RUTH RAMIREZ-ALFONSO AND THE KING
[2024] NZCA 545
•29 October 2024 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA468/2024 [2024] NZCA 545 |
| BETWEEN | RUTH RAMIREZ-ALFONSO |
| AND | THE KING |
| Hearing: | 27 August 2024 |
Court: | Cooke, Peters and Grice JJ |
Counsel: | T D A Harré for Appellant |
Judgment: | 29 October 2024 at 11.00 am |
JUDGMENT OF THE COURT
AThe application to adduce fresh evidence is granted.
BThe appeal against conviction and sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Grice J)
Introduction
The appellant, Ms Ramirez-Alfonso, was charged with offending associated with the commercial importation of cocaine from South America into New Zealand and dealing in cocaine in New Zealand. The drug syndicate’s activities were identified by a police investigation.
Ms Ramirez-Alfonso pleaded guilty to one representative charge of importing cocaine. She was sentenced to three years and six months’ imprisonment.[1] She now appeals the Judge’s refusal to grant a discharge without conviction and, alternatively, the sentence imposed.
The offending
[1]R v Ramirez Alfonso [2024] NZHC 1868 [Sentencing notes].
Ms Ramirez-Alfonso was 40 years old at the time of sentencing. She had emigrated from Colombia to New Zealand around 10 years earlier on a student visa, and for the past two years had lived and worked on a dairy farm.
The drug syndicate that Ms Ramirez-Alfonso’s offending was connected with operated from at least January 2018 to December 2021, using farm workers as “cover”. An estimated 42.5 kilograms of cocaine was imported into New Zealand as part of the operation, with a street price of over $19 million. A further 59.1 kilograms of cocaine was intercepted.
Between 23 October 2019 and December 2021, Ms Ramirez-Alfonso was involved in the importation of three packages into New Zealand. While packages were not intercepted, and therefore their precise quantities are unknown, an estimated total quantity of 1.8 kilograms of cocaine was accepted for the purposes of sentencing.
The circumstances of those importations were described by Mander J as follows:[2]
[6] At some point, either in 2019 or 2020, the syndicate organised for cocaine to be imported into this country on two occasions. A client code application (which is a document needed by Customs for the importation of goods in excess of the value of $1,000) was forged, using a false name but with [the appellant’s] address, by a member of the syndicate on 1 November 2019. [The appellant] had agreed to receive a parcel on behalf of a person with whom you had become friends. The first consignment of cocaine was sent in 2019, sealed inside solar water heating panels. [The appellant] received $5,000 from the syndicate for the use of [her] address. A second consignment was in a delivery of gas hot water systems that arrived on 19 August 2020. The packages arrived there because [the appellant] had provided that address for that purpose. While [she said she was] initially unaware the first package contained cocaine, [she] became suspicious.
[7] Between September and October 2021, two of [the appellant’s] associates organised for cocaine to be imported from the USA. They organised for the identified consignee to be a variation of [her] name, with the consignee address listed as the address where [she] had previously resided up until May of that year. When the package was delivered on 23 October, [the appellant was] contacted by an associate living at the address. [She] knew to phone the head of the syndicate who then arranged for another person to uplift the package from the address. A day later, a bag of white powder concealed in that package was photographed on a set of scales. The image showed the bag weighed 610 grams.
[2]Sentencing notes, above n 1.
Ms Ramirez-Alfonso received $5,000, as well as another cash sum which she claims was a lesser amount, in exchange for receiving these packages, storing them at her house, and notifying other syndicate members when the packages arrived to enable their collection.[3]
Sentencing decision
[3]At [8].
At sentencing, the defence position was that Ms Ramirez-Alfonso was reckless in her offending. It was contended that her exploitation in her work life created a psychological vulnerability to being manipulated by her co-defendants.
The Judge applied the three-step approach to determining whether a discharge without conviction ought to be granted: first, he considered the gravity of the offending; secondly, he identified the direct and indirect consequences of conviction; and thirdly, he assessed whether those consequences would be out of all proportion to the gravity of the offending.
The Judge noted it was clear that Ms Ramirez-Alfonso played a “lesser role” in the offending, but one for which she was monetarily rewarded, albeit that this was not commensurate with the risk she assumed.[4] However, he also considered that she was “a capable and independent person”, and did not have “underlying vulnerabilities that made [her] susceptible to manipulation or coercion”.[5]
[4]At [25].
[5]At [27].
The Judge observed that in terms of quantum alone, Ms Ramirez-Alfonso was at the higher end of the Zhang v R band four, which recommends a starting point of eight to 16 years’ imprisonment.[6] However, he also noted that she was “not by any means considered to have been a senior member of the syndicate”, as she did not direct others nor have any contact with overseas suppliers.[7] Having considered a number of comparable cases, the Judge classified the gravity of the offending as “serious”.[8] He placed the offending in the middle of band two and adopted a starting point of five years and six months’ imprisonment.[9]
[6]At [29], citing Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].
[7]Sentencing notes, above n 1, at [8].
[8]At [33].
[9]At [42].
In terms of the consequences of a conviction, the Judge accepted that the real and appreciable risk of Ms Ramirez-Alfonso being deported would be increased if a conviction were entered.[10] Overall, the risk of deportation was not out of proportion to her offending, as it was a predictable risk faced by offenders in her position.[11] He found the wider consequences were commensurate with the gravity of the offending.[12] Therefore, he declined to grant the application for a discharge without conviction.
[10]At [37].
[11]At [41].
[12]At [39].
The Judge granted a total discount of 35 per cent for personal factors such as good character, the disproportionate impact of imprisonment, and the appellant’s guilty plea.[13] Overall, a sentence of three years and six months’ imprisonment was imposed.[14]
The appeal
[13]At [45]–[51].
[14]At [53].
Mr Harré, for Ms Ramirez-Alfonso, appeals on the basis that she ought to have been discharged without conviction, given her low-level involvement in the offending and the significant immigration consequences of a conviction.
Mr Harré further contends that the Judge adopted a starting point for sentencing which was too high and failed to place appropriate weight on personal mitigating factors, resulting in a sentence that was manifestly excessive.
Discharge without conviction
An appeal against the sentencing Judge’s refusal to grant a discharge without conviction is treated as an appeal against conviction and sentence.[15] To the extent that the appeal involves an appeal against conviction, s 232 of the Criminal Procedure Act 2011 (the CPA) applies, and the Court must allow the appeal only if it is satisfied that a miscarriage of justice has occurred.[16] Miscarriage of justice is defined in s 232 as follows:
…
(4)In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
(5)In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.
[15]Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [6]–[16].
[16]At [12]; and Criminal Procedure Act 2011, s 232(2)(c).
To the extent the appeal involves an appeal against the sentence imposed, the Court must be satisfied that there was an error in the sentence and a different sentence ought to be imposed, pursuant to s 250 of the CPA.[17]
[17]Jackson v R, above n 15, at [13]–[14].
Under s 106 of the Sentencing Act 2002, a sentencing Judge has discretion to grant a discharge without a conviction. That section relevantly provides:
106Discharge without conviction
(1)If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
(2)A discharge under this section is deemed to be an acquittal.
…
The Court cannot grant a discharge without conviction unless it “is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence”.[18]
[18]Sentencing Act 2002, s 107; and R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [8].
The three-step process in considering an application for discharge without conviction is well‑established.[19] The first step involves considering the gravity of the offending. The second step is to examine the direct and indirect consequences of a conviction on the appellant. The third step is to determine whether those consequences would be out of all proportion to the offending.
Submissions on appeal
[19]R v Hughes above n 18; Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [8]–[14]; Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [8]; and R v Taulapapa [2018] NZCA 414 at [22].
Mr Harré says the gravity of offending should be properly characterised as low. He submits that the consequences of a conviction directly impact Ms Ramirez‑Alfonso’s liability to deportation. Mr Harré sought leave to adduce a deportation liability notice served on the appellant on 25 July 2024 as fresh evidence. We accept that the evidence is fresh, credible, and cogent, and allow it to be adduced for the purposes of this appeal.
Mr Harré submitted that the consequences of a conviction also create a real and appreciable risk of significantly prejudicing the appellant’s future employment opportunities, eligibility for travel, and eligibility for renting property. He submits that those consequences are out of all proportion to the gravity of the offending.
Mr Harvey, for the Crown, contends that the Judge was entitled to conclude that the gravity of the offending outweighed the consequences of the entry of a conviction. He submits that a s 157 of the Immigration Act 2009 deportation liability notice, which Ms Ramirez-Alfonso has received, is triggered by criminal offending and matters relating to character, and is not dependent upon the entry of a conviction. Mr Harvey also notes that Ms Ramirez-Alfonso has limited ties to New Zealand, which contrasts her situation to that in the case of Datt v R.[20]
Analysis
[20]Datt v R [2024] NZCA 297.
We consider that the offence was serious given the amount of cocaine involved, albeit that Ms Ramirez-Alfonso played an operational role rather than a leading one.
In relation to the possibility of Ms Ramirez-Alfonso being deported as a result of a conviction, the sentencing Judge referred to and applied the recent Supreme Court decision in Bolea v R.[21] This requires sentencing judges to consider both liability to deportation and the risk of actual deportation as consequences of a conviction, whether or not the appellant may face a later process that may consider similar factors.[22] The Judge noted that his task was to consider whether those consequences were out of all proportion to the appellant’s offending.[23] In making that assessment, he noted that he had read the appellant’s affidavits and those of Mr Lange, Dr Monasterio, and Dr Stringer.[24]
[21]Sentencing notes, above n 1, at [15], citing Bolea v R [2024] NZSC 46, [2024] 1 NZLR 205.
[22]Bolea v R, above n 21, at [43].
[23]Sentencing notes, above n 1, at [15], citing Singh v Police [2024] NZHC 1797 at [21].
[24]Sentencing notes, above n 1, at [15].
The Judge noted that a conviction would likely lead to Ms Ramirez-Alfonso being liable to deportation and would trigger a requirement for her to have to apply for a character waiver in order to remain in the country. He noted that deportation might lead to the end of the appellant’s relationship with her boyfriend, a citizen of this country, as well as financial hardship. The Judge concluded that the real and appreciable risk of deportation was increased in the event of a conviction being entered.[25] He noted that while there was no closed category of offending in respect of which an application can be entertained, “a conviction is a proportional and unsurprising consequence for a foreign national in New Zealand on a visa who has assisted in the importation of Class A drugs and effectively received payment for doing so”.[26]
[25]At [37].
[26]At [40].
The Judge also noted the general consequences for the appellant of a conviction relating to future employment, eligibility for travel and eligibility for property rental were other consequences that would follow conviction.[27] Following a careful analysis, the Judge concluded that the consequences of a conviction were not out of proportion to Ms Ramirez-Alfonso’s offending.[28]
[27]At [34].
[28]At [41].
We agree with the analysis undertaken by the Judge. There are plainly significant implications of conviction for Ms Ramirez-Alfonso, but they cannot be treated as disproportionate. If a person obtains an immigration status to enter New Zealand and abuses that status by becoming involved in the importation of Class A drugs, deportation cannot be considered disproportionate.
In relation to the effects of deportation, we also note that Ms Ramirez‑Alfonso’s ties to New Zealand fall short of those in Datt, where the consequences on the applicant’s family if he were to be deported only satisfied this Court “by the finest margin” that a discharge without conviction should be granted.[29] In that case, the applicant had lived in New Zealand with his wife and daughter for more than a decade, held a resident visa for nine years, and had a son who was a New Zealand citizen by birth. He and his partner were described as having “an abiding love of the country, a desire that their family should be brought up here, and an ongoing commitment to their local communities”.[30]
[29]Datt, above n 20, at [55].
[30]At [54].
We do not consider the Judge erred in declining to grant a discharge without conviction.
Appeal against sentence
Alternatively to her appeal against the refusal to grant a discharge without conviction, Ms Ramirez-Alfonso appeals against her sentence. She submits that the sentencing Judge took a starting point that was too high and failed to place appropriate weight on personal mitigating factors, resulting in a manifestly excessive sentence. She submits that a community-based sentence should be imposed.
Approach on appeal
An appeal against sentence may be brought as of right under s 244 of the CPA. This Court must allow the appeal only if it is satisfied there has been an error in the sentence and that a different sentence ought to be imposed.[31] In the vast majority of cases, the Court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.[32] A sentence appeal “will almost always turn on a consideration of whether the final outcome is manifestly excessive”, rather than the “route by which the judge reached that outcome”.[33]
Exploitation and vulnerability
[31]Criminal Procedure Act, s 250.
[32]Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].
[33]At [36]; and Ripia v R [2011] NZCA 101 at [15].
Mr Harré submits that Ms Ramirez-Alfonso was exploited by her employers in her employment, through being made to work excessive hours, as well as being subjected to verbal abuse and the threat of a report to Immigration New Zealand, leading to deportation. He notes that she held visas which tied her to specific employers, and meant she required permission from Immigration New Zealand in order to leave her employment. It is suggested that these features correspond with indicators of forced labour by the International Labour Organisation.
Mr Harré submits that Ms Ramirez-Alfonso’s offending must be seen in light of her specific personal vulnerabilities resulting from this exploitation, which caused her to rely on people who then took advantage of her. He says this appeared to have been accepted by the Judge at sentencing.[34] Mr Harré relies on the material in the reports of Dr Stringer and Dr Monasterio in support of this position. He says these factors diminished Ms Ramirez-Alfonso’s culpability in the offending, by limiting her choices and impairing her decision-making.
[34]Sentencing notes, above n 1, at [49].
Mr Harré further contends that the Judge placed undue emphasis on the money received by Ms Ramirez-Alfonso, as this did not reflect a “contractual” arrangement but was compensation for her stress as a result of the packages being delivered. Mr Harré points to a “causative contribution” of the exploitation, which may go to both culpability and so the setting of the starting point in the first step of the Moses sentencing methodology, as well as the second step relating to adjustments for personal factors. He contends that a clear causal link exists between Ms Ramirez-Alfonso’s exploitation, her consequent psychological vulnerability, and the way she was drawn into the offending.
We accept that an offender’s background might affect culpability by impacting the extent of an offender’s agency, and that all relevant aspects of the offending and the offender must be accounted for.[35] However, we do not consider that the Judge was in error by not accepting that the factors raised by Mr Harré in connection with the appellant’s vulnerability and her status or experiences as an immigrant worker supported any further adjustments to the sentence.
[35]Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509 at [91].
There was no suggestion that the appellant’s agency was negatively affected by the exploitation to a material extent. We accept the Crown’s submission that the reports relied upon are not persuasive. The reports are broadly framed. In addition, the narrative of the offending in the reports of Dr Monasterio and Dr Stringer is factually inconsistent with the statement of facts, which suggests that they did not have an accurate understanding of her involvement. The reports record that Ms Ramirez‑Alfonso was not suspicious of the packages she received. Neither report refers to the admitted role of Ms Ramirez-Alfonso, which was to “receive consignments of cocaine in exchange for payment”.
Ms Ramirez-Alfonso’s sentence was based on the facts to which she pleaded guilty. The statement of facts indicates that she willingly offered her assistance out of loyalty to her friends and the promise of financial reward, which was realised. Ms Ramirez-Alfonso was willing to provide residential addresses to the syndicate to receive packages containing cocaine, which she did on the three occasions despite many warning signs. The Judge noted that the appellant had demonstrated at least “higher end” wilful blindness or recklessness initially, but that by the third transaction she “would have been well aware” of the risk that the packages contained drugs.[36]
[36]Sentencing notes, above n 1, at [19]–[20].
The Judge noted that the appellant was “not the victim of a scam or ruse”, and did not have “underlying vulnerabilities”.[37] Nor did the Judge accept the nature of her relationship with other syndicate members gave rise to “such a characterisation”.[38] However, the Judge accepted that Ms Ramirez-Alfonso suffered exploitation in her employment and that the offending may have drawn her closer to those associates who had enlisted her assistance in the importations. In addition, exploitation may have been a reason for succumbing to the financial rewards. However, the Judge found no “causal nexus” between her background and the offending.[39]
[37]At [27].
[38]At [27].
[39]At [48].
We agree with the assessment of the Judge. While exploitation of migrants is to be deplored, we do not consider a claim of vulnerability by virtue of exploitation is open to the appellant as a factor reducing her culpability and/or as a basis for any further adjustment than the Judge allowed. The Judge made no error under this head.
Was the starting point too high?
Both parties agree that based on quantum alone, the Judge was correct in finding the starting point was at the higher end of band four of Zhang — between eight and 16 years’ imprisonment. The Judge accounted for Ms Ramirez‑Alfonso’s lesser role in the offending when setting that starting point.
However, Mr Harré submits that the Judge ought to have made a greater downward adjustment to reflect Ms Ramirez-Alfonso’s reduced role, (at least initial) naivety, and lack of insight into the drugs being imported. He says an appropriate starting point would have been in the vicinity of three years’ imprisonment.
Mr Harré cites R v King and Martin v R as examples of cases involving an offender’s will being overborne by deception occasioned by a scam in importing methamphetamine into New Zealand.[40] In King, the offender suffered from a mental impairment, and in Martin the offender was described as unusually naïve and gullible. Mr Harré says that neither Mr King nor Mr Martin had any real understanding of the quantity of drugs being imported and that this is also true of Ms Ramirez-Alfonso. He notes that the cocaine in this case was concealed within packages marked as having been checked by Customs.
[40]R v King [2018] NZHC 2540; and Martin v R [2022] NZCA 285.
We agree with the Crown submission that the Judge was correct to find that unlike in Martin or King, the appellant here was capable and independent, and was not unwittingly lured or manipulated into her role. Rather, she assumed that risk in exchange for payment.
Mr Harré submits that the other cases referred to by the Judge, R v Fangupo and Singh v R, involved offenders who made a more conscious decision to offend than Ms Ramirez-Alfonso.[41] In Fangupo, the relevant offender being sentenced, Mr Ikuia, was drawn into the offending by others and but for their influence would not have been involved.[42] Mr Ikuia helped import 449 grams of methamphetamine by giving a business address for a package. He was given $5,000 for doing so. The Judge described him as nothing more than a “pawn” and took a starting point of five years.[43] Mr Singh — a co-offender of Mr Ikuia who was sentenced separately — played a more significant role, but had “no awareness of the scale of the operation” and received only modest financial gain.[44] On appeal, a starting point of eight years was adopted.[45] Mr Harré submits that in both of those cases significantly lower starting points were adopted to reflect naivety despite the two offenders taking “a more express and intentional role in the offending” than Ms Ramirez-Alfonso.
[41]R v Fangupo [2019] NZHC 2896; and Singh v R [2020] NZCA 211.
[42]Fangupo, above n 41, at [31].
[43]At [32].
[44]Singh, above n 41, at [20].
[45]At [20].
The cases cited by Mr Harré do not support the appellant’s argument in relation to the starting point. The Judge correctly reduced the starting point in order to account for the appellant’s lesser role in the offending, from where it was initially set based on quantum alone. The Judge expressly took into account Ms Ramirez-Alfonso’s “reduced role”, “at least initial naivety”, and “lack of insight into the amount of drugs being imported”, to place the offending in the middle of band two and adopt the starting point of five years and six months’ imprisonment.[46] Ms Ramirez-Alfonso’s offending is not comparable with the offending in the cases relied upon by Mr Harré.
[46]Sentencing notes, above n 1, at [29].
The final starting point of five years and six months’ imprisonment was well within the appropriate range. The Judge made no error.
Was insufficient credit given for personal mitigating factors?
The Judge allowed discounts of: 15 per cent for Ms Ramirez-Alfonso’s guilty plea,[47] five per cent for the disproportionate impact of imprisonment given her isolation and lack of familial support as a foreign national,[48] and 15 per cent for background factors and previous good character.[49] The total discounts of 35 per cent were taken off the starting point of five years and six months, leading to a final sentence of three years and six months’ imprisonment.[50] Mr Harré submits that the appellant was entitled to further credits for the fact of her exploitation at the time of the offending and for her otherwise good character.
[47]At [45].
[48]At [46].
[49]At [51].
[50]At [53].
The Judge declined to apply a personal discount for exploitation, consistent with his assessment of her as “a capable and independent person” without “underlying vulnerabilities”.[51] We have commented on the reports dealing with the issue of exploitation and we do not find them persuasive as support for any further adjustments given Ms Ramirez-Alfonso’s circumstances. The Judge made no error in refusing a separate discount under that head.
[51]At [27].
Nor do we consider the Judge was in error in providing a 15 per cent discount for background factors and previous good character, expressly referring to Ms Ramirez-Alfonso’s lack of previous convictions. We consider the discounts awarded by the Judge were appropriate in the circumstances.
The Judge made no errors nor was there a miscarriage of justice in refusing a discharge without conviction. The sentence was not manifestly excessive.
Result
The application to adduce fresh evidence is granted.
The appeal against conviction and sentence is dismissed.
Solicitors:
Crown Solicitor, Christchurch for Respondent
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