Ayala v R

[2012] NZCA 271

IN THE COURT OF APPEAL OF NEW ZEALAND

CA644/2011
[2012] NZCA 271

BETWEEN  CRISTIAN JAVIER AYALA
Appellant

AND  THE QUEEN
Respondent

Hearing:         12 June 2012

Court:             White, Rodney Hansen and Fogarty JJ

Counsel:         R M Mansfield for Appellant
M D Downs for Respondent

Judgment:      25 June 2012 at 2.00pm

JUDGMENT OF THE COURT

A        The application for an extension of time to appeal is granted.

B        The appeal is dismissed.

REASONS OF THE COURT

(Given by Rodney Hansen J)

Introduction

1. After trial before Judge Field and a jury in the Auckland District Court, Mr Ayala was found guilty of importing the Class A drug, cocaine.  He was sentenced to 8½ years imprisonment.  He appeals against his sentence.  An appeal against conviction was abandoned.

Facts

1. On 23 November 2010 an Argentinean national called Luis Bogado who had arrived on a flight from Buenos Aires was detained at Auckland International Airport.  He was subsequently found to have swallowed 139 pellets containing, in total, 827 grams of cocaine of 75 per cent purity or 620.8 grams of pure cocaine.  Its estimated commercial value was between $217,000 and $289,000.  Mr Bogado told the authorities that an associate called Cristian was making accommodation arrangements for him.

2. The appellant, Cristian Ayala, had arrived four days earlier.  He booked into a backpackers in Auckland and arranged accommodation for a second person in the name of Jose Bogado.  The Crown case was that Mr Ayala’s role was to arrange accommodation for the courier and to collect the cocaine from him.

Sentencing of Judge Field[1]

[1]      R v Ayala DC Auckland CRI-2011-004-3905, 26 August 2011.

1. In sentencing Mr Ayala, Judge Field referred to the sentence which had been imposed on the courier, Luis Bogado.  Judge Treston had adopted a starting point of 10 years, from which he had made a number of deductions including an allowance for his plea of guilty.  Judge Field saw it as arguable that the starting point for Mr Ayala’s sentence should be higher than that of his co-offender, who was in a more vulnerable position.  He said it could be inferred that Mr Ayala occupied a more important position.  However, he said he was prepared to give him the benefit of such doubts as he had concerning their respective positions in the hierarchy.

2. He accordingly adopted a starting point of 10 years.  He acknowledged that a sentence of imprisonment would have particular difficulties for Mr Ayala as he did not speak much English.  He allowed a 15 per cent discount for that factor in coming to the end sentence. 

Grounds of appeal

1. In submitting that the starting point was too high, Mr Mansfield relied on three cases, which he described as directly comparable, involving similar quantities of cocaine of similar purity and an equivalent level of culpability.

2. In R v Yee[2] this Court dismissed an appeal against a sentence of eight years imprisonment on a charge of possession of cocaine for the purpose of supply.  Customs had intercepted a parcel from Peru containing…