Sanchez v The Queen

[2005] NZCA 263

IN THE COURT OF APPEAL OF NEW ZEALAND

CA196/05

THE QUEEN

v

SHEILA SANCHEZ-SILVERIO

Hearing:18 October 2005

Court:Chambers, Potter and Doogue JJ

Counsel:R M Mansfield for Appellant

M F Laracy for Crown

Judgment:4 November 2005 

JUDGMENT OF THE COURT

AThe appeal is allowed.

BThe sentence is quashed.  In substitution therefor, we impose a sentence of six years and nine months’ imprisonment.

REASONS

(Given by Chambers J)

Iranian drug courier caught importing methamphetamine

[1]       Sheila Sanchez-Silverio, an Iranian national living in Canada, flew from Malaysia to New Zealand.  Customs officers at Auckland International Airport intercepted her and, on finding 296.4 grams of methamphetamine on her person, arrested her.  Subsequently she pleaded guilty to a charge of importing the class A controlled drug, methamphetamine.

[2]       On 10 May 2005 she appeared for sentence in the High Court at Auckland.  Laurenson J sentenced her to seven and a half years’ imprisonment. 

[3]       Ms Sanchez-Silverio now appeals on the ground that the sentence imposed was manifestly excessive.

Issues on the appeal

[4]       Mr Mansfield, for Ms Sanchez-Silverio, submitted that the judge had erred by fixing too high a starting point, with the result that the end sentence was manifestly excessive.  That is the first issue on this appeal. 

[5]       Secondly, he submitted that two events which had occurred since her sentencing should be recognised by way of additional mitigation.  The first of these was additional assistance Ms Sanchez-Silverio had given to the authorities since her sentencing.  The second was the fact that Ms Sanchez-Silverio had recently had a cancer scare. 

[6]       We shall take these issues in turn. 

Starting point

[7]       Laurenson J adopted a starting point of 11 years’ imprisonment.  In fixing that starting point, he relied primarily on R v Arthur (2005) 21 CRNZ 453 (CA), and noted that the quantity of methamphetamine put this case in to the third Arthur category, namely “large commercial quantity”.  His Honour noted that the starting point in that category for supply was eight years’ imprisonment or more.  In Arthur, this court noted that those who import methamphetamine must expect higher sentences than those who merely supply: at [27].

[8]       Laurenson J also referred to a number of High Court decisions. 

[9]       Mr Mansfield submitted that this starting point was too high.  It should have been in the vicinity of nine to ten years.  He cited a number of cases, but we are unable to accept that they do support a contention that Laurenson J’s starting point was manifestly excessive. 

[10]     Ms Laracy, for the Crown, provided us with a very useful table, showing starting points in class A importation cases, since methamphetamine was reclassified as a class A drug.  The three closest cases on the facts all support Laurenson J’s 11 year starting point.  R v Reynecke HC AK CRI 2004-004-9111 29 July 2005 involved the importation of 650 grams of methamphetamine.  Ms Reynecke was a courier.  The judge adopted a starting point of 11 years’ imprisonment.  In R v Hadfield HC AK CRI 2005-004-2755 20 May 2005, Mr Hadfield was caught by Customs at Auckland Airport with packages of methamphetamine weighing 800 grams.  The judge in that case too adopted a starting point of 11 years’ imprisonment.  The third case is R v Nielsen HC AK CRI 2004-092-11306 29 April 2005.  In that case, Mr Nielsen was caught by Customs with almost 2 kilograms of methamphetamine concealed in a false bottom of a small carry-on bag.  The judge adopted a starting point of 11 years’ imprisonment.  Mr Mansfield pointed to the higher quantity of methamphetamine imported in Nielsen and suggested that this demonstrated that Laurenson J’s starting point was out of line.  We do not necessarily accept that the present case and Nielsen are out of line, but, if they are, then it would seem, on the basis of the Crown’s comparative table, that Mr Nielsen may have been fortunate. 

[11]     We do not accept, therefore, that Laurenson J’s starting point was manifestly excessive; on the contrary, it seems to us to be right on target.  Mr Mansfield did not question the discount the judge allowed for mitigating factors, as they stood at the date of sentence.  It follows that the final sentence was not manifestly excessive. 

Post-sentencing mitigating circumstances

[12]     Mr Mansfield submitted that, even if we were not with him on his first ground of appeal, we should nonetheless reduce the sentence by reason of two events which had occurred since sentencing.  Ms Laracy acknowledged that this court did have jurisdiction, in exceptional cases, to take into account factors which had occurred since the imposition of the sentence appealed from and to adjust the sentence accordingly.  We accept that s 385(3) of the Crimes Act 1961 is sufficiently broad in its terms to justify this course, although we would stress the need for exceptional circumstances: R v Moriaty CA109/84 10 August 1984. 

[13]     The first matter Mr Mansfield relied upon was the assistance Ms Sanchez‑Silverio gave to the Crown in the prosecution of her ex-husband for importing methamphetamine.  We were given a letter which Detective Henderson had sent to Ms Laracy, outlining Ms Sanchez-Silverio’s assistance subsequent to her sentencing.  Detective Henderson said that she had given evidence for the prosecution and had outlined both her and her ex-husband’s involvement in the importing of methamphetamine.  Detective Henderson said, “Although the evidence was strong against Henry Sanchez-Silverio the assistance of Ms Sanchez-Silverio certainly helped to gain a fast guilty verdict.”

[14]     Ms Laracy fairly conceded that we might find it appropriate to give some further reduction on this account.  We have decided that that is appropriate.

[15]     The judge allowed a discount of three and a half years – 32%.  That was an entirely appropriate discount on the material before him.  It represented, in a global way, appropriate recognition for the following factors:

(a)     a very early plea of guilty;

(b)    remorse and an awareness of the significance of the harm caused by this type of offending to others;

(c)     some co-operation with the police;

(d)    no previous convictions.

[16]     Ms Laracy did raise the possibility that the assistance subsequently given to the authorities might not, if given prior to sentencing, have led to a more generous discount.  It was open to us to conclude, she therefore submitted, that sufficient discount had already been given, even allowing for this additional fact.  We consider, however, that greater recognition of that assistance is required.  In the circumstances, we believe that a discount of four years, three months (nearly 40%) is appropriate to take into account all the matters to which Laurenson J referred, plus the subsequent assistance. 

[17]     We are not satisfied, however, that the other matter to which Mr Mansfield referred deserves recognition.  Mr Mansfield, in his written submissions, referred to Ms Sanchez-Silverio having been advised that she had “cervical cancer”, which was said to be “terminal”.  It turned out, however, that there had been a misunderstanding.  To date, all that has been diagnosed as a result of cervical smear tests is “that there are changes in some cervical cells that require further investigation”.  There is no current diagnosis that Ms Sanchez-Silverio has cervical cancer.  Mr Mansfield accepted that this clarification of the appellant’s health significantly weakened this point in his argument.  Clearly there could be no reduction on this ground on the present diagnosis, especially in circumstances where the prison authorities are taking all necessary steps to ensure that appropriate specialists see Ms Sanchez-Silverio.

[18]     Even had Ms Sanchez-Silverio been diagnosed with cancer, that would not necessarily have led to a reduction in sentence on humanitarian grounds.  The Parole Act 2002 has appropriate provision for early release on compassionate grounds, which include the ground that “the offender is seriously ill and is unlikely to recover”: s 41(1).

Result

[19]     For these reasons, we allow the appeal and quash the sentence.  In substitution for the sentence of seven and a half years’ imprisonment, we impose a sentence of six years and nine months’ imprisonment. 

[20]     As will be obvious from the above reasons, despite the appeal being allowed, we have found no error in the judge’s sentence or the reasoning that led to it.  The appeal is allowed purely because of the assistance the appellant gave the authorities following sentencing, assistance which could not be recognised at the time of sentencing. 

Solicitors:
Crown Law Office, Wellington