IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2020-485-055
[2020] NZHC 2740
BETWEEN
JUAN SEBASTIAN GALICIA ROMERO
First Appellant
AND
THE QUEEN
Respondent
CRI-2020-485-057
BETWEEN
ARLEY ANDRES NARVÁEZ CHAMORRO
Second Appellant
AND
THE QUEEN
Respondent
Hearing:
3 September 2020 (submissions 25 September 2020)
Appearances:
J Miller for the First Appellant (Galicia Romero)
B Crowley for the Second Appellant (Narváez Chamorro) A D H Colley for the Crown
Judgment:
19 October 2020
JUDGMENT OF GRICE J
(Appeal against sentence)
Contents
Disputed facts[9]
Sentencing decision[15]
Mr Narváez Chamorro[15]
Mr Galicia Romero[15]
Analysis[31] Should duress should have led to a reduction in the starting point?[38]
Cross checks[43]
Error in facts relied upon[44]
Mr Narváez Chamorro[58]
The application of Moses[61]
GALICIA ROMERO v R [2020] NZHC 2740 [16 October 2020]
[1] This involves two appeals. The first is Mr Narváez Chamorro. The second is Mr Galicia Romero. They were charged, along with a third defendant, Mr Hemant Patel, with supplying,1 selling,2 and possession of a class A controlled drug (cocaine) for supply.3 Mr Narváez Chamorro was also charged with carrying an imitation firearm with criminal intent.4 The offending occurred in 2017. Both men accepted their sentence indications and pleaded guilty on 25 January 2019.
[2] The starting points adopted by the Judge were 10 years’ imprisonment for Mr Narváez Chamorro and eight and a half years for Mr Galicia Romero. The final sentences were four years and 10 months for Mr Narváez Chamorro and three years and six months’ imprisonment for Mr Galicia Romero.
[3] The appellants first argued that the resulting end sentences were manifestly unjust due to the starting points being too high. A further issue arose in the course of the hearing relating to the application of Moses v R.5
[4]The background is set out in the sentencing notes as follows:6
[1] Mr Narvaez Chamorro you are now 41 and indeed, as I have acknowledged earlier, today is your birthday. Mr Galicia Romero you are 23.
[2] You are both Colombian nationals who came to New Zealand as refugees. Mr Narvaez Chamorro in 2011 and Mr Galicia Romero in 2017, although you had been here for six months in 2015 doing an English language course.
[3] You were jointly charged along with another person Hemant Patel, a Malaysian national, with supplying cocaine, a class A controlled drug, with selling it to an undercover police officer and with possession of cocaine for supply. The offending occurred in early December 2017. Each of the charges is serious and carries a maximum penalty of life imprisonment.
[4] The sentence indication I gave was quite detailed but it is important to go over the key aspects of it. Mr Patel arrived in Wellington from Malaysia on 2 December 2017 from Singapore and he was met at the airport by you
1 Misuse of Drugs Act 1975, s 6(1)(c); and Crimes Act 1961, s 66; maximum penalty of life imprisonment.
2 Misuse of Drugs…
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.
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Details
AGLC
Romero v The Queen [2020] NZHC 2740
Case
[2020] NZHC 2740
Decision Date
CaseChat Overview and Summary
The High Court of New Zealand heard appeals against sentence from two Colombian nationals, Mr Narváez Chamorro and Mr Galicia Romero, who had been convicted of drug supply and possession offences. The appellants argued that the District Court judge had erred in setting the starting points for their respective sentences, and that the final sentences were manifestly unjust. The Crown submitted that the District Court had correctly set the starting points and that any adjustments would result in manifestly inadequate sentences. The appeals raised the issue of how to apply sentencing discounts in the light of a recent Court of Appeal decision, Moses v R. The Court held that while the starting points for Mr Narváez Chamorro had been appropriately set, those for Mr Galicia Romero had been based on an incorrect factual assumption and should be reduced. The Court also held that it was appropriate to apply the new Moses methodology to both appellants' sentences, which resulted in a reduction in the final sentences for both. In the case of Mr Galicia Romero, the reduced sentence was sufficiently low to warrant a substitution of home detention. The appeal against sentence was allowed and Mr Galicia Romero's sentence was substituted with eight and a half months' home detention. Mr Narváez Chamorro's sentence was reduced to three and a half years' imprisonment.