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 of Appeal also explained in Fatu that where an offender fits within any of the four bands identified in that judgment will depend not just on the quantity and quality of the drugs involved, but also in the role played by the offender.6

[11]    In the present case, Mr Tema played a role in sourcing and supplying methamphetamine on a large number of occasions during the two and a half weeks he was under police surveillance.   While he was not the ringleader of the group, Mr Tema showed an ability and willingness to source methamphetamine and sell it to other members of the group in reasonably large quantities.   Mr Tema now says that  he  was  exaggerating  his  ability  to  source  and  supply  methamphetamine.

However, the reality is he has pleaded guilty to offering to supply a large quantity of methamphetamine.

[12]     In these circumstances, Judge Davidson was correct when he settled upon a five and a half year starting point.

Adjustments to the starting point

[13]     Judge Davidson added six months to the starting point to reflect Mr Tema’s previous convictions for drug offending.

[14]     Increasing a sentence to take account of an offender’s prior convictions can be problematic because, in effect, an additional sentence is being imposed in relation to offences for which the offender has already been punished.  However, Parliament has clearly said that “the number, seriousness, date, relevance, and nature of any previous convictions” is a matter which a sentencing Judge must take into account

when determining a sentence.7

[15]     In this case Judge Davidson increased Mr Tema’s sentence by ten per cent to reflect his prior drug offending.  This was an appropriate step for the Judge to take in the circumstances of this case.

[16]     Judge Davidson also gave Mr Tema the benefit of a 25 per cent discount to reflect his guilty plea.  Again, no issue can be taken with this step in the sentencing process.

Conclusion

[17]     I  am  therefore  driven  to  the  conclusion  that  the  sentence  imposed  by Judge Davidson was unimpeachable.   It was an appropriate sentence which was designed to:

(1)       hold Mr Tema accountable for his offending;8

(2)       promote in Mr Tema a sense of responsibility for his offending;9

(3)       denounce Mr Tema’s offending;10

(4)       deter others from offending in a similar way;11   and

(5)       protect the community from Mr Tema.12

It was also a sentence that was the least restrictive outcome that was appropriate in the circumstances of this case.13

[18]     Mr Tema’s appeal against sentence is dismissed.

D B Collins J

Solicitors:

Val Nisbet, Wellington for Appellant

Crown Solicitor, Wellington for Respondent

8      Section 7(1)(a).

9      Section 7(1)(b).

10     Section 7(1)(e).

11     Section 7(1)(f).

12     Section 7(1)(g).