R v Ogaz

[2007] NZCA 45

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 as to whether the person speaking from Australia was Mr Ogaz.  At the trial it was put strongly to the jury that this was not proven.  Evidence called by the Crown identifying Mr Ogaz’s voice was challenged.  I accept Mr Kaye’s submission that the guilty verdict of the jury did not in itself establish that it was Mr Ogaz that was the speaker.  There was sufficient evidence of what happened in New Zealand to warrant the jury’s verdict.  The point is an important one because the conversations show a high level of involvement on the part of the speaker.  This involvement is at a considerably higher level than that of a courier. 

[5]       Having received the memoranda of counsel I issued a Minute where I set out a tentative view and invited comment and gave counsel the opportunity to call evidence.  The tentative view that I expressed was that Mr Ogaz did have a lead role in organising the importation into New Zealand of the cocaine from the New Zealand end.  I will elaborate on this later in the sentencing notes, but at this stage I wish to record that I am satisfied beyond reasonable doubt that Mr Ogaz was the speaker in the intercepted Australian phone calls.  I base this on a number of factors which include the evidence identifying Mr Ogaz’s voice, what I heard myself of his voice, and the various references in the phone calls to names and other personal matters which indicated that it was Mr Ogaz that was speaking.

[5]       The Judge summarised the approach to sentencing in this class of case as follows:

[18]     The maximum period of imprisonment available on both charges is life imprisonment.  Given the high level at which Mr Ogaz operated, the purposes of sentencing set out in s 7 of the Sentencing Act 2002 to denounce the conduct of the offender and to deter the offender or other persons from committing the same or a similar offence, are of particular relevance.  The need for deterrence has been particularly emphasised by the Crown.  As to the principles of sentencing, the Court must take into account the gravity of the offending and the seriousness of this type of offence.  It must also take into account the general desirability of consistency.  Mr Kaye has emphasised that the Court must impose the least restrictive outcome that is appropriate in the circumstances.

[6]       The Judge adopted a starting point of 16 and a half years imprisonment.  Besides taking account of the seriousness of this type of offending and the need to deter, the Judge emphasised three factors, namely:

(a)The amount of cocaine involved in the offending;

(b)The appellant’s role in the offending, which the Judge assessed to be at a high level but not at the highest level;

(c)The totality principle, to reflect the fact that the appellant was convicted of possession for supply as well as importation.

The Judge also acknowledged the desirability of consistency with the sentence imposed on the courier, Ms Maldonado.

[7]       Mr Cooke challenged the starting point adopted.  He submitted that the Judge’s assessment of the appellant’s level of involvement in the drug operation turned largely on conversations intercepted by the Police and played to the Court.  These conversations were in Spanish.  Mr Cooke submitted that as the conversations were in Spanish and Spanish is not the Judge’s native language, there was a significant risk of mis-attribution. 

[8]       We reject this submission for two reasons.

[9]       First, in concluding that the voice on the intercepted telephone calls was that of the appellant, the Judge did not rely simply on his comparison of the voice on the intercepted calls with that of Mr Ogaz.  The Judge also relied on various references in the phone calls to names and other personal matters which indicated that it was Mr Ogaz who was speaking.  Ms Markham identified for us some of the circumstantial matters to which the Judge was referring.  We have no doubt that they amply justified his conclusion.

[10]     Second, as noted at [5] of the sentencing notes (see [4] above), the Judge issued a minute in which he expressed his tentative view of the degree of involvement of the appellant and gave counsel the opportunity to comment, and call evidence, on that issue.  The appellant’s trial counsel, a very experienced criminal barrister, did not take up that opportunity, presumably because he considered that the Judge’s conclusion was, in the circumstances, inevitable.

[11]     This does not resolve this aspect of the appeal, however.  The general issue of the appropriate starting point remains.

[12]     This Court has not given a recent guideline judgment involving class A drugs other than methamphetamine.  In R v Fatu [2006] 2 NZLR 72 the Court emphasised that the guidelines provided in that judgment applied only to offending involving methamphetamine (at [46]). In R v Murphy CA198/05 23 November 2005 the Court noted that the question whether sentencing levels for cocaine and methamphetamine offending should align exactly was a question that has not been resolved (at [25]). 

[13]     We will not attempt to resolve that issue in this judgment.  Rather, we will refer to several recent judgments of this Court which have considered individual sentences imposed on those involved in cocaine offending.  We begin with R v Davis CA440/04 20 October 2005.

[14]     Mr Davis pleaded guilty to counts of having in his possession a class A controlled drug, namely cocaine, for the purpose of supply, and of conspiring to export a class A controlled drug, namely cocaine, from New Zealand.  A courier had brought almost 2.9 kilograms of cocaine (80% purity) into New Zealand.  Mr Davis, an Australian living in Sydney, came to New Zealand to oversee the collection of the cocaine and to arrange its delivery in Australia.  The sentencing Judge adopted a starting point of ten years, which he discounted to reflect an early guilty plea, a previous good record and evident remorse.  The Judge imposed an end sentence of seven years, with no minimum term.  The Solicitor-General appealed.

[15]     This Court allowed the Solicitor-General’s appeal.  The Court said:

[66]     Overall this was a well-planned and carefully orchestrated activity.  We do not accept that Mr Davis was only a courier.  He was, on his own admission, a recruiter.  The other participants did not progress matters until he arrived and the inevitable conclusion is that Mr Davis was the supervisor within New Zealand.  He also had contact with those further up the chain.

[67]      We are mindful that this is a Solicitor-General’s appeal and that any alteration we make must be influenced accordingly.  We are satisfied that a starting point of less than 13 or 14 years could never have been justified.  That is not to suggest that Mr Davis was at the top of the pyramid or the mastermind, but he was a very vital component in an international enterprise.  It is clearly of importance that New Zealand does not become viewed as a “soft touch” for the transit of illicit drugs or as an ultimate destination for an importer. 

[16]     Given the context of a Solicitor-General’s appeal, the starting point of 13–14 years must be regarded as being the lowest starting point that could reasonably be justified.

[17]     The next case is R v Ali CA371/05 20 June 2006.  Mr Ali, an Australian national, came to New Zealand and, together with a Mr Cai and other associates, rented a large number of Post Office boxes in the Auckland area.  Shortly after, over 250 envelopes were dispatched from Canada to these various Post Office boxes.  Each of the envelopes contained approximately ten grams of cocaine.  Mr Ali and his associates began to clear the boxes.

[18]     The police became aware of the importations and arrested Mr Ali and two of his associates including Mr Cai.  They recovered over 2.5 kilograms of cocaine from the post office boxes.  Mr Ali entered guilty pleas on the second day of trial to charges of importing cocaine into New Zealand and possession of cocaine for the purposes of supply.  Mr Cai was convicted at trial of the same offences. The sentencing Judge adopted a starting point of 15 years for both Mr Ali and Mr Cai.  The Judge gave Mr Ali a discount of one year to reflect his plea of guilty, the absence of previous convictions and the fact that he would be serving a sentence away from his own country and family.

[19]     On Mr Ali’s appeal against sentence this Court noted that in R v Davis, the Court had referred with approval to the following comments of Chambers J in R v Wickramasinghe HC AK TO13408 28 March 2003:

[21]     Those in that top level who are involved in the importation of class A controlled drugs can expect sentences in the range of 16 to 18 years.  That is clear from cases which I have considered such as R v Curtis [1980] 1 NZLR 406 (CA), R v Stanaway [1997] 3 NZLR 129 (CA), R v Liava’a CA175/98 17 August 1998, and R v Lay HC NAP TO20099 27 September 2002.  Those involved right at the top and in very large importations can expect sentences above the 18 years. Indeed, of course, under the Sentencing Act, those whose offences are within the most serious of cases for which the penalty is prescribed, can expect the maximum penalty, namely life imprisonment: see s (8)(c).

[22]     In this category, the quantity of the drug imported and its value will be of prime importance.  That is for two main reasons.  First, the masterminds and prime movers will know exactly how large the importation is.  Secondly, because of their position, one can assume that they themselves will be rewarded by the fruits of the importation.  The greater the quantities imported, the greater the rewards are likely to be for them.

[23]     There is a second category of drug importer: the person who is a crucial player in the importation but who is not the instigator, mastermind, prime mover or controller.  This category was, I think, well described by Robertson J in his sentencing remarks in R v Lam HC AK T982692 6 July 1999. He described those in this group as being ‘of prime importance but not as part of the planning nor part of the mastering of the activity, but nonetheless [having] an involvement which was of critical importance’: p 4. As Robertson J said, the reality is that, without people willing and able to carry out these lesser roles, the enterprise could not be brought to fruition.

[24]     In this category, the quantity of drugs imported, while nonetheless of significance, is not quite as important as in the first category.  This is because these people do not necessarily know how much drug they are importing.  Nor are they necessarily paid from the fruits of the importation.  More likely, they will be paid a fee.

[25]     The starting point for people in this category involved in class A importation would appear to be in the range of 12 to 13 years.  Of course, these starting points are not fixed and there will be a blurring at the edges.  Some people will come between the role of courier/collector and mastermind.  The starting point for them will normally fall somewhere in the 13 to 16 year range.

[20]     The Court said that Mr Ali was a person who fell between the role of a courier/collector and that of a mastermind.  However, while he played a significant role and his involvement was greater than that of a courier, he was paid a fee rather than sharing in the profits of the enterprise. The Court considered that Mr Cai had played a greater role in the offending than Mr Ali.  The Court decided that the end sentence of 14 years was excessive “given the relative roles of Mr Cai and Mr Ali and the mitigating factors identified” (at [26]).  The Court concluded that the appropriate end sentence for Mr Ali was a term of 12 years.  While the Court did not specify its starting point, it was presumably around 14 years.

[21]     Mr Cai also appealed against sentence (R v Cai CA357/05 17 November 2006).  The sole issue in the appeal was the starting point of 15 years.  The Court concluded that on the evidence an inference could be drawn that Mr Cai was senior to Mr Ali in the drug ring hierarchy (at [16]).  That was strengthened by the information available to the Judge on sentencing, which showed that Mr Cai, unlike Mr Ali, had previous drug-related convictions.  Accordingly the Court found that the starting point of 15 years was not manifestly excessive.

[22]     Finally we refer to R v Tshisa CA507/05 31 August 2006.  Mr Tshisa entered guilty pleas to one representative count of importing cocaine into New Zealand, four counts of exporting cocaine from New Zealand and one count of importing methamphetamine.  The total amount of cocaine involved was over two kilograms and it had a street value of between $2 million and $3.64 million.  The sentencing Judge found that Mr Tshisa was the prime mover in New Zealand, with clear links to those despatching the drugs from overseas.   He adopted a starting point of 17 years for the cocaine offending and allowed a deduction of four years to reflect Mr Tshisa’s guilty plea and his expressions of remorse.  Accordingly, the end sentence for the cocaine offending was 13 years.

[23]     On appeal this Court referred to the decision in R v Liava’a CA175/98 17 August 1998, a case involving cocaine offending.  There the Court said (at 4):

When comparing different Class A drugs for sentencing purposes, care is needed in relation to the basis of such comparison.  While the case may be such that no general distinction can properly be made between the heroin and cocaine, weight or volume must be considered in light of how particular drugs and formulations of them are administered, purity, potency and the like.  Value, if capable of accurate assessment, generally could be expected to reflect those factors, but experience has shown how difficult it is to obtain reliable values for quantities of narcotics.  And in all cases the circumstances of the offending are to be considered.

We take the view that the Judge was right when he regarded the decisions to date as indicating a top level for Class A drug offending on a large commercial scale in the vicinity of 17 – 18 years.  In the course of argument Mr France accepted that to be the case.  No doubt, in cases having features of grave aggravation even higher sentences will be open and will attract even the maximum of life imprisonment as has already occurred with some repeat offenders, but we are not here concerned with such a case.

[24]     The Court in Tsihsa accepted that the starting point of 17 years was clearly available to the sentencing Judge (at [21] and following).

[25]     The conclusion which we draw from these cases is that the starting point adopted by Asher J of 16 and a half years was excessive in the circumstances of the present case.  We accept that the Judge was entitled to characterise the appellant’s role as being “at a high level, but not at the highest level”.  However, the amount of cocaine involved in the present case, while commercially very significant, was less than half of the amounts involved in Davis, Ali, Cai and Tshisa, where the starting points were generally in the range 14‑17 years.   We consider that the appropriate starting point in this case was 15 years.

The appellant’s personal circumstances

[26]     Mr Cooke accepted that personal circumstances have little relevance in relation to sentencing in drug cases.  He argued, however, that this Court has recognised that where “due to medical condition or disability, prison would constitute a more severe penalty for the particular offender, some leniency may be shown in sentencing” (R v Verschaffelt [2002] 3 NZLR 772 at [22]). Mr Cooke said that the appellant faced hardship in this case because he had suffered a severe beating while remanded in custody pre-trial, to such an extent that he required hospitalisation and reconstructive surgery to his head and face. This included the insertion of metal plates. Following his release from hospital he was transferred to a segregated unit, where he will remain for the duration of his sentence. Mr Cooke sought a greater recognition of this in the discount applied to the starting point.

[27]     Asher J acknowledged that the term of imprisonment which he imposed would be “hard” for the appellant, and reduced the sentence by one year to reflect the appellant’s personal circumstances.  

[28]     We agree with the Judge’s assessment that imprisonment will be hard for the appellant.  The appellant suffered a severe beating while on remand, which left him with significant injuries.  As a consequence he faces a long term of imprisonment in segregation.  While the appellant and his family did live in Australia for a period, the appellant’s native language is Spanish and it seems likely that he will have some language difficulties while in prison.  In addition, given that his wife and children live overseas and are impoverished it seems unlikely that he will receive visits from family or friends.  Overall, then, the appellant is likely to face greater than usual isolation as a result of his imprisonment. 

[29]     The fact that an offender is a foreign national who does not reside in New Zealand and is not a native English speaker will not normally justify a greater discount than would otherwise apply.  Incarceration in a foreign country, with all that that entails, is a risk that those involved in illicit international drug operations face.  Similarly, the fact that an offender has been assaulted while remanded in custody, while abhorrent, will not normally justify a greater than usual discount. 

[30]     However, we consider that the Judge was right to allow a discount to reflect the appellant’s personal circumstances in this particular case.  We agree with the Judge that the appropriate figure is one year.

Decision

[31]     We allow the appeal.  We quash the sentence of 15 and a half years imprisonment, and substitute a sentence of 14 years imprisonment.  The minimum period of imprisonment imposed is correspondingly reduced from seven years, nine months to seven years.

Solicitors:

Crown Law Office, Wellington