R v Ospina - [2024] NZHC 1817

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-009-8205

[2024] NZHC 1817

THE KING

v

FELIPE MONTOYA OSPINA

Hearing: 4 July 2024

Appearances:

B Hawes and A M Harvey for Crown

P H B Hall KC and E Huda for Defendant

Judgment:

4 July 2024

SENTENCING REMARKS OF MANDER J

Introduction

[1] Felipe Montoya Ospina, you are for sentence having pleaded guilty to representative charges of importing the Class A drug cocaine,1 attempting to import cocaine2 and supplying the Class A drug cocaine.3 You have also pleaded guilty to charges of offering to supply that drug4 and participating in an organised criminal group.5

1      Misuse of Drugs Act 1975, s 6(1)(a) — maximum penalty life imprisonment.
2      Section 6(1)(a); and Crimes Act 1961, ss 66, 72 and 311 — maximum penalty 10 years’ imprisonment.
3      Misuse of Drugs Act, s 6(1)(c) and (2) — maximum penalty life imprisonment.
4      Section 6(1)(c) and (2) — maximum penalty life imprisonment.
5      Crimes Act, s 98A — maximum penalty 10 years’ imprisonment.

R v OSPINA [2024] NZHC 1817 [4 July 2024]

The offending

[2] You are 37 years old. You grew up in Colombia but say you came to New Zealand to experience the lifestyle of being outdoors, rather than what you described as the “city life” of Colombia. You arrived in New Zealand from Sydney in June 2016. You were initially issued a visitor visa, later a working visa and undertook agricultural work in rural Canterbury. Finding that work isolating, you reached out to a Latina community group to establish some connections. You say that, through that pathway, you became acquainted with members of the drug syndicate.

[3] Your offending arises out of a significant police investigation into the importation of cocaine into this country from South America. It involved international co-operation with Colombian and Spanish Police, and American drug enforcement authorities. The drug syndicate operated from at least January 2018 to December 2021 and used farm workers, such as yourself, as “cover”. It is estimated 42.5 kilograms of cocaine with a street price of over $19,000,000 was imported into New Zealand. A further 59.1 kilograms of cocaine with a street value of more than $26,000,000 was also intercepted.

[4] One of your co-defendants has been identified as leading this operation. He had contacts within an overseas drug cartel and you have been identified as one of this person’s close associates. You are described as a senior member of the syndicate. You were involved in the importation and attempted importation of cocaine into New Zealand and personally supplied cocaine to other members of the organised criminal group based in Auckland. Your home address included an area specifically for deconstructing packaged items in which cocaine was imported. You were a trusted member of the syndicate who received packages of cocaine and was in charge of the deconstruction of those packages. However, you had limited, if any, contact with the overseas suppliers.

[5] Your offending…

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 Ospina

Details

AGLC: R v Ospina [2024] NZHC 1817
Case: [2024] NZHC 1817
Decision Date: 4 July 2024

CaseChat Overview and Summary

Felipe Montoya Ospina was sentenced in the High Court of New Zealand for multiple drug-related charges, including importing and attempting to import cocaine, supplying cocaine, offering to supply cocaine, and participating in an organised criminal group. Ospina, a Colombian national, had been involved in a significant drug importation operation from South America to New Zealand between 2018 and 2021. The court needed to determine an appropriate sentence that reflected the seriousness of Ospina's involvement in the syndicate, the quantity of drugs involved, and his culpability, while also considering mitigating factors.

The court assessed Ospina's culpability based on the quantity of cocaine involved and his role within the syndicate. Ospina was considered a senior member who played a significant role in the importation and deconstruction of cocaine packages. The court found his primary motivation to be financial gain, despite his claims of drug addiction. The court compared Ospina's case to other similar cases to determine a starting point for sentencing, ultimately deciding on 19 years and six months’ imprisonment, with an uplift of 18 months for the attempted importation charges. After applying discounts for Ospina's guilty plea, the hardship of imprisonment for a foreign national, and his rehabilitative potential, the court arrived at a final sentence of 14 years and seven months’ imprisonment. The court also ordered the forfeiture of items related to Ospina's offending.

Orders