R v Cristia - [2008] NZCA 19

IN THE COURT OF APPEAL OF NEW ZEALAND
CA542/07
[2008] NZCA 19
THE QUEEN
v
MARIA ASTRID CRISTIA
Hearing:20 February 2008

Court:Robertson, Randerson and Ronald Young JJ
Counsel:P J B Winter for Appellant

M D Downs for Crown

Judgment:25 February 2008 at 9.30 am

JUDGMENT OF THE COURT

A The sentences imposed in the High Court are quashed.
BOn the charge of importing cocaine, Ms Cristia is sentenced to six years’ imprisonment. On the charge of attempting to export cocaine, she is sentenced to three and a half years’ imprisonment. The terms are to be served concurrently.

____________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
Introduction
[1]       Maria Astrid Cristia appeals against an effective sentence of eight years’ imprisonment imposed on her by Keane J in the High Court at Auckland on 26 September 2007.
[2]       The lead sentence was imposed on a charge of importing cocaine into New Zealand and there was a concurrent sentence of five years’ imprisonment in respect of an associated charge of attempting to export the same cocaine.
[3]       Ms Cristia was jointly charged in both offences with her partner, Dario Seguel, and his brother Sergio Seguel.
[4]       On 24 August 2006 Dario Seguel was sentenced to seven years’ imprisonment for the importation and to five years for the attempted exportation of cocaine, after he had pleaded guilty before Baragwanath J. On 5 December 2006, Sergio Seguel was sentenced in an identical manner, after he too admitted the charges.
Background
[5]       Ms Cristia went to trial on both counts. Keane J, who presided, described the factual situation in sentencing her as follows:
[2]       On 15 February 2006, in the early hours of the morning, you and Sergio met Dario at the Auckland International Airport. You had flown into New Zealand from Australia on 12 February, Sergio the day before. Dario had flown from Australia to Chile on 23 January and was returning to Australia. Your paths were clearly intended to coincide in that all of you were to fly back to Australia from Auckland on 15 February. Dario was carrying with him 546 grams of cocaine at 23 percent purity – 125.626 grams of pure cocaine. He was carrying that in cosmetic items. He had a Lancome travel set containing three bottles, in one of which was 163.7 grams of cocaine at 23 percent purity. He carried also two Yves St Laurent containers, each with cocaine, one 248.3 grams at 23 percent purity and the other 239.8 grams.
[3]       You had the day before purchased at the duty free shop in Auckland a Lancome travel set identical to the one that he carried in. At the airport, at the time when you met Dario, Sergio went to duty free there and purchased the two matching Yves St Laurent containers. While you were purchasing coffee with Sergio, Dario took the bar code off your Lancome travel pack and put it on his. Later you and Sergio left for Australia on the flight on which you…

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 Cristia

Details

AGLC: R v Cristia [2008] NZCA 19
Case: [2008] NZCA 19
Decision Date: 25 February 2008

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant Maria Astrid Cristia appealed against the sentence imposed on her by Keane J in the High Court at Auckland. Cristia was convicted on charges of importing and attempting to export cocaine into New Zealand, for which she was sentenced to an effective eight years' imprisonment. The appeal focused on the adequacy of the starting point and the overall proportionality of the sentence. Cristia's defence was that she was an innocent bystander, but the jury concluded that she was actively involved in the drug trafficking operation. The Court of Appeal considered two main issues: whether the starting point for Cristia's sentence was manifestly excessive and whether the sentence was disproportionate compared to those of her co-offenders, Dario and Sergio Seguel, who had received similar sentences after pleading guilty.

The Court found that Keane J did not adequately distinguish between Cristia's lesser role and her personal mitigating factors, resulting in an insufficient reduction in her starting sentence. Given Cristia's role as a follower, her first-time offender status, and the lengthy period she spent on bail, the Court determined that a greater reduction was warranted. The Court concluded that a starting sentence of seven years, with an additional year's reduction for her personal circumstances, would more accurately reflect her culpability and the relevant sentencing principles. As a result, the appeal was allowed, the original sentences were quashed, and Cristia was sentenced to six years for the importation charge and three and a half years for the attempted export charge, to be served concurrently.

Orders