R v Anchondo

[2018] NZHC 1978

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2017-004-1438

[2018] NZHC 1978

THE QUEEN

v

HENRY AARON ANCHONDO

Hearing:

3 August 2018

Appearances:

H Benson-Pope for Crown

A J Kimmins and S Joyner for Defendant

Judgment:

3 August 2018

SENTENCING REMARKS OF LANG J

R v ANCHONDO [2018] NZHC 1978 [3 August 2018]

[1]    Mr Anchondo you appear for sentence having pleaded guilty to a charge of attempted possession of the Class A controlled drug cocaine for supply. The maximum penalty for that offence is ten years imprisonment.

Facts

[2]    Your offending was discovered after the New Zealand Police and the New Zealand Customs Service commenced a joint investigation into the importation and supply of cocaine in the Auckland area. This drew their attention to a large wooden crate that arrived in New Zealand by air on 11 May 2016. When the authorities opened the crate, they found it contained a large shrink-wrapped metal horse head statue. This was found to weigh approximately 336 kilograms.

[3]    Concealed within the statue were 35 one kilogram bricks of cocaine. These were removed and replaced with 35 one kilogram bricks containing a placebo substance. Approximately six grams of cocaine, together with a tracking device, were left concealed inside one of the bricks.

[4]    Police and customs officers subsequently carried out a controlled delivery of the crate to a storage unit in Onehunga on 23 May 2016. Before this occurred, the police had obtained a warrant authorising them to install covert cameras in and around the unit. By this means they were able to ascertain that a female had received the crate and removed the packaging material from the statue.

[5]    On 31 May 2016, Mr Ronald Cook, a US national, and Mr Agustin Manuel Suarez-Juarez, a Mexican national, arrived together in New Zealand by air. The next day they were seen travelling from their hotel in the Takapuna area to Onehunga, where they purchased power tools to enable them to open the consignment. The men then arranged to rent a property in Te Atatu for their purposes.

[6]    On the afternoon of 3 June 2016, Mr Cook and Mr Suarez-Juarez went to the storage unit and measured the statue. They tried to move it but found it was too heavy to move. They subsequently obtained the assistance of a furniture moving company to transport the statue to the rented address in Te Atatu. They then left New Zealand and travelled to Hawaii.

[7]    You arrived in New Zealand on 21 June 2016. You were travelling on an American passport and were scheduled to leave the country on 2 July 2016. Between 25 June and 30 June 2016, you received a series of text messages from Mr Cook and Mr Suarez-Juarez. They referred to you by the name David. The last of these indicated they had arrived back in New Zealand late on the evening of 30 June and would meet you the next day. They had checked into a hotel in the central city.

[8]    On 1 July 2016, Mr Cook and Mr Suarez-Juarez rented a motor vehicle and travelled to the Te Atatu address. By that stage the police had obtained a warrant authorising them to install recording devices inside this address. The two men were recorded discussing how they would extract the contents of the statue. They then left the address and purchased additional tools to assist in this task. Later in the afternoon they were able to extract the 35 one kilogram packages from the statue. The summary of facts then records as follows:

21. At about 3.18 pm an audio device within the lounge of the address recorded a conversation between Mr Cook and Mr Suarez where Mr Suarez told Mr Cook “yes we tell him to go there”. Mr Cook later said “Let’s see if he pays us … whether he’ll pay us or not”.

The Crown says this is a reference to you.

[9]    Mr Cook and Mr Suarez-Juarez then left the house, taking with them five of the packages from the statue. Later that day, the police intercepted a telephone conversation between you and Mr Suarez-Juarez. During this conversation you agreed to meet at the hotel where Mr Suarez-Juarez and Mr Cook were staying.

[10]   You arrived at the hotel at 4.12 pm carrying a black sports bag. Mr Cook met you in the lobby and  you both went  up to the room occupied by Mr  Cook and     Mr Suarez-Juarez. After one of the packages was opened, however, you discovered it contained a tracking device and not a brick of cocaine. Not surprisingly, you were then observed leaving the hotel a short time later. Mr Cook and Mr Suarez-Juarez immediately checked out of the hotel. As they left, they discarded the opened package in the hotel carpark. Customs officers subsequently retrieved that package from the carpark. Mr Cook and Mr Suarez-Juarez then returned the remaining four packages

to the Te Atatu address before travelling to the airport. They were arrested as they were about to leave the country.

[11]   While Mr Cook and Mr Suarez-Juarez were at the airport, the police executed a search warrant at the Te Atatu address. There they recovered the remaining 34 one kilogram packages from drawers in the kitchen. They also located grinding tools, face masks and a crowbar.

[12]   When the police analysed the material on Mr Suarez’ cellphone, they found the following text message from Mr Suarez-Juarez to an unknown person referred to as “Doc”. The message was “We are with David .. he tells me if we can do 5 … well here organising the passing of the contracts as soon as I pass the 5 contracts I’ll let you know … in a while I’ll deliver the 5 contracts it wasn’t easy but they are out”.

[13]   As you now know, Mr Cook and Mr Suarez-Juarez were tried in this Court and found guilty in July 20178 on charges of being in possession of cocaine for supply and attempting to supply cocaine to you. You were not arrested until 19 September 2017 when you were found in Whangarei.

[14]   The summary of facts also records that if sold at street level, five kilograms of cocaine would have an approximate street value of between $1.25 million and $2 million.

Starting point

[15]   The first stage in the sentencing process is to set a starting point that reflects the overall culpability of your offending. That must be done having regard to the fact that the maximum sentence for this particular offence is ten years imprisonment. As a result, the starting points adopted in charges involving the importation and possession of cocaine for supply are of limited assistance because the maximum sentence in relation to those charges is much higher.

[16]   I view you as having a role as a custodian courier. It is clear that you had no role in the importation of the cocaine and you were not in any way involved in the planning of that process. I consider the summary depicts you as a person who was

engaged to obtain cocaine from Mr Suarez-Juarez and Mr Cook and then pass it on either to another cut-out or to a prospective purchaser. You were a link in a chain designed to separate vendor from ultimate purchaser. I also proceed on the basis that you were to be paid a flat fee for your purchases. You confirm as much in your comments to the person who prepared the pre-sentence report.

[17]   The Crown submits I can safely infer you arrived in New Zealand for the express purpose of the role that you undertook in this enterprise. The Crown bases this submission on the date of your arrival in New Zealand and the fact that you were to leave the day after you were to receive the cocaine from Mr Cook and Mr Suarez- Juarez. There is no evidence, however, that you had any contact with any other members of this group before your arrival in New Zealand. For that reason I cannot be sure, or satisfied beyond reasonable doubt, that this is correct. You told the person who prepared the pre-sentence report that you had arrived in New Zealand to escape household or domestic issues in America. You said you had been partying in New Zealand and met a person who offered you the opportunity to make extra money to finance your stay. I consider that to be a more likely scenario under which you beame involved in this enterprise.

[18]   The role of cut-outs, or “catchers” as persons in your position are commonly known, is an important role because it ensures the ultimate recipient of the drugs is distanced from the transaction in which he or she acquires them from the vendor. Having said that, your culpability in that role is obviously much less than that of the ultimate purchaser, or those who masterminded the transaction.

[19]   The Crown submits your role warrants a starting point of between seven and eight years imprisonment. Your counsel submits that a starting point of no more than five years imprisonment is warranted.

[20]   I note that when Katz J sentenced Mr Cook and Mr Suarez-Juarez, she imposed a sentence of six years imprisonment in relation to the charge of attempting to supply you with cocaine.1 Counsel for the Crown points out that the Judge’s sentencing remarks do not contain any reasoning for the sentence she selected. He therefore

1      R v Cook & Suarez-Juarez [2018] NZHC 2034 at [74]

submits it is not of great precedential value. I acknowledge that the Judge did not provide reasoning in support of her conclusion, but I cannot contemplate her imposing that sentence unless she considered it was appropriate in the circumstances. The sentence provides some guidance as to the level of the starting point to be applied in respect of you.

[21]   I also bear in mind the fact that the maximum sentence is one of ten years imprisonment. In the present case the quantity involved was obviously five kilograms in the sense that that was the quantity held by Mr Suarez-Juarez and Mr Cook. Clearly, too, they wanted to supply that quantity to you. I am not sure, however, that you went to the hotel with the intention of acquiring that quantity of cocaine or, indeed, that you even knew the quantity that you were to pick up. Ordinarily, a custodian or catcher in your position would not know the quantity of drugs involved. He or she would only know that they are picking up drugs, and that the quantity is likely to be significant because of the need for that person’s involvement. I do not consider the issue of the precise quantity involved is of great moment in the present context.

[22]   Having regard to your overall role in the operation, I consider that an appropriate starting point of five years six months imprisonment is warranted. This is less than that suggested by the Crown, but I consider the Crown’s submission places your culpability too high having regard to your role and the fact that this was an attempt. I acknowledge immediately, however, that the attempt came very close to being successful. The only factor that stopped it from being successful was that the authorities had removed the cocaine from the statue and replaced it with placebo substances.

Mitigating factors

[23]   From the starting point I am prepared to give you a discount to reflect mitigating factors. The principal of these is that at 34 years of age you have no previous convictions. Indeed the present offending appears to have been an aberration from your normal conduct. I also accept you are genuinely remorseful and that you will find it difficult to serve your sentence in prison far away from your family. The latter factor can only be given limited weight, however, because as soon as you agreed

to become involved in this enterprise you must have known that you ran the risk of going to prison in a foreign country for a significant period. I am prepared to provide an allowance of seven months, or around ten per cent, to reflect those factors.

[24]   This means that the sentence is one of four years 11 months before taking into account the guilty pleas. There is no dispute regarding this. The Crown accepts you are entitled to a full discount of 25 per cent to reflect your guilty pleas. I propose to make an allowance of 15 months to reflect this factor. This reduces your sentence to one of three years eight months imprisonment.

Sentence

[25]You are sentenced to three years eight months imprisonment.

[26]   The Crown does not seek a minimum term of imprisonment, and I would not have imposed one in any event given the level of your culpability in this operation and the fact that you have no previous convictions.

Lang J

Solicitors:

Kayes Fletcher Walker, Manukau Matouk Joyner Lawyers, Australia