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Bolea v R

Bolea v R

Case [2023] NZCA 39 6 March 2023

Immigration & Refugee Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA670/2022
[2023] NZCA 39

BETWEEN	ELIZABETH MARIA BOLEA Appellant
AND	THE KING Respondent

Hearing:	15 February 2023
Court:	French, Ellis and Churchman JJ
Counsel:	A J Bailey for Appellant B Kirkpatrick and B Tantrum for Respondent
Judgment:	6 March 2023 at 10.30 am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

Ms Bolea pleaded guilty in the High Court to a charge of participating in an organised criminal group.[1] At sentencing, she applied for an order under s 106 of the Sentencing Act 2002 to be discharged without conviction. The application was declined by Campbell J who instead imposed a sentence of four months’ home detention.[2]
[1]Crimes Act 1961, s 98A.
[2]R v Bolea [2022] NZHC 2998 [High Court decision].
Ms Bolea says the Judge was wrong to decline her application for a discharge and now appeals her conviction and sentence.

The offending

Ms Bolea was in a relationship with a Mr Mataia, a nominee of the Comancheros Motorcycle Club. At some time prior to 5 August 2020, she knew that Mr Mataia and others connected to the Comancheros were participating in an organised criminal group sharing the objective of obtaining material benefits from the possession and supply of methamphetamine.
On 4 August 2020 at Mr Mataia’s direction she hired a rental car from Auckland airport. She and Mr Mataia then collected another co-offender, Mr Katoa, and drove to Christchurch. As Ms Bolea knew, there was methamphetamine in the car. Although she was not aware of the exact quantity, she did know it was for the purpose of supply. A covert police search of the car found two plastic containers in the boot with at least 500 grams of methamphetamine.
The trio arrived in Christchurch on 5 August 2020. Ms Bolea went to Mr Mataia’s family home, while he and Mr Katoa went to a gang pad with the methamphetamine.

Sentencing in the High Court

The Judge noted that pursuant to s 107 of the Sentencing Act consideration of an application for discharge without conviction involves a three stage process.[3]
[3]High Court decision, above n 2, at [6].
Turning to the first stage — an assessment of the overall gravity of the offending — the Judge found, having regard to both the facts of the offending and Ms Bolea’s personal circumstances, that it was moderate to low.[4]
[4]At [7]–[19].
Next, the Judge considered the direct and indirect consequences of the offending.[5] The first of these advanced by Ms Bolea was that she would face deportation if convicted.[6]
[5]At [20]–[27].
[6]At [21].
At this juncture, it is convenient to provide a brief explanation of the relevant deportation processes.
Ms Bolea is an Australian national. For immigration purposes, she is considered to have had a resident visa from the time she first arrived in New Zealand in May 2019. Under s 161(1)(b)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bolea v R

Details

AGLC: Bolea v R [2023] NZCA 39
Case: [2023] NZCA 39
Decision Date: 6 March 2023 at 10.30 am

CaseChat Overview and Summary

In the case of Bolea v R, the appellant, Elizabeth Maria Bolea, appealed her conviction and sentence for participating in an organised criminal group. The central legal issue was whether the trial judge had erred in law when he found that deportation, if it were to occur, was a consequence of Ms Bolea's offending rather than her conviction, thereby declining her application for a discharge without conviction. Ms Bolea argued that her conviction would result in a disproportionate consequence due to the risk of deportation and the impact on her employment prospects. However, the Court of Appeal found no error in the trial judge's reasoning. The Court held that the risk of deportation, while significant, was not an automatic consequence of conviction and that the immigration authorities would consider Ms Bolea's personal circumstances and the gravity of her offending. The Court of Appeal dismissed the appeal against conviction and sentence.

In light of the dismissal, the final orders of the Court of Appeal were that the appeal against the conviction and sentence be dismissed, and Ms Bolea's conviction and sentence stand as originally imposed by the High Court. The Court of Appeal did not provide specific details regarding the sentence, but it was noted that the original sentence was a four-month period of home detention.

Orders