R v Ogaz

Case [2007] NZCA 45 6 March 2007

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA180/06
[2007] NZCA 45
THE QUEEN
v
EDUARDO OGAZ
Hearing:12 February 2007

Court:Arnold, Panckhurst and Priestley JJ
Counsel:N G Cooke for Appellant

A Markham for the Crown

Judgment:6 March 2007 at 3 pm

JUDGMENT OF THE COURT

The appeal is allowed. The sentence of 15 and a half years is quashed and a sentence of 14 years substituted. The order for a minimum period of imprisonment of seven years, nine months is quashed and an order for a minimum period of imprisonment of seven years is substituted.
REASONS OF THE COURT
(Given by Arnold J)
Introduction
[1] The appellant was convicted following a jury trial on one count of importing a class A controlled drug and one charge of possession of a class A controlled drug for supply. The drug involved was cocaine. Asher J sentenced the appellant to a term of imprisonment of 15 and a half years and ordered that he serve a minimum period of imprisonment of 50%, ie, seven years, nine months.
[2] The appellant appeals against his sentence on the ground that it was manifestly excessive. Mr Cooke, who did not appear for the appellant at trial, advances two points in support of the appeal. He argues that the Judge erred in:
(a)His selection of the starting point, which reflected in particular the Judge’s assessment of the appellant’s level of involvement in the offending;
(b)Allowing an insufficient discount on account of the appellant’s personal circumstances.

We deal with each ground in turn.
Starting point
[3]       The appellant is a Chilean who also has Australian citizenship. The Judge summarised the factual background to his offending as follows:
[2]       The weight of the cocaine involved was 976 grams. In August 2004 the Australian Federal Police obtained a telephone interception warrant and intercepted private conversations between an Australian mobile phone number and persons in New Zealand and other parts. The Crown says that the person involved in all of the telephone calls was Mr Ogaz.
[3]       The conversations appeared to involve the consideration of the import of cocaine into New Zealand. The Australian Federal Police provided the New Zealand Police with summaries of the conversations. The conversations included instructions being given to unknown persons in Chile as to the best method of importing cocaine into New Zealand. Advice was given as to how to smuggle cocaine through Customs, and how the courier should carry the drugs. There is reference to “my people are all waiting” and other indications that the person speaking from Australia was an organiser. In the latter conversations details of an actual importation were refined, and these, to a considerable extent, reflected exactly what happened when on 6 September 2004 a courier carrying drugs, Ms Maldonado, arrived in New Zealand.

[4] One of the issues at trial was whether it was Mr Ogaz who was speaking on the intercepted telephone calls. The Judge said:
[4] An issue became apparent in the submissions of counsel prior to sentencing…

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 Ogaz

Details

AGLC: R v Ogaz [2007] NZCA 45
Case: [2007] NZCA 45
Decision Date: 6 March 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of R v Ogaz was heard, with the appellant challenging the severity of his sentence. The appellant, convicted of importing and possessing a class A controlled drug, namely cocaine, for supply, was sentenced to 15 and a half years imprisonment with a minimum period of seven years, nine months. The appeal focused on whether the sentence was manifestly excessive. The key issues for the court were the appropriateness of the starting point for sentencing and the discount for the appellant's personal circumstances.

The Court of Appeal considered the starting point adopted by the sentencing judge, which was 16 and a half years. They found that while the appellant's role in the drug operation was at a high level, it was not at the highest level. The amount of cocaine involved, though significant, was less than in other comparable cases. The Court of Appeal concluded that a starting point of 15 years was more appropriate. They also examined the discount for the appellant's personal circumstances, acknowledging the severity of his injuries and the hardship of imprisonment. The Court of Appeal upheld the sentencing judge's assessment that a one-year discount was appropriate.

The Court of Appeal allowed the appeal, substituting the sentence of 15 and a half years with a sentence of 14 years imprisonment, and reducing the minimum period of imprisonment from seven years, nine months to seven years.

Orders