Ayala v R
[2012] NZCA 271
•25 June 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA644/2011 [2012] NZCA 271 |
| BETWEEN CRISTIAN JAVIER AYALA |
| AND THE QUEEN |
| Hearing: 12 June 2012 |
| Court: White, Rodney Hansen and Fogarty JJ |
| Counsel: R M Mansfield for Appellant |
| 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
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
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.
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.
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.
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
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.
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 416 grams of cocaine of 80 per cent purity, secreted inside the head of a wooden owl. The parcel was collected by an accomplice who took it to the appellant’s home. He provided his co-offender with equipment which would permit the substance to be removed. A starting point of eight years was found to fairly reflect the offending, having regard to the part played by the appellant and the quantity of cocaine involved.
[2] R v Yee CA169/01, 29 November 2001.
Yee was applied in R v Hayward.[3] Mr Hayward pleaded guilty to three counts of possession of cocaine for the purpose of supply. He acquired 510 grams of cocaine of 54 per cent purity from those responsible for importing it into New Zealand. Lang J said that he would have adopted a starting point of eight years imprisonment, in conformity with Yee, but mitigating considerations persuaded him that a starting point of seven years imprisonment was appropriate.
[3] R v Hayward HC Auckland CRI-2011-092-4639, 13 September 2011.
In R v Emirali[4] the appellants were found guilty at trial of involvement in the importation of 548 grams of cocaine of 78 per cent purity which was found concealed in the underwear of a traveller at Auckland International Airport. The appellants subsequently met with an undercover police officer for the purpose of purchasing the cocaine, believing he was the courier. Mr Emirali was sentenced to seven years imprisonment on one count of conspiracy to supply cocaine. Mr Carroll was sentenced to nine years for importing the cocaine and a concurrent sentence of seven years imprisonment on a charge of conspiracy to supply.
[4] R v Emirali CA177/06, 12 December 2006.
Mr Mansfield submitted that the starting point of 10 years imprisonment was too high in light of these sentences. He said it could not be inferred that Mr Ayala knew the quantity being imported or that his role went beyond arranging accommodation for the courier. In the circumstances, he contended that a starting point of eight years imprisonment would have fairly reflected Mr Ayala’s capability.
Discussion
As Mr Downs demonstrated in his analysis, the authorities relied on by Mr Mansfield are not particularly helpful. Yee involved a lesser quantity of cocaine and was a charge for possession for supply, which is not treated as seriously as importation.[5] Hayward is in a similar category, involving charges of possession for supply of 275 grams of pure cocaine. The quantity of pure cocaine in Emirali was 427 grams (compared to 620 grams in this case) and the starting point adopted on the charge of importing cocaine (faced by Mr Carroll alone) was 11 years imprisonment.
[5] R v Fatu [2006] 2 NZLR 72 (CA) at [22].
Of greater assistance is the decision of this Court in Ogaz v R.[6]The appellant was convicted after trial of the importation and possession for supply of 976 grams of cocaine of 80 per cent purity, that is, 780 grams of pure cocaine. He was found by the trial Judge to have had the lead role in importing the drug. The starting point of 16½ years imprisonment adopted by the Judge was found to be too high. After reviewing a number of authorities, this Court determined that the appropriate starting point was 15 years.[7] We were told that the courier’s sentence in the High Court was based on a starting point of 11 years.[8]
[6] Ogaz v R [2007] NZCA 45.
[7] At [25].
[8] Police v Maldonado-Figueroa HC Auckland CRI-2004-004-197909, 6 September 2005 at [22].
The decisions referred to us by both counsel vindicate the starting point used by Judge Field (and Judge Treston before him). It appropriately reflects the quantity of cocaine imported and the roles of those apprehended. We see no reason to interfere with the end sentence, which was arguably a merciful one. The deduction made for the additional hardship Mr Ayala would suffer as a foreign national in jail in New Zealand was more generous than this Court has countenanced in cases of international drug trafficking.[9]
[9]See, for example, Ogaz, above n 6, at [29]; Chan v R [2009] NZCA 528 at [8]; and Close v R [2011] NZCA 434 at [20]–[21].
We do not overlook the testimonials tendered from members of Mr Ayala’s family at the hearing of the appeal. His previous good character and commitment to his family could not, however, justify any further reduction of his sentence.
Result
The application for an extension of time to appeal is granted but the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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