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…

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 da Silveria

Details

AGLC: R v da Silveria [2014] NZHC 791
Case: [2014] NZHC 791
Decision Date: 15 April 2014

CaseChat Overview and Summary

The case of The Queen v Joao da Silveria dealt with charges of importing cocaine and possessing cocaine for supply. The defendant, Mr da Silveria, had admitted to bringing 2.35 kilograms of cocaine into New Zealand from South America, with an estimated street value between $705,000 and $3.525 million. Mr da Silveria was sentenced in the Auckland Registry of the High Court of New Zealand on 15 April 2014. The key legal issues the court had to decide were the appropriate starting point for the sentence and the extent to which mitigating factors should reduce that sentence.

The court considered that for serious drug offences like this, principles of deterrence and denunciation must be emphasised, making imprisonment inevitable. The starting point for sentencing in cases involving the importation of cocaine of similar quantities was determined to be between 11 and 13 years imprisonment, with the court opting for a 12-year starting point. There were no aggravating factors, but significant mitigating factors included Mr da Silveria's immediate acceptance of responsibility and guilty pleas, leading to a 50% reduction in the sentence. Consequently, Mr da Silveria was sentenced to six years imprisonment, to be served concurrently.

In conclusion, Mr da Silveria was sentenced to six years imprisonment on each charge, to be served concurrently, resulting in an effective sentence of six years. The court did not impose a minimum term of imprisonment due to the defendant's early guilty pleas and the fact that he would be deported after serving one-third of his sentence.

Orders