The King v Elizabeth Marie Bolea
[2024] NZHC 2879
•3 October 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-004-9587
[2024] NZHC 2879
THE KING v
ELIZABETH MARIE BOLEA
Hearing: 03 October 2024 Appearances:
A J Bailey & R J T George for Defendant via VMR A McClintock for the Crown
Judgment:
3 October 2024
(ORAL) JUDGMENT OF WILKINSON-SMITH J
Solicitors:
Meredith Connell, Auckland
Andrew Bailey, Barrister, Christchurch
R v BOLEA [2024] NZHC 2879 [3 October 2024]
Introduction
[1] Elizabeth Bolea seeks a discharge without conviction on one charge of participating in an organised criminal group. Ms Bolea is a New Zealand resident and subject to liability to deportation if convicted. She was 22 years old at the time of the offending. She is now 26 and has two New Zealand born children.
Procedural history
[2] The charge related to offending in 2020. Ms Bolea pleaded guilty and sought a discharge without conviction in this Court.1 The gravity of the offending was assessed as moderate to low.2 It was held that the consequences of conviction were not out of all proportion to the gravity of the offending because although the conviction would have some consequences for Ms Bolea’s general career prospects, that should yield to an employer’s right to know all matters relevant to their hiring decisions.3 Although it might be that Ms Bolea would ultimately be deported, her deportation would be a consequence of her offending rather than of her conviction.
[3]Ms Bolea was convicted and sentenced to four months’ home detention.4
[4] Ms Bolea appealed to the Court of Appeal.5 The Court of Appeal found that this Court was correct to conclude that the gravity of the offending was moderate to low.6 It was held that deportation arising as a result of a rights-based process can validly be regarded as a consequence of the offending and not of the conviction, and this Court was correct to conclude that Ms Bolea’s application for a discharge without conviction should be declined.7 The appeal was dismissed by the Court of Appeal.
[5] Ms Bolea then sought and was granted leave to appeal to the Supreme Court. The Supreme Court found that the Court of Appeal was incorrect to treat deportation as a consequence of offending rather than a consequence of conviction and allowed
1 R v Bolea [2022] NZHC 2998.
2 At [7]–[19].
3 At [28]–[30].
4 At [49].
5 Bolea v R [2023] NZCA 39.
6 At [32].
7 At [45]–[47].
the appeal.8 In allowing the appeal, the Supreme Court remitted the application for discharge back to this Court.
[6] Further material has now been provided in support of the application for discharge without conviction. That material is a report from a forensic psychiatrist, Dr Panckhurst, and an affidavit from Mr Simon Laurent, who is a lawyer specialising in immigration law.
[7] In light of the new material provided, the Crown submits that it is open to the Court to conclude that the test in s 107 of the Sentencing Act 2002 is met. If the Court agrees that the test is met, the Crown says it is not aware of any reason for the Court to decline to exercise the discretion to grant a discharge without conviction.
The facts
[8] Ms Bolea is in a relationship with Mr Mataia, who is the father of her two young children. In 2020, Mr Mataia was a nominee of the Comancheros Motorcycle gang. At some time before early August 2020, Ms Bolea became aware that Mr Mataia and others connected to the Comancheros were participating in an organised criminal group that shared the objective of obtaining material benefits from the possession and supply of methamphetamine.
[9] On 4 August 2020, Ms Bolea hired a rental car from Auckland Airport. She did so at Mr Mataia’s direction. She and Mr Mataia then collected a co-offender and drove to Christchurch. Ms Bolea was aware that there was methamphetamine in the car for the purpose of supply, but she was not aware of the exact amount. A covert police search conducted on the car found two plastic containers in the boot of the car. Together they contained at least 500 grams of methamphetamine.
[10] Ms Bolea arrived in Christchurch on 5 August 2020. She went to Mr Mataia’s family home and stayed there while Mr Mataia and the co-offender went to a gang pad to supply the methamphetamine.
8 Bolea v R [2024] NZSC 46.
The law
[11] The test for a discharge without conviction is whether the consequences of conviction would be out of all proportion to the gravity of the offending.9 If that test is met, the Court has a discretion as to whether to grant a discharge without conviction.
Discussion
Gravity of offending
[12] The High Court previously assessed Ms Bolea’s offending as moderate to low. The Court of Appeal then confirmed this assessment as correct. The Supreme Court made no comment as to the gravity of Ms Bolea’s offending.
[13] Ms Bolea’s counsel submits that the impact of Ms Bolea’s offending on her children should be considered as a factor reducing the gravity of the offending. I do not agree with that approach. The impact on the children does not reduce the gravity of the offending although it might reduce the level of end sentence if a discharge were not granted. It is a personal mitigating factor, not a mitigating factor of the offending itself. The impact on children is certainly a factor to be considered in relation to an application for discharge but it is an indirect consequence of conviction and should be considered at the stage of the assessment when the consequences of conviction are identified.
[14] When assessing the gravity of the offending, I am concerned that female partners of gang members are vulnerable to being used as a “clean” resource to rent cars or houses for drug dealing offending, or to otherwise assist. Categorising the gravity of such offending as low increases the likelihood that pressure will be placed on otherwise law-abiding partners to become involved in offending.
[15] Gang related commercial Class A drug offending is inherently serious. In this case, the gravity of the offending is reduced by Ms Bolea’s limited role, her apparent naivety, her lack of knowledge of the quantity of methamphetamine involved, and the lack of commercial gain for her. It is also reduced by the dominant position of her
9 Sentencing Act 2002, s 107.
partner in the relationship and the level of coercion he was able to exercise over her. I accept Ms Bolea’s ability to resist or influence her partner’s actions was limited by her childhood experiences, including her experience of a dominant and violent father who exerted control within her family home. The gravity of the offending is reduced by Ms Bolea’s otherwise good character and clean record.
[16] The psychiatric report dated 19 September 2024, which was not before either the High Court or the Court of Appeal, reveals an almost complete lack of risk factors for criminal offending or violence. Early life adversity or trauma (witnessing and experiencing violence and control by her father) is the only notable risk identified by the use of a structured risk assessment tool. The psychiatrist’s report states that there is no known history of conduct or behavioural problems, behavioural or emotional instability, nor of any problems with impulsivity or aggression. The psychiatrist opined that Ms Bolea ignored the signs of her partner’s criminal activity as a means of preserving her own emotional, psychological, and physical wellbeing. A review of the text messaging, and discussions with Ms Bolea suggested a significant degree of naivety, alongside a lack of understanding of what was happening around her.
[17] The report references extensive evidence to indicate occasions when Ms Bolea attempted to hold a boundary or question her partner but was immediately shut down, at times in an aggressive way. The pattern mimicked the highly dysfunctional dynamics between her dependent mother and her controlling and abusive father. Ms Bolea is assessed as posing a very low risk of future offending. The most significant risk factor relates to further inadvertent or coerced involvement.
[18] I assess Ms Bolea’s personal culpability in the offending as low, but the offending itself was serious, involving as it did gang related commercial drug dealing and Class A drugs. Where a person is coerced into criminal behaviour as a result of pressure from a partner, the seriousness of the partner’s offending is relevant. The more serious the offending, the greater the obligation to resist involvement, even at a personal cost.
[19] Considering all the factors raised on behalf of Ms Bolea and in the psychiatric report, I remain of the view that the gravity of the offending is low to moderate.
Consequences of conviction
[20] When assessing the consequences of a conviction and whether they are out of all proportion, there are two factors which I must consider, and which were not before the previous High Court Judge. The first is the impact upon Ms Bolea’s children in light of the decision of Philip v R.10 The second is the additional evidence filed. These factors must be considered in light of the Supreme Court ruling that deportation is to be treated as a consequence of conviction.
[21] The decision in Philip v R had not been released when the matter was first considered. Philip v R relates to discounts which are appropriate to reflect the effect of incarceration upon the children of an offender.
[22] The impact upon Ms Bolea’s children might justify a discount on sentence and is relevant to my assessment in two ways. First, the appropriate sentence could be said to be lower than the four months’ home detention originally imposed. That is however not necessarily the case because a Judge must always consider whether the level of sentence is manifestly inadequate. Discounts will not be applied where the result would be to reduce the sentence to that level. But the proportionality of the consequences of conviction for Ms Bolea must be assessed against the fact that the offending would attract a sentence of four months’ home detention; or possibly less if a further discount is available as a result of Philip v R. Secondly, Philip v R suggests that the potential effect on the children is relevant to the assessment of the consequences of conviction. That issue is linked to the matter of primary concern — which is the risk of deportation and/or travel difficulties.
[23] Ms Bolea’s counsel submits that the consequences of conviction should be identified as follows:
(a)A conviction will create a general barrier for Ms Bolea to employment and other opportunities.
(b)A conviction will expose Ms Bolea to the risk of deportation.
10 Phillip v R [2022] NZSC 149, [2022] 1 NZLR 571.
(c)A conviction may result in Ms Bolea being unable to return to New Zealand on a resident visa should she leave the country.
[24] The previous finding about the general effect on employment was that, although a conviction would have some consequences for Ms Bolea’s general career prospects, that should yield to an employer’s right to know all relevant matters in their hiring decisions.11 The Supreme Court observed that this Court’s statutory responsibility necessitates an individual assessment of a person’s circumstances.12
[25] I accept that outside of immigration and travel consequences a conviction will present a barrier for Ms Bolea generally. I also accept that she will face stigma associated with being a participant in an organised criminal group.
[26] There are no particular employment consequences raised. Convictions inevitably have these sorts of negative impacts. A conviction has and is intended to have a punitive impact. That is part of the intended deterrent effect of the criminal justice system. Even without the Supreme Court making it clear, I accept that it is necessary to make an individual assessment of a person’s circumstances. Entirely natural consequences of a conviction may be out of all proportion depending upon the gravity of the offending.
[27] In this case, I do not consider that the general barriers are out of all proportion. There must be a disincentive for people to become involved, even on the periphery, in commercial drug dealing. The prospect of a conviction is an important deterrent factor. The criminal justice system often involves balancing individual rehabilitative needs and the requirement to impose the least restrictive outcome, with the interests of society and wider deterrence and denunciation.
[28] The consequences of conviction for Ms Bolea include exposure to the risk of deportation. This is not a consequence of conviction that applies to all or even most defendants. Further, as she is on a resident visa, even if Ms Bolea avoids deportation,
11 R v Bolea [2022] NZHC 2998 at [30].
12 Bolea v R [2024] NZSC 46 at [43].
she may face real difficulties returning to New Zealand should she leave the country. Given that her extended family reside in Australia — this is a significant consequence.
[29] I have the benefit of a detailed and helpful affidavit from Mr Laurent who is a solicitor specialising in the practice of immigration law. Mr Laurent summarises his conclusions as follows:
46.A conviction inevitably renders Ms Bolea liable for deportation as a Resident. A discharge removes any basis for deportation liability.
47.The likelihood of having deportation liability suspended is moderate but below 50%. Getting an outcome could take two or more years, and in the meantime the process would inevitably be stressful for her and her family.
48.If liability was not suspended, she might pass any or all of the tests for being granted a humanitarian appeal. However, her overall chance of success is low to moderate because she only needs to fail at one stage for the whole appeal to fail.
49.A conviction makes it likely that Ms Bolea would be turned around at the border if she wishes to return from visiting Australia in future, instead of being able to enter under the visa waiver available to Australian nationals. Instead, she would need to apply for Residence, probably through Partnership, and could fail at this by being denied a Character Waiver. She might well succeed on appeal, but the whole process would be expensive and time-consuming. A discharge removes the need for any such solution to de adopted.
[30] There is an additional matter set out in the affidavit which is that once the fact of a conviction is established, Residence class visa holders remain liable for deportation for 10 years following the arising of the liability for deportation.13 The time period runs from the date of conviction for the offence.
[31] I regard the ongoing liability to deportation as a significant consequence. Although there would undoubtedly need to be some further issue that would raise the prospect of deportation, that liability would hang over Ms Bolea for a considerable period of time. That lengthy consequence in addition to other identified consequences is a serious one for offending that was of low to moderate gravity.
13 Immigration Act 2009, s 167(1).
[32] I also consider the effect of a conviction on Ms Bolea’s ability to re-enter New Zealand on a resident visa. If deported, Ms Bolea and her children will live in Australia. The children’s father was deported from Australia and cannot return. It seems the effect of a conviction on Ms Bolea will be that she and her children will either be estranged from the father of her children because she will be in Australia; or she and her children will be estranged from the extended family in Australia because of the difficulty re-entering New Zealand even if she is not deported.
[33] Weighing all of the factors in combination, I am satisfied that the consequences of conviction are out of all proportion to the gravity of the offending.
[34] Once that threshold is met, it will be rare for the Court to decline to grant a discharge without conviction.14 I am concerned that granting discharges without conviction for otherwise law-abiding partners of gang members increases the incentive to use partners as resources to aid offending. It should not be assumed that partners who turn a blind eye or go along with serious offending or assist by renting cars for the movement of drugs will usually be granted a discharge without conviction. But the consequences of conviction in this case are greater than would usually be the case because of the risk of deportation and the effect on the children. I agree that in this case, I should exercise the discretion to grant a discharge without conviction.
[35]The application for discharge without conviction is granted.
Wilkinson-Smith J
14 Blythe v R [2011] NZCA 190, [2011] 2 NZLR 620 at [13].