R v Garcia
[2024] NZHC 1862
•10 July 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-009-8205
[2024] NZHC 1862
THE KING v
ANDERSON PELAEZ GARCIA
Hearing: 10 July 2024 Appearances:
A M Harvey for Crown
S G Bailey for Defendant
Judgment:
10 July 2024
SENTENCING REMARKS OF MANDER J
Introduction
[1] Anderson Pelaez Garcia, you are for sentence this morning having pleaded guilty to a representative charge of importing the Class A drug cocaine,1 attempting to import cocaine,2 participating in an organised criminal group3 and a representative charge of money laundering.4
1 Misuse of Drugs Act 1975, s 6(1)(a)—maximum penalty life imprisonment.
2 Section 6(1)(a); and Crimes Act 1961, ss 66, 72 and 311—maximum penalty 10 years’ imprisonment.
3 Crimes Act, s 98A—maximum penalty 10 years’ imprisonment.
4 Section 243(1)—maximum penalty seven years’ imprisonment.
R v PELAEZ GARCIA [2024] NZHC 1862 [10 July 2024]
The offending
[2] Your offending came to light as a result of a significant police investigation into the importation of cocaine into this country from South America that involved international co-operation with overseas drug enforcement authorities. The drug syndicate operated from at least January 2018 to December 2021. It is estimated in that time that 42.5 kilograms of cocaine with a street price of over $19 million was imported into New Zealand. A further 59.1 kilograms of cocaine with a street value of more than $26 million was also successfully intercepted.
[3] You are 31 years of age. You arrived in New Zealand on 10 August 2018 on a student visa and, like many of your co-offenders, undertook farming work in rural Canterbury. You appear to have become involved in the drug trade approximately a year after your arrival.
[4] Your offending involved the importation or attempted importation of a total of 22 packages of cocaine into this country, which is accepted by your counsel for the purposes of sentencing. From packages intercepted by Customs, it is known you imported 2.447 kilograms of cocaine. However, that figure does not include other successful importations that were not stopped by the Customs Department. Based on a conservative estimate of those parcels having contained at least 500 grams of cocaine, the total amount successfully imported is calculated to be at least
8.447 kilograms. You attempted to import a further 29.639 kilograms, but those packages were intercepted. You were charged with having laundered $302,470.
[5] Your involvement in the importation process was extensive and grew over time. You were paid to identify and provide appropriate addresses to receive packages. After associates left for Columbia, you would contact them for information about importations, including consignee addresses and tracking data. You would pick those packages up on arrival. While not the head of the operation, you certainly became a senior member of it. I will not traverse the details of each of the importations or the packages that were intercepted. However, it is apparent you were heavily involved in making arrangements for these importations and coordinating with others about where and who would receive the packages. You would often subsequently uplift packages
and liaise with other senior members of the syndicate about arrangements for individual importations, including in respect to a consignment which contained
11.4 kilograms of cocaine that was redirected following your arrest in December 2021.
[6] On 10 November 2021, police terminated its investigation. A search of your home address revealed seven cell phones, $28,000 in cash, a snap lock bag with a brown substance inside, a receipt for a cocaine tester and documentation regarding an attempt to import 23.6 kilograms. That package was intended to enter New Zealand in a shipping container and was for consignment to an address in Canterbury. However, it was intercepted in Spain.
[7] Regarding the money laundering charges, you arranged, together with another co-defendant, to launder $102,500 in April 2021, that figure being proceeds from your dealing. In October 2021, you also arranged to launder $199,970 in central Christchurch, although your involvement was limited to assisting in wrapping the bundles into $50,000 lots.
[8] You initially denied the allegations but formally pleaded guilty in February of this year.
Approach to sentencing
[9] The Sentencing Act 2002 sets out the purposes and principles of sentencing that I, as the Judge, am required to take into account in sentencing you today. Relevant purposes include accountability, denunciation, deterrence and rehabilitation. I need to consider the gravity of your offending, the degree of your culpability, the seriousness of the offending and the general desirability of consistency in imposing sentences for like offending. I am required to impose the least restrictive outcome that is appropriate in the circumstances.
[10] In passing sentence, I must fix a period of imprisonment that is commensurate with the seriousness of your offending, in accordance with sentencing guidelines for Class A drug offences — those that have been provided by the appellate courts.5
5 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509; Zhang v R [2019] NZCA 507, [2019] 3
NZLR 648; and Cavallo v R [2022] NZCA 276, (2022) 30 CRNZ 726.
Broadly, your culpability is to be assessed by the quantity of the drug involved and the role you played in the offending.6 I must then consider matters personal to you which may be of aggravating or mitigating effect to arrive at an appropriate end sentence.
Effects of offending
[11] In sentencing you today, it is important to recognise, as I have at the sentencings of some of your co-defendants, the harm that is caused by serious drug offending, particularly that of Class A drugs. Your offending does not have a direct victim. But the distribution of cocaine, like other hard drugs, has countless victims within the community, people who often experience the very worst outcomes as a result of having taken drugs. These include adverse mental health, criminal offending to fund addiction, the breakdown of personal and employment relationships which often results in social deprivation.7 Society as a whole is harmed by such drug activities.
Starting point
[12] Quantity is the first determinant of sentencing as a reasonable proxy for the social harm that is caused by a Class A drug.8 The Court must then evaluate the role of the offender in setting the starting point by reference to the identified categories of “lesser”, “significant” and “leading” roles.9 The Crown has appropriately placed your offending within band 5 because it involved an amount of Class A drug that exceeds two kilograms. That classification provides for a starting point of between 10 years and life imprisonment. The Crown submits you were a leading figure in the syndicate due to your involvement across the importation and handling of cocaine, as well as your money laundering activities. However, they also accept that you did not sit at the “top” of the syndicate’s hierarchy and that you did not play as leading a role as that person.10
[13]The Crown identify the following as aggravating factors of your offending:
6 Zhang v R, above n 5, at [104], [106]–[117] and [126]–[127].
7 At [78]–[79].
8 Zhang, above n 5, at
9 Berkland, above n 5, at [71].
10 R v J
(a)Firstly, there is the well-known harm, which I have already referred to, caused by Class A drugs on the community, although it is to be noted the Court of Appeal has recognised that cocaine is to be viewed as being “somewhat less harmful than methamphetamine”.11
(b)Secondly, there is the fact the offending was, on your part, entirely financially motivated as opposed to predicated on any need.
(c)Thirdly, it was obviously premeditated and relatively sophisticated offending.
(d)Fourthly, as noted, your leading role progressed over time, including your provision of addresses, contact with offshore members, package uplifting and money laundering.
[14] The Crown referred me to a case called Agwu v R, where the appellant played a leading role as the head of an operation importing and supplying upwards of
4.5 kilograms of cocaine.12 A starting point of 18 years’ imprisonment was adopted
and upheld on appeal.13 At the other end of the spectrum, the Crown notes a case called de Macedo v R, a case where the appellant’s role was limited to that of being a “mere courier” in the importation of 2.4 kilograms of cocaine, leading to a starting point of 11 years’ imprisonment.14 In R v Cook, 35 kilograms of cocaine was imported into Auckland from Mexico inside a statue.15 The less culpable offender was still described as a “key player”. On appeal, that offender was assessed as having a mid to low-level significant role and the starting point was adjusted to 17 years’ imprisonment.16
[15] Because you played a leading role and because the amount imported is significant, the Crown submits a starting point of 20 years’ imprisonment is justified. The Crown note that you attempted to import another 29.639 kilograms. In that regard,
11 Cavallo v R, above n 5, at [62].
12 Agwu v R [2015] NZCA 619 at [2].
13 At [8].
14 de Macedo v R [2020] NZCA 132 at [20]–[21].
15 R v Cook [2017] NZHC 2034 at [3].
16 Cook v R [2020] NZCA 469 at [42]–[43].
they have referred me to the case of R v Te Rure, in which the Court of Appeal stated the closer a conspiracy comes to execution, the closer it comes in gravity to the actual illegal act planned.17 It has been submitted, and I accept, that attempts should be viewed similarly. In your case, I agree with the Crown that there was nothing further you could have done to achieve the actual offence, meaning the attempted offending must be viewed as towards the very top of its kind.
[16] With reference to the sentence handed down to one of your co-offenders18 and to the case of Cavallo v R,19 the Crown have submitted a starting point, uplifted in recognition of the attempted importation, of 21 to 22 years’ imprisonment would be justified taking into account the principle of totality.
[17] Ms Bailey submits, on your behalf, that a starting point in the region of 19 to 20 years’ imprisonment would be appropriate. She rightly does not contest the placement of your offending as being squarely within band 5 based on quantum. However, Ms Bailey submits your role was not a leading one in terms of those described in the guideline judgment of Berkland v R, but, instead, she argues, lies at the upper end of the “significant” role profile.20 Ms Bailey submits you only played a leading role toward the latter stages of the operation. She emphasised how you were drawn deeper and deeper into this offending, such is the insidious nature of becoming involved in such drug trafficking with Colombian connections. Ms Bailey emphasised that you did not financially benefit from your assistance in the money laundering, noting your involvement in that aspect was at the direction of other members.
[18] She has referred me to another case called Yonkwa-Dingom v R.21 In that case, the appellant played a significant role but was also clearly not the head of the syndicate, giving no instructions to any party. That person imported 23.7 kilograms of cocaine on a cruise ship. A starting point of 15 years’ imprisonment was adopted by the Court of Appeal.22
17 R v Te Rure [2007] NZCA 305 at [25].
18 R v J [2024] NZHC 204.
19 Cavallo v R, above n 5.
20 Berkland v R, above n 5, at [125].
21 Yongkwa-Dingom v R [2021] NZCA 603.
22 At [30].
[19] I accept the aggravating factors submitted by the Crown. It cannot be disputed that you were a senior and important figure in this operation who, over the course of a near two-year period, became involved in almost every aspect of it. However your role may have initially been categorised, it evolved into a leading one which, when judged overall, I accept falls perhaps towards the lower end of that spectrum. However, as noted, your offending spans a period of roughly 24 months. It involved multiple importations and attempts, and is to be contrasted with a single importation attempt such as occurred in the cases to which I have referred of Yonkwa-Dingom and Cook. Your sentence must reflect the multifaceted features of your offending, the continuity of your involvement that concerned most aspects of the importation operation, and included coordination with others, including those based overseas, to facilitate consignments of cocaine into this country for the purpose of distribution.
[20] The Court of Appeal decision in Cavallo v R concerned analogous facts with a South American group importing drugs into this country in 2017.23 One of the offenders, Mr Cavallo, assisted the leader of the organisation to import a third shipment of 46 kilograms of cocaine. The Court of Appeal upheld a finding that he had a high-level significant role, not unlike yours. He was described as not fitting into the leading category because he did not “undertake the same range of tasks and responsibilities that characterised two other offenders’ involvement”.24 The Court approved a starting point for Mr Cavallo of 20 years and 10 months’ imprisonment.
[21] While you have successfully imported nearly double the amount found in Agwu v R, you were not the head, as was the appellant in that case. I also note the higher starting point fixed in Cavallo v R is commensurate with the higher amount of cocaine imported in that case. Your offending may be viewed as less serious than Mr Cavallo’s in terms of quantum but, as previously determined, you played a leading role, although you were not the head figure.
[22] Having had regard to the approach to sentencing taken in respect of your co- offenders,25 I fix a starting point of 19 years’ imprisonment for your importation
23 Cavallo v R, above n 5.
24 At [68] and [74].
25 R v Montoya Ospina [2024] NZHC 1817.
offending and, as I did with one of your co-offenders, impose an uplift of 18 months for the attempt charge, noting the amounts were essentially the same.26
[23] In relation to the money laundering and organised criminal charges, I have imposed uplifts on other co-defendants in this syndicate for money-laundering and I consider it appropriate to do so here. For consistency, having regard to the six-month uplift imposed on one of your co-offenders for laundering just over $200,000, I consider an uplift of six months is required.27 That co-offender had a more direct role in the syndicate’s money laundering operations, with cash deposits clearly seen on his accounts and his admission that he would receive three per cent cuts from the transfer of proceeds to cryptocurrency. Though you were apprehended with a large amount of cash, your involvement is not so clear in that aspect of the syndicate’s operation, and I accept you did not directly benefit from the assistance you gave in that regard. For that reason, even though you are charged with laundering a greater amount, I consider a six-month uplift is adequate.
[24] I accept the participation in an organised criminal group charge is sufficiently captured by the other offending as it is inherent to it.
[25]That results in an overall starting point of 21 years’ imprisonment.
Personal mitigating features
[26]I turn to personal mitigating features. Firstly, your guilty plea.
Guilty plea
[27] You were charged in November 2021 and pleaded guilty on 1 March 2024, or leastwise in February 2024, approximately two months prior to trial commencing. The prosecution case against you was strong and notwithstanding the submissions made by your counsel this morning, I consider your pleas can only be assessed as belated. I apply the same 10 per cent discount as I have afforded other offenders who pleaded guilty within the same timeframe.
26 At [28].
27 R v B [2024] NZHC 1814 at [27].
Upbringing, background and previous good character
[28] The s 27 report with which I have been provided reveals that you had a difficult childhood in Colombia. You were exposed to violence, and it is understood your father lost his life because of civil unrest and guerrilla warfare when you were a very young age. Your mother had to leave home in order to support you and your sister. This all occurred before you were eight years old. You report having been the victim of sexual assault. You experienced poverty during your upbringing but managed to move to a different city that allowed you to acquire skills and training that allowed you to come to New Zealand and obtain employment in the dairy industry.
[29] While I acknowledge your traumatic background in Colombia, it is apparent that, to your credit, you managed to extract yourself from that environment. It is therefore difficult to draw any causal nexus, even a broad one, with your offending in this country. I accept it is likely that you began to associate with people of a similar culture and ethnicity but, as you state, it was not your intention in coming to this country to offend in the way you did. Your experiences during your upbringing do not therefore appear that relevant to your present difficulty.
[30] You have been in this country since your mid-20s. You report having no problems with alcohol or problematic drug use. You have candidly accepted that it was a desire to earn more money that influenced your decision to offend. It is apparent therefore that the motivation for your offending was a financial one which, perhaps, at least initially, was influenced by the people you were drawn to because of your relative social isolation.28
[31] I note that you have a supportive mother and sister to return to in Colombia and that you have no previous convictions. I have read the many letters from your family and friends. I have also read your letter to the Court and accept your commitment to leading a better life. With those matters in mind, I extend a credit of 10 per cent for your background, rehabilitative prospects and previous good character.
28 I note the ten per cent credit given in Berkland v R, above n 5, at [156] and [162] for multiple criminogenic factors, including addiction, experienced by the appellant and their more direct relation to his offending.
Foreign imprisonment
[32] It has been recognised that the isolation and lack of family support experienced by foreign nationals imprisoned in New Zealand may be treated as a mitigating factor where it makes the sentence harder than usual to serve.29
[33] You were raised in rural Colombia and came here, in your own words, for a better life. You have little support here. Your family all reside in Colombia. I have no doubt that imprisonment will be harder for you because of those factors. Consistent with the approach adopted in respect of some of your co-offenders who are similarly placed, I consider I am obliged to adopt the same course in your case and apply a discount of five per cent.30
[34] Applying those collective reductions results in an end sentence of 15 years and nine months’ imprisonment.
Time spent on electronically monitored bail
[35] You spent 11 months and 19 days on EM bail. There is considerable discretion as to what recognition time spent on EM bail should attract.31 I note you were subject to a 24/7 curfew and complied with your conditions.32 I have assessed a further credit of four months is appropriate recognition for the time you have spent on EM bail while on remand.
Minimum period of imprisonment
[36]I turn to the issue of a minimum period of imprisonment.
[37] The Crown submits I should impose a minimum period of imprisonment — what is called an MPI. That is the period of imprisonment you must serve before you have the opportunity to seek parole.
29 Zhang v R, above n 5, at [163].
30 R v J, above n 17, at [76]; R v Montoya Ospina, above n 25, at [35].
31 Sentencing Act, s 9(2)(h).
32 Garcia v R [2023] NZCA 44 at [27].
[38] An MPI, as it is called, is not to be imposed as a matter of routine or in a mechanistic way.33 Under s 86 of the Sentencing Act, I may impose an MPI if I consider it is necessary to hold you accountable for the harm done to the community by way of your offending, denounce your conduct, deter you or others from committing similar offences, or because there is some need to protect the community. When determining whether an MPI is required and, if so, the duration, the Court is required to take into account the purposes and principles of sentencing and the applicable aggravating and mitigating factors that I have already referred to.34
[39] The Crown has submitted an MPI of 50 per cent is warranted on the basis you were involved in the organised importation of cocaine over an extended period of time and that your offending was purely financially motivated, as opposed to being borne from addiction. The Crown argues that lengthy periods of imprisonment are generally reserved for significant commercial dealing and identify your offending as one of the worst examples of its kind.
[40] Ms Bailey, on the other hand, submits that the offenders in Cavallo did not receive MPIs despite their commerciality and larger amount of cocaine.35 She also argues the determinate sentence will send a sufficiently stern warning of deterrence and that an MPI is not needed on account of the fact you are not the leader of the operation.
[41] Your offending continued over a lengthy period of time. You participated at every stage of the operation and, as I have found, addiction was not at its root. To the contrary, you were commercially motivated. There is a public interest in imposing stern sentences on foreign nationals who import narcotics into New Zealand. I declined to impose an MPI on one of your co-offenders on the basis he acted under the direction of others and did not come to this country with the intention of offending in this way. I note you were one of the men who gave his orders, but, as well, I also note that you did not come to this country with the express intention of offending either. The head of your syndicate did receive an MPI. Your sentence of over 15 years
33 Zhang v R, above n 5, at [169].
34 R v Nguyen [2009] NZCA 239 at [33]–[34].
35 Cavallo v R, above n 5 at [73]–[75].
is a significant one and, after some deliberation, in the circumstance of your case, I consider appropriately meets the purposes of deterrence and denunciation. While the issue, as I have previously noted in respect of one of your co-defendants, is finely balanced, I am not satisfied an MPI is necessary.
Sentence
[42]Mr Pelaez-Garcia, would you please now stand.
[43] On the charges of participating in an organised criminal group, money laundering, importing, and attempting to import a Class A drug cocaine, you are sentenced to 15 years and five months’ imprisonment.
[44]You may stand down.
Solicitors:
Crown Solicitor, Christchurch
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