R v Cook
[2017] NZHC 2034
•24 August 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-092-007446 [2017] NZHC 2034
THE QUEEN
v
RONALD WAYNE COOK (SENIOR) AGUSTIN MANUEL SUAREZ-JUAREZ
DEFENDANTS
Counsel: D B Stevens and I S Ko for Crown
S N B Wimsett and S Teppett for Ronald Cook
P J Kaye for Suarez-JuarezJudgment:
24 August 2017
SENTENCING NOTES OF KATZ J
Solicitors: Kayes Fletcher Walker Ltd, Crown Solicitor, Manukau
Counsel: S N B Wimsett, Barrister, Auckland
P J Kaye, Barrister, Auckland
R v COOK & SUAREZ-JUAREZ [2017] NZHC 2034 [24 August 2017]
Introduction
[1] Mr Cook and Mr Suarez-Juarez, you have each been found guilty, following a jury trial, of:
(a) possessing the Class A controlled drug cocaine for the purpose of supply; and
(b) attempting to supply the Class A controlled drug cocaine.
[2] You now appear for sentence. The maximum penalty for possessing a Class A controlled drug for supply is life imprisonment. The maximum penalty for attempting to supply a Class A controlled drug is 10 years’ imprisonment.
Facts
Overview of the offending
[1] On 10 May 2016 a jewel-encrusted bronze horse head sculpture arrived in Auckland on a flight from Mexico, via Hong Kong. It weighed over 330 kilograms. Concealed within it were 35 one-kilogram packages of cocaine. This is the largest cocaine importation ever seized by New Zealand Customs, by a very significant margin.
[2] The jury rejected the explanation offered by both of you at trial, which was that you believed it was cash, not drugs, concealed in the horse head. Your explanation that you believed you were involved in a money laundering operation was, frankly, implausible.
[3] The three apparent “kingpins” or masterminds of the operation were referred to in text messages as “the Godfather”, “Silverio” and “the Artist”. The Godfather appears to have been the most senior member of the drug syndicate. Silverio appears to have been the largest investor in the venture. For example, in one of his text messages to Silverio, after things had gone wrong, Mr Suarez described Silverio as being “the most affected with the investment”. Silverio also clearly knew how many packages were concealed in the sculpture and precisely how they were wrapped.
[4] Mr Suarez’s evidence at trial was that Silverio was a business partner in the Artist’s bronze sculpture business. Whether or not that is so, it is at least clear that Silverio and the Artist were business partners in the New Zealand cocaine venture. Silverio delivered the packages of cocaine to the Artist, who then concealed them in the horse head sculpture. The Artist obviously also had an ongoing interest in the enterprise as, after things went wrong in New Zealand, Mr Suarez sought urgent advice from the Artist as to what to do. Mr Suarez subsequently reported to Silverio that the Artist was “desperate” and had advised Mr Suarez to leave New Zealand immediately and send in another team.
[5] Mr Suarez’s evidence was that he became involved in the New Zealand cocaine venture through his association with Silverio, as the two men regularly played chess together. Mr Suarez said that Silverio offered him a business opportunity in May 2016 to open a company in New Zealand to launder cash. As I have already noted, the jury rejected that claim. Rather, the necessary inference is that Silverio offered Mr Suarez the opportunity to become involved in the New Zealand cocaine venture. Mr Suarez agreed. Silverio and Mr Suarez appear to have been hopeful that this might be the beginning of an ongoing prosperous relationship with the Godfather, as in a text message exchange between them, Silverio stated to Mr Suarez: “We are going to do good things with [the Godfather], the old man is starting to trust”.
[6] It was Mr Suarez who enlisted Mr Cook, whom he had known for many years through shared legitimate business interests, to assist with the New Zealand end of the operation. Mr Cook was offered a fee of USD 50,000 for his involvement. Mr Cook accepted.
[7] Meanwhile, unbeknownst to anyone in the Mexican drug syndicate, Customs staff had intercepted the horse head sculpture on its arrival in New Zealand. They discovered the concealed cocaine and replaced 34 of the packages with packages containing flour. The 35th package was replaced with a package constructed from polystyrene. An electronic tracking device was installed into that package, together with six grams of actual cocaine. All 35 of the replica packages were then placed back into the horse head sculpture, which was re-sealed. From that point onwards, the sculpture, and anyone who interacted with it, was under constant surveillance as part of a highly sophisticated joint police and Customs operation.
[8] The horse head statue was delivered to a storage facility in Onehunga on
23 May 2016. There is no evidence that the two people who completed the import formalities, Mr Pavon and Ms Castaneda, knew that the sculpture contained drugs. Having completed import formalities, Mr Pavon returned to his home in Christchurch and Ms Castaneda returned to Mexico. Customs staff and police watched and waited.
[9] On the evening of 31 May 2016, Mr Cook and Mr Suarez arrived together in Auckland on a flight from Hawaii. The next morning, 1 June, they purchased various tools and other items including an angle grinder from a hardware store. Over the next couple of days they viewed rental properties, eventually renting one on Lyndhurst Road, Te Atatu, on 3 June. They arranged for professional movers to help move the bronze sculpture to the rental property the next day, where it was stored in the garage as it was too heavy to lift into the house. No attempt was made to open it at that stage. The following morning Mr Suarez and Mr Cook left the country.
[10] Mr Cook kept in touch with the property manager over the following weeks. By the end of the month it was obviously considered safe to return. Mr Suarez and Mr Cook arrived back in New Zealand on the evening of 30 June 2016. They booked into the Crowne Plaza hotel. The next morning they had breakfast there with a man they knew as “David” but whose real name is Henry Anchondo. He was the intended purchaser of some of the cocaine.
[11] Later that morning Mr Suarez and Mr Cook travelled to the Te Atatu rental property. Covert recording devices in the garage recorded their attempts to cut through the base of the horse head sculpture using the tools purchased on the initial visit. It was no easy task, even with the assistance of an angle grinder. After about three quarters of an hour they gave up and went to the local hardware store to purchase additional tools, including a crowbar. On their return to the garage they were finally able to open the sculpture and remove the 35 packages inside.
[12] Mr Suarez then contacted Mr Anchondo to arrange to meet him back at the Crowne Plaza Hotel in order to supply him with five of the packages. Mr Suarez and Mr Cook arrived back at the hotel shortly before 4:00pm. Mr Cook was carrying five packages in a bucket, covered by some work tools. Mr Suarez went straight up to the hotel room. Mr Cook met Mr Anchondo in the hotel lobby and then brought him up to the room.
[13] Either while the men were in the hotel room, or possibly over breakfast that morning, Mr Suarez sent a text message to the Godfather informing him that they were with “David” (Mr Anchondo), who wanted to acquire five “contracts” (a reference to five one-kilogram packages of cocaine). The Godfather authorised Mr Suarez to go ahead with the deal.
[14] Once in the hotel room, Mr Anchondo examined the five packages. Mr Suarez later that afternoon provided a fairly detailed description of what happened next to Silverio, by text message. Mr Suarez and Mr Cook also gave evidence about the relevant events at trial.
[15] Mr Anchondo thought that one of the packages seemed a “bit weird”. Purely by coincidence, one of the five packages Mr Suarez and Mr Cook had taken to give to Mr Anchondo was the package in which Customs and the police had placed a block of polystyrene and a tracking device. Mr Anchondo cut or broke open that package and discovered that there was a block of polystyrene inside. He could also see something electronic. Not surprisingly, all three men panicked at that point. Mr Suarez asked Mr Anchondo to take the other four packages with him but he refused to do so. Mr Anchondo departed the room quickly and left the hotel.
[16] Mr Suarez and Mr Cook immediately started packing to leave. They checked out of the hotel and, after driving around for a while, returned to the rental property to drop off the other four packages that they had taken to the meeting with Mr Anchondo. They then headed out to the airport. They were arrested in the departure lounge, preparing to board a flight to Los Angeles.
[17] In the hours between leaving the hotel and reaching the airport departure lounge, Mr Suarez was in regular contact with both Silverio and the Artist. He explained to Silverio exactly what had happened in the hotel room and discussed what they should do next. He also communicated with the Artist, who told Mr Suarez to throw away the remaining four packages and “get out”. He told Mr Suarez to “leave immediately” and to “send another team”.
[18] During this period Mr Suarez also communicated with “Suzuki”, another potential purchaser of cocaine, who was unaware of what had occurred that afternoon. Suzuki informed Mr Suarez that he had a client in New Zealand who would be in Auckland on Saturday. Mr Suarez told Suzuki that he had to leave
before then. Mr Suarez also asked Suzuki for any suggestions as to where he could move the packages to.
Respective roles
[19] Mr Cook and Mr Suarez, I now turn to consider your respective roles in the venture and in the syndicate hierarchy.
[20] Mr Suarez, you are from Mexico and were clearly closely connected to the “kingpins” or masterminds of the operation there. You communicated with each of Silverio, the Artist, and the Godfather during the relevant period, although your most frequent communications appear to have been with Silverio. You became involved in the enterprise at his invitation.
[21] Unlike Mr Cook, there was no evidence that you were paid a fixed fee for your involvement. Indeed you strenuously denied receiving any such fee. The likely explanation for this is not that you were not paid at all (as you claimed), but that you were sufficiently senior in the syndicate hierarchy to be remunerated by way of profit share. You were the senior operative in New Zealand, responsible for overseeing the unpacking of the cocaine from the horse head sculpture and organising its subsequent wholesale distribution. You were “top of the tree” in the New Zealand distribution operation.
[22] Mr Cook, your nickname was “the Technician”. You were the syndicate’s hired help. Your primary role was to provide practical and logistical support on the ground in New Zealand. You also acted as interpreter for Mr Suarez, who did not speak English. You made all of the practical arrangements in New Zealand, such as renting vehicles and arranging to rent the Te Atatu property, booking hotels and so on. You concocted cover stories for the two trips to New Zealand, your rental of the property and so on. You also provided handyman skills, which were key to extracting the cocaine from the sculpture. Overall, you were Mr Suarez’s right hand man and did whatever he asked you to do.
[23] You agreed to undertake the job for a payment of USD 50,000. Mr Suarez arranged for his son to pay an initial cash “down payment” of USD 5,000 into your bank account, shortly before your first trip. Mr Suarez also arranged for his son to make further cash deposits into your account on 16 and 27 June 2016. In total you appear to have received about USD 10,000, some of which was reimbursement for expenses, such as airfares.
[24] On the evidence before the Court the only person you appear to have had any contact with in relation to the operation is Mr Suarez. Although there are a couple of text messages from you to Mr Anchondo, the evidence at trial was that these were sent at Mr Suarez’s direction, because he could not speak English and did not know until later that Mr Anchondo spoke Spanish.
Starting point
[25] Mr Suarez and Mr Cook, as your counsel have no doubt explained to you, the sentencing process involves first setting a starting point. I will then consider what, if any, discounts to that starting point are appropriate to take into account your personal circumstances.
[26] In sentencing you I must take into account the need to hold you accountable for your offending and to denounce your conduct. Further, the need for deterrence is particularly relevant in cases of serious drug offending. The Court of Appeal has observed that it is clearly of importance that New Zealand does not become viewed as a “soft touch” for the transit of illicit drugs, or as an ultimate destination for an
importer.1 I also take into account that the Sentencing Act 2002 requires that in
sentencing or otherwise dealing with an offender the court “must impose the least restrictive outcome that is appropriate in the circumstances”.2
[27] The primary focus in sentencing Class A drug offending is the seriousness of the offending and the culpability of the offender. This is generally established by reference to the number of offences; the quantity, quality and value of the drugs involved; and the extent of the offender’s involvement. I will focus on the appropriate sentence on the charge of possession of 35 kilograms of cocaine, as that is the lead charge.
Applicability of methamphetamine sentencing guidelines
[28] There is no tariff case for cocaine sentencing. There is, however, a tariff case for methamphetamine offending – R v Fatu.3 Cocaine, like methamphetamine, is a Class A drug, the most serious class of drug. In Fatu, the Court of Appeal expressed reservations about the use of the guidelines in that case for sentencing
1 R v Davis CA440/04, 20 October 2005 at [67].
2 Section 8(g).
3 R v Fatu [2006] 2 NZLR 72 (CA).
for other Class A drug offending.4 More recently, however, in Clarke v R, the Court of Appeal has stated that sentencing for cocaine-related offending can be “cross-checked” against the bands set out in Fatu.5 That was the approach recently taken by Davidson J in R v Dixon.6
[29] Relatively little turns on the issue in this case, however, given the quantity of cocaine involved. There can be no question that your offending would fall, by analogy, within Band 4 of Fatu (which provides for 10 years’ to life imprisonment). The starting points proposed by both the Crown (20 to 22 years’ imprisonment) and defence counsel (12 to 14 years’ imprisonment) all fall within that band.
Aggravating factors of offending
[30] There are a number of aggravating features of your offending.
[31] First, the offending was large-scale and highly commercial in nature. You had in your possession, for the purposes of supply, 35 kilograms of cocaine with an estimated street value of between $8.75 million and $14 million.7 As I have already noted, this was the largest quantity of cocaine ever seized in New Zealand, by a significant margin.
[32] Second, your offending was sophisticated, well-organised and designed to avoid detection by authorities. The cocaine was so well hidden that extracting it took you over an hour, and required the use of specialised metal cutting equipment and a crowbar. It was packaged in multiple layers of packaging, some of them vacuum sealed. On both trips to New Zealand you concocted elaborate cover stories as to why you were here. Each step of your operation was premeditated and calculated. Each step was made in furtherance of the wider goal of unpacking the cocaine and, subsequently, supplying it to Mr Anchondo.
[33] Third, you were part of a sophisticated, large-scale drug trafficking syndicate involving the importation of cocaine into New Zealand and its subsequent distribution. You were not mere “mules” or couriers. You were the New Zealand- based organisers of the syndicate. As I have already outlined, Mr Suarez was the senior person who had the relationships with the Mexican-based “kingpins” or
4 At [46].
5 Clarke v R [2013] NZCA 473 at [25].
6 R v Dixon [2017] NZHC 920 at [31]-[33].
7 See Fatu, above n 3, at [32].
masterminds. Mr Cook was his right hand man. Together you were responsible for moving the sculpture to the rental property and unpacking the cocaine from it so that it could be distributed. You then jointly attempted to supply Mr Anchondo with
5 kilograms of cocaine.
Comparable cases
[34] The Crown has helpfully provided me with a table of previous sentences relating to serious cocaine offending, which I will annex to a written copy of these sentencing notes. Mr Stevens submitted that three of those cases are particularly relevant.
[35] In Agwu v R the defendant, Mr Agwu, was sentenced to 17 years’ imprisonment with a minimum period of imprisonment (MPI) of eight-and-a-half years’ imprisonment for importing and supplying about 4.5 kilograms of cocaine.8
The starting point adopted was 18 years’ imprisonment.9 Most of the cocaine was
sent by mail.10 Mr Agwu was not considered the international mastermind of the operation, but the “head of the operation in New Zealand”. The operation was “well organised, involved substantial quantities of cocaine and was a commercial money-making venture”.11 The 18-year starting point was held by the Court of Appeal to be “stern but nevertheless within range”.12
[36] In R v Cai the defendant, Mr Cai, was sentenced to 15 years’ imprisonment with an MPI of nine years’ for importing 2.5 kilograms of cocaine. That sentence was also upheld on appeal, and the modest disparity between Mr Cai’s sentence and that of a co-offender, Mr Ali, was found to be justified.13 Mr Cai was described as “primarily responsible for the running of the operation in New Zealand”, whereas Mr Ali was thought to be “Mr Cai’s right hand man”. Overall they were both
“fully involved from the outset in the planning of the operation” and there was “little to distinguish them”.14
[37] In R v Davis one of the defendants, Mr Davis, pleaded guilty to possessing
2.8 kilograms of cocaine for supply and conspiring to export cocaine.15 On a
8 Agwu v R [2015] NZCA 619.
9 At [4].
10 At [2].
11 At [3].
12 At [12].
13 R v Cai CA357/05, 17 November 2006.
14 At [14]-[15].
15 Above n 1.
successful Solicitor-General’s appeal the Court of Appeal was satisfied that a starting point of less than 13 or 14 years’ imprisonment “could never have been justified”.16
[38] Other relevant cases have involved starting points in the range of 15 to
17 years’ imprisonment for importation of between 976 grams and 4 kilograms of cocaine. In most of those cases the defendant’s role was described in terms of being the prime mover or “top of the tree” in New Zealand, but not the international mastermind.17
[39] None of these cases involve quantities of cocaine anywhere near the quantities that were involved in this case. The largest quantity of cocaine involved in any previous New Zealand cocaine case was 6 kilograms. The quantity involved in this case is almost six times that amount. Accordingly, by way of cross-check, I refer to one methamphetamine case that involved drugs of a similar quantity to this case, keeping in mind the need for caution when different drugs, potentially of different potency, are involved.
[40] In R v Sze Woolford J adopted a starting point of 21 years’ imprisonment
(uplifted to 22 years for other related offending) in respect of the importation of
40 kilograms of methamphetamine.18 Although a different Class A drug was involved, the facts of that case are otherwise remarkably similar to this one. In adopting a 22-year starting point, Woolford J considered other methamphetamine sentences,19 and appears to have pinpointed his starting point by reference to the quantity.20 The sentence in Sze appears to me to be broadly consistent with the various cocaine sentences I have referred to.
Distinction between importers and distributors
[41] Almost all of the cases involving significant quantities of cocaine are importation cases, although the importation charge is often laid together with a charge of possession for supply.
16 At [67].
17 R v Ogaz [2007] NZCA 45; R v Aroh [2008] NZCA 457; R v Tshisa CA507/05, 31 August 2006;
and R v Liava’a CA175/98, 17 August 1998.
18 R v Sze [2016] NZHC 1703.
19 R v Chen [2009] NZCA 445 (96 kilograms, 25-year starting point); R v Kam [2016] NZHC 110 (60.9 kilograms, 25-year starting point); and R v O’Connor [2016] NZHC 440 (4.3 kilograms,
18-year starting point).
20 At [25]-[26].
[42] Mr Wimsett and Mr Kaye take issue with the Crown’s reliance on cases involving importation, however, given that neither of you were charged or convicted of importation. They note that in Fatu, the Court of Appeal stated that:21
[22] All other things being equal, a manufacturer is more culpable than an importer and an importer is more culpable than a supplier. A drug manufacturer (or importer for that matter) is responsible for bringing the drugs in question into circulation in New Zealand and will usually be more culpable than a dealer in drugs. … Another way of looking at it is that a drug manufacturer or importer can be regarded, at least normally, as being at the top of the supply chain.
(citations omitted).
[43] The culpability of distributors relative to importers therefore reflects that those who “create” or “introduce” the danger generally ought to face greater punishment than those who simply facilitate or carry out the work of those who introduce the danger. A person who imports drugs is contributing to the circulation of those drugs through communities. This also reflects a degree of seniority in the drugs supply chain. I do note, however, that the Court of Appeal’s observations are qualified by phrases such as “all other things being equal” and “will usually be more culpable” and “at least normally”.
[44] The observations in Fatu should not, in my view, be taken to have laid down firm rules for distinguishing between importers and distributors. I note, for example, the observations of the Court of Appeal in R v Stanaway, which reinforce the need for a holistic and evaluative assessment of the defendants’ culpability. The Court stated:22
… reference has been made to what might appear as inconsistent statements in judgments of this Court. The first is … that importation represents the highest level of criminality and that possession for supply is of a lesser degree. [This] proposition cannot be elevated to a general principle. The very interdependence of importation (or manufacture) and wholesale distribution and the fact that offending might be initiated by persons involved in one or other of those activities mean that criminality must be assessed in the particular circumstances.
[45] I also refer to the following observations in R v Wallace:23
There is little difference to be drawn between manufacturers and importers. Both introduce the drug to the market. Their interdependence with
21 Above n 3.
22 R v Stanaway [1997] 3 NZLR 129 (CA) at 135.
23 R v Wallace [1999] 3 NZLR 159 (CA) at [25](4).
wholesale distributors mean that the true instigator might fill any of these roles or indeed might stand remote simply manipulating others. Instigators, masterminds, prime mover or controllers are at the top level and when convicted must attract sentences at the upper end of the relevant range. Participants in distribution at the lower levels should be dealt with proportionately to their culpability as assessed by the sentence.
[46] Here Mr Suarez and Mr Cook you cannot be viewed simply as “ordinary” distributors as you might be if, for example, you were locals who were simply involved in sourcing and on-selling cocaine that had already been imported into New Zealand by unrelated third parties. You were closely connected to the drug importing syndicate and on their pay roll. You were solely responsible for retrieving the consignment and releasing it onto the market. As Mr Stevens observed, bringing drugs into circulation in New Zealand was very much part of your role. Manufacturing, importation and possession for supply do not have mutually exclusive sentencing ranges. They each carry the same maximum sentence of life imprisonment.
[47] The fact that the overall operation appears to have been deliberately structured so as to shift the risk during the initial importation phase to Mr Pavon and Ms Castaneda, who may well have been innocent dupes, does not materially reduce your culpability. The sentencing principles of denunciation and deterrence require that drug syndicates, and those who work for them, should not be rewarded for adopting structures aimed at shielding more senior operatives from risk by the use of innocent dupes or low level “catchers” to facilitate importation. If more senior operatives later step in to distribute the drugs following the importation phase, they may well be just as culpable as those involved in the initial importation, if not more so.
[48] Each case must turn on its own facts, and on the particular facts of this case I do not see either of you as materially less culpable simply because it was Mr Pavon and Ms Castaneda, rather than you, who were tasked with clearing the horse head sculpture through Customs. I am therefore satisfied that the cocaine importation cases relied on by the Crown provide helpful guidance as to the appropriate starting point.
Conclusion on starting point
[49] Mr Suarez and Mr Cook, you both played key roles in an attempt to introduce a massive quantity of cocaine into the New Zealand market. The operation
you were involved in was large-scale and highly commercial. Your offending was sophisticated, well-organised and designed to avoid detection by authorities. As the New Zealand based organisers, you formed a key part of a large-scale drug trafficking and distribution operation. You did this for financial gain. In your case, Mr Cook, it would have been apparent from the sum you were offered, equivalent to more than a years’ salary for you, that the risks were high. Mr Suarez, given your seniority, you were also clearly aware of the risks but must have assessed the financial rewards as worth it.
[50] Taking all of the matters I have outlined into account, and benchmarking your offending against the other cases I have referred to, there can be no doubt that your offending is at the upper end of the scale in terms of its seriousness.
[51] I am required to have regard to your respective seniority and involvement.24
For the reasons I have already outlined I find you, Mr Suarez, to be more culpable than Mr Cook. Nevertheless, Mr Cook, you played a key role as Mr Suarez’s right hand man.
[52] The Crown submits that the appropriate starting point for each of you is in the range of 20 to 22 years’ imprisonment. Mr Wimsett submits that a starting point of 13 to 14 years’ imprisonment is appropriate for you, Mr Cook. As for you, Mr Suarez, in his written submissions Mr Kaye argued, somewhat optimistically, for a 12-year starting point. Orally he acknowledged that a starting point somewhere between there and the lower end of the range sought by the Crown (20 years) was appropriate. Mr Kaye referred to a number of overseas authorities to support such a sentence. Given that there is no lack of relevant New Zealand case law in this area, I must be guided by those cases, rather than sentencing practices adopted in other jurisdictions.
[53] Taking all of these matters into account, it is my view that the appropriate starting point for your offending, Mr Suarez, is 20 years’ imprisonment.
[54] Mr Cook, given your lesser, but still very significant involvement, I have concluded that the appropriate starting point for your offending is 19 years’ imprisonment.
24 R v Wickremasinghe HC Auckland T013408, 28 March 2003 at [20]-[23].
Matters personal to the defendants
[55] I now turn to consider whether there are any factors that justify either an uplift or discount to your sentence starting point.
[56] The Crown has not identified any aggravating features personal to either of you that would justify an uplift.
[57] No remorse discount is sought, or appropriate, as it is apparent from the fact that you defended the matter at trial, and also from your pre-sentence reports, that you both continue to deny the offending. You maintain the implausible story that you believed you were involved in money laundering.
[58] Your counsel, however, you seek a good character discount for both of you of around 10 per cent which would amount to about two years.
[59] The Sentencing Act requires that in sentencing or otherwise dealing with an offender the court “must take into account any particular circumstances of the offender that mean that a sentence … that would otherwise be appropriate would, in the particular instance, be disproportionately severe”.25 In addition, the Act makes it mandatory for the sentencing Judge to take any evidence of previous good character into account, to the extent that it is applicable in the case.26
[60] Mr Stevens noted that there is clear appellate authority that previous good character can hold little weight in the context of drug offending.27 As the Supreme Court observed in Jarden v R, in sentencing those convicted of dealing commercially in controlled drugs the personal circumstances of the offender must be subordinated to the importance of deterrence. The Court stated, however, that this does not mean that personal circumstances can never be relevant.28 On the contrary, they may be relevant where they have contributed in some way to the offending, or on purely compassionate grounds. The Court concluded, however, that “the crucial importance
of deterrence requires that the reduction in sentence be a modest one”.29
25 Section 8(h).
26 Section 9(2)(g).
27 R v Wallace, above n 23, at [25](5).
28 Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [12].
29 At [14].
[61] I note that neither of you have any known prior criminal history. Mr Cook, you are aged in your late 50s. You have provided me with a large number of character references from family, friends and business associates. You are a committed family man who has raised four children of your own and two other children from your extended family. You are said to have an enormous heart and to be kind, loving, forgiving, generous and faithful. You have regularly donated time, labour and money to volunteer and mission work with your church, this has included supporting an orphanage in Mexico. You acquired a passenger licence so that you could be a volunteer bus driver for your Church.
[62] You are described as hard working but perhaps not overly intelligent. Your first priority has always been to provide for your family. Financially, however, life has been a struggle. Your wife has had to give up work due to poor health. Not long before you became involved in this offending you spent your life savings buying a rundown house as a family home. You hoped that the USD 50,000 you would receive for this job would cover the costs of fixing it up and repairing the roof. Your offending appears to be out of character and to reflect a “one off” catastrophic fall from grace in an otherwise worthy life. I have been persuaded, by a fairly fine margin, that a modest discount of one year is warranted for your previous good character.
[63] Mr Suarez, you are now aged 46, you have also provided me with a large number of character references, of which nine are from family members and two are from friends. The common theme of the references from family members is that you have been a great source of support for not only your immediate family but also many members of your extended family, including nieces and nephews. You have looked after two of your sisters who are solo parents. You are described as a good son, father, husband and uncle. You are hard-working, and you operated a small family printing business in Mexico. You are said to have a huge heart, and to be the pillar of the family. They feel lost without you. Your friends describe you as entrepreneurial, honest, dependable, and hard-working. One friend describes you as a remarkable human being whose character is an example to people close to you.
[64] Despite such glowing references, however, I am somewhat sceptical as to the merits of your claim to a good character discount. There were a number of indications in the evidence at trial that your character is not as unblemished as you assert. Of note, you appear to have been fairly deeply embedded in the relevant drug syndicate, as evidenced by the fact that you knew and communicated with not just
one, but all three of the apparent masterminds of the operation. Based on the expert evidence given at trial by Detective Williams as to the operation of drug syndicates, this level of contact would appear to reflect a trusted role within the organisation. I have already referred to Silverio’s text message to you expressing optimism regarding future dealings with the Godfather, stating: “We are going to do good things with [the Godfather], the old man is starting to trust”.
[65] Your passport revealed frequent visits to Colombia and Venezuela. You claimed in evidence, not very credibly, that those trips were to visit your mistress who lived in Colombia and also apparently had family in Venezuela. Text messages between you and a Mr Bircof appeared to possibly relate to the movement of drugs from Columbia and Venezuela to Mexico. You denied in evidence that those text messages related to drugs and said that you were actually discussing with a friend his involvement in the trafficking of women from those countries to Mexico. Neither explanation reflects particularly well on your character.
[66] Ultimately the provision of a good character discount is discretionary. As I have noted, Judges are required to approach requests for such discounts with caution in serious drug offending cases, given the importance of deterrence. The onus is on you to persuade me that a good character discount is justified. I have not been so persuaded.
[67] Mr Kaye also seeks a discount for the fact that you, Mr Suarez, will be serving a lengthy term of imprisonment in a foreign country away from your family, friends and support. You have limited English ability, although presumably that is improving. I note that you have recently undertaken a course in prison, presumably in English. The Crown accepts that a modest discount is potentially available for this factor, but notes authority to the effect that deterrence is paramount, and in this case both of you have chosen to run this very risk by coming to New Zealand for the sole
purpose of distributing large quantities of drugs.30 Nevertheless, I am prepared to
afford you both a modest discount of three months for this factor.
[68] Given the likely end sentence on the charge of possession of 35 kilograms of cocaine for supply, the Crown did not seek an uplift in respect of your related conviction for attempting to supply Mr Anchondo with 5 kilograms of cocaine. That
concession is appropriate in my view.
30 Machado-Pereira v R [2015] NZCA 423 at [13]. Compare R v Pai [2015] NZHC 2345 at [9].
Minimum period of imprisonment
[69] The final issue I am required to consider is whether to impose a minimum period of imprisonment. I may impose a minimum period of imprisonment that is longer than the one-third minimum specified in the Parole Act 2002 if I am satisfied that such a period is insufficient to, amongst other things, denounce the conduct in which you were involved, or deter you or other persons from committing the same or a similar offence. The Court of Appeal has indicated on several occasions that it is almost invariable in cases of very serious drug offending that these criteria will be
met.31 In my view, they are clearly met in this case.
Sentence
[70] Mr Suarez and Mr Cook, please stand.
[71] Mr Suarez, on the lead charge of possessing the Class A controlled drug cocaine for the purpose of supply, you are sentenced to 19 years and nine months’ imprisonment, with a minimum period of imprisonment of nine years and
10 months. On the charge of attempting to supply the Class A controlled drug cocaine you are sentenced to six years’ imprisonment. The sentences are to be served concurrently.
[72] Mr Cook, on the lead charge of possessing the Class A controlled drug cocaine for the purpose of supply, you are sentenced to 17 years and nine months’ imprisonment, with a minimum period of imprisonment of eight years and ten months. On the charge of attempting to supply the Class A controlled drug cocaine you are sentenced to six years’ imprisonment. The sentences are to be served concurrently.
[73] I make an order for destruction of the horse head sculpture. [74] You may stand down.
Katz J
31 R v Anslow CA182/05, 18 November 2005 at [27]; R v Aram [2007] NZCA 328 at [78]; and R v
Wong [2009] NZCA 332 at [21].
Sentencing levels for large-scale cocaine importation/supply
| CASE | CHARGES | AMOUNT OF COCAINE | ROLE OF DEFENDANT | STARTING POINT | ADDITIONAL NOTES |
| R v Dixon [2017] NZHC | Importing cocaine (representative) x 1 Supplying cocaine x 4 Offering to supply cocaine x 1 | At least 6kg (following a disputed facts hearing). | The defendant was a key player in a large-scale, commercial cocaine importation, but there was no sophisticated means of distribution. Defendant sent money overseas to Colombia to pay for cocaine, and handed $70,000 to an undercover officer for remittance offshore. | 17 years’ imprisonment (for all charges). | MPI of 50 percent of end sentence imposed. |
| R v Agwu [2015] NZCA | Importing cocaine x1 Supplying cocaine x1 | 4.5 kgs (conservative estimate). Cocaine primarily sent by mail, there being 15 packages in total. | The trial Judge found that the defendant was not the international mastermind, but was the “head of operation in NZ”. The defendant provided recipient addresses to associates, recruited people to uplift packages and on-sell them. The operation was well- organised, and a commercial money-making venture. | 18 years’ imprisonment (starting point not disputed on appeal). The Court of Appeal but nevertheless in range”. | Appeal dismissed (appeal was only on grounds of parity, MPI and discounts for mitigating factors). MPI of 50 percent of end sentence imposed. |
| R v da Silveria | Importing cocaine x1 Possessing cocaine for supply x1 | 2.35 kgs. Cocaine concealed in the lining of two suitcases. | The defendant was a mule/courier. He was paid $2,000 for expenses, and expected to receive a further $20,000 when he returned to South America after successful delivery. | 12 years’ imprisonment. | MPI not sought by the Crown. |
| R v Nevarez [2012] NZHC | Importing cocaine x1 Possessing cocaine for supply x1 | 2.9 kgs. Cocaine concealed in the lining of suitcases. | The defendant had “limited involvement”, and only appeared to be a courier. | 12 years’ imprisonment. | No MPI imposed. |
| R v Aroh [2008] NZCA 457 | Importing cocaine x 5 Importing heroin x 1 Attempting to import heroin x 1 | 3.3kgs (total cocaine). Cocaine concealed in the front/back covers of story books/greeting cards. | The defendant was “heavily involved” in the whole operation, but not the international mastermind. The defendant also instigated and controlled the offending of Mrs Aroh, his wife and co-offender. The Court of Appeal accepted the defendant was at the “top of the tree” in New Zealand operations. | Upheld starting point of 17 years’ imprisonment, but the Court considered this to be “at the top of the available range”. | MPI of 50 percent upheld. |
| R v Ogaz [2007] NZCA | Importing cocaine x1 Possessing cocaine for supply x1 | 0.976 kgs. | The defendant’s role was “at a high level, but not at the highest level”. The trial Judge found that the defendant was the speaker in a number of intercepted phone calls advising unknown persons overseas as to the best method of importing cocaine in New Zealand. | Starting point of 15 years’ imprisonment | The Court of Appeal found that the starting point of 16½ years’ imprisonment was excessive. MPI of 50 percent upheld. |
| R v Cai CA357/05, 17 Nov 2006 [co-offender in R v Ali] | Importing cocaine x1 Possessing cocaine for supply x2 | 2.5 kgs. Cocaine arrived in large number of envelopes addressed to various PO boxes around Auckland. | The defendant was “primarily responsible for the running of the operation in New Zealand”. He was fully involved in the planning and implementation of the importing operation. The defendant went from Australia to New Zealand to check on progress, then return to Australia until his presence was necessary for uplifting the drugs. He also communicated with headquarters in Australia. | Upheld starting point of 15 years’ imprisonment. | MPI of 60 percent not disputed on appeal. |
| R v Tshisa CA507/05, 31 | Importing cocaine (representative) x1 Importing methamphetamine x1 | Over 2 kgs of cocaine was imported, then approximately 2.8 kilograms exported (cocaine exported predominately made up of cocaine imported). Cocaine was concealed in cavities in the covers of children’s books. | The defendant made arrangements for others to receive the packages containing the cocaine, and would collect the packages and pay the recipients in cash. The defendant was “head of the import and export activities”, the “prime mover in New Zealand”, and had links with those despatching drugs from overseas. | Upheld starting point of 17 years’ imprisonment (for the cocaine offending). | The Court of Appeal noted that the starting point of 17 years’ imprisonment was “clearly available” to the sentencing Judge. |
| R v Ali CA129/06, 6 July 2006 [co-offender in R v Cai] | Importing cocaine x1 Possessing cocaine for supply x1 | 2.5kgs. Cocaine arrived in large number of envelopes addressed to various PO boxes around Auckland. | The defendant’s role fell between a “courier/collector” and “mastermind”. While he played a significant role, he was paid a fee rather than sharing in the profit. Mr Ali was his co-offender Mr Cai’s “right-hand man”. | No starting point specified (presumably around 14 years’ imprisonment). End sentence of 12 years’ imprisonment substituted. | The Court of Appeal considered that the end sentence of 14 year’s imprisonment adopted by the trial Judge was excessive. |
| R v Javu HC Auckland, CRI-2004-092- 0212713, 6 December | Importing cocaine x1 | 0.881kgs. Cocaine in pellet form, hidden in the defendant’s bowel and vagina, as well as in a makeshift sanitary pad. | The defendant knew she was ingesting a large amount of cocaine, but there was no evidence the defendant was involved in planning or preparatory steps. | 11 years’ imprisonment. | No MPI imposed. |
| R v Davis CA440/04, 20 | Possessing cocaine for supply x1 Conspiracy to export cocaine x1 | 2.8 kgs Cocaine hidden in ornamental statutes contained in the defendant’s suitcase. | The defendant was “of crucial importance”, and the handover from the courier did not occur until he arrived in new Zealand. He recruited the co-offender and promised payment to him. He was the supervisor in New Zealand, and had contact with those further up in the chain. | (Solicitor-General appeal) A starting point of at least 13-14 years’ imprisonment was substituted on appeal (the original starting point being 10 years’ imprisonment). | MPI of 50 percent imposed. |
| R v Wunder HC Auckland CRI-2005-092- 0049524, 27 | Importing cocaine x1 | 0.54kgs. Cocaine concealed in a package in the defendant’s clothing upon arrival in New Zealand. | The defendant was (by his own admissions) more than a courier. The defendant expected to make a profit, and acquired contacts to research the position and obtain the drug. | 13 years’ imprisonment. | No MPI imposed. |
| R v Slabbert HC Auckland CRI-2004-092- 007388, 3 | Importing cocaine x1 | 0.61kgs. Cocaine concealed in the lining of a suitcase. | The defendant was a courier, and was paid a flat fee. | 12 years’ imprisonment. | No MPI imposed. |
| R v Liava’a CA175/98, 17 | Importing cocaine x4 Possessing cocaine for supply x2 Conspiracy to supply cocaine x1 Money laundering x1 | 4 kgs. Cocaine was strapped to the defendant’s body, and also concealed within large yams shipped to Auckland. | (Not addressed) “We take the view that the Judge was right when he regarded the decisions to date as indicating a top level for Class A dug offending on a large commercial scale in the vicinity of 17-18 years.” | (Solicitor-General appeal) Upheld starting point of | The Court of Appeal acknowledged that a higher sentence would not have been interfered with, but declined to increase it on a Solicitor-General’s appeal. |
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