Hernandez v The Queen - [2018] NZCA 309

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA710/2017
[2018] NZCA 309

BETWEEN	EZEQUIEL HERNANDEZ Appellant
AND	THE QUEEN Respondent

Hearing:	17 April 2018
Court:	Williams, Wylie and Thomas JJ
Counsel:	D G Young for Appellant R K Thomson for Respondent
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.

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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…

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 Hernandez v The Queen

Details

AGLC: Hernandez v The Queen [2018] NZCA 309
Case: [2018] NZCA 309
Decision Date: 24 October 2018 at 11.00 am

CaseChat Overview and Summary

The case of Hernandez v The Queen before the Court of Appeal of New Zealand involves the appellant, Ezequial Hernandez, who was sentenced to 11 years and four months’ imprisonment for importing a class A drug, methamphetamine, in breach of the Misuse of Drugs Act 1975. Hernandez appealed against his sentence, arguing that the starting point was too high and that greater discounts should have been given for personal considerations, including cooperation with authorities and remorse. The Crown maintained that the sentence was appropriate given the seriousness of the offence.

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