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R v Bolea

R v Bolea

Case [2022] NZHC 2998 16 November 2022

Criminal Liability

Sentencing

Breach of Contract

Unconscionable Conduct

Guilty Plea

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2020-004-9587

[2022] NZHC 2998

THE KING

v

ELIZABETH BOLEA

Hearing: 16 November 2022

Appearances:

B Kirkpatrick for the Crown A Bailey for the defendant

Date:

16 November 2022

SENTENCING NOTES OF CAMPBELL J

R v BOLEA [2022] NZHC 2998 [16 November 2022]

Introduction

[1] Ms Bolea, in July this year you pleaded guilty to a charge of participating in an organised criminal group.1 You have applied to be discharged without conviction. If I decline your application, I will be imposing a sentence on you today.

Offending

[2] I will start by outlining your offending. This outline is based on the summary of facts which you accepted when you pleaded guilty.

[3] You are in a relationship with Rhakim Mataia, a nominee of the Comancheros Motorcycle Club. At some time before 5 August 2020, you knew that Mr Mataia and others connected to the Comancheros were participating in an organised criminal group that shared the objective of obtaining material benefits from the possession and supply of methamphetamine.

[4] On 4 August 2020, you hired a rental car from Auckland Airport. You did so at Mr Mataia’s direction. You and Mr Mataia then collected one of your co-offenders, Diamond Katoa, and drove to Christchurch. You were aware that there was some methamphetamine in the car for the purpose of supply, but you were not aware of the exact amount. A covert Police search conducted on the car found two plastic containers in the boot of the car. Together they contained at least 500 grams of methamphetamine.2

[5] You arrived in Christchurch on 5 August 2020. You went to Mr Mataia’s family home. You stayed there while Mr Mataia and Mr Katoa went to a gang pad to supply the methamphetamine.

Discharge without conviction

[6] I now turn to your application for a discharge without conviction. The Sentencing Act 2002 requires me to determine that application in three stages. First,

1 Crimes Act 1961, s 98A. Maximum penalty: 10 years’ imprisonment.
2 R v Fakaosilea [2022] NZHC 2984 at [63].

I must determine the gravity of your offending. Secondly, I must determine the direct and indirect consequences of a conviction. Thirdly, I must determine whether those consequences are out of all proportion to the gravity of your offending.3 If I am satisfied this test is met, I may discharge you without conviction.4

Gravity of offending

[7] As to the first stage, in determining the gravity of your offending I have to take into account the aggravating and mitigating factors relating both to the offending itself (that is, what you did) and to you personally (for example, your previous good character and your guilty plea).5

[8] As to the offending itself, there is a disagreement between the Crown and your counsel, Mr Bailey, as to the period of your offending. The Crown submits that you were offending for more than three months. Mr Bailey, by…

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 Bolea

Details

AGLC: R v Bolea [2022] NZHC 2998
Case: [2022] NZHC 2998
Decision Date: 16 November 2022

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the case of R v Bolea involved the defendant, Elizabeth Bolea, who pleaded guilty to participating in an organised criminal group. The legal issues before the court included determining the gravity of Bolea's offending, assessing the direct and indirect consequences of a conviction, and deciding whether those consequences would be disproportionate to the gravity of the offending. The court found that the defendant's involvement was limited to a trip to Christchurch where methamphetamine was transported, and that her participation was at the direction of her partner. The court acknowledged mitigating factors such as her age, lack of prior convictions, and good character, but also considered the seriousness of the offending, which involved a significant quantity of methamphetamine. The consequences of conviction, including potential deportation and adverse employment effects, were considered but not deemed disproportionate to the gravity of the offending. Ultimately, the court declined to discharge Bolea without conviction and sentenced her to four months' home detention, reflecting the need for accountability, deterrence, and consideration of her personal circumstances.

Orders