R v Nevarez

[2012] NZHC 1566

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-092-3294 [2012] NZHC 1566

THE QUEEN

v

DAVID NEGRETE NEVAREZ

Hearing:         3 July 2012

Appearances: K E Hogan and J Wall for Crown

A J Maxwell-Scott for Prisoner

Judgment:      3 July 2012

SENTENCING REMARKS OF PETERS J

Solicitors:           Meredith Connell, Crown Solicitors, Auckland [email protected] / [email protected]

Public Defence Service, Auckland [email protected]

R V NEVAREZ HC AK CRI-2012-092-3294 [3 July 2012]

Introduction

[1]      Mr Nevarez, you are for sentence on  two charges, namely: (a)           importing a Class A Drug (Cocaine);[1] and

[1] Misuse of Drugs Act 1975, s 6(1)(a) and (2)(a).

(b)      possession of a Class A Drug for Supply (Cocaine).[2]

[2] Ibid, s 6(1)(f) and (2)(a).

[2]      You committed both offences on 13 December 2011 and pleaded guilty in the District Court on 7 March 2012.   Both offences carry a maximum penalty of life imprisonment.

Facts

[3]      Mr Nevarez, the facts are that you arrived at Auckland International Airport on 13 December 2011.   Your luggage was x-rayed, the customs people became suspicious, and they examined your bags more closely and found almost three kilograms, 2.985 kilograms to be precise, of cocaine hidden under the hard plastic liner of the suitcase.  The cocaine was 80 per cent purity, and is estimated to have a street value of between (NZD) $750,000 and $1.2 million.

[4]    Subsequently  you  checked  into  a  hotel  and  commenced  email communications with various associates.  Emails were exchanged between 13 and 16

December 2011.  Subsequently a young woman met you, one thing led to another, and the final result has been that the Police have arrested several others who are now before the Court on related charges.

[5]      I do not know whether you have prior convictions for this type of offending. The Police seem to think you do but regardless you are a first time offender in

New Zealand and I propose to treat you as such.

[6]      You are a Mexican national, hold permanent residency in the United States, have three adult children and grandchildren as I understand it from the letter you have given me, and have worked as a chef.   I know that you have been terribly concerned for your mother and I also understand that she has died whilst you have been here awaiting sentence.  I accept that would have been upsetting and distressing for you and you would have wished to be at home in Mexico and not here.

[7]      Your  account  of  the  offending  is  that  you  were  not  involved  in  an international drug ring, did not know the people who approached you, and that your offending was motivated solely by a wish to earn extra money.  You also said that you felt pressured by this group to transport the drugs and hoped that they would leave you alone if you did as they wished on what you understood, or so you say, was to be the final occasion.  I accept that you are remorseful and that you accept full responsibility for your actions.  I have received this letter from you today, thank you and it is clearly heartfelt.  There is no prospect of you re-offending in New Zealand because you will be deported as soon as you are released.

Approach to sentencing

[8]      Mr Nevarez, I have to consider three matters in sentencing you today. [9]     The first is to identify a “starting point”.

[10]     The second stage is to consider whether there are matters that relate to you personally which might serve to increase or reduce that starting point.

[11]     The third stage is to consider whether I should impose a minimum period of imprisonment.

Starting point

[12]     Turning to the starting point, I have to bear in mind that I need to impose on you a sentence that holds you accountable and responsible for the harm that your offending and this type of offending does to the community so as to denounce your

conduct and to deter others.  I must also impose a sentence that reflects the gravity of your offending, that is broadly consistent with the way the Courts have treated others so that everyone is treated in the same way, and to impose the least restrictive outcome possible although there is no prospect of anything but imprisonment in this case.

[13]     Mr Nevarez, let us not be under any illusions.   Those who import drugs commit serious crime and are sentenced accordingly because their acts lead to a great deal of misery in the community.  As an adult, and one with three children and grandchildren, you would have been well aware of this.  You are 43 years of age. Fortunately, diligent customs officials managed to stop you before you offloaded the cocaine but your conduct was reprehensible.  You would not want your own children and grandchildren using these drugs but you would have been willing to offload them onto New Zealand streets, but for the fact that you were caught.

[14]     The Crown submits that you were more than a mere courier and that you played an important role in the operation.  For that reason the Crown submits that your offending warrants a starting point of between 13 to 14 years’ imprisonment.

[15]     Your lawyer takes a different view and says that there is nothing in the evidence to suggest that you were more than a courier.  Of course, being a courier is quite bad enough.   Your lawyer submits that a starting point of 12 years’ imprisonment is appropriate.

Relevant Authorities

[16]     Although there is no tariff case for sentencing for the importation of cocaine, there are a number of similar cases to which both counsel and have referred me and which I have considered.

[17]     At the upper end of the range is the case of R v Ali,[3] to which the Crown has referred me.   The circumstances in that case were, admittedly, more serious than

[3] R v Ali CA371/05, 20 June 2006.

yours.  The offenders in that case came to New Zealand and rented post office boxes.

They  then  arranged  for  more  than  250  envelopes  to  be  sent  from  Canada  to New Zealand, containing more than 2.5 kilograms of cocaine.   At the time that cocaine had a street value exceeding $3.5 million.   The Court adopted a starting point of 15 years’ imprisonment.

[18]     At the other end of the scale are the cases of R v Morgan, R v Martin and R v Peric.[4]   The Court adopted starting points of 12 years in each of Morgan and Martin. Both had similar quantities of cocaine to this case but with a higher street value.  As Crown counsel submits, that may just be a factor of supply and demand at work.

[19]     The quantity in Peric was 3 kilograms of cocaine at approximately 80 per cent purity, with a street value of $1.8 million.  The Judge adopted a starting point of

11 years, three months’ imprisonment, the Judge accepting that the person involved in that case was strictly a courier, was paid a modest fee and had previously resisted two previous overtures from the same group.

[4] R v Morgan HC Auckland CRI-2004-004-7235, 10 February 2005; R v Martin HC Auckland CRI-

2004-404-5148, 11 April 2006; and R v Peric HC Auckland CRI-2006-092-16557, 8 June 2007.

[20]     Bearing in mind the purposes and principles of sentencing to which I have referred, the sentences imposed in those other cases, a starting point of between

11 and 13 years’ imprisonment is clearly appropriate.  I do not propose to make any uplift for the fact that this offending was clearly premeditated because that is a factor in all of the cases to which I have referred.  There are no mitigating factors relating to the offending to be taken into account.

[21]     As your counsel proposes, I adopt a starting point of 12 years’ imprisonment, as a fair reflection of the quantity and street value of the drug, what on the face of it is your limited role and the fact that there was only one importation.

Adjusting the Starting Point

[22]     I turn now to whether there are any factors relating to you personally which might serve to increase or reduce that starting point.   There are several that will

reduce it; none that will uplift it.

[23]     First, for reasons which have been agreed, a discount of 20 per cent is to be given and that will reduce the sentence to nine years, six months’ imprisonment.

[24]     Secondly, your lawyer has suggested other mitigating factors should be taken into account.   I can give these very limited weight only because personal factors count for less in drug offending than they might with other types of offending.[5]

[5] Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [12].

[25]     These factors are that in serving your sentence in New Zealand, you are away from your family and home and because of that overall prison is likely to be more difficult for you than for others.[6]   There is also the fact of course that your children are overseas and you are unlikely to see them for some time, the matter of your mother to which I have already referred and there are clear indications that you are remorseful.

[6] Sentencing Act 2002, s 8(h).

[26]     For these matters I propose to allow a further three month reduction, so as to reduce the starting point to nine years, three months’ imprisonment.

[27]     I then must also take into account your guilty plea.  The Crown accepts it is appropriate to allow you the maximum discount of 25 per cent because, although you did not plead guilty until 7 March 2012, it is clear that you accepted your guilt as soon as the offending was discovered.

[28]     This reduction takes your end sentence to seven years’ imprisonment.

Minimum Period of Imprisonment

[29]     Then we come to the third step which is to consider whether I should impose a minimum period of imprisonment.  For very good reason the Crown has asked that

I fix a minimum period of imprisonment, although your lawyer opposes this.

[30]     The considerations most relevant to the decision to impose a minimum period are  accountability,  denunciation,  deterrence  and  community  protection.[7]    The question the Court has to decide is whether, in this case, serving at least one third of the seven years will be sufficient to meet those purposes.

[7] Sentencing Act 2002, s 86(2).

[31]     The Crown says it will not be  sufficient because, although  you pose no continued risk to the community, the gravity and scale of your offending is such that serving only a third of the sentence before becoming eligible for parole will be insufficient.

[32]     The Crown has referred me to several other cases in which the Court has imposed substantial minimum periods of imprisonment.  To be fair, however, and as your counsel has pointed out, the offenders in those cases have tended to be more involved in the overseeing of the drug operation whereas in this case you boarded a flight with a suitcase and then engaged in some communications afterwards.

[33]     After giving this matter considerable thought I have decided that it is not necessary to impose a minimum period so as to achieve the purposes to which I have referred.  This was a single event, there is no risk of re-offending, the community is protected by the fact that you will be deported from New Zealand as soon as your sentence is completed and, as far as I can tell, you had a low level involvement.

Result

[34]     Mr Nevarez please stand:

(a)       on the charge of importing a Class A drug I sentence you to seven years’ imprisonment; and

(b)      on the charge of possession of a Class A drug for supply I sentence

you to seven years’ imprisonment, to be served concurrently.

[35]     That means your total sentence is seven years’ imprisonment.   There is no minimum period of imprisonment imposed.

[36]     Stand down.

..................................................................

M Peters J