Romero v The Queen

Case [2020] NZHC 2740


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…

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Romero v The Queen [2020] NZHC 2740
Case
[2020] NZHC 2740
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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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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