R v da Silveria

[2014] NZHC 791

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-092-2644 [2014] NZHC 791

THE QUEEN

v

JOAO da SILVERIA

Hearing:                   15 April 2014

Appearances:           R K Thomson for Crown

I F West for Prisoner

Sentence:                 15 April 2014

SENTENCING REMARKS OF LANG J

R v JOAO da SILVERIA [2014] NZHC 791 [15 April 2014]

[1]      Mr da Silveria, you appear for sentence today having pleaded guilty to one charge of importing cocaine and one charge of being in possession of cocaine for supply.  As I am sure you know, the maximum penalty for each of these charges is life imprisonment.

Background

[2]      Your  offending  occurred  after  you  arrived  in  New  Zealand  from  South America early on the morning of 7 March 2014.  Customs officers at the airport x- rayed  your  baggage  and  found  irregularities  in  the  linings  of  the  bags.    They searched  the lining of  your two  suitcases  and  found 2.35  kilograms  of cocaine hidden in them. When cut down and sold at street level, the Crown estimates that the cocaine had a potential street value of between $705,000 and $3.525 million.

[3]      When the police spoke to you about what you had done, you said that you knew you were bringing cocaine into New Zealand. You said that you had been paid just over NZ$2,000 for your expenses and that when you returned to South America you expected to receive approximately NZ$20,000 for carrying the cocaine into this country.

[4]      It is a matter of record that other persons who were to meet you and collect the cocaine have now been arrested.  It is clear from the presentence report that you elected to carry cocaine into New Zealand because you were struggling financially in Brazil.  You needed the money that you were to earn from this undertaking in order to pay debts that you had accumulated in Brazil.  As a result, you frankly admit that your offending was done for your own financial gain.  It is clear, however, that you were not to make any additional profit from the importation of the cocaine.  Your role was restricted to that of a mule or courier, whose sole task was to bring the drugs into New Zealand.

[5]      You immediately acknowledged your guilt and entered your plea at the very first opportunity.   You are aware that at the expiration of your sentence you will inevitably be deported from New Zealand.

Sentencing Act 2002

[6]      In any case of serious class A drug offending such as this, the courts must emphasise principles of deterrence and denunciation.  A sentence of imprisonment is inevitable.   The only issue is the length of the sentence.   It is important that the courts achieve consistency between offenders whose offending is of broadly similar seriousness.

Starting point

[7]      There is no guideline judgment of the Court of Appeal that provides guidance as to the starting point for sentences in cases involving the importation of cocaine. Nevertheless, both counsel have provided me with authorities in which offenders have been sentenced for importing cocaine of similar quantities to that which you

imported.1    They agree that the starting point in such cases will be a sentence of

between 11 and 13 years imprisonment.  I take a starting point in your case of 12 years imprisonment.

Aggravating factors

[8]      There are no aggravating factors, such as previous convictions that would operate to increase that sentence.

Mitigating factors

[9]      There  are,  however,  significant  mitigating  factors.    These  include  your complete and immediate acceptance of responsibility, and your guilty pleas.  Counsel for the Crown agrees that these can be given full recognition in the sentence that I am required to impose upon you.  These lead me to conclude that a deduction of 50 per cent is warranted to recognise mitigating factors.  As a result, the end sentence

that I will pass upon you is one of six years imprisonment.

1      R v Wickremasinghe HC Auckland TO13408, 28 March 2003; R v Nevarez [2012] NZHC 1566.

Minimum term

[10]     In cases where serious drug offending is involved, the Court has the power to impose a minimum term of imprisonment.   The Crown does not seek that in this case, no doubt because of your very early guilty pleas, your immediate acceptance of responsibility and the fact that you will be deported after serving one-third of your sentence.  For that reason, I do not impose a minimum term of imprisonment.

Sentence

[11]     Mr da Silveria, on each of the charges to which you have entered guilty pleas, you are sentenced to six years imprisonment.   You will serve those sentences concurrently.   This means that you will serve an effective sentence of six years imprisonment.

[12]     Stand down.

Lang J

Solicitors:

Crown Solicitor, Auckland