Romero v The Queen
[2020] NZHC 2740
•19 October 2020
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 Act 1975, ss 6(1)(c) and (2)(a); and Crimes Act 1961, s 66; maximum penalty of life imprisonment.
3 Misuse of Drugs Act 1975, ss 6(1)(f) and (2)(a); and Crimes Act 1961, s 66; maximum penalty of life imprisonment.
4 Arms Act 1983, s 55(1); maximum penalty of five years’ imprisonment.
5 Moses v R [2020] NZCA 296.
6 R v Galicia Romero [2020] NZDC 12147 at [1]–[12].
Mr Galicia Romero. He stayed with you in Lower Hutt until you were all apprehended on 6 December.
[5] On 4 December Mr Patel arranged to meet a person who turned out to be an undercover police officer in Central Wellington to provide a sample of cocaine ahead of an intended sale. You two drove Mr Patel to that meeting which occurred at 10.30 am in a carpark in Tory Street. There Mr Patel supplied the officer with two snap lock bags, the first of which contained 805 milligrams of cocaine at a purity of 64 percent and the second one contained 678 micrograms at the same purity. Mr Patel offered to supply the officer with a kilogram of cocaine which he had available and a further two kilograms the following week. You two then drove back to Lower Hutt.
[6] Mr Patel had discussions with the officer that afternoon about the price for supply one kilogram of cocaine and an arrangement was made to meet the officer to supply or to sell it to him in a public carpark in Petone.
[7]Mr Galicia Romero, you drove him to that meeting which occurred at
11.30 am on 5 December. An agreement was reached that the price would be NZ$195,000 per kilogram. My understanding at the sentence indication hearing was that one kilogram of cocaine has a street value in New Zealand of somewhere between $300, 000 and $500,000.
[8] An arrangement was made to meet back at the same carpark the next day to complete the transaction. On 6 December then Mr Galicia Romero, you drove in your car with Mr Patel and you went to Mr Narvaez Chamorro’s address to pick him up, and all three of you drove to the carpark and the meeting occurred at about 1.00 pm.
[9] Two bags, each containing about 500 grams of cocaine, so about one kilogram in total were handed over in return for the $195,000. The purity of the first half kilogram or so was 63 percent and the second 72 percent.
[10] Mr Narvaez Chamorro you stayed in the car but you did have on the front of your pants a starting pistol which while not capable of firing a projectile was loaded with blank ammunition. It was imitation firearm. Later a search warrant was executed at your garage and the police there found a further 329 grams of cocaine with a purity of 58 percent. Nothing was found on the search warrant executed at Mr Galicia Romero’s place.
[11]So in summary the total cocaine seized by the police was
1.329 kilograms of cut cocaine. In terms of pure cocaine that equated to 873 grams.
[12] The Crown case at the sentence indication hearing was that Mr Patel was the lead offender but that you were both crucial parties or players in the whole exercise and legally parties to what he had done and was doing throughout the process.
[5] The Judge then refers to Mr Narváez Chamorro remaining in the car on 6 December 2017. The implication is that when Mr Patel went to carry out the drug
transaction with the undercover policeman Mr Galicia Romero accompanied Mr Patel and so, was present during the transaction.7
[6] The summary of facts supported the Judge’s assumption that Mr Galicia Romero accompanied Mr Patel. It says:
Upon arriving at the carpark in Petone, the defendant PATEL got out of the defendant GALICIA ROMERO’s car and walked to the special duties constable’s vehicle carrying a leather bag. He was followed by the defendant, GALICIA ROMERO, while the defendant, NARVAEZ CHAMORRO remained in the vehicle.
[7] What the statement of facts did not say, which is now apparently common ground, is that while Mr Galicia Romero did leave the car at the same time as Mr Patel he headed to a shop, The Warehouse, in the vicinity of the Petone carpark and went into the shop. Therefore, he did not accompany Mr Patel, nor was he present at the time of the drug transaction.
[8] A sentence indication had been given to both the appellants by the Judge. Following the sentence indication, a dispute arose as to the facts. This related to the duress claimed to have been exerted by a Colombian drug cartel which had threatened the appellants’ families in Colombia and extorted money from Mr Narváez Chamorro. For various reasons the disputed facts hearing did not proceed. However, the Judge was familiar with the material relied on by the appellants to support the claims of duress as he had presided over a defended hearing dealing with the burden of proof applicable in the defended facts hearing.8
Disputed facts
[9] The Judge concluded that police had the burden of proof on the defended facts. This was because the disputed facts directly related to the state of mind and the degree of voluntariness of the defendants at the time of their offending on 4 and 6 December 2017. The facts related to the nature of the offence and to the parts that
7 R v Galicia Romero [2020] NZDC 12147 at [13].
8 The hearing took two days and a reserved judgment was delivered on 21 August 2019: R v Narvaez Chamorro [2019] NZDC 16244.
the appellants played in the offending. Therefore, the Crown was required to negate this beyond reasonable doubt. The Judge concluded:9
[69] Accordingly, I conclude that the Crown is required under s 24(2)(c) to negate the disputed mitigating facts relating to duress which had been raised by each of the defendants, it having properly concluded that they are not wholly implausible or manifestly false.
[10] On 21 August 2019 the Judge delivered his judgment under s 24 of the Sentencing Act 2002 in which he said that “if the disputed facts relating to duress were found to exist then a further 20 percent discount from the end points that I had mentioned at sentence indication would be applied because of the duress, the coercion under which you offended”.10
[11]The disputed facts hearing was then set down to commence on 29 June 2020.
However, it did not proceed. The Judge, in his sentencing notes said:11
[24] The disputed facts hearing was set down for a week beginning today and affidavit evidence was gathered by the Crown in response to the evidence you have put before the Court previously. However, in a memorandum on 12 May 2020 Mr Britton said that the combination of the reality of what the 20 percent discount would mean for the time you would actually serve in prison taking into account the potential that you would be paroled after one-third of your sentences, particularly as first offenders, and the practical issues that were associated with convening the disputed facts hearing in the COVID-19 environment in which we are all now living, meant that the Crown was prepared to have the sentencing proceed on the basis that the 20 percent duress discount was applied.
[25] Mr Britton, however, expressly noted that the Crown continued to dispute the presence of that mitigating factor and the facts lying behind it and asked me to record, as I am doing here, that the Crown was willing to proceed to sentencing for those realistic and practical reasons in challenging times but without formally making any concession.
[26] So, what I am going to do today is to apply that further 20 percent discount to each of your sentences.
[12] The defendants now say the Crown “abandoned” the disputed facts hearing. Mr Miller, for Mr Galicia Romero, says that the issues that were to be the subject of the disputed facts hearing should be taken as established in favour of the appellants given the Crown did not pursue the hearing.
9 R v Narvaez Chamorro, above n 8 at [69].
10 R v Galicia Romero, above n 6 at [21]; referring to R v Chamorro, above n 8.
11 R v Galicia Romero, above n 6 at [24]–[26].
[13] Mr Miller also submits that his client’s lesser role in the offending, as apparent from the affidavit evidence filed in support of the disputed facts hearing, was not sufficiently taken into account by the Judge. In addition, both counsel emphasised the nature of the duress under which the appellants acted and said that factor should reduce the starting point further.
[14]The Judge had applied the 20 per cent discount commenting:12
[40] It is important, I think, to note the context in which this sentencing is happening. It is not following a disputed facts hearing as to role, it is not following a trial. It is following a sentence indication which you accepted and a summary of facts which lay behind that. What has changed since does not include the facts as to what happened and what your roles were. What has changed is the evidence available about duress, which I am going to fully recognise in your favour, and the fact the Court of Appeal has issued the Zhangcase.13
Sentencing decision
[15] In the sentencing indication on 7 November 2018 the Judge had set out his approach in relation to the respective defendants as follows:
Mr Narváez Chamorro
(a)A starting point of 10 years’ imprisonment to recognise that he was a “crucial player” supporting Mr Patel. Mr Narváez Chamorro provided local assistance and possessed a firearm (although it was an imitation). He was considerably older than Mr Galicia Romero and further cocaine was found at his garage.
(b)A 30 per cent discount would be given to recognise Mr Narváez Chamorro’s previous good character (having no previous convictions) and intended guilty plea.
(c)An indicated end sentence of seven years’ imprisonment.
12 R v Galicia Romero, above n 6, at [40].
13 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
Mr Galicia Romero
(a)A starting point of eight and a half years’ imprisonment to recognise that he too was a “crucial player” in that he had met Mr Patel at the airport, had knowledge of what was going on and, on the face of it, was a willing participant in the tangible steps taken by Mr Patel. The indication reflected that the Judge had taken into account the fact that Mr Galicia Romero was considerably younger than the other two men.
(b)He would be given a range of discounts for his personal circumstances, being previous good character (10 per cent), youth (10 per cent), and guilty plea (20 per cent).
(c)An indicated end sentence of five and a half years’ imprisonment.14
[16] The appellants and Mr Patel (the third defendant, main offender and not involved in this appeal) accepted the sentencing indication and pleaded guilty on 25 January 2019. On 7 May 2019 Mr Patel was sentenced to eight and a half years’ imprisonment in line with the indication.15
[17] The Judge, in his sentencing notes, updated his sentence indication in a judgment under s 24 of the Sentencing Act, specifying the weight he would put on the disputed facts relating to duress if it existed. That was a further 20 per cent discount from the end points reached in the sentence indications, resulting in an updated sentence indication of 69 months (five years and nine months’ imprisonment) for Mr Narváez Chamorro and 53 months (four years and five months) for Mr Galicia Romero.16 The Judge expressly noted at that point that this “remained subject to the possibility of further discounts for any mitigating factors that had not already been taken into account”.
14 An error in calculating Mr Galicia Romero’s discounts in the sentence indication was rectified subsequently in an addendum. R v Galicia Romero, above n 6, at [18].
15 R v Galicia Romero, above n 6 at [19].
16 R v Galicia Romero, above n 6 at [21]–[22]; referring to R v Chamorro, above n 8.
[18] As I have outlined, the disputed facts hearing did not go ahead, instead a hearing was held as to the burden of proof to establish the disputed facts. The Crown indicated it would concede a 20 per cent discount. The Judge then applied that 20 per cent discount to each of the sentences, but noted that the Crown continued to dispute the mitigating facts.17
[19] By the time the Judge sentenced the appellants on 29 June 2020 the Court of Appeal decision in Zhang had been delivered.18 This set out new guidelines for methamphetamine sentencing. Defence counsel submitted that there should be further significant reductions, in view of the new regime and different approach introduced in Zhang replacing the previous authority of Fatu which was in force when the Judge had given the original indication.19
[20] The Judge noted that neither Fatu nor Zhang were cocaine-dealing cases but were relevant as cross-checks to consider.20 The Judge referred to the Court of Appeal decision in Wilk v R21 which confirmed that the Zhang bands were useful as a cross-check but should not be applied directly to offending involving cocaine because there had been no authoritative assessment of the social harm done by cocaine, as was undertaken in Zhang in relation to methamphetamine.
[21] The Judge noted that both Fatu and Zhang set out bands by reference to quantity of methamphetamine involved. He also noted that Zhang required “the Court to look flexibly at the bands for sentencing and not be unduly slavishly adherent to them, including recognising that an offender may properly belong below the band indicated by quantity”.22 He noted that while quantity of drugs remained a very important factor “it was necessary to look carefully at the way in which a particular offender has performed in order to properly fix culpability and a starting point”.23
17 The appellants accepted that the duress, being the threats made to the family members back in Colombia, did not amount to a defence of compulsion: Crimes Act 1961, s 24.
18 Zhang v R, above n 13.
19 R v Fatu [2006] 2 NZLR 72 (CA).
20 R v Galicia Romero, above n 6 at [34].
21 Wilk v R [2020] NZCA 172.
22 R v Galicia Romero, above n 6 at [36].
23 At [35].
[22] The Judge noted that this case sat in band four of 500 grams to two kilograms. The quantity in the present case, of 1.329 kilograms, was just over the mid-point. The band indicated a starting point of eight (at 500 grams) to 16 years’ (at two kilograms) imprisonment at each end of the range. While there were 873 grams of pure cocaine here, it was the street value, or the sale value, that counted and so the key figure was
1.392 kilograms.24
[23] Based on that starting point with reference to quantity only, the term of imprisonment would be around 12 to 13 years before role was factored in. The Judge adopted much lower starting points here of 10 and eight and a half years for Mr Narváez Chamorro and Mr Galicia Romero respectively.25
[24] The Judge then went on to analyse the roles of each of the appellants. He noted the relativity between the appellants needed to be maintained. Mr Galicia Romero was a driver and accommodator26 but the Judge was satisfied he knew what was going on and, on the face of it, was a willing participant in the steps ultimately taken by Mr Patel.
[25] Mr Miller referred to Phillips v R, which was one of the cases in the Zhang appeal. The Judge found that the Phillips case was not applicable. In that case Ms Phillips was sentenced to four years and three months’ imprisonment for her role in supplying over six kilograms of methamphetamine along with her partner. On appeal the Court of Appeal agreed with the starting point but considered it generous in light of the “Fatu paradigm and had not been dictated by the quantum of drugs involved”.27 The starting point of five years applied by the sentencing Judge was significantly below band five which would have otherwise applied for quantity (over two kilograms) of between 10 years and life imprisonment.
[26] The Court allowed a substantial reduction on the basis that Ms Phillips had accompanied her partner, Mr Smith, out of a sense of loyalty. Her culpability was significantly less than that of her partner because of the very limited role played by
24 R v Galicia Romero, above n 6 at [42].
25 At [43].
26 At [47].
27 Zhang v R, above n 13, at [217].
her in an operation essentially conducted by Mr Smith. Ms Phillips was a low-level supplier in her own right. She suffered from post-traumatic stress disorder (PTSD) which was the catalyst for her methamphetamine use. She had relapsed into that use after entering into a relationship with her partner and was drug-dependent at the time of her arrest. The overall impression was that she was in the thrall of her partner, did not own the drugs and was merely acting as a driving companion for her partner. The Court noted that she was “very much under” her partner’s influence and in the grips of drug addiction, would not gain commercially and her input was minimal.28 The Court of Appeal accepted that, to a moderate degree, the combined mental health and addiction issues contributed to the offending. It noted a long term of imprisonment might trigger her PTSD and make the sentence more difficult for her. The Court of Appeal saw no reason to alter the starting point29 but it did reduce the overall sentence, ultimately allowing the appeal and substituting the sentence with a sentence of three years and two months’ imprisonment.30
[27] The Judge in this case went on to consider the difficulties that each of the appellants would face in prison, due to their limited English and personal circumstances. He noted that Mr Narváez Chamorro was a New Zealand citizen, a requirement of which is that he at least hold a basic conversation in English. He has also been in New Zealand since 2011. The Judge concluded a discount of five to eight per cent had been applied in de Mecado.31 Given the family circumstances of each, and Mr Narváez Chamorro’s experience as a refugee, the Judge noted traumatic events that had been triggered. He also took into account his restrictive bail conditions pending sentencing. The Judge also gave weight to the harshness of the fact that Mr Narváez Chamorro had been on bail in the community, without incident, for a long time and was now going to be taken into custody after sentencing. The Judge then added a global reduction of 15 per cent to take into account those factors.
[28] In relation to Mr Galicia Romero the Judge noted the impressive reference provided (from Mr Galicia Romero’s employers), significant mental health issues involved, including a suicide attempt shortly before arrest, the length of time and
28 Zhang v R, above n 13 at [215].
29 At [218].
30 At [228].
31 R v Galicia Romero, above n 6 at [54].
good performance while on restrictive bail conditions, as well as a discount for being a foreign national serving a prison sentence in New Zealand. The Judge referred to a suggestion of Mr Galicia Romero’s remorse but rejected that as a discrete factor saying there had been no apparent remorse beyond the impact of the offending on Mr Galicia Romero’s fiancé and family. The Judge considered any discount for remorse had been taken into account in the guilty plea discount. The Judge concluded that a further global 20 per cent discount was appropriate to be applied to Mr Galicia Romero’s sentence, reaching a final sentence of three and a half years. This amounted to a total discount of about 60 per cent from the starting point of eight and a half years for Mr Galicia Romero.
[29] In the case of Mr Narváez Chamorro, a final point of four years and 10 months’ imprisonment was imposed following a starting point of 10 years’ imprisonment.
[30] Ms Colley, for the Crown, submitted the starting points imposed were within the available range and consistent with comparable cocaine cases. She submitted that a cross-check with the Zhang bands did not suggest the starting points were excessive. She submitted that the appellants had already been awarded favourable discounts of 20 per cent to recognise the duress they faced and any further lowering of the starting points to reflect this factor would be double-counting and result in manifestly inadequate sentences.
Analysis
[31] Counsel focused on the starting point in relation to both the appellants. They seek a reduction based on the duress precipitating the appellants’ involvement in these drug deals.
[32] Mr Miller also submitted that Mr Galicia Romero was remorseful beyond that taken into account in the discount for a guilty plea. He noted it was difficult to demonstrate remorse in a victimless crime. There was no opportunity to participate in restorative justice which might indicate remorse, nor could Mr Galicia Romero show rehabilitation, which was also taken as an indication of remorse in some cases, as he was not a drug addict.
[33] Mr Miller indicated however, that Mr Galicia Romero had painstakingly written a letter in English, with the help of a fellow prisoner, expressing his remorse. Mr Miller also said that the probation officer had been distracted when he was talking to Mr Galicia Romero about remorse and that distraction coupled with the translation difficulties meant that Mr Galicia Romero was not given a proper opportunity to express his remorse.
[34] I do not think the circumstances urged by Mr Miller take the matter much further. The Judge made no error in the manner in which he dealt with remorse. He specifically referred to it and, in reliance on the probation report, indicated that he considered it more directed to the repercussions on the defendant’s fiancé and family.
[35] There is nothing tangible to indicate remorse beyond the guilty plea, which can be taken as some level of acceptance of culpability and therefore reflects some remorse. In any event, the personal factors discount of 20 per cent which the Judge described as “generous” together with the discount for the guilty plea are sufficient to deal with this point.
[36] No further discount for remorse is justified beyond the discounts as a whole for personal circumstances.
[37]I move onto the issue of duress and its effect on the starting point.
Should duress should have led to a reduction in the starting point?
[38] Mr Crowley said that Mr Narváez Chamorro’s starting point was manifestly unjust based on the duress that he suffered. He took me to the evidence on this intended to be adduced at the defended facts hearing. It was from Mr Narváez Chamorro’s mother and an undercover Colombian police officer.
[39] The Judge had accepted Mr Crowley’s submission, commenting that the offending demonstrated the “pernicious international reach of Colombian drug cartels.
Despite fleeing Colombia as a refugee, or Ecuador I should say, almost 10 years ago you were still vulnerable to being dragged into this offending under duress”.32
[40] Mr Narváez Chamorro was the more culpable of the two appellants on the facts before the Court. Nevertheless, Mr Crowley said the significant duress he faced from the Colombian cartel, which was threatening his family in Colombia and extorting money, should have led to a more significant discount for duress. The Judge was aware of the relevant material. While it remained contested he nevertheless took that background into account and referred to it on a number of occasions in his judgment.33
[41] Mr Narváez Chamorro had been the one who had extracted the cocaine from the parcel sent from Colombia, liaised with the drug cartel and generally took the leadership role although it was Mr Galicia Romero who was first contacted by the cartel and threatened.
[42] The discount of 20 per cent offered by the Crown reflected the weight that the Judge had said he would place on the disputed facts if they were proven. In the circumstances I do not consider the facts can be taken as proven. It was open to the defendants to insist on the disputed facts hearing but they opted to take the 20 per cent discount and so obtained an appropriate discount for the duress involved. The Judge made no error in assessing the effect of duress on the sentences.
Cross checks
[43] The Judge appropriately cross-checked the sentences against what the outcome might have been following the Fatu and Zhang bands to place them substantially below band four in Zhang. The Judge made no error in assessing the starting point by not further reducing it because of the evidence of duress.
Error in facts relied upon
[44] However, in the case of Mr Galicia Romero, the Judge relied on the summary of facts, which was sketchy in relation to Mr Galicia Romero’s involvement in the
32 R v Galicia Romero, above n 6 at [58].
33 At [20] and [57]–[58].
handover of the approximately one kilogram of cocaine in the Petone carpark on 6 December 2017. Relying on the summary of facts, the Judge assumed Mr Galicia Romero was with Mr Patel and the undercover agent who received the cocaine in the transaction. The presence of Mr Galicia Romero as support for Mr Patel, while Mr Narváez Chamorro waited in the car, was a fact that in the circumstances led the Judge to believe Mr Galicia Romero’s role and involvement in the transactions were more significant than they in fact were.
[45] It is common ground that Mr Galicia Romero was apprehended by the police immediately after the transaction, shopping in a nearby The Warehouse store adjoining the carpark. It is clear now he did not accompany Mr Patel to the drug transaction.
[46] The Judge referred to that meeting as involving the “most significant offending”.34 The Judge had already noted that on one level Mr Galicia Romero might simply be seen as “somebody who had driven and housed Mr Patel” but had knowledge of it and, on the face, was a willing participant in the “tangible steps ultimately taken by Mr Patel”.35
[47] Mr Galicia Romero’s youth and his lack of English made him a “peripheral figure excluded from conversations”.36 He received no financial benefit and continued to work full-time as a painter for Mr Narváez Chamorro throughout. In those circumstances, and the fact he did not attend or witness any of the undercover meetings, his role becomes more akin to that of the driver and accommodator. His involvement was not crucial to the offending. Of importance is that, unbeknownst to the Judge, he was not present at the drug meeting. He did not take physical possession of nor store the drug. He had little to say in the business and had no influence.
[48] In those circumstances, I consider that Mr Galicia Romero’s role does have similarities to that of Ms Phillips.37 He was a low-level incidental player, acting under duress from the Colombian drug cartel. Although there are some differences, such as
34 R v Galicia Romero, above n 6 at [13].
35 At [17].
36 The Judge gave a discount for his youth and his lack of English due to the hardship he would face in prison.
37 Zhang v R, above n 13, at [204]–[228].
Mr Galicia Romero not having a drug addiction, he was acting under the instructions of his older colleague.
[49] Factoring in the correct factual situation in relation to the transaction on 6 December 2017 in the carpark, in my view, the Judge would have reduced the starting point. The role played by Mr Galicia Romero was less than the Judge had been led to believe at the time of sentencing.
[50] Therefore, I am of the view Mr Galicia Romero’s appeal should be allowed. The starting point imposed, of eight and a half years, should be substituted with a new starting point of six and a half years.
[51] I take into consideration the Crown’s concern about double-counting given the discount already given of 20 per cent. However, the adjustment I have made to the starting point takes into account the correct factual situation which leads to a conclusion that Mr Galicia Romero played a lesser role than the Judge had been made aware of. The reduction in the starting point is not due to the duress he was under which is accounted for in the 20 per cent discount for duress.
[52]I turn now to whether the overall sentence was manifestly inadequate or unjust.
[53] Ms Colley, for the Crown, noted in her further submissions, that the discounts for both appellants were applied in a disjointed manner; that is, some factors were identified at the sentencing indication, while the remaining factors were identified at the sentencing, and were deducted sequentially, one at a time, from the starting point. Deducting sequentially – rather than adding all the discounts together and then subtracting that figure from the starting point – led to a smaller overall discount.
[54] Since the time of sentencing in the District Court the Court of Appeal has reviewed the previous three step methodology for applying discounts to starting points in sentencing. A new methodology was introduced in Moses. It involves two steps by adding the discounts together and deducting them from the starting point. Previously the guilty plea discount was deducted as a discrete third step.
[55] Ms Colley submits that the Moses approach of adding all the discounts together and then making the deduction would produce a manifestly inadequate sentence for both appellants.38 In any case she says that the focus is whether the overall sentences are appropriate and within range.
[56] When applying the pre-Moses three-step methodology to Mr Galicia Romero’s case, the starting point would be reduced by 60 per cent (10 per cent for youth, 10 per cent for good character, 20 per cent for duress and a 20 per cent global discount) before a further 20 per cent is discounted from that final figure for the guilty plea. I accept Ms Colley’s submission that adding all discounts together using the Moses methodology would result in a manifestly inadequate sentence. However, as will be apparent below, I consider it appropriate to apply that methodology. To ensure that the sentence is not manifestly inadequate I propose adjusting the 20 per cent global discount to 10 per cent to reflect the length of time that the Judge intended for that discount by his application of it at the end of the sentence calculation.39
[57] With the adjustment of the starting point and the application of the adjusted discounts, the final sentence (applying the pre-Moses three-step methodology) would be two years and six months’ imprisonment.
Mr Narváez Chamorro
[58] In relation to Mr Narváez Chamorro, I consider the starting point adopted by the Judge was appropriate when compared with other cases. In Ayala v R40 Mr Ayala was given a starting point of 10 years’ imprisonment for his role in arranging accommodation for the courier who was importing 827 grams of cocaine (with a 75 per cent purity level). In R v Lay,41 Mr Lay received a starting point of nine years’ imprisonment after pleading guilty to supplying, possessing and offering to supply a total of 402 grams of pure cocaine. In Thackray v R,42 the offender received a starting point of 12 years’ imprisonment, which was upheld on appeal. In that case,
939.4 grams of cocaine was being imported into Auckland. Mr Thackray was not the
38 See [61]–[62] below.
39 R v Galicia Romero, above n 6 at [67].
40 Ayala v R [2012] NZCA 271.
41 R v Lay [2017] NZHC 1388.
42 Thackray v R [2016] NZCA 23.
courier but had organised the courier’s flights and was tasked with meeting and collecting the courier at the airport. He would receive $10,000 for his services, however, the courier was intercepted by Customs officers. In light of these comparable cases, the Judge did not err when setting the starting point for Mr Narváez Chamorro’s starting point.
[59] There was no error in the facts relied upon by the Judge to assess Mr Narváez Chamorro’s role. He was crucial to the offending. He extracted the cocaine that arrived from Colombia, stored it, liaised with the higher up dealers and provided local assistance, including possession of an imitation firearm. He was much older than Mr Galicia Romero and was trying to sell drugs to resolve his obligation to the criminal group threatening him and his family. I accept the financial incentives for him were such that he stood to make no money from any successful transaction, but he did hope to relieve the debt he had unwillingly incurred.
[60] Mr Narváez Chamorro is in a different category to Mr Galicia Romero. I am of the view the Judge appropriately set, for Mr Narváez Chamorro’s sentence, the starting point and the final point (applying the pre-Moses methodology) of four years and 10 months’ imprisonment.
The application of Moses
[61] The Crown submitted that Moses should not apply retrospectively. In any case, it submitted the focus should be on the end sentences and whether they were within range. Applying the Moses methodology would lead to relatively significant reductions in the final sentences when all discounts are added together and applied jointly rather than sequentially. The Crown submitted that standing back and looking at the District Court’s end sentences, they were reflective of the appellants’ criminality and should not be disturbed on appeal. The sentences were not manifestly unjust and therefore they should not be adjusted on appeal by the application of the Moses methodology.
[62] As discussed above, I have taken into account Ms Colley’s concern that adding all the discounts together, rather than being applied sequentially as the District Court did, would lead to a manifestly inadequate sentence. For this reason, and as I have
reduced Mr Galicia Romero’s starting point, I have also reduced the global discount accordingly.43
[63] The application of the Moses methodology to Mr Narváez Chamorro’s sentence of four years and 10 months’ imprisonment results in three and a half years’ imprisonment.
[64] The application of the Moses methodology to Mr Galicia Romero’s reduced sentence on appeal reduces the final sentence of two years and six months to one year and 11 months.
[65] I accept the Crown’s submission that Moses does not automatically apply to a case on appeal. If the sentence was otherwise appropriate, and there was no error, it would not be manifestly unjust and therefore not susceptible to reduction on appeal.
[66] In Wikohika the Court of Appeal reduced Ms Wikohikia’s sentence by the application of the Moses methodology to bring the end sentence to 23 and a half months’ imprisonment which made home detention an option and it regarded that as the least restrictive sentencing outcome that was appropriate in that case.44
[67] Ms Wikohika also was facing difficult personal circumstances. She had four children, was the only member of the household who worked at the time of the offending and was suffering serious health problems for which she was undergoing treatment at the time of the appeal.45
[68] It is open to this Court similarly to apply the Moses methodology retrospectively. Mr Galicia Romero’s case is unusual. The application of the Moses methodology will also make the difference between imprisonment or his eligibility for
43 See [56] above.
44 Wikohika v R [2020] NZCA 352 where the Court noted in a footnote to [46] that since Ms Wikohika had been sentenced, the Court had clarified that the guilty plea discount should be calculated as a percentage of the adjusted starting point and subtracted in step two along with the incorporation of any aggravating or mitigating factors personal to the offender. The Court of Appeal calculated the revised sentence on that basis. In Moheebi v R [2020] NZCA 343 where the judgment was released in August 2020 relating to the original sentencing decision from August 2018, the Court also adopted the two-stage approach in Moses when calculating the sentence at [35].
45 Wikohika v R, above n 44, at [9]–[13].
home detention. This Court has recognised even before Moses that the application of the two-step methodology in such circumstances may be appropriate.46
[69] Accordingly, I consider it is appropriate to apply the Moses methodology to Mr Galicia Romero’s sentence. This would result in an end sentence of one year and 11 months. Taking into account the correct factual situation, which affects his role in the drug operation, the term of imprisonment imposed was manifestly unjust. Furthermore, home detention is the least restrictive sentencing outcome and is appropriate in Mr Galicia Romero’s case.47 The pre-sentence report noted he was a suitable candidate for home detention. The address given to the Probation Service was assessed as technically suitable for the purposes of an electronically-monitored sentence. The occupants’ agreement has been signed by the occupants and Mr Galicia Romero. The implications of the home detention sentence, including the right of the occupants to withdraw consent and the fact that Mr Galicia Romero may not be able to remain employed while on sentence, have been explained.
[70] To calculate a sentence of home detention, the general practice is to halve the imprisonment period. This is not automatic.48 The “proper approach … is an evaluative assessment of all circumstances”.49 The Court of Appeal discussed this in R v Bisschop, commenting that the term is to be “fixed after an overall assessment of all factors relevant to the offender, an consistent with the purposes and principles of the Sentencing Act”.50 On this basis, I conclude that a sentence of 12 months’ home detention is appropriate.
[71] When substituting a sentence of home detention, this Court is required to have regard to the portion of the original sentence that remains unserved, pursuant to s 80K(6) of the Sentencing Act.51 Mr Galicia Romero has served almost three and a half months of his sentence.52 Ellis J in Kopa v Police observed that “the terms of
46 Reweti v R [2018] NZHC 809; Houkamau v Police [2019] NZHC 2743 at [43]; Barlow v R [2019] NZHC 725 at [7]; and Edmonds v Police [2019] NZHC 3038 at [16].
47 Sentencing Act 2002, s 8(g).
48 Brittin v Police [2017] NZHC 2410, [2018] 2 NZLR 147 at [59]. See also See also Metua v R
[2018] NZHC 246; and Box v Police [2018] NZHC 286.
49 R v Bisschop [2008] NZCA 229 at [18]–[19].
50 At [18].
51 Sentencing Act 2002, s 80K(6).
52 29 June 2020 to 10 October 2020.
s 80K do not require a precise mathematical conversion. On the other hand, it is difficult to see why, absent some special circumstances, the substitution would not be based on at least a rough and arithmetical exercise”.53 On this basis, I deduct three and a half months from Mr Galicia Romero’s sentence of home detention.54 The result is that the appeal is allowed; the sentence imposed by the District Court of three years and six months’ imprisonment is quashed and a sentence of eight and a half months’ home detention is substituted to commence immediately. The standard conditions for a sentence of home detention set out in s 80C of the Sentencing Act apply.
[72] In the case of Mr Narváez Chamorro it would be unfair as between the co-offenders and therefore, in my view, manifestly unjust not to apply the Moses sentencing methodology. The Judge was conscious of the relativity between the defendants and took care for the sentences imposed to reflect that relativity and so their respective roles in the drug operation.
[73] The test applicable is whether the disparity between the sentences of co-offenders is so marked as to lead a “reasonably minded independent observer aware of all the circumstances of the offence and of the offenders” to “think that something had gone wrong with the administration of justice”.55 The disparity must appear gross and unjustifiable.56 Even when taking into account the differences between both appellants’ level of involvement, the disparity between the co-offender’s new end sentence (eight and a half months’ home detention) compared with Mr Narváez Chamorro’s end sentence (of four years and 10 months’ imprisonment) would meet this test. I also consider that standing back and looking at the circumstances as a whole, a sentence reduction from four years and 10 months to three and a half years’ imprisonment reflects the criminality of his offending.
53 Kopa v Police [2017] NZHC 1244 at [4].
54 Tasi v Police [2019] NZHC 2186 provides a useful description of the rationale behind this. His time spent in prison of three and a half months is effectively seven months of his original sentence of imprisonment of one year and 11 months. This reflects the fact he would be eligible for automatic release after serving one-half of this sentence, pursuant to s 86 of the Parole Act 2002. At the date of this re-sentencing, he would therefore be required to serve one year and four months’ imprisonment. Substituting a sentence of home detention and also factoring in my reasons at [69], I conclude an end sentence of eight and a half months’ home detention.
55 R v Lawson [1982] 2 NZLR 219 (CA) at 223; recently cited in Smith v R [2020] NZCA 295; and
Whittaker v R [2020] NZCA 241.
56 R v Rameka [1973] 2 NZLR 592 (CA) at [594].
[74] Accordingly, in relation to Mr Narváez Chamorro, the appeal is allowed. The sentence of four years and 10 months is quashed, and a sentence of three and a half years’ imprisonment is substituted.
[75] Leave is reserved to counsel to apply if there are any matters flowing from this judgment.
Grice J
Solicitors:
Public Defence Service, Wellington for the first appellant, Narváez Chamorro John Miller Law, Wellington for the second appellant, Galicia Romero
Crown Law, Wellington for the respondent