Pulete v R [2013] NZCA 216 (11 June 2013)

Last Updated: 20 June 2013

_{IN THE COURT OF APPEAL OF NEW ZEALAND}

CA521/2012 [2013] NZCA 216

BETWEEN	ULAIASI (ROCKY) PULETE Appellant
AND	THE QUEEN Respondent

Hearing:	15 May 2013
Court:	French, Goddard and R Young JJ
Counsel:	C J Tennet for Appellant P K Feltham for Respondent
Judgment:	11 June 2013 at 10.00 am

JUDGMENT OF THE COURT

1. An extension of time to appeal is granted.
2. The appeal against sentence is allowed.

100. The sentence of six years and three months’ imprisonment with a minimum period of imprisonment of three years and six weeks is quashed and replaced by a sentence of five years and six months’ imprisonment with a minimum period of imprisonment of two years and nine months.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

[1] Mr Pulete was convicted at trial in the High Court of one count of conspiring to supply methamphetamine. On 19 May 2011 the presiding Judge, Wylie J, sentenced him to a term of imprisonment of six years and three months.[1]
[2] Mr Pulete now appeals his sentence. He does so on the ground that this Court has since reduced the sentence of his co-conspirator Mr Taylor (the Taylor decision) for reasons which apply equally to him.[2]
[3] The key issue raised by the appeal is the most just way to give effect to the Taylor decision, having regard to the fact that Mr Pulete was also sentenced in July 2011 on other drug related offences by Wylie J.[3]

Factual Background

The conspiracy charge

[4] The conspiracy charge against Mr Pulete arose out of a police investigation code named Operation Spider. The investigation commenced in March 2006.
[5] Mr Pulete was serving a sentence in Paremoremo Prison at the time, as was Mr Taylor. Over a 32 hour period in June 2007, police intercepted a number of cell phone and text communications between Mr Pulete, Mr Taylor and a third person. The communications evidenced a conspiracy between the three men to supply three ounces (85 grams) of methamphetamine valued at approximately $12,000 an ounce. Mr Pulete was to provide the methamphetamine, while Mr Taylor was to negotiate and facilitate its onselling through the third person.
[6] The conspiracy was never implemented because the end purchaser was unable to obtain sufficient funds.
[7] At the High Court sentencing on 19 May 2011, Wylie J characterised the supply which the conspirators had conspired to commit as being in band two of R v Fatu.[4] Taking account of the fact this was a conspiracy and not a supply charge, he adopted a provisional starting point of four years’ imprisonment for both Mr Pulete and Mr Taylor, which he then uplifted by two years on account of the offending having occurred in a prison.
[8] Having arrived at a starting point of six years, the Judge then turned to aggravating and mitigating factors relating to Mr Pulete and Mr Taylor personally. Mr Taylor received an uplift of one year on account of his extensive criminal record, with no mitigating features warranting discounts. This resulted in a sentence of seven years’ imprisonment. Mr Pulete received an uplift of nine months for his previous convictions as well as a discount of six months, the discount comprising three months for remorse and three months to account for time spent on electronically monitored bail. That brought Mr Pulete’s end sentence to six years and three months. The Judge also imposed a minimum term of imprisonment of three years and six weeks on Mr Pulete. This represented 50 per cent of the end sentence.[5]

The second set of offending

[9] Mr Pulete’s second set of charges arose out of a further police investigation into drug dealing in Paremoremo Prison. The new investigation was launched in January 2008. Police monitored calls of a large number of inmates and others outside the prison. It became apparent that Mr Pulete was involved with others in the sale and distribution of methamphetamine. He was charged with eight counts of supply of methamphetamine and two counts of possession for supply. The total amount involved was estimated to be between six and 10 grams, the offending commencing on about 21 July 2008 and continuing for some five weeks until 27 August 2008.
[10] Mr Pulete initially defended these charges but changed his plea to guilty at the end of the Crown case on 27 April 2011.
[11] These 2008 charges and the 2007 conspiracy charge were originally the subject of a single indictment alleging an ongoing course of conduct. The counts were later severed, the conspiracy trial being held in February 2011 and the 2008 charges tried in April 2011. Justice Wylie presided over both trials. Mr Pulete, who had not sought severance, asked to be sentenced for both sets of offending at the same time, but this was opposed by Mr Taylor who had not been charged with any matters arising out of the 2008 investigation. Accordingly, the sentencing for the conspiracy offence took place in May 2011 and the sentencing relating to the supply charges took place in July 2011.
[12] In sentencing Mr Pulete for the 2008 offending, Wylie J noted that on the evidence Mr Pulete had played a significant role in the overall operation and had orchestrated key aspects of it as well as receiving benefit from the resulting profits. The Judge identified an appropriate provisional starting point of four years, which he then uplifted by two years on account of the fact that Mr Pulete had controlled and directed another offender and the fact the offending had occurred while Mr Pulete was in prison. The Judge then turned to personal factors. He acknowledged that Mr Pulete had only two previous drug related convictions. One was for the importation of stimulants in 2001 and the other for conspiring to supply methamphetamine in 2011. However, the Judge considered that Mr Pulete’s criminal history generally was “truly horrendous”.[6] Mr Pulete, who was born in 1962, had spent most of his adult life in prison. On account of his criminal record, the Judge increased the starting point by a further nine months before reducing it by three months for remorse, another three months in recognition of the time spent on electronically monitored bail and another four months for the guilty plea.
[13] That brought the sentence to a term of imprisonment of five years and eleven months.
[14] As he was required to do, Wylie J then addressed totality, having regard to the sentence of six years and three months’ imprisonment he had imposed a few months earlier in respect of the conspiracy charge. Justice Wylie concluded that it was appropriate to sentence Mr Pulete to a further two years’ imprisonment cumulative on the existing sentence. The Judge declined the Crown’s request to impose a further minimum period of imprisonment.

The Taylor decision

[15] Mr Taylor appealed the sentence that had been imposed on him in respect of the 2007 conspiracy charge.
[16] On 27 July 2012, this Court allowed Mr Taylor’s appeal. It found that Wylie J’s uplift of three years on account of Mr Taylor’s record and the fact that the offending was in prison was excessive, representing as it did 75 per cent of the base starting point. The Court held that the appropriate uplift was 18 months and reduced the end sentence accordingly. We pause here to note that although the Court described its uplift of 18 months as representing 40 per cent of the starting point of four years, strictly speaking it is in fact 37.5 per cent.
[17] Unfortunately for present purposes, the Court did not identify what proportion of the 18 months represented the uplift for the fact the offending was in prison, as opposed to the uplift for Mr Taylor’s criminal record which it will be remembered was regarded as worse than Mr Pulete’s criminal record. It is, however, reasonable to assume that the Court simply halved the uplifts imposed by Wylie J so that two years for offending in prison became one year and one year for previous convictions became six months.
[18] As previously mentioned, Wylie J imposed on Mr Pulete the same uplift on account of the offending taking place in prison as for Mr Taylor (two years), but a lesser uplift (nine months instead of a year) for his criminal record. Unlike Mr Taylor, Mr Pulete also received a discount of six months for personal mitigating factors.
[19] Within a month of the Taylor appeal being allowed, Mr Pulete filed an appeal against his sentence of six years and three months for the conspiracy offending. He did not appeal the sentence of two years for the 2008 offending.
[20] The appeal is out of time but in the circumstances the Crown did not oppose an extension of time and it is accordingly granted.

Submissions on appeal

[21] On appeal, the Crown acknowledged that as a matter of elementary fairness, the Court should apply the reasoning in the Taylor decision to Mr Pulete’s case. However, it submitted that in re-calculating Mr Pulete’s sentence, regard should be had to the following:

• (a) The differences between Mr Taylor and Mr Pulete at first instance should be dealt with proportionately. Thus, the nine months separating the two sentences should be scaled by the same factor by which Mr Talyor’s uplift was reduced (which was 50 per cent). That would result in a difference between Mr Taylor and Mr Pulete of four and a half months and an end sentence for Mr Pulete of five years and six weeks’ imprisonment, instead of a sentence of six years and three months.
• (b) The discounts given by Wylie J to Mr Pulete (and perhaps the distinction drawn between the respective criminal histories) were overly generous.
• (c) The discount given by Wylie J for totality in the second sentencing was overly generous. The discount given was in the order of 34 per cent.

[22] In the Crown’s submission, reducing the sentence under appeal without reference to the second sentencing would be inconsistent with the integrity of the totality of the sentencing process that took place in the High Court. The Crown argued that by virtue of an unusual combination of factors – a bifurcated sentencing and delay in appealing the sentence – Mr Pulete would receive an undeserved windfall.
[23] For his part, Mr Tennet accepted that as a matter of principle the sentence under appeal should not be viewed in isolation and that we should have regard to the later sentencing. He also accepted it would be wrong for Mr Pulete to receive an undeserved windfall from the Taylor decision. However, in his submission, the total combined sentence for the two sets of offending of eight years and three months’ imprisonment was manifestly excessive and accordingly reducing the conspiracy sentence would not result in an undeserved windfall.

Discussion

[24] We agree with counsel that the second sentence should be taken into account and that Mr Pulete should not receive an undeserved windfall.
[25] We have decided that the most principled and just approach is for us to apply the Taylor decision to the conspiracy charge in isolation, and then by way of cross-check consider what the appropriate sentence would have been had both sets of offending come before Wylie J together.
[26] The most straightforward way to apply the Taylor decision to Mr Pulete’s conspiracy sentence is to simply reduce the uplift he received by 50 per cent and so deduct one year and four months from the sentence. That would result in an end sentence on the conspiracy charge of four years and 11 months. Adding the two years imposed by Wylie J for the second set of offending, that would mean a total of six years and 11 months.
[27] We turn then to consider what the appropriate sentence would have been had both sets of offending come before Wylie J together.
[28] In our view, having regard to the quantities of methamphetamine involved and the number of charges, an appropriate starting point consistent with comparator cases would have been in the vicinity of six years.[7] There would then have been an uplift to take account of the fact that the offending occurred in prison. We would fix that at 18 months. That is more than the 12 months in the Taylor decision, but reflects the fact that on two separate occasions offending has taken place in prison. There would then be a further uplift on account of Mr Pulete’s convictions which we would fix at six months. From that would be deducted three months on account of time spent on electronically monitored bail and a further three months for the late guilty plea to some of the charges. We would not allow a discount for remorse. We agree with the Crown that such a discount was excessively generous.
[29] Our notional sentencing exercise thus results in a total end sentence of seven and a half years’ imprisonment. That is more than the six years and 11 months that results from solely focusing on the conspiracy charge, but less than the total sentence of eight years and three months that was actually imposed.
[30] We therefore consider it would be an undeserved windfall for Mr Pulete to have the conspiracy sentence reduced by a simple application of the Taylor decision without regard to the later sentencing. Equally however, we consider there should be some reduction and that it should be in the order of nine months’ imprisonment based on our assessment of the appropriate sentence had both sets of offending been dealt with at the same time. That will require an adjustment to the minimum period of imprisonment imposed by Wylie J. Mr Pulete did not appeal the decision to impose a minimum period of imprisonment. We agree with the Judge that in the circumstances a minimum period of imprisonment representing 50 per cent of the sentence was warranted.

Outcome

[31] An extension of time to appeal is granted.
[32] The appeal against sentence is allowed.
[33] The sentence of six years and three months’ imprisonment with a minimum period of imprisonment of three years and six weeks is quashed and replaced by a sentence of five years and six months’ imprisonment with a minimum period of imprisonment of two years and nine months.

Solicitors:
Luke Cunningham & Clere, Wellington for Respondent

---

[1] R v Taylor HC Auckland CRI-2010-404-355, 19 May 2011.

[2] Taylor v R [2012] NZCA 332.

[3] R v Pulete HC Auckland CRI-2008-044-7390, 15 July 2011.

[4] R v Fatu [2006] 2 NZLR 72 (CA) at [34].

[5] The Judge also imposed a minimum period of imprisonment on Mr Taylor of three years and six months.

[6] R v Pulete, above n 3, at [68].

[7] See R v Blackwell [2012] NZHC 2960; R v Milliken [2012] NZHC 3052; R v McIntosh [2012] NZHC 3110; R v Ropata HC Wellington CRI-2008-085-9651, 13 October 2009; R v Thorne HC Auckland CRI-2009-004-2661, 16 June 2009; R v Williams HC Rotorua CRI-2009-063-5871, 22 July 2011; and R v Feldbrugge HC Nelson CRI-2007-042-3707, 16 December 2008.