SALESIO POMALE v R [2022] NZCA 343

SALESIO POMALE v R [2022] NZCA 343 [28 July 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA304/2021[2022] NZCA 343BETWEEN SALESIO POMALEAppellantAND THE QUEENRespondentHearing: 14 July 2022Court: Miller, Lang and Cull JJCounsel: M J Taylor-Cyphers for AppellantRMA McCoubrey for RespondentJudgment: 28 July 2022 at 11.30 amJUDGMENT OF THE COURTA The application for leave to appeal out of time is granted.B The appeal against sentence is allowed.C The sentences of 11 years' imprisonment are quashed and concurrentsentences of nine years, five months' imprisonment are imposed in theirplace.____________________________________________________________________REASONS OF THE COURT(Given by Lang J)[1] Mr Pomale pleaded guilty to three charges of conspiring to supplymethamphetamine,1 one charge of offering to supply methamphetamine and onecharge of supplying methamphetamine.2 On 31 October 2019, Venning J sentencedMr Pomale to 11 years' imprisonment.3[2] Mr Pomale appeals against sentence. He contends the Judge erred by adoptinga starting point for the sentence that was too high and then failed to provide anadequate discount for mitigating factors. He says this led to a sentence that wasmanifestly excessive.Leave to appeal out of time[3] The appeal was not filed until 1 June 2021 and is therefore well out of time.However, the Crown is not prejudiced by the delay and does not oppose leave to appealout of time being granted. Leave is granted accordingly.The offending[4] The police arrested Mr Pomale following an investigation into the activities ofa methamphetamine supply network over a period of several weeks during 2017.The evidence that the police relied on to prosecute members of the network largelycomprised intercepted communications between 21 August 2017 and 6 September2017. The main supplier within the network was a Mr To'a, whilst a Mr Puhara wasinvolved with sales at street level. The Judge described Mr Pomale as being a"go-between" or "middleman" between Mr To'a and Mr Puhara.4[5] Intercepted communications revealed that on or about 21 August 2017Mr Pomale and Mr Puhara conspired to supply four ounces (112 grams) ofmethamphetamine for the sum of $8,500 per ounce. This followed other discussionsearlier in the day about the sale of methamphetamine.1 Misuse of Drugs Act 1975, s 6(2A).2 Section 6(1)(c).3 R v Pomale [2019] NZHC 2798.4 At [3].[6] Between 21 August and 1 September 2017 Mr Pomale offered to supply atleast 499 grams of methamphetamine to several people, including Mr Puhara.Between 21 August and 6 September 2017 Mr Pomale supplied Mr Puhara with atleast 721 grams of methamphetamine and received the sum of approximately $117,370for doing so.[7] On 1 September 2017 Mr Pomale and Mr Puhara, together with others,conspired to supply a total of 28 ounces (784 grams) of methamphetamine.An unknown associate of Mr Puhara was to be the purchaser of 504 grams of thisamount. This arrangement was called off when it was at an advanced stage.[8] Mr Pomale therefore supplied, offered to supply or conspired to supply a totalof approximately 2.1 kilograms of methamphetamine.The sentence[9] The Judge considered Mr Pomale had engaged in drug dealing activity withfull knowledge of what he was involved in. He did so because of the financial returnavailable from the offending. He therefore engaged in it as a commercial activity or aform of business from which significant returns were available.5[10] The Judge also accepted the Crown's submission that Mr Pomale's role as amiddleman was an important one. He acted as a liaison between Mr To'a at the upperend of the supply chain and Mr Puhara, who was dealing at street level. The Judgeconsidered Mr Pomale had "an active and central role" in both the conspiracy chargesand those involving the supply of methamphetamine.6[11] The Judge considered Mr Pomale's offending sat on the cusp between bandsfour and five identified in Zhang v R.7 Band four applies to offences involving thesupply of up to two kilograms of methamphetamine, whilst band five applies tooffending involving more than that amount. Depending on the role of the offender,offending within band four will attract a starting point of between eight and 16 years'5 At [13].6 At [15].7 At [19], referring to Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.imprisonment. Offending within band five will justify a starting point between tenyears and life imprisonment.8[12] The Judge noted that the total involved in the conspiracy and supply chargesexceeded two kilograms, but at least two of the conspiracies were not at a particularlyadvanced stage.9 The Judge also took note of the starting point of 10 years'imprisonment adopted when Mr Puhara was sentenced.10 At that stage Mr To'a hadnot been sentenced.[13] Not surprisingly, the Judge regarded Mr Pomale's offending as more seriousthan that of Mr Puhara. He therefore took a starting point of 13 and a half years'imprisonment to reflect the overall culpability of Mr Pomale's offending.11[14] The Judge noted that Mr Pomale has a long-standing drug addiction but didnot consider the offending to have been driven by this. He noted that Mr Pomale was"no small-time street dealer selling drugs to feed a habit".12 Rather, he was a majorcommercial dealer in drugs. Although he may have been afflicted by an addiction tomethamphetamine, the Judge did not consider this to be the reason he engaged in thisoffending.13[15] The Judge also referred to information contained in a report tendered atsentencing under s 27 of the Sentencing Act 2002. This confirmed Mr Pomale'sconnection with his Tongan heritage. His early development was relatively positiveand supportive. Matters went awry when Mr Pomale was 12 years of age and hisfather left New Zealand to live and work in Australia, from where he intended tosupport his family. His father's departure led to a breakdown in the family unit andMr Pomale became involved with gang-related activity. This led to him becominginvolved in criminal activity of different types.148 Zhang v R, above n 7, at [125].9 R v Pomale, above n 3, at [19].10 At [20], referring to R v Puhara [2018] NZHC 3271 at [14].11 At [23].12 At [25].13 At [25].14 At [26]–[27].[16] The Judge noted a submission by Mr Pomale's counsel that he was remorseful,but did not consider any tangible expression of remorse to be evident in the culturalreport.15 Although Mr Pomale had referred to being regretful the Judge did notconsider this to be true remorse. Nor was the fact that he now regretted the situationhe was in. The Judge therefore declined to provide Mr Pomale with any discount forremorse.16[17] The Judge concluded that a "modest reduction" of six months was appropriateto reflect Mr Pomale's personal circumstances.17 He then applied a credit of15 per cent to reflect his guilty pleas.18 This led to the end sentence of 11 years'imprisonment. The Judge considered that at 26 years of age Mr Pomale was stillrelatively young and had good rehabilitative prospects. This meant it was notnecessary to impose a minimum term of imprisonment.19The starting point[18] Ms Taylor-Cyphers did not press this aspect of the appeal strongly, submittingonly that the Judge could have adopted a slightly lower starting point. That may be sogiven that the appropriate starting point for any offending will generally lie within adiscernible range. However, this does not mean the starting point was too high.A starting point will only be amenable to challenge on appeal where this Court thinksit is too high and finds the end sentence manifestly excessive.[19] In the present case we consider the Judge was correct to find that the offendingfell on the cusp of bands four and five identified in Zhang given the quantity ofmethamphetamine that Mr Pomale supplied, offered to supply or conspired to supply.Depending on his role, the starting point was therefore towards the upper end of bandfour or at the lower end of band five. We consider the starting point of 13 and a halfyears' imprisonment accurately reflected Mr Pomale's important role as a middlemanwho dealt with both the main supplier of the drug and those selling at street level.15 Mr Pomale declined to be interviewed for a pre-sentence report.16 R v Pomale, above n 3, at [28].17 At [29].18 At [29].19 At [31].[20] The starting point for Mr Pomale was also in line with the approach taken inthe sentences imposed on Mr To'a and Mr Puhara. Starting points of 14 and a half andten years' imprisonment respectively were selected when they were sentenced.20[21] We are therefore satisfied the starting point of 13 and a half years'imprisonment was available.Discount for mitigating factors[22] As we have already observed, the Judge applied a discount of six months, orapproximately 3.7 per cent, to reflect mitigating factors personal to Mr Pomale otherthan his guilty pleas. Ms Taylor-Cyphers contends a discount of around ten per centwas warranted to reflect mitigating factors identified in the s 27 report, together withthree per cent for remorse and seven per cent to reflect the fact that the offending wascaused at least in part by Mr Pomale's addiction to methamphetamine.[23] We do not consider the Judge erred in declining to provide a discount to reflectremorse, and for the reasons he gave. There is also limited evidence aboutMr Pomale's addiction, and most of this relies on Mr Pomale's self-reporting.[24] However, we accept Ms Taylor-Cyphers' submission that a greater discountwas warranted to reflect mitigating factors identified in the s 27 report. As notedabove, this reveals that the departure of his father when Mr Pomale was just 12 yearsof age had a major impact on the family as a whole and on Mr Pomale in particular.His father stopped providing financial support for the family when Mr Pomale was16 years of age, which resulted in considerable pressure to provide money to supporthis family's basic needs. This, rather than personal gain, was a major factor in himbecoming involved in criminal activity, including drug dealing. At 24 years of age hewas also still relatively young at the time of this offending.[25] The Judge was undoubtedly correct to say that the family's financialpredicament did not justify Mr Pomale becoming involved in activities of this typeand that he ought to have found a legitimate means of earning income.20 R v To'a [2019] NZHC 3232 at [40]; R v Puhara, above n 10, at [14].We nevertheless consider the family's financial needs provide an explanation forMr Pomale becoming involved in criminal activity, although it cannot explain thescale of his offending. It is not enough to say that but for addiction or poverty anoffender would not have become involved in crime; the question is whether any causalconnection between background and the particular offending that is being sentencedis sufficient to warrant a discount. It is an evaluative decision for the sentencing judge.In this case the offending was on a large scale and accordingly difficult to excuse.But the connection was nonetheless close enough to merit a significant allowance forMr Pomale's background.[26] We therefore see a causal connection between the offending and the factorsidentified in the s 27 report that would justify a discount of at least ten per cent.His relative youth and prospects of rehabilitation, recognised by the Judge when hedeclined to impose a minimum term of imprisonment, would justify a further discountof five per cent, bringing the total discount for personal mitigating factors to15 per cent.[27] When combined with the discount of 15 per cent for guilty pleas the startingpoint of 13 and a half years' imprisonment is reduced by 30 per cent, or four years andone month, to produce an end sentence of nine years, five months' imprisonment.Result[28] The application for leave to appeal out of time is granted.[29] The appeal against sentence is allowed. The sentences of 11 years'imprisonment imposed on all charges are quashed. In their place we imposeconcurrent sentences of nine years, five months' imprisonment.Solicitors:Crown Law Office, Wellington for Respondent