R v Ochante

[2025] NZHC 624

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE

CRI-2023-004-8430

[2025] NZHC 624

THE KING

v

PEDRO DEL CARPIO OCHANTE

Hearing:	24 March 2025 (at Hamilton)
Appearances:	A Pollett and T Taane for Crown W T Nabney for Defendant
Sentence:	24 March 2025

SENTENCING REMARKS OF LANG J

Solicitors/counsel:

Pollett Legal, Crown Solicitor, Tauranga W T Nabney, Tauranga

R v DEL CARPIO OCHANTE [2025] NZHC 624 [24 March 2025]

[1]        Mr Del Carpio Orchante, you appear for sentence having pleaded guilty to a charge of importing 13 kilograms of the Class A controlled drug cocaine into New Zealand. The maximum sentence for this offence is life imprisonment.1

[2]        I record that I have declined an application by the Crown to amend the particulars in the Crown Charge Notice so that they refer to 15.49 kilograms of cocaine rather than 13 kilograms as was previously the case. You entered your guilty plea on the basis of a charge and summary of facts, both of which referred to 13 kilograms of cocaine. I consider you should be sentenced on that basis. However, in practical terms the difference between the two quantities is immaterial.

Background

[3]        The summary of facts records that you are 43 years of age and are a Peruvian national. You were a crew member on a container vessel that berthed at the Port of Tauranga on 16 January 2024. The vessel had originally sailed from Panama.

[4]        In the early hours of 17 January 2024, you were stopped at the gate of the port when you attempted to leave the port premises on foot. The security staff at the entrance gate were suspicious of the clothing you were wearing and they contacted Customs officials. When they arrived, you admitted to being in possession of drugs that were strapped to your body. You were to deliver these to persons who were to be waiting nearby.

[5]        When the Customs officers searched you, they found four one-kilogram bricks of cocaine strapped to your body. You were also in possession of a cellphone.

[6]        Later the same day, the Customs officers executed a search warrant on the cabin you occupied on the vessel. There they located nine further bricks of cocaine together with two mobile phones. When the Customs officers subsequently spoke to you about your offending, you told them that your family was in grave danger from persons connected with the importation.

1      Section 6(2)(a).

[7]        You said the cocaine that you imported was originally destined for Australia. However, the vessel was unable to berth in Brisbane and you were then instructed to bring the drugs ashore when the vessel arrived in Tauranga. You have pleaded guilty on the basis that you proposed to carry all 13 bricks of cocaine ashore in Tauranga.

Starting point

[8]        The first step in the sentencing process is to select a starting point for the sentence to be imposed on you. This is the sentence that reflects the offending but does not take into account characteristics personal to you.

[9]        There is no guideline judgment to assist me in fixing the starting point to be selected for the charge to which you have pleaded guilty.2 However, the principles identified by the New Zealand Court of Appeal in a case called Zhang v R provide some assistance.3 That case applies to offending involving the possession and supply of methamphetamine. In cases that involve cocaine, the Courts have held that the starting point should be slightly less than that for comparable offending involving methamphetamine.4

[10]      The fact that you were in possession of 13 kilograms of cocaine is obviously significant. Had you been importing methamphetamine, your offending would have fallen within the most serious band identified in Zhang. That band applies to offending when more than two kilograms of methamphetamine is involved. Offending within this band will attract a starting point of between 10 years and life imprisonment.

[11]      In another case called Berkland v R the New Zealand Supreme Court emphasised that the role played by an offender is also of considerable importance.5 You did not own the cocaine that was in your possession. Rather, you were acting as a carrier, or “mule”, for persons higher in the organisation who stood to benefit financially from the importation. Text messaging suggests that you were only to receive the sum of $1,500 for the role you played. You said from the outset that you

2      Wilk v R [2020] NZCA 172 at [27].

3      Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.

4      Cavallo v R [2022] NZCA 276 at [63].

5      Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [65]–[71].

were acting not for financial gain but because of threats made to your family. This explanation derives some support from material you have provided at sentencing. However, the Courts in New Zealand must be careful not to provide an incentive to criminal organisations to make threats against persons such as you. As the Crown submits, New Zealand should not be seen as a “soft touch” for drug cartels. I treat your offending as being much less serious than others higher up in the organisation. However, you still played a very important role. You were an essential link in the chain by which the drugs were to be imported into New Zealand. The drugs would have remained on the vessel but for your preparedness to bring them ashore in New Zealand. Taking these factors into account, I view your offending as being at the lower end of the “lesser” role identified in Berkland.

[12]      The Crown contends that a starting point of 12 to 13 years’ imprisonment is appropriate. Your counsel submits that a starting point of no more than ten years’ imprisonment is justified. Both counsel have referred to other sentencing cases in support of their respective arguments.6 Of these, I consider a case called R v Bonilla Casanas v R to be the most comparable.7 That case involved the importation of 12.9 kilograms of cocaine into New Zealand. A starting point of 11 and a half years imprisonment was selected. However, there is no suggestion in that case that the offender was coerced into the offending. Having regard to the role you played I consider a starting point of eleven years imprisonment is justified.

Aggravating factors

[13]      You have no previous convictions and no increase in sentence could therefore be justified to reflect previous convictions.

Mitigating factors

[14]      Both counsel agree, however, that you are entitled to credit for several mitigating factors. The Crown accepts that you are entitled to a discount of 33 months, or 25 per cent, 33 months or 25 per cent, to reflect your guilty plea.

6      De Macedo v R [2020] NZCA 132; R v Bonilla Casanas [2024] NZHC 1814 and Cook v R [2020] NZCA 469.

7      De Macedo v R, above n 7.

[15]      You are also entitled to credit for the fact that have never been convicted of criminal offending in the past and you are now 43 years of age. You have also expressed remorse for your acts. I would allow a discount of nine months to reflect these factors.

[16]      Both counsel also acknowledge you will find it more difficult to serve a sentence of imprisonment in New Zealand than would otherwise be the case. You will be serving the sentence in a country that is foreign to you and with which you have no meaningful connection. English is not your first language and you will find it more difficult than other prisoners to communicate with those around you. I propose to apply a further discount of six months to reflect this factor.

[17]      These discounts total 48 months, or four years. They reduce the sentence to one of seven years’ imprisonment.

Sentence

[18]      On the charge of importing cocaine you are sentenced to seven years’ imprisonment. No minimum term of imprisonment is sought by the Crown. You will be deported to your country of origin once you have served your sentence. It will be for the parole authorities to determine when that should be.

Lang J