Tema v Police - [2013] NZHC 1437

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-000013 [2013] NZHC 1437

BETWEEN MATTHEW VA'AI TEMA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 14 June 2013

Counsel: V C Nisbet for Appellant
M G Wilkinson for Crown

Judgment: 14 June 2014 at 3.45 pm

JUDGMENT OF COLLINS J

Introduction

[1] On 1 February 2013 Judge Davidson sentenced Mr Tema to four and a half

years’ imprisonment after Mr Tema pleaded guilty to:

(1)one charge of supplying methamphetamine (a class A controlled drug);1

(2) one charge of offering to supply methamphetamine;2 and

(3) one charge of conspiring to supply methamphetamine.3

1      Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a).
2      Section 6(1)(c) and (2)(a).
3      Section 6(2A)(a).

TEMA v NEW ZEALAND POLICE [2013] NZHC 1437 [14 June 2014]

[2] Mr Tema has appealed the sentence. Therefore, the question I have to answer is whether the sentence imposed on Mr Tema was clearly excessive or inappropriate.4

[3] In determining Mr Tema’s appeal I shall:

(1) examine the facts relating to Mr Tema’s offending;

(2) explain Mr Tema’s previous convictions;

(3) consider what is the appropriate starting point for Mr Tema’s

sentence;

(4) consider what adjustments could be validly made to the starting point;

and

(5) explain my conclusion.

Facts

[4] Mr Tema was arrested following the termination of a police operation called “Operation Marian”. During the course of this operation police discovered Mr Tema was selling and offering to sell methamphetamine to associates. Police surveillance of Mr Tema and others revealed that between 13 March 2012 and 3 April 2012
Mr Tema supplied in excess of 7.5 grams of methamphetamine and during the same time he offered to supply in excess of 47.15 grams of methamphetamine on at least
32 occasions.

[5] The sale of 47.15 grams of methamphetamine would have been worth between $30,000 and $50,000 to Mr Tema during the two and a half weeks that he was under surveillance. The 7.5 grams of methamphetamine that was sold by Mr Tema was worth a little over $8,000.

Previous convictions

[6] Mr Tema has previous convictions for methamphetamine offending. He was sentenced to nine months’ home detention in 2008 in relation to a charge of supplying methamphetamine. He was also convicted in 2007 in relation to a charge of possessing methamphetamine.

[7] Mr Tema also has other convictions in relation to drug offending, including charges of possessing cannabis and possessing utensils for use in relation to drug offending.

Starting point

[8] Judge Davidson adopted a starting point of five and a half years’ imprisonment. His Honour considered that to be the lowest starting point that he could realistically adopt.

[9] In my assessment, the starting point adopted by Judge Davidson was appropriate. Mr Tema’s offending placed him squarely in the middle of band two of R v Fatu,5 in which the Court of Appeal said that supplying commercial quantities of methamphetamine (5 g – 250 g) attracts a starting point of between three to nine years.

[10] The Court…

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 Tema v Police

Details

AGLC: Tema v Police [2013] NZHC 1437
Case: [2013] NZHC 1437
Decision Date: 14 June 2013

CaseChat Overview and Summary

Matthew Va'ai Tema appealed against a four and a half-year sentence imposed on him by Judge Davidson, who found him guilty of supplying methamphetamine, offering to supply methamphetamine, and conspiring to supply methamphetamine. Tema argued that the sentence was excessive or inappropriate, and the High Court was required to determine whether this was the case. The Court found that the starting point for Tema’s sentence, which was five and a half years, was appropriate, and the additional six months added to the sentence to reflect Tema’s previous convictions for drug offending was also appropriate. Tema’s sentence was further reduced by 25 per cent to reflect his guilty plea. The Court held that the sentence was appropriate in all circumstances, and dismissed the appeal against sentence.

The Court examined the facts relating to Tema’s offending, which included selling and offering to sell methamphetamine to associates, and providing over 7.5 grams of methamphetamine and offering over 47.15 grams of methamphetamine on at least 32 occasions during the two and a half weeks that he was under police surveillance. The Court also considered Tema’s previous convictions for methamphetamine offending and other drug-related charges. In determining the starting point for Tema’s sentence, the Court found that it was appropriate to place him in the middle of band two of R v Fatu, which attracts a starting point of between three to nine years for supplying commercial quantities of methamphetamine. The Court found that Judge Davidson was correct in settling upon a five and a half-year starting point.

The Court concluded that the sentence imposed by Judge Davidson was appropriate and unimpeachable. It was a sentence that was designed to hold Tema accountable for his offending, promote a sense of responsibility for his offending, denounce his offending, deter others from offending in a similar way, and protect the community from Tema. The Court found that the sentence was the least restrictive outcome that was appropriate in the circumstances of this case. Therefore, the appeal against sentence was dismissed.

Orders