3 August 2021 (further submissions received 16 September 2021)
Court:
Kós P, Miller and Collins JJ
Counsel:
M N Pecotic for Deni Cavallo N P Chisnall and L A Elborough for Mario Habulin T M Cooper and C G Farquhar for Matthew John Scott C A Brook and P D Marshall for Respondent
Judgment:
30 June 2022 at 9 am
JUDGMENT OF THE COURT
AThe applications to adduce fresh evidence are granted.
B The appeals are allowed.
C The sentences imposed in the High Court are quashed and substituted with the following sentences:
(a) Mr Cavallo: 17 years and eight months’ imprisonment;
(b) Mr Habulin: 23 years and four months’ imprisonment; and
(c) Mr Scott: 20 years and five months’ imprisonment.
In 2019 this Court issued a guideline judgment concerning the sentencing of methamphetamine offending: Zhang v R.[1] The primary question in this appeal is how, in light of Zhang, cocaine offending should be sentenced.
The essential facts are these. The appellants are foreign nationals who were part of an international, organised criminal group. They imported cocaine from South America through the Port of Tauranga in June, July and October 2017:
(a)Mr Habulin, a Croatian national, imported a total of 76 kg of cocaine, in three shipments, supplying some 25 kg from the first two shipments to purchasers in New Zealand and transferring some $1,498,500 to representatives of a money-laundering ring.[2]
(b)Mr Scott, an Australian national, assisted Mr Habulin to supply the first two shipments (as above), transferred some $1,192,000 to the money‑laundering ring, and then assisted Mr Habulin to import the third shipment (46 kg).[3]
(c)Mr Cavallo, a Serbian national, assisted Mr Habulin to import the third shipment (46 kg).[4]
[2]Resulting in the following charges: 1 x importing cocaine, 2 x supplying cocaine, 1 x money laundering, 1 x possessing cocaine for supply, 1 x…
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.
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Details
AGLC
Cavallo v The The Queen [2022] NZCA 276
Case
[2022] NZCA 276
Decision Date
CaseChat Overview and Summary
The appellants, Deni Cavallo, Mario Habulin and Matthew John Scott, were foreign nationals involved in the importation of cocaine into New Zealand. The case before the New Zealand Court of Appeal concerned the sentencing of the appellants and the issue of whether cocaine offending should be sentenced more leniently than methamphetamine offending. The appellants argued that their sentences were manifestly excessive and that they should have been sentenced more leniently due to the comparative harm of cocaine and methamphetamine. The court considered expert evidence on the comparative harm and toxicity of cocaine and methamphetamine before concluding that cocaine should generally be sentenced slightly below comparable methamphetamine starting points, but dependent on crack cocaine consumption remaining rare in New Zealand. The court also found that the individual sentences were not manifestly excessive and allowed the appeals, substituting the sentences imposed in the High Court with new sentences of 17 years and 8 months' imprisonment for Cavallo, 23 years and 4 months' imprisonment for Habulin and 20 years and 5 months' imprisonment for Scott.