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 katie.hogan@meredithconnell.co.nz / justin.wall@meredithconnell.co.nz

Public Defence Service, Auckland annabel.maxwell-scott@justice.govt.nz

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…

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 Nevarez

Details

AGLC: R v Nevarez [2012] NZHC 1566
Case: [2012] NZHC 1566
Decision Date: 3 July 2012

CaseChat Overview and Summary

In the case of R v Nevarez, the defendant, David Negrete Nevarez, was sentenced on two charges: importing a Class A drug (cocaine) and possession of a Class A drug for supply (cocaine). Nevarez had pleaded guilty to both offences which occurred on 13 December 2011. Each offence carried a maximum penalty of life imprisonment. The central legal issue the court had to address was determining an appropriate sentence for Nevarez, considering the gravity of the offences and mitigating personal factors.

The court began by establishing a starting point for the sentence, which had to account for the harm caused by drug importation, the need to deter similar conduct, and consistency with other similar cases. The Crown argued for a starting point of 13 to 14 years, considering Nevarez's role beyond that of a mere courier. The defence countered that a starting point of 12 years was appropriate, given the absence of evidence showing Nevarez's involvement beyond being a courier. After reviewing relevant cases and considering the quantity and purity of the cocaine, the court settled on a starting point of 12 years. The court further adjusted the starting point downward based on personal mitigating factors, such as Nevarez's remorse, his status as a first-time offender in New Zealand, and the distress caused by his separation from his family and the recent death of his mother. These factors, along with a 25% reduction for his guilty plea, reduced the sentence to seven years.

Ultimately, the court decided against imposing a minimum period of imprisonment. The decision was based on the fact that Nevarez posed no continued risk to the community, there was no risk of re-offending, and he would be deported upon completion of his sentence. The court concluded that these factors sufficiently met the purposes of accountability, denunciation, deterrence, and community protection without the need for a minimum term. Nevarez was sentenced to seven years' imprisonment on each charge, to be served concurrently, with no minimum period of imprisonment.

Orders