R v Briaturi - [2008] NZCA 412

IN THE COURT OF APPEAL OF NEW ZEALAND
CA661/07
CA697/07
CA693/07
[2008] NZCA 412
THE QUEEN
v
JUAN CARLOS PISSANO BRIATURI
ROBERTO MANUEL PISSANO BRIATURI
HORACIO GABRIEL BANDERA-PINEYRO
Hearing:24 September 2008

Court:O'Regan, Chisholm and Gendall JJ
Counsel:W C Pyke for Juan Carlos Pissano Briaturi

R P Chambers for Roberto Manuel Pissano Briaturi
B J Hesketh for Horacio Gabriel Bandera-Pineyro
M D Downs for Crown

Judgment:9 October 2008 at 4 pm

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.
REASONS OF THE COURT
(Given by O’Regan J)
Introduction
[1]       The appellants were convicted after a jury trial in the High Court of two charges, namely conspiracy to import cocaine into New Zealand and conspiracy to export cocaine. The period to which the charges related was 26 July 2005 to 19 October 2005. The trial Judge, Harrison J, sentenced Juan Carlos Pissano Briaturi to imprisonment for nine years, Roberto Pissano Briaturi to imprisonment for five years and Horacio Gabriel Bandera-Pineyro to imprisonment for four years and eight months. All appeal against conviction and sentence.
[2]       For ease of reference we will refer to the Pissano brothers as Carlos and Roberto respectively, and to Mr Bandera-Pineyro as Mr Bandera.
The case against the appellants
[3]       The Crown case was that the appellants (all of whom are of Uruguayan nationality but were resident in New Zealand) were involved in a conspiracy to trade in cocaine between Uruguay and Australia, using New Zealand as a staging post. The police obtained interception warrants and intercepted communications involving all three, from which it was established that the Pissano brothers had a contact in Uruguay known as Mr Gaston from whom it was proposed to source the cocaine, and another Uruguayan contact who was resident in Australia, Mr Mega, to whom it was proposed the cocaine would be sold for distribution within Australia.
[4]       The evidence was that in July 2005 Roberto met Mr Bandera at a casino in Hamilton and handed him a note, which Mr Bandera interpreted as an invitation to participate in the cocaine trading activities of the Pissano brothers.
[5]       The proposed method of importation into New Zealand was to impregnate cocaine in liquid form into clothing, which would then be brought to New Zealand. This is apparently a method of transport of cocaine used in other jurisdictions. It was planned that, once the cocaine was brought to New Zealand, it would then be extracted from the clothing, but the extraction process required quantities of acetone, hydrochloric acid, sulphuric acid and ether.
[6]       The plan unravelled because ether was not obtainable in New Zealand, despite efforts being made by the appellants, particularly Mr Bandera, to obtain it. The agreed plan with Mr Gaston was that the cocaine impregnated into clothes would be brought to New Zealand by two older women who would travel by air to New Zealand. Mr Gaston was intending to travel with them, but not to carry any of the drugs. When the unavailability of ether became…

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 Briaturi

Details

AGLC: R v Briaturi [2008] NZCA 412
Case: [2008] NZCA 412
Decision Date: 9 October 2008

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal against conviction and sentence brought by Juan Carlos Pissano Briaturi, Roberto Manuel Pissano Briaturi, and Horacio Gabriel Bandera-Pineyro. The appellants were convicted of conspiracy to import and export cocaine into and out of New Zealand between July and October 2005. The appellants sought to appeal their convictions and sentences on various grounds. The key issues in the appeal were the adequacy of the trial judge's summing up, the accuracy of the translations of intercepted telephone conversations, and the appropriateness of the sentences imposed. The Court found that the trial judge's summing up was fair and did not result in a miscarriage of justice. The Court also found that the translations of the intercepted conversations were accurate and did not affect the outcome of the trial. Finally, the Court found that the sentences imposed by the trial judge were appropriate and there were no grounds for interfering with them. The appeals against conviction and sentence were dismissed.

Orders