R v Luna - [2023] NZHC 2188

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-73

[2023] NZHC 2188

THE KING

v

MAXIMILLIANO JAVIER LUNA

Hearing: 15 August 2023

Appearances:

B Kirkpatrick for the Crown

M E Goodwin and Ms C M Chester-Cronin for the Defendant

Sentence:

15 August 2023

SENTENCING REMARKS OF LANG J

Solicitors/counsel:
Meredith Connell, Office of the Crown Solicitor, Auckland M E Goodwin, Auckland

R v LUNA [2023] NZHC 2188 [15 August 2023]

[1] Mr Luna, you appear for sentence having pleaded guilty to 10 charges relating to the importation, possession and supply of Class A and Class B controlled drugs. The Class A drugs in question are methamphetamine, lysergide (LSD) and cocaine whilst the Class B drugs are MDMA (ecstasy) and ephedrine.

[2]The individual charges to which you have entered guilty pleas are as follows:

(a)selling methamphetamine (representative charge);

(b)possessing 1.024 kilograms of methamphetamine for sale (representative charge);

(c)importing 3.98 kilograms of ecstasy;

(d)possessing 5 kilograms of cocaine for sale (representative charge);

(e)possessing 47.113 grams and a bottle of ecstasy for sale (representative charge);

(f)possessing 6.478 kilograms of ephedrine for sale;

(g)possessing 150 tabs of LSD for sale;

(h)selling ecstasy (representative charge); and

(i)selling 5.154 kilograms and other amounts of ephedrine (representative charge).

[3] The maximum sentence for importing, selling or possessing Class A controlled drugs is life imprisonment, whilst the maximum sentences for the remaining charges range between 10 and 14 years imprisonment.

The facts

[4] You are to be sentenced on the basis of an agreed summary of facts. This records that you became involved in a very large and sophisticated drug importation

and distribution syndicate that became the subject of a wide-ranging police investigation. The organisation was well organised, with members allocated roles such as “storemen” who stockpiled and repackaged bulk drugs and “runners”, who delivered drugs and obtained payment from customers. The leader of the syndicate was Mr Xavier Valent, who was based overseas but nevertheless exercised tight control over the syndicate’s operations in New Zealand. He has been sentenced to life imprisonment for his role in its operation.1

[5] You were introduced to the syndicate in or around September 2018, initially to act as a receiver or “catcher” of imported drugs. You agreed to receive drug consignments sent from overseas to your home. You were paid in cash for your willingness to assist in this way.

[6] You dispute that you were paid the sum of $5,000 for an initial “dummy run” importation. However, you accept you were subsequently involved in two importations of drugs. In September 2018 Mr Valent imported 4.55 kilograms of ephedrine into New Zealand concealed in a shipment of 40 heaters. You agreed to accept delivery at your home address and deal with the importation in accordance with the directions given by a senior member of the syndicate, Mr Alarcon Ramos.

[7] The consignment never arrived at your address because it was intercepted by the New Zealand Customs Service (Customs). The consignment was…

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 Luna

Details

AGLC: R v Luna [2023] NZHC 2188
Case: [2023] NZHC 2188
Decision Date: 15 August 2023

CaseChat Overview and Summary

The case of R v Luna involves the sentencing of Maximiliano Javier Luna for his involvement in a large-scale drug importation and distribution syndicate. Luna pleaded guilty to various charges relating to the importation, possession, and supply of Class A and Class B controlled drugs, including methamphetamine, cocaine, ecstasy, LSD, and ephedrine. The syndicate was well-organised, with Luna initially acting as a receiver of imported drugs and later becoming a primary runner for the syndicate. The syndicate was led by Mr Xavier Valent, who has already been sentenced to life imprisonment.

The court was required to decide the appropriate starting point for sentencing, taking into account the various charges and the quantities of drugs involved. The court also needed to determine whether to apply an uplift for the remaining charges, and whether to impose any aggravating or mitigating factors. Finally, the court needed to decide whether to impose a minimum term of imprisonment before Luna would be eligible to apply for parole.

The court selected a starting point of 13 years and six months imprisonment for the methamphetamine-related charges, taking into account Luna's role within the syndicate and the quantities of drugs involved. The court applied an uplift of three years to reflect the remaining charges, resulting in a sentence of 16 years and six months imprisonment before taking into account aggravating and mitigating factors. The court applied discounts for Luna's guilty pleas, his cultural background, and his rehabilitative prospects, resulting in a final sentence of 9 years and 11 months imprisonment. The court also imposed a minimum term of imprisonment of four years before Luna would be eligible to apply for parole.

The final orders of the court were that Luna be sentenced to 9 years and 11 months imprisonment on the methamphetamine-related charges, with a minimum term of four years before being eligible to apply for parole, and to five years imprisonment on all remaining charges, to be served concurrently. Luna was also discharged under s 147 of the Criminal Procedure Act 2011 on the remaining charges to which he had not entered guilty pleas.

Orders