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 early 2020 the COVID-19 pandemic closed New Zealand’s borders and affected your employment opportunities. However, you obtained a three year work visa and found work in a panel-beater’s workshop where you restored and repaired trucks and buses. This led to the mistakes that resulted in you appearing before me today.

[9]    First, you endeavoured to live the same lifestyle you had been living in Mexico when New Zealand was far more expensive. You also rented a house you were unable to afford. Matters were exacerbated by the fact that you were the only income earner because your wife needed to stay home to look after your youngest daughter.

[10]   This led you to become involved in the laundering of cash for the syndicate in Mexico. You received payment for your services in the form of cash. You became involved in the importation and possession of methamphetamine for the same reason.

[11]   Put simply, Mr Alverado, you undertook these activities for financial gain to support your family. I do not consider this warrants a reduction of your sentence. However, I am satisfied you are remorseful for your actions and have insight into your offending.   The material  I have  received  also  makes  it  clear you  have   excellent

rehabilitative prospects. I propose to allow a further discount of just over ten per cent, or nine months, to reflect these factors.

Imprisonment as a foreign national

[12]   In addition, I accept that you will find it more difficult than other prisoners to serve your sentence because you will be living in circumstances that bear no relation to your cultural background. However, you plainly have a good command of English and thus far your performance in prison has been exemplary. I propose to allow a further three months to reflect this factor.

[13]   This means I have identified additional mitigating factors that justify a total discount of three years four months. This reduces the sentence to one of three years eight months imprisonment.

Sentence

[14]   On the charges relating to the possession of methamphetamine for supply and conspiracy to import methamphetamine you are sentenced to three years eight months imprisonment. Those sentences are to be served concurrently.

[15]   On the money laundering charge you are sentenced to two years imprisonment. That sentence is also to be served concurrently with the sentences on the remaining charges.

[16]Stand down.

Lang J

NOTE: PUBLICATION OF THE JUDGMENT AND OF THE REQUEST FOR A SENTENCING INDICATION IN ANY NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE IS PROHIBITED BY SECTION 63 OF THE CRIMINAL PROCEDURE ACT 2011 UNTIL THE DEFENDANT HAS BEEN SENTENCED OR THE CHARGE DISMISSED. SEE

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2021-070-1570

[2022] NZHC 2592

THE KING

v

ANGEL GABRIEL GAVITO ALVERADO

Hearing:	7 October 2022
Appearances:	D J McWilliam for Crown J Rhodes for Defendant
Judgment:	7 October 2022

SENTENCE INDICATION OF LANG J

Solicitors:

Crown Solicitor, Tauranga

[17]   Mr Alverado faces charges of money laundering, being in possession of liquid methamphetamine and conspiring to import methamphetamine (x 2). His trial is due to commence in February 2023.

[18]   Mr Alverado seeks a sentence indication. This is an indication of the sentence he would receive if he was to enter guilty pleas in the near future. If he does not accept the indication it will be of no further force and effect. In that event, if he is convicted at trial, the Judge will sentence Mr Alverado on the basis of the facts as the Judge finds them to be.

Background

[19]   Mr Alverado’s offending was discovered during a long running police operation called Operation Tarpon. This focussed on the importation of methamphetamine and cocaine into New Zealand from Mexico. During the operation the police intercepted a large volume of communications between persons alleged to have been members of the organisation responsible for this activity. Mr Alverado’s role is set out in a summary of facts that counsel agree may be used for sentence indication purposes.

[20]   The charge of being in possession of liquid methamphetamine for supply was laid as a result of communications that the police intercepted between other members of the organisation. These indicated that Mr Alverado was in possession of liquid methamphetamine on 14 February 2021. A conversation between two of Mr Alverado’s co-defendants reveals that Mr Alverado had obtained “a couple of kilos of liquid” methamphetamine for them. It ultimately transpired that Mr Alverado was not able to hand the container of liquid methamphetamine over personally, so he arranged for another person to deliver the liquid methamphetamine to those who purchased it.

[21]   The summary also reveals that Mr Alverado arranged for two packages of methamphetamine to be sent from Mexico to New Zealand. Mr Alverado was in contact with the persons in Mexico who sent the packages to New Zealand.

[22]   The packages travelled from Mexico to Australia, where they were intercepted by officers of the Australian Border Force on 20 and 24 April 2021. One of the parcels had an intended delivery address in Rotorua, and contained 198.7 grams of methamphetamine. The other parcel had an intended delivery address in Auckland, and contained 198.3 grams of methamphetamine.

[23]   The money laundering charges were laid as a result of the fact that on 15 January 2021 Mr Alverado deposited the sum of $20,600 in cash into his Westpac New Zealand bank account. On the following day he transferred the sum of $19,676 from that account into an overseas bank account linked to the group in Mexico with whom he had been dealing.

Starting point

[24]   The lead charges are obviously those involving conspiring to import methamphetamine and being in possession of methamphetamine for supply. The conspiracy charges involve a total of 297 grams of methamphetamine. This would place the offending in Band 3 identified in Zhang v R.2 Offending within this band will attract a sentence of between six and 12 years imprisonment. The importation came close to being completed because the intervention of border officials in Australia is only reason it did not proceed.

[25]   The precise quantity of the methamphetamine that Mr Alverado arranged to be supplied to others in liquid form cannot be ascertained. All that is known is that he made available approximately two kilograms of liquid from which methamphetamine could be extracted. The Crown accepts that very little usable methamphetamine was ultimately able to be extracted from the liquid. I therefore proceed on the basis that the offending falls within Band 3 notwithstanding the transaction involving the liquid methamphetamine.

[26]   Mr Alverado’s role in the methamphetamine offending can be categorised as significant in terms of the categories identified in Zhang.3 He was in contact with the

2      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

3 At [126].

group in Mexico who were providing the drugs and he represented that group’s interests in New Zealand. In addition, Mr Alverado collected money on the group’s behalf and transferred it to their bank account. He also dealt with those lower down in the distribution chain. There is no evidence, however, that he stood to gain significant financial reward for his efforts.

[27]   The Crown initially contended that a starting point of around ten years imprisonment was appropriate. Having considered the submissions filed by Mr Rhodes, Mr McWilliam accepts that a starting point of around seven years imprisonment is appropriate on the methamphetamine charges. He submits an uplift of around six months is appropriate to reflect the money laundering charges. Mr Rhodes contends on Mr Alverado’s behalf that a starting point on all charges of no greater than six and a half years imprisonment is justified.

[28]   Counsel have referred me to several sentencing decisions that they consider to be analogous. Of these, I consider the cases of Wang v R4 and R v Fangupo (Mr Ikuia)5 to be the closest factually for comparative purposes. In those cases starting points of six and five years respectively were selected.

[29]   On a totality basis, I consider a starting point of seven years imprisonment to be appropriate on all charges. This reflects the fact that the money laundering charges relate to activity that formed part of Mr Alverado’s overall role. That aspect of his offending was in any event at the lower end of the scale given the amount involved and the fact that it occurred on just one occasion. The starting point contains an allowance of six months to reflect those charges.

Aggravating factors

[30]   Mr Alverado has no previous convictions so there would be no uplift to reflect aggravating factors personal to him.

4      Wang v R [2021] NZCA 79.

5      R v Fangupo [2019] NZHC 2896.

Mitigating factors

[31]   The only mitigating factor for which I would be prepared to give credit at this stage is that relating to guilty pleas. These would be entered approximately five months before the commencement of Mr Alverado’s trial and well over a year after his arrest. However, I accept that Mr Rhodes has only recently been instructed, disclosure has been ongoing and the charges have been rationalised for sentence indication purposes. I would therefore be prepared reduce the sentence by one year nine months, or approximately 22 per cent, to reflect guilty pleas.

[32]   This reduces the indicated sentence to one of five years three months imprisonment. Further credits may be available at sentencing to reflect mitigating factors other than guilty pleas.

Time for acceptance

[33]   Mr Alverado will have until 5 pm on Friday 14 October 2022 to accept the indication.

Lang J