The King v Elizabeth Marie Bolea - [2024] NZHC 2879

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…

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] NZHC 2879
Decision Date: 3 October 2024

CaseChat Overview and Summary

Elizabeth Bolea sought a discharge without conviction for her involvement in an organised criminal group. The case was heard in the High Court of New Zealand, Auckland Registry. Bolea pleaded guilty to participating in an organised criminal group that dealt methamphetamine, a Class A drug, in 2020. The case proceeded through the High Court, the Court of Appeal, and eventually the Supreme Court, which found that the Court of Appeal had erred in treating deportation as a consequence of the offending rather than of the conviction. The matter was remitted back to the High Court for reconsideration.

The central legal issues revolved around the appropriate assessment of the gravity of the offending and whether the consequences of conviction would be disproportionate to the gravity of the offending. Bolea argued that the impact on her children should reduce the gravity of her offending, a submission that was rejected by the Court. The Court found that while Bolea's role was limited and she appeared naive, the offending was inherently serious due to its connection to gang-related drug dealing. The Court also found that the consequences of conviction, including the risk of deportation and the effect on her children, were significantly disproportionate to the gravity of the offending.

The Court granted the application for discharge without conviction, noting that while granting such discharges to otherwise law-abiding partners of gang members could potentially incentivize their involvement in criminal activities, the specific consequences in this case, including the risk of deportation and the impact on her children, warranted a discharge. The Court's decision balanced the need for deterrence with the significant personal consequences of a conviction for Bolea.

Orders