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…

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 Anchondo

Details

AGLC: R v Anchondo [2018] NZHC 1978
Case: [2018] NZHC 1978
Decision Date: 3 August 2018

CaseChat Overview and Summary

The case of R v Anchondo involved the defendant, Henry Aaron Anchondo, who pleaded guilty to an attempted possession of a Class A controlled drug, cocaine, for supply. The court was required to determine the appropriate sentence for this offence, with the maximum penalty being ten years imprisonment. The court had to consider Anchondo's role in the operation, the quantity of the drug involved, and the mitigating factors in determining the sentence.

The court considered Anchondo's role as a custodian courier in the operation, who was to obtain cocaine from the vendors and pass it on to another cut-out or a prospective purchaser. The court found that while Anchondo's role was important, his culpability was less than that of the ultimate purchaser or those who masterminded the transaction. The court also considered the quantity of the drug involved, but found that the precise quantity was not of great moment in the present context. The court determined that an appropriate starting point of five years and six months imprisonment was warranted.

The court then considered the mitigating factors, including Anchondo's age, lack of previous convictions, genuine remorse, and the difficulty of serving his sentence in prison far away from his family. The court allowed for a discount of seven months, or around ten per cent, to reflect these factors. The court also considered the discount for Anchondo's guilty pleas, which amounted to 15 months. The final sentence was three years and eight months imprisonment.

The court did not impose a minimum term of imprisonment, and the Crown did not seek one. The court found that given the level of Anchondo's culpability in this operation and the fact that he had no previous convictions, a minimum term was not necessary.

Orders