k”.   Mr Taylor made it clear that he was talking about “dry ones”.

[8]      A short time later, at approximately 11.35 am on 3 June 2007, Mr Clarke rang Mr Taylor.   There was a brief discussion between them.   Mr Clarke thought that Mr Taylor was offering him one thing – perhaps ecstasy tablets – whereas Mr Taylor was offering him another thing – methamphetamine.  Both discussed the confusion, and Mr Taylor made it clear that he was offering “round things – you know the white things”.  There were references by Mr Taylor to “big ones”, and to “O’s”.  Mr Taylor then said, “They are O’s of you know what, O’s of P".  He confirmed the price at “12k”.

[9]      A little later at 3.18 pm, on 3 June 2007, there was a further conversation between Mr Clarke and Mr Taylor.   Mr Clarke indicated that he had some people who were after “one of those things, maybe two”.  Mr Taylor asked Mr Clarke to let him know what they wanted, and he again confirmed the price.  He explained that delivery would be made in Auckland.  Later in the conversation, Mr Clarke asked Mr Taylor to “keep three aside”.  Mr Taylor agreed.

[10]     Immediately thereafter, Mr Taylor sent a text message to Mr Pulete, telling him that he had somebody who wanted at least “two and probably three of those” within a day.  Mr Pulete replied that “that was good news”, and confirmed that he had three “sitting there right now”.   He thanked Mr Taylor and Mr Taylor replied thanking  him.     There  were  subsequent  text  messages  about  timing,  delivery, payment, and quality involving Mr Taylor, Mr Pulete and Mr Clarke.  It is clear that Mr Pulete was familiar with the product, but he was not in direct contact with Mr Clarke.    Mr Clarke’s  questions  about  quality were relayed  by Mr Taylor to

Mr Pulete.  Mr Pulete gave the necessary answers to Mr Taylor who in turn relayed those answers to Mr Clarke.

[11]     In any event, the supply did not proceed because Mr Clarke’s end customer or customers were unable to raise sufficient funds to complete the purchase.  Both Mr Taylor and Mr Pulete nevertheless hoped that any supply would be ongoing. Mr Pulete advised that he would be “regular” in the future if he was “instructed”.

[12]     It is clear from the conversations that the quantity of methamphetamine the subject of the conspiracy to supply was three ounces – valued at $12,000 an ounce. It is also clear that both Mr Taylor and Mr Pulete played significant roles in the conspiracy.  Mr Taylor’s role was to facilitate and negotiate the sale.  Mr Pulete was to provide the methamphetamine to be supplied.

Pre-sentence reports

Mr Taylor

[13]     Mr Taylor, you are a 54-year-old male of New Zealand European descent. You are one of seven children.   You apparently enjoyed a close relationship with your mother until she died in late 2010.   You also maintain frequent telephone contact with your sister.  You are a father to three children aged between three and

19 years.  You have ongoing contact with your children, although there are issues in respect of one of them.

[14]     You performed well at school, and told the probation officer that you had positive relationships with your teachers and peers.  Apparently, you became bored with lessons at an early stage, and frequently played truant.  At around the age of

13 years, you were sent to Epuni Boys Home.  You stated that it was while you were at that home, that you were introduced to crime, and to criminal peers.  You were discharged  from  the  home  approximately  12  months  later.    You  then  attended Porirua College briefly, but left at the age of 16 with no formal qualifications.  While you had a brief work history, you have spent much of your adult life in prison.  You

have  developed  an  interest  in  criminal  law,  and  have  apparently  completed  a

Legal Executive’s Certificate while in prison in 1985.

[15]     Mr Taylor, you have a very extensive criminal history going back to 1972. You have numerous previous convictions for dishonesty, fraud offences, drugs (including cannabis), and related offences.  You also have convictions for offending in the violence category,  including five convictions for aggravated robbery, one conviction for aggravated assault, and three for kidnapping.  You have a number of convictions for escaping custody, and for firearms offences.  Despite your criminal history, you told the probation officer that you did not view yourself as having a criminal career, and that you do not perceive yourself to be a violent offender.  You even claimed that your criminal record may have been augmented due to being “targeted by the Police because of your perceived notoriety”.

[16]     Mr Taylor, you currently have a statutory release date of 13 April 2017.  You became eligible for parole in December 2009, but any parole hearing was deferred as a result of the current offending.

[17]     You are currently a maximum-security prisoner.

[18]     You express no remorse for your latest offending.  Indeed, you maintain that you are not guilty.  You informed the probation officer that you will be appealing the conviction.  You justified having a mobile telephone in your cell, in clear breach of prison regulations, on the basis that it was not a criminal offence.  You asserted that you had the telephone just to keep in touch with your friends and family. You denied any involvement in the operation of a drug syndicate from within the prison.

[19]     The probation officer considered that your refusal to accept culpability for the offending was demonstrative of a lack of remorse.   He noted that you present no insight into your offending at all.   The probation officer’s observations match my own.

[20]     The probation officer considered that you have an unhelpful lifestyle balance, that you associate with offending supportive persons, and that you have offending

supportive attitudes and a sense of entitlement.   You have asserted that you are committed to avoiding criminal associations in the future, and that on your eventual release, you would like to engage in a legitimate business with your sister-in-law, and reside in Tauranga.   You have also claimed a willingness to engage in any available treatment with a view to reducing the likelihood of your reoffending.  You are awaiting a place in the Violent Prevention Unit at Rimutaka Prison.   You are eligible for individual counselling with a departmental psychologist, and you have stated that you are keen to participate in this type of intervention.

[21]     Mr Taylor, you are nevertheless assessed as having low motivation to change, and your risk of reoffending is assessed as high.   Your long history of criminal offending is considered representative of your deeply ingrained way of behaving, and it was noted that breaking this pattern of behaviour might well prove challenging for you.   It was also noted that you have failed to remain conviction-free for any significant  length  of  time  throughout  your  adult  life,  even  while  being  held  in custody, and a further sentence of imprisonment was recommended.

Mr Pulete

[22]     Mr Pulete, you were born in Tonga.  You are 42 years of age.  You are the eldest of three children.  You were adopted by your aunt’s daughter at the age of two months as I understand it.  You have never met your biological father.  Your mother however lives in Mt Eden.

[23]     You came to New Zealand when you were 11 years of age.  You left school four years later, when you were expelled for stealing and smoking cannabis.  You have no formal qualifications, and have only had limited engagement in the workforce, once as a casual labourer, and once as a club bouncer.

[24]     You are a member of the King Cobra gang.  You state that you do not now use drugs or alcohol, and that you have been clean for a couple of years.  However, you are in poor health.   You suffer from sleep apnoea, and other health related problems associated with obesity.

[25]     I am told that you dispute the summary of facts.  You are of the view that some of the things mentioned in the summary are exaggerated.

[26]   The main factors identified as leading to your offending are offending supportive associates, and offending supportive attitudes and entitlements.

[27]     The probation officer reported that you appear highly motivated to be offence free.  He refers to the fact that you have been working with youth at risk whilst on electronic bail.  The report writer recorded that you discussed rehabilitation options with him, and he expressed the view that you would benefit from a medium rehabilitation intensity programme, which is designed to help offenders examine the causes of their offending and to develop specific life skills to prevent them reoffending.  The probation officer noted that you would be able to complete that programme either in the community, or in prison.

[28]     The probation officer considered that you pose a high risk in relation to this type of offending.  He noted that the offending occurred while you were in prison, and    recorded    that    this    demonstrates    non-compliance    and    disregard    for Court-imposed sanctions.  He observed that drugs have had a serious impact on you, and recommended that you should be sentenced to a term of imprisonment.

[29]     Mr Pulete, I have received a letter in your support from a Mr Chick Tarawa, of Kershaw Training Enterprises in Hamilton.  That entity deals with youth at risk within the Waikato region.  Mr Tarawa has described the assistance you have given to young students.  They apparently visited your property to meet with you, so that you could tell them about the realities that come from making wrong decisions at an early stage.  It is Mr Tarawa’s view that you offered hope for some of these youth, and  that  you  have  helped  save  at  least  them  from  an  otherwise  disintegrating lifestyle.

[30]     I have also received a lengthy letter direct from you.  It is well expressed and apparently sincere.  In that letter you acknowledge your past mistakes, but you also set out your vision for a brighter future.  It is clear to me that you acknowledge the

mistakes that you have made in the past, and that you are keen to dedicate your future life to trying to help others avoid the same mistakes.

Submissions

[31]     Mr Northwood for the Crown, submitted that an appropriate starting point for the offending is five years’ imprisonment.  He argued that the offending necessarily involved a degree of premeditation and planning, given that you were both inmates at Paremoremo Prison at the time.  He also noted that the offence of conspiracy to supply methamphetamine has an inherent commerciality, and submitted that there are no mitigating features to your offending.  He referred me to the decision of the

Court of Appeal in R v Fatu,[1]  which is the guideline authority for offending of this

kind.  He submitted that the offending in respect of which you have both been found guilty  involved  three  ounces  of  methamphetamine,  equating  to  approximately

84 grams.  He submitted that your offending falls into what is known as band 2 in Fatu. He noted that the starting point for band 2 offending is three years’ imprisonment, running through to nine years’ imprisonment.  He submitted that the appropriate starting point for an actual supply of 84 grams of methamphetamine would be five years’ imprisonment.   He acknowledged that you have been found guilty of conspiracy to supply only, and that a discount from the sentence applicable to a supply is appropriate.  Nevertheless, he submitted that you were both primary offenders.  Further, he sought an uplift of two to three years to recognise the fact that your offending took place in prison; and a further small uplift to recognise your respective criminal histories.  He referred to s 83 of the Sentencing Act 2002, and submitted that a cumulative sentence is appropriate for you, Mr Taylor.   He also submitted that a minimum term of 50 per cent of the applicable sentences should be imposed on both of you.

[1] R v Fatu [2006] 2 NZLR 72.

[32]     Mr Taylor, you have addressed me orally this morning. You started by noting that the jury found you not guilty of the three more serious charges of supplying methamphetamine.  You told me that the present offending in respect of which you are being sentenced, needs to be taken in context and that I need to consider whether

there was any intention to put the conspiracy into operation.  You suggested that the

evidence established no more than that you had been approached by Mr Pulete and asked to act as a go-between on his behalf.  You also submitted to me that the prison environment is a mitigating factor and that people in prison look for others to assist them in the commission of offences.

[33]     Mr Taylor, you argued that the offending in respect of which you have been found guilty is at the lowest end of the scale.  You also suggested that the Police allowed the conspiracy to continue and that they took no steps to stop it.  You went so far as to suggest that the Police facilitated the conspiracy.

[34]     You put it to me that your role was minimal.  You also asked me to take into account that there was no persistent offending and there is no further evidence which has come to light against you.  You also submitted that there is no evidence that you gained any benefit from the present offending and you argued that the conspiracy went no further than being a theoretical plan.

[35]     You asked me to impose a sentence commencing as from today, and resisted the Crown’s submission that any sentence should be cumulative.  In particular, you suggested that the Crown had delayed in bringing the charges against you and that as a consequence, the trial had been delayed. You said you have been put through some three years of anxiety and anguish as a result.   Secondly, you suggested that your appearances before the Parole Board were deferred because of these pending proceedings and because of other charges which were laid against you by the Police which have not come to fruition.   You said that you have been deprived of the opportunity for early release.   Further, in this regard, you said that you have been rated as a maximum security prisoner as a result of these proceedings, and notwithstanding that in other regards, you did not deserve that classification.  You argued that you have suffered a serious deprivation of privileges as a result, and you submitted that the Crown over-charged you at the outset, and that the offending against you was, to use your words, “ranked up”.  You asked me to take into account the pressure you have been put under as a result.

[36]     You also referred me to the totality principle and submitted that a substantial discount is necessary to achieve an overall balance.  You submitted to me that I need

to assess the sentence I am about to impose by reference to the sentences you are already serving to reach a just result.

[37]     Finally,  you  dealt  with  the  Crown’s  argument  that  I  should  impose  a minimum period of imprisonment.  You suggested to me that your offending was no different  from  the  norm,  and  you  urged  me  not  to  depart  from  the  general proposition, which would mean that you would be eligible for parole after you have served a third of your sentence.

[38]     Mr Winter on behalf of Mr Pulete, emphasised that this was a single offence. He noted that no supply took place.  He submitted that an appropriate starting point is four years’ imprisonment or less.   He acknowledged that a measured uplift of between  six  to  12  months  is  appropriate  to  recognise  your  criminal  history, Mr Pulete.  He sought a deduction for the time that you have spent on electronic bail. He asked me to consider the tariff appropriate to supplying methamphetamine.  He submitted that that tariff then has to be reduced to recognise that this is a conspiracy case involving inchoate  offending.    He  acknowledged  the  context  in  which  the offending  occurred,  namely  the  prison  environment,  and  accepted  that  that  is relevant.   He suggested to me that your offending falls into the bottom third of band 2 in Fatu. He then argued that the conspiracy was at a low level, justifying a discount of at least 25 to 30 per cent from the tariff which would have been applied had the offending been supply.  He took me through parts of the evidence and argued that any agreement or conspiracy was of short duration, and that no substantive offending was committed.  He suggested to me that care must be taken not to over- state your role.  He noted your limited involvement in the conversations, and put it to me that the offending occurred in an environment in which a level of posturing is inevitable.  He suggested that you appeared to be indifferent to the collapse of the supply agreement made between Mr Taylor and Mr Clarke.

Principles of Sentencing

[39]     I have considered the principles set out in ss 7 and 8 of the Sentencing Act

2002.  In particular, I have had regard to the need to hold both of you accountable for your  offending,  the  need  to  promote  in  you  a  sense  of  responsibility  for,  and

acknowledgement of your offending, and the need to denounce the conduct in which you  were  both  involved.    I am  also  mindful  of  the  need  to  deter  others  from committing the same or similar offences.   This is a primary factor in drug-related offending.  I have taken into account the gravity of your offending, including your degree of culpability, and I have considered the seriousness of this type of offending, and the general desirability of consistency of appropriate sentencing levels with similar offenders committing similar offences.  I am also mindful that I must impose the least restrictive outcome that is appropriate in the circumstances.

[40]     I have also considered s 9 of the Sentencing Act.  I note that the offence was committed while you were both subject to sentences of imprisonment.   That is a relevant factor pursuant to s 9(1)(c).  Similarly, I note that the conspiracy you were involved in means that both of you were participating or involved in an organised criminal group or association, although I accept that such participation is inherent given the nature of the conviction.  So is premeditation.

[41]     I have also taken into account your previous convictions.

Analysis

[42]     The starting point is the decision of the Court of Appeal in R v Fatu.[2]   It is the guideline judgment in relation to methamphetamine-related offending.

[2] R v Fatu [2006] 2 NZLR 72.

[43]     In Fatu, the Court of Appeal was dealing with offending involving the supply of methamphetamine.   It held that there are four sentencing bands that operate as starting points.   Band 2 is relevant for present purposes.   It covers the supply of between five and 250 grams of methamphetamine.  The Court of Appeal held that the appropriate terms of imprisonment for offending within band 2 range from three to nine years.   The Court observed that a supplier is less culpable than both a

manufacturer and an importer.

[44]     Subsequent case law has held that conspiracy charges require a lesser starting point than the equivalent offences of supply, although the closer a conspiracy comes to fruition, the more comparable the sentencing will be to its supply counterpart.

[45]     Had you both been found guilty of supply, I am satisfied that the appropriate starting point, given the amount of methamphetamine involved, would have been a term of imprisonment in the vicinity of four and a half to five years’ imprisonment.[3]

[3] See, for example, R v Egan [2008] NZCA 102; R v Richardson CA 85/06, 16 August 2006.

[46]     You have not, however, been found guilty of supply.  Rather, you have been found guilty of conspiracy to supply.  The Court of Appeal has accepted that it is appropriate, in cases of conspiracy, to reduce the starting point which would have been applied to the offence the parties conspired to commit.  The Courts recognise that the fact of planning something illegal is logically less serious than actually doing it.   They have also observed that it is equally logical that the closer a conspiracy comes to execution, the closer it becomes in seriousness to the actual illegal act

being planned.[4]

[4] Jarden v R [2008] 3 NZLR 612.

[47]     This approach has been endorsed by the Supreme Court in Jarden v R,5  in relation to conspiracy to supply methamphetamine.

[48]     There  are  relatively  few  cases  involving  a  sole  charge  of  conspiracy  to supply, or in which conspiracy to supply is the principal charge.

[49]     I  have  considered  the  cases  referred  to  me  by  counsel.    I  note  that  in R v Gordon  Smith,[5]    the  prisoner  was  found  guilty  of  conspiracy  to  supply methamphetamine, supplying both ecstasy and cannabis, and possession of ecstasy for  supply.     The  Court  of  Appeal  upheld  a  final  sentence  of  eight  years’ imprisonment.   Six years was imposed in relation to the conspiracy offence.   The amount of methamphetamine involved however was not referred to by the Court.  In R v Richardson,[6] the prisoner was found guilty of conspiring to supply 406 grams of

methamphetamine.     There  were  other  various  counts  including  possession  of

equipment and precursors, possession of a firearm, and receiving stolen goods.  The final sentence imposed was nine and a half years’ imprisonment.  A sentence of five and three quarter years was given in relation to the conspiracy charge.  This allowed for a 10 per cent discount on the basis that the conviction was for conspiracy, and not supply.  I have also considered R v Henare,[7] and R v Greenwood.[8]

[5] R v Gordon Smith [2008] NZCA 33.

[6] R v Richardson [2008] NZCA 353.

[7] R v Henare HC Auckland CRI 2008-004-5303, 21 October 2009.

[8] R v Greenwood HC Auckland CRI 2008-004-5303, 13 October 2009.

[50]     As I have already noted, the supply that both of you conspired to commit is within band 2 in Fatu.  It involved three ounces, or 84 grams, of methamphetamine. The appropriate starting point, were the count one of supply alone, would have been in the vicinity of four and a half to five years’ imprisonment.  I take a four and a half year term as my initial starting point.  It is appropriate to give a reduction given that you both have been found guilty of conspiracy to supply only.  However, I take into account the following:

(a)      The conspiracy was extremely close to completion.  Indeed, you were both ready, willing and able to supply.  The only reason the supply did not take place was because the end purchaser  or purchasers were unable to raise the necessary monies to complete the purchase.

(b)The  conspiracy started  out  as  a  simple  offer  to  supply methamphetamine.  When Mr Clarke asked that one or two ounces of methamphetamine be put on hold for him, you, Mr Taylor readily agreed.  Subsequently, when Mr Clarke asked for three ounces, you again agreed.   Mr Pulete, you confirmed that you had three ounces ready for supply.  You were clearly familiar with the product and you were willing to supply again in the future.

(c)      Both of you, Mr Taylor and Mr Pulete, actively participated in this conspiracy. You, Mr Taylor, were selling the methamphetamine. You,

Mr Pulete, were supplying it.

In my judgment, your offending falls within category 2 discussed by the Court of Appeal in R v Te Rure.[9]     Everything had been assembled for the conspiracy to supply to take place.

[9] R v Te Rure [2008] 3 NZLR 627.

[51]     In my view, a discount of six months, or just over 10 per cent is appropriate from the sentence which would otherwise have been applied had the count been one of supplying methamphetamine.  It follows that my starting point for the conspiracy to supply methamphetamine in this case is one of four years’ imprisonment.

[52]     I now consider aggravating features relevant to the offending.

[53]    There is one clear aggravating feature – namely that the offending was committed while you were both in prison.  This makes a mockery of the deterrent sentences previously imposed on both of you.   Further, it negatively impacts on people’s perceptions of custodial sentences.  It indicates a total disregard by both of you for the penalties that led you to be sentenced prisoners, and it puts the lie to claims of being reformed, or of having new insights.  It indicates that both of you are at the highest end of the risk of reoffending, given that you were willing to conspire

to supply methamphetamine, even whilst in jail.[10]

[10] R v Nuku HC Wellington CRI 2008-085-9114, 13 February 2009

[54]     I  add  a  further  term  of  imprisonment  of  two  years  to  recognise  this significantly aggravating feature.

[55]     It follows that I adopt as my initial starting point, a term of imprisonment of six years for each you.

Aggravating and mitigating factors personal to each of you

Mr Taylor

[56]     As I have indicated, you have an appalling criminal record.    You have a

number of drug-related convictions, including possession of morphine for supply in

2007, possession of cannabis plant for supply in 2007, possession of equipment and materials with intent to manufacture in 2007, possession of cannabis oil for supply in

2007, and cultivating cannabis in 1993.  You have continued to offend in this area, despite lengthy custodial sentences having been imposed on you.   In my view, a substantial uplift is appropriate to recognise your criminal record.   I increase the sentence  I would otherwise have imposed  by an additional term of 12 months’ imprisonment.

[57]     There  are  no  mitigating  factors  personal  to  you,  Mr  Taylor.    You  have indicated absolutely no remorse.  Rather, you demonstrate a total disregard for the criminal justice system.   The offending was committed while you were in prison. During the trial, you sought to manipulate things to your own advantage.  You failed to recognise or even abide by rulings made against you.   You have even been so arrogant as to announce the grounds of your appeal through the news media. You are a recidivist offender who appears to revel in the minor celebrity status you enjoy within the prison system.  You even boasted of this in the course of your closing to a jury.   In my view, you exhibit no insight into your offending at all.   Rather, you delight in portraying yourself as a victim, and you continue to display a sense of entitlement and self-justification.

Mr Pulete

[58]     Mr Pulete, you also have an appalling criminal history, but significantly, you only have one previous drug-related conviction – for the importation of stimulants in

2001.  In my view, an uplift of nine months is appropriate to recognise your criminal history.

[59]     There are some limited mitigating factors which apply to you.  First, I accept that you have, albeit belatedly, shown a degree of remorse.  While you disputed the summary of facts with the probation officer, this was not in any significant way.  I also accept that you have in recent times, made a genuine, albeit modest attempt to persuade young persons to mend their ways, and not become involved in criminal activity.   In the circumstances, I am prepared to reduce  your sentence by three months to recognise these factors.

[60]     I also make a minor allowance for the time you spent on electronic bail. However, in doing so, I note that for almost a year, you were not under a 24-hour curfew.  The terms of your bail during this period were not totally restrictive.  I also note that I have already granted you a minor discount to recognise the contribution that you have made by talking to youth in trouble while you were on bail.   The further allowance is limited to avoid any “double counting” in that regard.   I also note that there is nothing to suggest that you took any other steps to rehabilitate yourself whilst on bail.  In the circumstances, I am prepared to allow you a further discount of three months.

Sentence

Mr Taylor

[61]     Mr Taylor, will you please stand.

[62]     In respect of the offence of conspiring to supply methamphetamine, you are sentenced to a term of imprisonment of seven years.

[63]     I have considered s 83 of the Sentencing Act.  It provides that a determinate sentence  of  imprisonment  may  be  imposed  cumulatively  on  any  determinate sentence of imprisonment that the Court directs, whether then imposed, or to which you are already subject.

[64]     You are currently subject to sentences imposed in 2007, 2008, and 2011.  In

2007 you were sentenced to concurrent sentences, the longest being four years’ imprisonment for a range of firearms and drug charges.  In 2008, you were subject to a cumulative sentence of four years imprisonment for escaping from custody and concurrent sentences of one year on three charges of kidnapping.  On 27 April 2011, you were further sentenced to a concurrent sentence of five months for intentional damage.

[65]     In my view, it is appropriate that the sentence I have passed on you should be imposed cumulatively on the determinate sentences which you are currently serving. The present offending is unrelated, and it was committed while you were serving sentences for further offending.   I have considered the totality principle but in my view, it does not assist.   The sentence I am imposing on you will not be out of proportion to your overall offending and the circumstances in which the offending occurred if I make it cumulative.   It follows that the term of imprisonment I have sentenced you to will commence when the last of your current sentences has been served.

Mr Pulete

[66]     Mr Pulete, will you please stand.

[67]     Mr Pulete, on the charge of conspiring to supply methamphetamine, you are sentenced to a term of imprisonment of six years and three months.

[68]     Prior to sentencing, you were not detained under a sentence imposed by the Court.  You were released on parole during the trial.  You were only remanded in custody when the conviction was entered.  The Crown does not seek a cumulative sentence for you, on the basis that you are not currently detained, as those words are used in s 83(2) of the Sentencing Act.  I make no order under s 83 in respect of you.

Minimum period of imprisonment

[69]     I have also considered whether or not either or both of you should serve a minimum period of imprisonment.

[70]     Section  86(2)  of  the  Act  permits  me  to  impose  a  minimum  term  of imprisonment that is longer than the period otherwise applicable under s 84(1) of the Parole Act 2002, if I am satisfied that that period is insufficient for all or any of the following purposes:

[a]       Holding you accountable for the harm done to the victim and to the community by the offending.

[b]       Denouncing the conduct to which you were involved.

[c]       Deterring  you  or  others  from  committing  the  same  or  a  similar offence.

[d]      Protecting the community from you.

[71]     I am satisfied in relation to each of these matters.   Offending whilst in the prison system justifies strong deterrence. A minimum period of imprisonment longer than the period otherwise applicable under the Parole Act is necessary to hold you both accountable for your offending, to denounce that offending, and to deter you or others from offending while incarcerated.  Given the readiness to offend, which both of you have shown, it is also necessary to protect the community from you.  I impose a minimum term of imprisonment of three years and six months in your case, Mr Taylor, and of three years and six weeks in your case, Mr Pulete.

[72]     You may both stand down.

Wylie J