R v Alfonso
[2024] NZHC 1868
•10 July 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-009-8205
[2024] NZHC 1868
THE KING v
RUTH YANID RAMIREZ ALFONSO
Hearing: 10 July 2024 Appearances:
A M Harvey for Crown
T D A Harre for Defendant
Judgment:
10 July 2024
SENTENCING REMARKS OF MANDER J
Introduction
[1] Ruth Ramirez Alfonso, you appear for sentence in relation to a representative charge of importing a Class A drug, that being cocaine.1
The offending
[2] You agreed with the summary of facts presented by the Crown at the time you pleaded guilty. I will now summarise those facts.
[3] You are now 40. You are from Colombia, born in a small farming town in that country. You arrived here some 10 years ago, on a student visa. For the last two years
1 Misuse of Drugs Act 1975, ss 6(1)(a) and 6(2) and Crimes Act 1961, s 66—maximum penalty life imprisonment.
R v RAMIREZ ALFONSO [2024] NZHC 1868 [10 July 2024]
you have lived in a house that came with your employment on a dairy farm. Many of your co-offenders also held positions on dairy farms in the Selwyn and South Canterbury areas. Your counsel, Mr Harré, submits you were exploited in some of your dairying positions which coincided with your offending. I will address that aspect and your application for a discharge without conviction shortly.
[4] Your offending was discovered as a result of a significant police investigation into the importation of cocaine into this country from South America which involved co-operation with overseas 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 million was imported into New Zealand. A further 59.1 kilograms of cocaine with a street value of more than $26 million was also intercepted.
[5] Between 23 October 2019 and December 2021, you were involved in the importation of three packages into New Zealand. None of those packages were intercepted, so we cannot be certain of the total amount of cocaine they contained, other than that the last shipment comprised 610 grams of cocaine. If similar quantities are assumed for the others, you were involved in the importation of at least
1.8 kilograms of cocaine. Mr Harré accepts that amount for the purpose of sentencing. The circumstances of those importations were as follows.
[6] At some point, either in 2019 or 2020, the syndicate organised for cocaine to be imported into this country on two occasions. A client code application (which is a document needed by Customs for the importation of goods in excess of the value of
$1,000) was forged, using a false name but with your address, by a member of the syndicate on 1 November 2019. You had agreed to receive a parcel on behalf of a person with whom you had become friends. The first consignment of cocaine was sent in 2019, sealed inside solar water heating panels. You received $5,000 from the syndicate for the use of your address. A second consignment was in a delivery of gas hot water systems that arrived on 19 August 2020. The packages arrived there because you had provided that address for that purpose. While you say you were initially unaware the first package contained cocaine, you became suspicious.
[7] Between September and October 2021, two of your associates organised for cocaine to be imported from the USA. They organised for the identified consignee to be a variation of your name, with the consignee address listed as the address where you had previously resided up until May of that year. When the package was delivered on 23 October, you were contacted by an associate living at the address. You knew to phone the head of the syndicate who then arranged for another person to uplift the package from the address. A day later, a bag of white powder concealed in that package was photographed on a set of scales. The image showed the bag weighed 610 grams.
[8] You are not by any means considered to have been a senior member of the syndicate. You had no contacts with overseas suppliers and did not direct others. You provided your address to receive consignments of cocaine in exchange for payment and arranged a “catcher” for the syndicate. On one occasion you topped up what is described as “a consignment phone” at the request of the syndicate’s head. You received $5,000 and another cash sum you claim was a lesser amount in exchange for receiving packages, storing them at your house, and notifying other members when they arrived to enable their collection.
Approach to sentencing
[9] The Sentencing Act sets out the purposes and principles of sentencing that I am required to take into account in sentencing you today. Relevant purposes include accountability, denunciation, deterrence and rehabilitation. I need to consider the gravity of your offending, the degree of your culpability, the seriousness of the offending and the general desirability of consistency in imposing sentences for like offending. I am required to impose the least restrictive outcome that is appropriate in the circumstances.
[10] I must assess a sentence that is commensurate with the seriousness of your offending, in accordance with sentencing guidelines for Class A drug offending provided by the Court of Appeal.2 Broadly, your culpability is to be assessed by the
2 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648; and Cavallo v R [2022] NZCA 276, (2022) 30
CRNZ 726.
quantity of the drug involved, subject to a qualification I will refer to later in my remarks, and the role you played in the offending.3 It is recognised a more limited role deserves a less severe sentence than a significant or leading role.4
Effects of offending
[11] In approaching the sentencing exercise today, it is important to recognise the harm caused by serious drug offending, particularly that of Class A drugs. Your offending does not have a direct victim. But the distribution of cocaine, like other hard drugs, has many victims within the community who often experience the worst of outcomes. These can include adverse mental health, criminal offending to fund addiction, the breakdown of personal and employment relationships, and social deprivation.5
Discharge without conviction
[12] You have applied to be discharged without conviction.6 Section 107 of the Sentencing Act provides that such a course is only available to the Court if the direct and indirect consequences of a conviction would be out of all proportion to the gravity of your offence. The assessment involves a three-stage test.7
[13] First, I must determine the gravity of your offence with reference to aggravating and mitigating factors of the offending, as well as those personal to yourself.8 Secondly, I am then to identify the direct and indirect consequences of conviction. Finally, I am to undertake what is called a proportionality assessment and determine whether those consequences would be out of all proportion to the gravity of the offending.
[14] In determining whether something is a consequence of a conviction, I need not be satisfied that it will be an inevitable outcome.9 All that is required is a real and
3 Zhang v R, above n 2, at [104], [106]-[117] and [126]–[127].
4 Zhang v R, above n 2, at [123]. See also, Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [12].
5 Zhang v R, above n 2, at [78]–[79].
6 Sentencing Act 2002, s 106.
7 Scott v R [2019] NZCA 261 at [79].
8 Z v R [2012] NZCA 599; [2013] NZAR 142 (CA) at [27], citing Blythe v R [2011] NZCA 190.
9 Noori v Police [2023] NZHC 3799 at [14].
appreciable risk of it occurring. If there is such a risk, the nature and seriousness of the consequence, as well as the degree of likelihood of it occurring, will be material to my assessment of whether the consequences are out of all proportion to the gravity of the offence. The higher the likelihood and the more serious the consequences, the more likely it is that the test can be satisfied.10 However, as observed by the Court of Appeal, it is not enough for the consequences to simply outweigh the gravity of the offending — “significantly more” is required.11
[15] Finally, I note the Supreme Court’s recent ruling that it is necessary for sentencing Judges to consider a discharge without conviction, whether or not the defendant may face a later process that will consider factors similar to those considered as part of the discharge without conviction analysis.12 In applicable cases, both liability to deportation and the risk of actual deportation are to be regarded as consequences of conviction. My task is to consider whether those consequences are out of all proportion with your offending.13 In making that assessment, I have read your affidavits and those presented on your behalf from Mr Lange, Dr Monasterio and Dr Stringer.
[16] In assessing the gravity of your offending, it is necessary to assess the likely sentence that would otherwise be imposed if you were not discharged without conviction.
[17] As I have already referred, quantity is the first determinant of sentencing as a reasonable proxy for the social harm done by a drug.14 The Court must then evaluate the role of the offender in setting a starting point for sentence by reference to the identified categories of “lesser”, “significant” and “leading” roles, as described in appellate authorities.15
[18] The summary of facts states that you provided your address “knowing that it would be used to import cocaine”. However, you maintain you were initially unaware
10 Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34].
11 R v Smyth [2017] NZCA 530 at [12].
12 Bolea v R [2024] NZSC 46 at [43].
13 Singh v Police [2024] NZHC 1797 at [21].
14 Zhang, above n 2, at
15 Berkland, above n 4, at [71].
the consignments contained cocaine, but later became suspicious of that fact. Your affidavit and supplementary affidavit do not entirely clarify matters. You have to some extent sought to minimise your knowledge and involvement, although you have admitted to having been “wilfully blind” to the contents of the packages, or reckless as to the contents of the packages. You claimed that when the packages were received, you had “no idea [they] contained drugs or illegal substances” but that your associates’ behaviour caused suspicion.
[19] I have doubts as to when you first became aware of the risk that you were facilitating the importations of drugs but I must proceed in accordance with your guilty pleas, at the very least, on the basis that you were wilfully blind to what was in those packages when they arrived at your address.16 You received three deliveries in total. In your first affidavit, you say some 30 boxes arrived at your doorstep. That is an unusual delivery to receive on someone else’s behalf. Furthermore, you state the
$5,000 you received was compensation for the stress of the packages arriving at your house. That, and the fact you accepted that amount without making any further enquiries is very questionable. It demonstrates perhaps a “higher end” example of wilful blindness or recklessness which is aggravated by the fact you subsequently liaised with your co-offenders and the occupant of your old address to facilitate a further importation.
[20] I acknowledge your Andean cultural values of solidarity, mutual aid and collective support hold weight in your life. Nonetheless, I do not consider your desire to help your friends greatly mitigates your actions here. On my assessment, by the time of the third shipment, at the very least, a reasonable, if not plain, inference was that the packages contained drugs. You would have been well aware of that risk by this time, having previously received a significant sum of money for having, on your own account, done very little. Naivete was no longer a realistic reason for your cooperation.
[21] I am to assess the gravity of your offending as opposed to a general assessment of the offending to which you have pleaded guilty.17 Mr Harré accepts you fall within
16 Sentencing Act, s 24(1)(b).
17 Taylor v R [2018] NZHC 688 at [46].
the upper register of band four of the relevant guideline judgment, based on quantum alone, but he submits a significant downward adjustment for your role is appropriate in your case. In that regard, he notes the Court of Appeal’s observation that discounts may apply in situations where “volition is overborne or diminished”.18
[22] Mr Harré argues your involvement may be described as falling within the “lesser” category role. In support of that proposition, he points to your minimal financial compensation, your lack of influence on others, that you possessed little awareness of the scale of the operation, and, he argues, you were manipulated.
[23] The Crown, on the other hand, submits the offending involved the following aggravating factors:
(a)It points to the well-known harm caused by Class A drugs on the community, to which I have already referred. I note, however, that the Court of Appeal has recognised cocaine to be “somewhat less harmful than methamphetamine”.19
(b)Secondly, the Crown points to the fact the offending was, on your part
— or leastwise you received financial reward as opposed to having been predicated on any need.
(c)And thirdly, while it is accepted your offending falls into the category of a person who had a “lesser role”, you became involved with the syndicate through your social relationships with its members, rather than through such things as addiction, coercion or intimidation. In other words, your agency was not materially qualified.
[24] As noted, the Crown accepts your lesser role, but argues the following considerations temper that concession. In that regard, it is noted:
18 Zhang v R, above n 2, at [154].
19 Cavallo v R, above n 2, at [62].
(a)Three packages were delivered between November 2019 and October 2020. It is stressed that this was not a one-off episode and your knowledge as to what was happening can only have increased with time;
(b)It submits there is a lack of underlying vulnerability as was the case upon which your counsel placed considerable emphasis, the case of Martin v R;20
(c)Thirdly, the Crown says your offending was not the result of inadvertence, and that appears to be accepted.
(d)And fourthly, your role may be described as that of a catcher, for which you were paid or received a not insignificant sum.
[25] I accept it is clear you played a lesser role in the offending, but it is one for which you were monetarily rewarded. You received $5,000 and later another sum of money which, while not commensurate with the risk assumed nor substantial, by any means, relative to the overall operation, it was a significant sum given the limited extent of your involvement. Your counsel has placed, as I have mentioned, some reliance on the approach taken in Martin v R, where the what was described as “unusually naïve and gullible” appellant had fallen victim to a scam which resulted in the offender being placed at the lower end of band two for offending that otherwise would have been categorised as lying within band four.21 A three-year starting point was adopted for the appellant in that case. Mr Harré suggests the same is appropriate here.
[26] Martin v R provides some useful guidance. While quantum is a reasonable proxy for the social harm caused by drugs and for the illicit gains made from importing it, care is required when treating the quantity of a drug as a primary determinant of sentence in a case where the person had no knowledge of the quantity or nature of the drugs involved in the offending, a situation that can be common for couriers and
20 Martin v R [2022] NZCA 285.
21 At [105].
catchers such as yourself.22 I also recognise that a lesser role may require movement not only within a band, but between bands.23
[27] Ms Ramirez-Alfonso, I do not accept your offending exhibits the same level of ignorance as Mr Martin did. To the contrary, I agree with Mr Harvey that you present as a capable and independent person. A three-year starting point, as adopted in that case, would not be appropriate. That you received three shipments at your address undermines Mr Harré’s submission that your offending can be categorised as bottom range class A trafficking offending. I say that because you were not the victim of a scam or ruse, nor do you have underlying vulnerabilities that made you susceptible to manipulation or coercion. I do not accept the nature of your relationship with other syndicate members gives rise to such a characterisation.
[28] Mr Harvey, in his submission, has noted the following cases in endeavouring to set an appropriate starting point:
(a)There is the case of de Macedo v R. There, the offender fell into a lesser role and was purely a courier in the importation of around 2.4 kilograms of cocaine. An 11-year starting point was adopted in that case.24
(b)In Singh v R, the offender agreed to be the recipient of two packages of methamphetamine. The first package contained 886 grams and the second 3.5 kilograms. The Court of Appeal adopted a starting point of eight years’ imprisonment to reflect the lesser role played.25
(c)In R v King, the offender imported 1.96 kilograms of methamphetamine into New Zealand, discovered when he arrived in Auckland. A starting point of five years’ imprisonment was adopted, noting the offender’s “impaired frontal lobe function” that affected his mental abilities.26
22 [92]–[93].
23 At [91], citing Zhang, above n 2, at [118].
24 de Macedo v R [2020] NZCA 132.
25 Singh v R [2020] NZCA 211.
26 R v King [2018] NZHC 2540 at [16].
(d)And finally, there is the case of R v Fangupo. An offender permitted his address to be used to receive a single package containing 449 grams of methamphetamine. To reflect his “very modest role and naivete” a starting point of five years imprisonment was adopted.27
[29] In terms of quantum alone, you are at the higher end of band four, which recommends a starting point of 8 and 16 years’ imprisonment. Taking into account your reduced role, your at least initial naivety, and accepting for the purpose of sentencing your lack of insight into the amount of drugs being imported, I would be prepared to place your offending in the middle of band two and adopt a starting point of five years and six months’ imprisonment.
[30] Your level of culpability was undoubtedly higher than that of the appellant in Martin, who declared that he was carrying someone else’s luggage to Customs on arrival. He had previously searched the suitcase he had been told to carry and had found nothing of concern. The drugs were hidden in such a way that he could not be blamed for not finding them.28 He also carried a moderately lower quantity of drugs (1.4 kilograms), although I accept that is a minor difference.29
[31] In R v King, the offender there imported a comparable amount with which you are charged. However, he suffered from a mental impairment. In R v Fangupo, a single package weighing half a kilogram and an offender with a very modest role also saw a starting point of five years adopted. While your role was lesser, you eclipse those two offenders in terms of your offending’s overall seriousness. On the other hand, in Singh v R the offender expressly agreed to receive a far higher amount of the drugs as opposed to your wilfully blind acceptance of around half that quantity. I assess your offending as less serious than the offending there.
[32] Mr Harré submits that, in terms of personal mitigating factors that reduce the gravity of your offending, I should consider what he describes as your “early” guilty plea, your previous good character and your diminished personal responsibility as a
27 R v Fangupo [2019] NZHC 2896 at [32].
28 Martin v R¸ above n 19, at [94].
29 At [1]–[2].
result of your personal background. I am willing to take into account your personal situation, as well as your previous good character which I will discuss in greater detail shortly.
[33] Mr Harré submits the gravity of your offence is low and, following credit for matters of personal mitigation, you would likely be in range of a community sentence. I must, however, disagree with that assessment. I have placed your starting point at five years and six months’ imprisonment and, while credits have not been determined, they would not be sufficient to get you within the range of a non-custodial sentence. Your offending must be considered as serious.
Consequences
[34] Mr Harré draws my attention to the fact that a conviction is likely to lead to you being liable to deportation and will trigger a requirement for you to have to apply for a character waiver in order to remain in the country. Mr Harré notes that deportation would lead to the end of your relationship with your boyfriend, a citizen of this country, as well as financial hardship for yourself and your family. He also submits general consequences such as prejudice to future employment, eligibility for travel and eligibility for property rental are other consequences that will follow conviction.
[35] I have reviewed Mr Lange’s helpful affidavit regarding your risk of deportation. I note you have an adult son living in Colombia, meaning that if you were deported, you would not be returning home to nothing by any means. You also have family that you regularly send money too. You are not someone who would be returning to an abusive family, and neither would you be alone and without support should you be forced to return to Colombia.30 I do not overlook the financial support you provide to your family from working in New Zealand, upon which you say they are dependent. However, your situation can be distinguished from someone who has strong family ties with this country.
30 As opposed to the appellant in Likiliki v Police [2023] NZHC 1428 at [19]–[20] and [51].
[36] Mr Lange deposes that, if granted a discharge without conviction, you would still be in jeopardy under s 157 of the Immigration Act to deportation, though a discharge would very likely improve your position. You would also be required to apply for a character waiver for future work and resident visa applications.
[37] Section 157 states that a deportation liability notice is issued “if the Minister determines there is sufficient reason” to deport the visa holder. Under subs (5), sufficient reason simply includes criminal offending and other matters relating to character. A conviction is not necessary to trigger liability, as Immigration New Zealand includes any offending that is pleaded guilty to in its definition of criminal offending. It is apparent that you will still be subject to the risk of deportation regardless of the entry of conviction. Nonetheless, I accept that the real and appreciable risk of deportation is increased in the event of a conviction being entered.
Proportionality assessment
[38]I come to the proportionality assessment.
[39] I consider the wider consequences regarding your future employment, relationship and rental prospects are commensurate with the gravity of your offending. They really add little weight to the merits of your application. The only question here is whether the immigration consequences are out of all proportion with your offending. I do not accept that to be the case. The offence you have pleaded to has a penalty of life imprisonment. Indicative of that is the fact that many of your co-offenders have already received lengthy sentences of imprisonment. However, more relevantly, while your offending sits at the lower end of the spectrum, it still attracts a substantial sentence, such is the seriousness of you having involved yourself not once but a number of times in the importation of Class A drugs.
[40] As the Crown has observed, a conviction is a proportional and unsurprising consequence for a foreign national in New Zealand on a visa who has assisted in the importation of Class A drugs and effectively received payment for doing so. There is no closed category of offending in respect of which an application can be entertained, but the jeopardy of your status in this country was an entirely predictable risk you took in involving yourself in such offending.
[41] I accept the risk of deportation is real and appreciable and your jeopardy in that regard is obvious.31 However, while a discharge without conviction would be of assistance to you, it would not remove the risk of that outcome. Overall, I am unable to conclude the likelihood of deportation and the hardship of such a result for a person in your position, even when combined with other social and employment consequences, set against the seriousness of your offending would be wholly out of proportion with the gravity of your offending. Your application for a discharge without conviction is therefore declined.
Starting point
[42]I have established a starting point of five years and six months’ imprisonment.
Personal mitigating features
[43] The various affidavits and reports before me, in addition to Mr Harré’s submissions, indicate a number of personal factors that need to be taken into account in mitigation of your sentence.
[44]I address your guilty plea first.
Guilty plea
[45] You pleaded guilty on 15 March 2024, two months prior to the trial, following resolution with the Crown. However, it was open to you to have entered that plea at a much earlier stage in the proceeding, which had been in train for over two years. The prosecution case against you was relatively strong. I sentenced one of your co- defendants, on 29 May 2024.32 He, like you, was charged in November 2021 and pleaded guilty on the 1st of March 2024. I extended a discount for his guilty pleas of 10 per cent, noting that was arguably generous, and I have adopted a similar approach with your other co-defendants. However, your counsel argues the case against you considerably changed as a result of the resolution reached with the prosecution. The
31 Likiliki v Police, above n 31, at [85]; Rahim v R [2018] NZCA 182 at [30].
32 R v C [2024] NZHC 1387
Crown accepts that was the case. In light of that, I am prepared to extend a discount of 15 per cent for your guilty plea notwithstanding its timing.
Disproportionately severe imprisonment in New Zealand
[46] The courts recognise the isolation from and denial of family support to foreign people imprisoned in New Zealand may be treated as a mitigating factor where it makes the sentence harder than usual to serve. This is a discretionary matter for the sentencing court.33 The lead offender in your syndicate received a five per cent discount for this factor due to his family being based overseas.34 I accept that your relatively isolated position in this country is similar enough to warrant the same five per cent adjustment.
Background, family matters and good character
[47]Turning to your personal background and prospects of rehabilitation.
[48] It appears you come from a middle class background in Colombia, although your upbringing was not without its difficulties. It appears there was some level of family dysfunction, grounded in your father’s abuse of your mother. While I do not diminish that experience by any means, it is difficult to find any causal nexus with your offending.35 You are now 40 and have lived in this county for 10 years. You report that you have maintained a good relationship with both of your parents and, as I have earlier noted, you have a son back in Colombia.
[49] I accept that you suffered exploitation while working on various dairy farms around Selwyn and South Canterbury. You report to working in bleak conditions for up to 60 hours a week for 40 hours pay, and that you were threatened with deportation if you spoke out and complained. You say one of your contracts specified that you were not to engage in outside interests without the permission of your employer. Based on these experiences, you successfully obtained a migrant exploitation work visa. These events also coincided to some degree with your offending and may have
33 Zhang v R, above n 2, at [163].
34 R v J [2024] NZHC 204 at [74]–[76].
35 Berkland v R, above n 4, at [109].
drawn you closer to those associates who enlisted your assistance in respect of discrete importations. It may also have been the reason for you succumbing to the financial reward for your cooperation.
[50] Your present employer attests to your work ethic and has continued to support you despite these charges. You are said to be hard-working and reliable. You have no prior convictions and there is no suggestion of any criminal offending elsewhere. You are now of a relatively mature age and your previous good character indicates you have positive rehabilitative prospects.
[51] For all these matters in combination, I will allow a 15 per cent reduction which results in a total discount of 35 per cent. The end sentence is therefore one of three years and six months’ imprisonment.
Result
[52]Ms Ramirez-Alfonso, would you please now stand.
[53] Ms Ramirez-Alfonso, I sentence you to three years and six months’ imprisonment.
[54] I make an order for the forfeiture of your electronic devices seized from you at the time of the termination of the police investigation.
[55]You may stand down.
Solicitors:
Crown Solicitor, Christchurch
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