| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA710/2017 [2018] NZCA 309 |
| BETWEEN | EZEQUIEL HERNANDEZ |
| AND | THE QUEEN |
| Hearing: | 17 April 2018 |
Court: | Williams, Wylie and Thomas JJ |
Counsel: | D G Young for Appellant |
Judgment: | 24 October 2018 at 11.00 am |
JUDGMENT OF THE COURT
AThe appeal is allowed.
BThe sentence of 11 years and four months’ imprisonment with an MPI of five years and eight months is set aside and a sentence of nine years and seven months’ imprisonment with an MPI of four years and nine months is substituted.
____________________________________________________________________
REASONS OF THE COURT
(Given by Williams J)
Introduction
Mr Hernandez pleaded guilty to a single charge of importing a class A drug, methamphetamine, in breach of s 6(1)(a) of the Misuse of Drugs Act 1975. He was sentenced by Judge Andrée Wiltens in the District Court at Manukau to 11 years and four months’ imprisonment with a 50 per cent minimum period of imprisonment (MPI).[1] He appeals against sentence.
The facts
[1]R v Hernandez [2017] NZDC 29657.
Mr Hernandez is of Mexican descent and is an American citizen. On 17 November 2016 he arrived at Auckland International Airport from San Francisco on United Airlines flight UA917. His suitcase was searched by customs officers. It contained a concealed compartment. Inside the compartment was 3.9 kilograms of methamphetamine of 79 per cent purity. This had an estimated wholesale value of between $702,000 and $1,092,000. If sold in retail quantities, it could have been considerably more valuable. At the time he denied knowledge of the methamphetamine, but the summary of facts to which Mr Hernandez pleaded guilty specifically confirmed that he knew he was importing an illegal drug.
Mr Hernandez advised authorities that his flights had been booked by a Mr Manos and he eventually disclosed it was also Mr Manos who had provided the suitcase for him to bring to New Zealand. Mr Manos was subsequently arrested entering France with commercial quantities of cocaine.
Sentencing
The Judge applied R v Fatu.[2] He found the offending fitted within band four which relates to quantities above 500 grams.[3] The starting point range for band four is 12 years to life imprisonment.[4] The Judge adopted a starting point of 15 years’ imprisonment.[5] He then deducted 10 months for lack of previous convictions and a further 10 months for personal circumstances.[6] Those circumstances were that Mr Hernandez had a partner and two children residing in Mexico, had limited English language skills and no family in New Zealand.[7] It would appear the Judge reasoned that these factors would make serving his sentence more difficult.
[2]R v Fatu [2006] 2 NZLR 72 (CA).
[3]R v Hernandez, above n 1, at [3].
[4]R v Fatu, above n 2, at [36].
[5]R v Hernandez, above n 1, at [4].
[6]At [6].
[7]At [6].
The Judge considered, but declined to give discounts for, two further factors: first…
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- Hernandez v The Queen [2018] NZCA 309
- Case
- [2018] NZCA 309
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CaseChat Overview and Summary
The legal issues before the court were whether the starting point of 15 years’ imprisonment was too high and whether the sentence should have included greater discounts for personal circumstances, remorse, and cooperation with authorities. Additionally, the court needed to determine if a minimum period of imprisonment (MPI) was appropriate.
The court found that the starting point of 15 years was on the high side, considering the single importation of 3.9 kilograms of methamphetamine and Hernandez's personality vulnerabilities. The court deducted six months for genuine remorse, maintaining the 20-month discount for good character and personal circumstances, and the 15 per cent discount for the guilty plea. The court concluded that a sentence of nine years and seven months’ imprisonment was appropriate. Regarding the MPI, the court decided to maintain the 50 per cent MPI imposed by the sentencing judge, considering the deterrence and denunciation factors.
The appeal was allowed, and the sentence was reduced to nine years and seven months’ imprisonment with an MPI of four years and nine months.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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