Montoya-Ospina v The King - [2025] NZCA 112

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA501/2024
[2025] NZCA 112

BETWEEN	FELIPE MONTOYA-OSPINA Appellant
AND	THE KING Respondent

Hearing:	18 February 2025
Court:	Palmer, Peters and Edwards JJ
Counsel:	E Huda and S C Kim for Appellant B Hawes and A M Harvey for Respondent
Judgment:	11 April 2025 at 11 am

JUDGMENT OF THE COURT

AThe application for an extension of time is granted.
BThe application to adduce evidence is granted.
CThe appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Edwards J)

The appellant, Mr Montoya-Ospina, pleaded guilty to charges of:
(a)participating in an organised criminal group;
(b)importing into New Zealand an estimated 11.4 kilograms of cocaine;
(c)attempting to import 28.87 kilograms of cocaine; and
(d)supplying and offering to supply cocaine.
He was sentenced in the High Court to 14 years and seven months’ imprisonment.[1]
[1]R v Montoya Ospina [2024] NZHC 1817 [judgment under appeal] at [47].
Mr Montoya-Ospina appeals against the sentence on the grounds that the starting point was too high and the adjustment for guilty pleas was inadequate.
The notice of appeal was filed four days late. The Crown does not object to the appeal being filed out of time and there is no prejudice in allowing an extension. We grant an extension of time to bring the appeal.

Offending

Mr Montoya-Ospina was part of a group of Colombian and Argentinian nationals who were employed as dairy farmhands in rural Canterbury. The group imported wholesale quantities of cocaine into New Zealand sourced from a cartel in Colombia.
The sentencing Judge described the nature of Mr Montoya-Ospina’s offending as follows:
[3]       Your offending arises out of a significant police investigation into the importation of cocaine into this country from South America. It involved international co-operation with Colombian and Spanish Police, and American drug enforcement authorities. The drug syndicate operated from at least January 2018 to December 2021 and used farm workers, such as yourself, as “cover”. It is estimated 42.5 kilograms of cocaine with a street price of over $19,000,000 was imported into New Zealand. A further 59.1 kilograms of cocaine with a street value of more than $26,000,000 was also intercepted.
[4]       … You are described as a senior member of the syndicate. You were involved in the importation and attempted importation of cocaine into New Zealand and personally supplied cocaine to other members of the organised criminal group based in Auckland. Your home address included an area specifically for deconstructing packaged items in which cocaine was imported. You were a trusted member of the syndicate who received packages of cocaine and was in charge of the deconstruction of those packages. However, you had limited, if any, contact with the overseas suppliers.
[5]       Your offending occurred between 1 January 2018 and December 2021. In that period, you successfully imported seven packages of cocaine into New Zealand that weighed some 11.4 kilograms. You attempted to import a further five packages of cocaine that amounted to 28.87…

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

Case: [2025] NZCA 112
Decision Date: 11 April 2025 at 11 am

CaseChat Overview and Summary

Felipe Montoya-Ospina appeals against his sentence for drug importation and related charges. The appeal was filed four days late. The Crown did not object to the late filing and there was no prejudice. The appeal raises two issues: whether the starting point for sentencing was too high, and whether the adjustment for the guilty plea was inadequate. The sentencing Judge adopted a starting point of 18 years’ imprisonment for the successful importation of 11.4 kilograms of cocaine, and a 10 per cent adjustment for the guilty plea. This resulted in a final sentence of 14 years and seven months’ imprisonment. The appellant argues that the starting point was too high and that a 15 per cent adjustment for the guilty plea was warranted. The Court found that the starting point was within the appropriate range, taking into account the scale and duration of the offending and the context of the role played by the appellant. The Court also found that the 10 per cent adjustment for the guilty plea was appropriate. The appeal was dismissed.

The final orders of the Court were to grant the extension of time for the appeal, to allow the admission of new evidence, and to dismiss the appeal.

Orders