RUTH RAMIREZ-ALFONSO AND THE KING - [2024] NZCA 545

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA468/2024
[2024] NZCA 545

BETWEEN	RUTH RAMIREZ-ALFONSO Appellant
AND	THE KING Respondent

Hearing:	27 August 2024
Court:	Cooke, Peters and Grice JJ
Counsel:	T D A Harré for Appellant A M Harvey for Respondent
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…

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

Case: [2024] NZCA 545
Decision Date: 29 October 2024 at 11.00 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Ruth Ramirez-Alfonso against her conviction and sentence for her involvement in the importation of cocaine from South America into New Zealand. Ramirez-Alfonso, who had pleaded guilty to one representative charge of importing cocaine, was sentenced to three years and six months’ imprisonment. The appeal contested both the refusal to grant a discharge without conviction and the sentence imposed.

The court examined whether the Judge's refusal to grant a discharge without conviction was appropriate, considering the gravity of the offending and the consequences of conviction. Ramirez-Alfonso argued that her low-level involvement and significant immigration consequences warranted a discharge without conviction. The court found that the offending was serious, involving an estimated 1.8 kilograms of cocaine, and that the consequences of conviction, including the risk of deportation, were not disproportionate to the gravity of the offending. The court agreed with the Judge's conclusion that the consequences of conviction were not out of proportion to Ramirez-Alfonso’s role in the offending.

The court also assessed the sentence imposed, considering whether the starting point was too high and whether sufficient credit was given for personal mitigating factors. Ramirez-Alfonso argued that the starting point should have been lower, considering her lesser role and initial naivety. The court found that the Judge appropriately accounted for these factors, placing the offending in the middle of band two and adopting a starting point of five years and six months’ imprisonment. The court further noted that the Judge did not err in not providing a separate discount for exploitation, as Ramirez-Alfonso was deemed a capable and independent person without underlying vulnerabilities.

In conclusion, the application to adduce fresh evidence was granted, but the appeal against conviction and sentence was dismissed. The court found no error in the Judge's decision, and the sentence was not manifestly excessive.

Orders