The King v Juan Sebastian Galicia Romero
[2024] NZHC 3160
•29 October 2024
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2022-085-1214
[2024] NZHC 3160
THE KING v
JUAN SEBASTIAN GALICIA ROMERO
Hearing: 29 October 2024 Appearances:
R G Buckman for Crown
J Bonifant and P J Ross for Galicia Romero
Judgment:
29 October 2024
SENTENCING REMARKS OF McQUEEN J
[1] Mr Galicia Romero, you appear for sentence in relation to charges for importation of Class A drugs. In July 2024, I provided a sentence indication to you, which you accepted, and you have pleaded guilty to those charges. I must now sentence you on those charges.
[2]To do this, I will:
(a)First, identify the charges you have pleaded guilty to.
(b)Second, describe the key facts of your offending.
(c)Third, set out my reasons for the sentence I will impose on you.
R v GALICIA ROMERO [2024] NZHC 3160 [29 October 2024]
(d)Finally, I will impose the sentence on you.
The charges
[3]You have pleaded guilty to:
(a)two representative charges for importing a Class A drug (one each for methamphetamine and cocaine);1 and
(b)one charge of conspiring to possess a Class A drug for supply, being methamphetamine.2
The offending
[4] I now briefly describe the offending that led to your charges, drawing on the agreed summary of facts to do so.
[5] Operation Bali was a joint New Zealand Customs and Police investigation into a criminal syndicate importing methamphetamine and cocaine into New Zealand. You, along with other co-defendants, all played essential parts in the importation of Class A drugs and other drug dealing activity.
[6] The criminal syndicate operated from at least February 2021 to June 2022. Over that time several packages came into New Zealand which contained an estimated
28.6 kilograms of methamphetamine and 5 kilograms of cocaine. The packages were addressed to various addresses linked to one or more of the members of the syndicate. The Class A drugs were concealed in various items including a wooden table, a plate from a roading compactor, a metal cog and a sausage grill.
[7] You had a leading role in the criminal syndicate. You worked with a co- defendant to receive address details and then arranged with your overseas contacts to send imports of Class A drugs to those New Zealand addresses. This included the importation of cocaine in metal rods found in a sausage grill, which was removed from
1 Misuse of Drugs Act 1975, ss 6(1)(a) and subs (2)(a): maximum penalty life imprisonment.
2 Misuse of Drugs Act 1975, s 6(2A)(a): maximum penalty 14 years’ imprisonment.
the rods at the Boxman container the syndicate used for the extraction and cleaning of drugs as well as the importation of cocaine in a metal cog.
[8] You were responsible for 3.5 kilograms of the total Class A drugs dealt with by the syndicate contained in six packages (being 2.5 kilograms of cocaine and one kilogram of methamphetamine) and you were found with $63,450 cash at your home address concealed in a PVC pipe.
[9] The conspiring to possess for supply methamphetamine charge involved you exchanging messages with an associate to purchase methamphetamine. Your co- defendant collected from you the methamphetamine that you had purchased and then arranged to meet up with an associate to provide them with a sample. The associate took the sample they received from your co-defendant away and tested it. Later that day, your co-defendant received a call from the associate to say they could continue the deal.
Sentencing
[10] As I explained at the sentence indication hearing, the first stage of the sentencing process is to set a starting point for the offending, taking into account the aggravating and mitigating factors of the offending, and comparing the offending to other similar cases. Consistent with the approach advanced by counsel at the sentence indication hearing, and taken in other cases, I first assessed an appropriate starting point for the importation charges and then I considered whether an uplift for your remaining charge was appropriate. I will summarise my reasons for reaching your starting point from your sentence indication when I turn to sentencing you.
[11] At the sentence indication hearing, I indicated that a 25 per cent discount for any guilty pleas would be appropriate, and that any other mitigating factors that may be able to be established would appropriately be dealt with at sentencing when the usual reports and any other material would be available. I also indicated that I would consider the minimum period of imprisonment, or MPI, where required, at sentencing.
[12] Throughout the sentencing process, I must be guided by the purposes and principles of the Sentencing Act 2002. This includes the purposes of holding you
accountable, denouncing your conduct, deterring you and others who might offend like you, protecting the public and providing for your rehabilitation. I must consider the gravity of the offending and the degree of your culpability, and the seriousness of the type of offending. I must impose the least restrictive sentence that is appropriate in the circumstances.
[13]I turn now to the reasons for your sentence.
Starting point
[14] Mr Galicia Romero, your importation offending placed you in band five in Zhang, which attracted a starting point range of 10 years to life imprisonment.3 After considering counsel’s submissions and the case law referred to,4 I considered that you had a leading role in the offending, but accepted that you did not have a level of control that placed you at the high end of the leadership category. Also relevant was that the majority of the Class A drugs were cocaine. I indicated a starting point for this offending as 12 years’ imprisonment.
[15] I then uplifted that starting point by six months to account for your conspiracy to possess methamphetamine for supply charge.
Uplifts
[16] At your sentence indication, I also indicated an uplift of six months to account for your previous conviction relating to Class A drugs, which I concluded was a relevant personal aggravating factor given the closeness in time between when you were sentenced for the previous offending and the first importation of Class A drugs for which you are now being sentenced.5
3 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].
4 Zhang v R, above n 3; Fangupo v R [2020] NZCA 484; R v McMillan [2021] NZHC 2118; Pratap v R [2021] NZCA 308; Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509; and Cavallo v R [2022] NZCA 276.
5 In the sentencing indication I described the nominal starting point as being 13 years’ imprisonment but as discussed with counsel at the sentencing hearing today, this included a personal aggravating factor in the calculation of the starting point when it should be taken into account in the second stage of sentencing: Moses v R [2020] NZCA 296, [2020] 3 NZLR 583 at [46].
[17] I will now consider whether you have relevant personal circumstances that are of mitigating effect, to arrive at an appropriate sentence.
Discounts
[18] Your counsel, Ms Bonifant, submits that discounts are appropriate for the connection between your difficult upbringing and the offending, addiction to cocaine and alcohol, the impact of your imprisonment on your young child and your remorse. I address each matter in turn noting that I will also address the hardship for you of being in prison.
Personal background
[19] You are 27 years old. You were born in Colombia and informally adopted when you were about seven months old into a family with a caring mother figure, but family violence was common in the household. Your birth mother returned to Colombia when you were about five years old, and you lived with her for a time, but you say this was difficult given the abusive nature of her approach to parenting. You returned to the adoptive family which remained a difficult environment. Your mother and your two brothers moved to New Zealand as refugees in 2011. You visited as a 17-year-old but returned to Colombia after six months due to the difficulties with your mother, the responsibilities you had to take on for your brothers, and language difficulties. However, two years later you returned to New Zealand under the refugee family reunification programme.
[20] A Provision of Advice to Courts (PAC) report, a s 27 cultural background report from Ms Gabriela Montane, and an alcohol and other drug (AOD) report from Ms Mary Allan have been provided to the Court. Your partner, who is also the mother of your child, has provided an affidavit.
[21] The s 27 report has been prepared by Ms Montane, who is qualified as a clinical psychologist in Chile but does not practise as such in New Zealand nor is registered to do so. Ms Montane describes your upbringing and cultural background.6
6 It appears from the report that Ms Montane interviewed Mr Galicia Romero, his adoptive mother in Colombia and his partner.
She describes in some detail what you told her about your family background. Ms Montane emphasises that family plays a central role in a collectivist society such as Colombia but that you were unable to obtain support from either your biological or adoptive family in the circumstances you faced. Ms Montane notes that emphasis on group loyalty in collectivist societies is common and that you were encouraged by your immediate family to participate in crime. Ms Montane suggests that you lived in a context of crime, violence and a message that only through illegal activities can people succeed and get out of poverty, and that together with the pressure to conform with group norms, this affected your judgement of your own actions. Ms Montane records that you mentioned several times how much you wanted to provide for your family, make sure your child would not have to endure the same kind of childhood you had and continue to help your adoptive parents by providing money to them.
[22] The AOD report records that it was during your late teens in Colombia where your father encouraged your involvement with older men involved with criminal activity, because they had money and status.
[23] Ms Allan records your indication of a pattern of regular and heavy “binge” type alcohol use although you have managed to stop drinking with the support of your partner. You also started using cocaine which was provided to you by your older associates, but you told Ms Allan that after your arrest for the current offending you have stopped using cocaine. Ms Allan concludes that you have experienced relational trauma and intergenerational trauma as a child and have a significant untreated trauma history. She also notes your genuine concern about what will happen to your partner and child while you are in prison. She suggests that you would benefit from the referral to Refugees as Survivors New Zealand for counselling including the determination of whether or not you have post-traumatic stress disorder or any other mental health issues and for treatment as required, in order to leave you less vulnerable to addiction problems in the future.
[24] The PAC report writer noted that while an interpretation service was used for the purpose of the interview with you, there was still a barrier in relation to you fully understanding specific questions asked. Nonetheless, the report writer recorded several matters.
[25] This includes your expression of remorse for your actions and desire to make amends for the impact your offending has had on the community. However, the PAC report writer indicates their view that it is unknown whether you completely understand the impact and seriousness of your offending, despite the indications of remorse.
[26] It also appears you told the report writer that you did not consider your substance use was a factor in your offending, but the report writer’s view is that it may have influenced your role in the importation of drugs. The report writer concludes that you are at high-risk of reoffending given your ongoing offending since arriving in New Zealand and that you give rise to a high-risk of harm due to the severity of your offending and the impact your role in the importation has had on the community. You told the report writer you have not used cocaine since your arrest. The report writer also records that you said you would open an alcoholic beverage at any opportunity you could, however, given the evidence from your partner that you have not had an alcoholic drink for an entire year, I consider that this may be an example of unclear communication between you and the report writer.
[27] The report writer concludes that a term of imprisonment would be the appropriate sentencing outcome.
[28] Your partner explains in her affidavit that she is present in New Zealand on a five-year work visa and that if she cannot work, she is not eligible for social welfare assistance. She explains that there is no family support for the two of you in New Zealand. She also says that she considers that she and your child would be in danger if they went to Colombia given the relationship with your mother. In addition, she says she cannot take the child to Colombia to live permanently as he would be considered a tourist, and it is not possible to obtain Colombian national documents for him as that requires documents from you as his father that you are unable to obtain.
[29] Your partner emphasises the close relationship you have with your child and says that your absence in your child’s life would impact the child negatively and, she says, “most likely permanently”. She also says that you are both connecting with a church community and that she believes that as a result of this, your lives will improve
and you will find the guidance you crave but could not find in your own parents and family of origin. She says she has seen how hard you have tried to redeem yourself with your family and that she is certain you are trying your best to be a better person, partner, parent, son and community member.
[30] Against this context, Ms Bonifant submits that a discount is appropriate in recognition of the strong personal mitigating factors identified, including:
(a)your background of significant poverty and the drive for financial survival;
(b)the reliance your family has on your income;
(c)trauma because of abuse during childhood and possible PTSD; and
(d)the impact of the Colombian focus on family and collective wellbeing and your vulnerability to family pressures as a result, in particular involvement in crime.
[31] Ms Buckman, for the Crown, accepts that some credit is due to you for personal reasons but says that this should be balanced against the seriousness of the offending. Ms Buckman notes that the Court gave your mother a 15 per cent discount for personal background and suggests that this may also be an appropriate discount in your case.
[32] Ms Bonifant emphasises the interconnectedness between your personal circumstances and the other factors that she advances as mitigating and suggests that a discount of more than 15 per cent would be appropriate.
[33] I am satisfied that your personal background as already described has made a causative contribution to your offending which, together with the focus on family loyalty and family pressures affected your judgement as to your involvement with drug dealing.7 You have undoubtedly experienced a difficult childhood and young adulthood. However, your offending is serious, and it is also apparent and accepted by
7 Berkland v R, above n 4, at [109].
you that you were motivated by financial gain, which is supported by the significant amount of cash located at your home address.
[34] I conclude that a discount of 15 per cent is justified for your personal circumstances.
Addiction
[35]I turn now to consider addiction, where the position is not entirely clear.
[36] Ms Bonifant submits that the reports provide insight into why you continued to offend even after being prosecuted and convicted for somewhat similar matters. Ms Bonifant accepts that the AOD report draws heavily on information contained in the s 27 report but says it does confirm that you have struggled with addiction to cocaine and alcohol, nonetheless taking responsibility for your addiction and, without professional support, working hard to remain sober since your arrest on these matters.
[37] Ms Buckman notes that the reports give conflicting information in relation to your addiction, and she emphasises that you bear the onus of proving your addiction on the balance of probabilities.8 The AOD report indicated that you had a significant cocaine use problem, and the PAC report says that your cocaine use may have influenced your role in your offending. However, it is also suggested that you said that you do not feel your addiction was a contributing factor to your offending and that you do not think you need rehabilitative support for substance abuse, although you did express a willingness to engage in these services regardless.
[38] Ms Buckman cautions against awarding credit for your addiction when there is contradictory information. Ms Buckman goes on to say that even if I was satisfied you had some dependency, it is insufficient to establish a causative contribution with the scale of the offending, and the only rational cause of your offending was your desire for financial gain. The Crown therefore submits that no credit for addiction is justified in the circumstances.
8 Sentencing Act 2002, s 24(2)(d).
[39] Ms Bonifant disagrees submitting that it is clear that you have struggled with addiction. Ms Bonifant emphasises the connection to your vulnerability as described earlier and relevant to your personal circumstances. Ms Bonifant also seeks to emphasise the material in the s 27 report obtained in your first language.
[40] I consider that in these circumstances, a small separate discount for addiction is justified as I accept that the s 27 report information is more reliable in the circumstances than your statements to the PAC report writer where language difficulties are acknowledged.
Impact on your child
[41] Ms Bonifant also relies on evidence given by your partner in relation to the significant impact on your son of you being sentenced to a term of imprisonment. Ms Bonifant emphasises that your partner is currently on a working visa and has no access to state support and little or no family support for childcare. Ms Bonifant notes that in receiving a fulltime custodial sentence, you will be subject to deportation liability, with the real prospect that you will return to Colombia as a result but that your son may remain in New Zealand.
[42] Ms Bonifant accepts that the outcome cannot yet be known but submits that it is appropriate in the circumstances to give a small discount.
[43] Ms Buckman says that the case relied on by Ms Bonifant, Philip v R, can be distinguished from your position for several reasons.9 In Philip the level of credit given was the difference between Mr Philip getting a sentence of imprisonment or home detention and Ms Buckman says that is not the case here. In Philip the sentence of home detention therefore removed the impact of Mr Philip’s incarceration on his child. Ms Buckman submits your sentence is unlikely to be in range to be considered to be converted to a community-based sentence and I agree. Ms Buckman also agrees that you may face deportation. Ms Buckman emphasises that the mother of Mr Philip’s child was also his co-defendant and therefore in that situation, there would be a greater impact on the child. Finally, Ms Buckman notes that a psychological report was
9 Philip v R [2022] NZSC 149 at [53]–[58]. And also Campbell v R [2020] NZCA 356 at [41].
provided to the Court in relation to Mr Philip’s interactions with his son, and no such evidence is available in relation to you. As a result, Ms Buckman submits that no credit for the impact on your child is appropriate.
[44] I think it likely that you have a close relationship with your child and that you have had a significant role in his care to date, given your recent circumstances and despite there being no independent evidence about the relationship. I also accept that the situation faced by your partner in terms of her visa situation (and therefore the situation of your child) is more difficult than the usual position for someone whose partner is imprisoned. I also recognise the real likelihood that you will face deportation which may then lead to separation from your child. However, I also agree with Ms Buckman that your case is not sufficiently like that in Philip to justify a discount specifically on the basis set out in that case. Despite this, I conclude that the particular circumstances here justify a small credit to recognise your child’s interests and the impact on him of the particular circumstances before me.
Hardship in prison
[45] Ms Bonifant submits that you will face hardship in prison due to English being your second language. Ms Bonifant relies on the case of Pai v R, where a discount was given which included recognition of the greater difficulty of serving a sentence of imprisonment as foreign nationals who spoke no English. The Crown accepts that English is your second language and that you may have some greater difficulty while in prison but notes that any discount for both hardship in prison and remorse should be less than that which was given in Pai v R, which also included recognition of age, lack of previous convictions and remorse.10
[46] Your English language capability appears reasonable—this is borne out by the letter of remorse you have provided to the Court—but as Ms Bonifant submits, situational stress such as being in prison will make your position more difficult. I therefore accept that a small credit for hardship in prison is warranted in the circumstances.
10 Pai v R [2020] NZCA 146.
Remorse
[47] You have provided the Court with a letter expressing your apologies and deep remorse for your involvement in the offending. You say that at the time of the offending you were young and misguided.
[48] You say that you have grown and changed your perspective entirely, with your primary goal now to work hard every day to support your partner and child providing them with a good life through honest and lawful means. You emphasise that you are committed to showing your remorse through action, including working hard, supporting the community and helping others through your business. You acknowledge the harm caused by drugs in the community. You have also attempted to give back to the community through voluntary work to demonstrate your commitment to change but have not been able to due to the impact of your offending.
[49] I accept that your remorse is genuine and that you understand you must make changes in your life if you are to ensure that your child does not experience the difficulties and trauma you faced while growing up. I acknowledge the steps you are taking to join a more positive and supportive community through the church.
[50] Nonetheless, you have earlier convictions for Class A drug offending, and it was a very short time before you became involved in the present offending and indeed you told the PAC report writer you became involved while you were on home detention. This is despite the fact that your partner arrived in New Zealand in 2019 and your child was born in 2021. Against this, it may be said that the pressures on you arising from the cultural norms I discussed earlier of strong family loyalty and the desire to escape poverty have had some influence on you.
[51]Once again, I consider a small credit for remorse can properly be given.
Overall further discount
[52] Overall, I am satisfied that these additional factors warrant in total a further discount of 10 per cent.
Guilty plea
[53] As already mentioned, Mr Galicia Romero, you also receive a 25 per cent discount for your guilty plea.
Overall sentence
[54] Accordingly, from a starting point of 12 and a half years’ imprisonment, I apply a combined discount of 50 per cent and add the six months relating to the uplift for your previous offending, arriving at a sentence that I fix at six years and nine months’ imprisonment.
[55] I have discussed the question of whether a minimum period of imprisonment is required with counsel. The Crown does not seek the imposition of such an MPI and in the circumstances I agree it is not required.
Orders sought by the Crown
[56] Before I impose sentence on you, as sought by the Crown and not opposed by your counsel, pursuant to s 32 of the Misuse of Drugs Act 1975, I order the forfeiture of the cash referred to in the summary of facts relating to you and the destruction of any drugs seized during the investigation.
Imposition of sentence
[57]I will now impose the sentence on you for your offending.
[58]Mr Galicia Romero, please stand.
[59]Mr Galicia Romero, I sentence you as follows:
(a)for the importation of cocaine between 13 February 2022 and 27 May 2022 (representative), I sentence you to six years and nine months’ imprisonment.
The remaining sentences I am about to pass are to be served concurrently with that sentence.
(b)for the importation of methamphetamine between 3 October 2021 and 28 November 2021 (representative), I sentence you to five years’ imprisonment.
(c)for conspiracy to possess methamphetamine for supply on or about 28 April 2022, I sentence you to four years’ imprisonment.
[60]You may stand down.
McQueen J
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