R v Alverado - [2022] NZHC 2946

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2021-070-1570

[2022] NZHC 2946

THE KING

v

ANGEL GABRIEL GAVITO ALVERADO

Hearing: 11 November 2022

Appearances:

P Li for Crown

J Rhodes for Defendant

Judgment:

11 November 2022

SENTENCING REMARKS OF LANG J

Solicitors:
Crown Solicitor, Tauranga

R v ALVERADO [2022] NZHC 2946 [11 November 2022]

[1] Mr Alverado, you appear for sentence having pleaded guilty to charges of money laundering, being in possession of methamphetamine for supply and conspiring to import two packages of methamphetamine, each of which contained just under 200 grams of the drug. You entered your pleas after I gave you a sentence indication on 7 October 2022.1

[2] In my sentence indication I selected a starting point of seven years imprisonment on all charges. I did not add any uplift for personal aggravating factors because you have no previous convictions. I applied a discount of one year nine months to reflect guilty pleas. This reduced the indicated sentence to one of five years three months imprisonment. I said that further credits may be available at sentencing to reflect mitigating factors other than guilty pleas.

[3] I do not propose to repeat the reasoning by which I reached the indicated sentence. My sentence indication will be annexed to, and will form part of, these remarks. Rather, I propose to concentrate on whether, and if so to what extent, I should give you further discounts to reflect other mitigating factors identified in the material now before me.

Further mitigating factors

[4] I begin by noting that the Crown offers no evidence on charges 2 and 5. You are accordingly discharged on those charges under s 147 of the Criminal Procedure Act 2011.

[5] In addition to the pre-sentence report I have now received a cultural report tendered under s 27 of the Sentencing Act 2002. I have also received a letter of remorse from you, letters of reference from members of your family and an email from your case officer at the Mount Eden Corrections facility. I have also received certificates you have achieved for attending drug rehabilitation courses whilst in custody on remand.

1 R v Gavito Alverado [2022] NZHC 2592.

Previous good character

[6] The first factor for which I can give you further credit is that, at 28 years of age, this is the first occasion on which you have been before the criminal courts. I propose to allow a discount of seven months, or just under ten per cent, to reflect this factor.

Remorse and rehabilitative prospects

[7] The s 27 report confirms that you did not have a deprived childhood or adolescence. When you reached adulthood you had your own panel-beating business in Mexico. You and your wife decided to emigrate to New Zealand with your two young daughters after your brother had done this successfully. You then sold your business in 2019 and moved to New Zealand with your family.

[8] In…

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 R v Alverado

Details

AGLC: R v Alverado [2022] NZHC 2946
Case: [2022] NZHC 2946
Decision Date: 11 November 2022

CaseChat Overview and Summary

In the High Court of New Zealand Tauranga Registry, the defendant, Angel Gabriel Gavito Alvarado, faced sentencing for multiple charges, including money laundering, possession of methamphetamine for supply, and conspiracy to import methamphetamine. The case, titled R v Alverado, was heard on 11 November 2022, with P Li representing the Crown and J Rhodes for the defendant. The court issued sentencing remarks, which were annexed to the judgment and formed part of the legal document.

The legal issues the court needed to address included determining whether additional mitigating factors could warrant further reductions to the indicated sentence. The initial sentence indication provided a starting point of seven years imprisonment, reduced by a year and nine months due to guilty pleas, resulting in a sentence of five years and three months imprisonment. The court considered whether further discounts were appropriate based on factors such as the defendant’s previous good character, remorse, rehabilitative prospects, and the difficulties of imprisonment as a foreign national.

The court found that the defendant's previous good character, as his first encounter with the criminal justice system at age 28, warranted a seven-month discount. The court also considered the defendant's remorse and excellent rehabilitative prospects, justifying an additional nine-month discount. Furthermore, the court acknowledged the challenges faced by the defendant due to his status as a foreign national, leading to a three-month discount. These additional mitigating factors reduced the sentence to three years and eight months imprisonment for the possession and conspiracy charges and two years for the money laundering charge, with all sentences to be served concurrently.

The final orders of the court included sentencing the defendant to three years and eight months imprisonment for the possession and conspiracy charges and two years for the money laundering charge, with all sentences to run concurrently. The defendant had until 5 pm on Friday 14 October 2022 to accept the sentence indication.

Orders