The King v Maria Emilia Otero
[2024] NZHC 2778
•25 September 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2021-009-8205
[2024] NZHC 2778
THE KING v
MARIA EMILIA OTERO
Hearing: 25 September 2024 Appearances:
A M Harvey for Crown
A M McCormick and N J Hansen for Defendant
Judgment:
25 September 2024
SENTENCING REMARKS OF EATON J
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
R v OTERO [2024] NZHC 2778 [25 September 2024]
Introduction
[1] Maria Emilia Otero, you appear for sentence having pleaded guilty to one representative charge of importing a Class A controlled drug, cocaine.1 A conviction has not yet been entered following notice that you gave when your plea was entered that you would be applying for a discharge without conviction.
The offending
[2] A summary of facts has been prepared. It was acknowledged by you that summary of facts is accepted when you entered your plea and I refer to that summary now.
[3] Your offending arises out of a police investigation, code-named ‘Operation Mist’, targeting the importation and supply of cocaine into New Zealand from South America. That investigation involved co-operation with overseas drug enforcement authorities and commenced after New Zealand Customs intercepted a number of cocaine importations destined for rural Canterbury addresses. The drug syndicate operated from at least January 2018 to December 2021, using farm workers as “cover”. Over that period, at least 51 consignments of cocaine were either imported or attempted to be imported into New Zealand. It is estimated 42.5 kilograms of cocaine with a street value of over $19 million was imported. A further 59.1 kilograms of cocaine with a street value of more than $26 million was intercepted.
[4] You are now 33 years of age. You first arrived in New Zealand from Argentina in September 2016, initially on a three-month visitor visa and then on a working holiday visa which you were granted shortly after your arrival. You worked on a dairy farm in Oamaru and you were offered sponsorship by your employer. In December 2016, you went home to Argentina where you obtained a work visa and you then returned to New Zealand a few months later. In August 2019, after working various jobs and taking an English course, you moved to Methven to work on a farm.
1 Misuse of Drugs Act 1975, s 6(1)(a); maximum penalty life imprisonment.
[5] While there you became involved with the Latino community. In June 2020, you met Mr Pelaez Garcia. A close relationship developed with Mr Pelaez Garcia, and you lived with him between June and November 2021. It is through Mr Pelaez Garcia that you became involved in the drug syndicate. He was a senior member of that syndicate, successfully importing approximately 8.5 kilograms of cocaine, attempting to import a further 29 kilograms, and he was engaging in money laundering. He was heavily involved in arranging the importations and coordinating with others as to the receipt of the imported packages. Mr Pelaez Garcia was sentenced in July of this year to 15 years and five months’ imprisonment for his role in the drug syndicate.2
[6] Your offending involved providing two addresses at the request of Mr Pelaez Garcia in relation to the importation of four consignments of cocaine. One of those packages was intercepted. It contained 1.007 kilograms of cocaine. The other three packages were not intercepted, so the total amount of cocaine the subject of the four importations is unknown. The Crown estimate it to be a total of at least
2.2 kilograms, including the intercepted package.
[7] You were asked to and did provide the first address to Mr Pelaez Garcia in late 2020. That was an Ashburton address of a friend. Two consignments were delivered to that address from the United States and England in April 2021. On 9 April, you messaged that friend asking if a package had arrived. You picked it up and delivered it to Mr Pelaez Garcia. The second consignment arrived on 22 April and was picked up by Mr Pelaez Garcia and an unnamed defendant, who was the head of the drug operation in New Zealand.
[8] You were asked to and did provide a second address, that of a female friend in Dunsandel. That occurred between February and March 2021. One package was delivered to that address from the United States in April. Upon its arrival, Mr Pelaez Garcia picked it up. The other consignment from Panama that was destined for the Dunsandel address was the package that was intercepted by New Zealand Customs on 8 November 2021.
2 R v Pelaez Garcia [2024] NZHC 1862.
[9] When Operation Mist was terminated in November 2021, you were arrested and charged. You initially denied the allegations but, following revision of the charges, you pleaded guilty in April of this year.
[10] Your involvement is limited to the provision of the two addresses at the request of Mr Pelaez Garcia, who was then your intimate partner. You are not considered to be otherwise involved in the importation of those packages nor are you said to be a member of the syndicate. The importations, it is acknowledged, were organised by Mr Pelaez Garcia and an unnamed defendant.
[11] You filed an affidavit in late May 2024 setting out further background or context to your offending and addressing the consequences for you were you to be convicted. A disputed fact hearing was then scheduled to be heard on 10 September. You filed a further affidavit sworn on 5 September. It was considered there was no longer a need for a disputed fact hearing.
[12] Within your affidavits, you say that you and your partner were away from your homes on holiday when he first asked if he could use the address of a friend of yours to receive a purchase he had made. You say you thought nothing of it and had no hesitation in asking your friend. When Mr Pelaez Garcia asked you for another address he could use a short while later, you said that made sense to you because he explained he was about to shift house and did not know where his next address was going to be. You maintain in your more recent affidavit that you provided the addresses “without thinking or investigating” because there was “no reason” for you to be suspicious, and that this was still the case in April when you picked up the first package from the Ashburton address and when Mr Pelaez Garcia picked up the package that had been delivered to the Dunsandel address.
[13] You say it was not until later on when you asked a friend to use her address for your own delivery and she then told you of a rumour that South Americans were importing cocaine into New Zealand that your suspicions were raised. You say that you confronted Mr Pelaez Garcia directly and he denied his involvement in drug importation. However, you say your suspicions were confirmed when he and an unnamed defendant picked up the second package from the Ashburton address because
you witnessed them entering the house when they did not have permission to do so. You have deposed that caused arguments between you and Mr Pelaez Garcia. He told you it would not happen again and it was best for you to not ask or know anything about it.
[14] Based on that, you say that it was your naivety that led you to become involved, but you do admit you became aware he was involved in a syndicate importing cocaine into this country and the addresses you provided to him were being used for that purpose. You say, Ms Otero, that your mistake was trusting this man and believing that what you describe as your “ignorant stance” would leave you in a position of innocence.
[15] As I have explained to your counsel this morning, as I am sure you understand, I must sentence you today in accordance with your plea of guilty to being a party to the importation of cocaine, in accordance with the summary of facts.
Principles of sentencing
[16] The Sentencing Act 2002 sets out the principles and purposes of sentencing that I am required to take into account in sentencing you today. The relevant purposes I assess as including accountability, denunciation, deterrence and rehabilitation. I need to consider the gravity of your offending, the degree of your culpability, the seriousness of the offending and the general desirability of consistency in imposing sentences for like offending. I am required to impose the least restrictive outcome that is appropriate in the circumstances.
Discharge without conviction
Principles
[17] You have applied to be discharged without conviction under s 106 of the Sentencing Act. The Court has a discretion whether to grant such an application.3 In deciding whether a defendant should be discharged without conviction, I must follow s 107 the Sentencing Act. A defendant may be discharged without conviction only if
3 Sentencing Act 2002, s 106(1).
the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence. The assessment involves a three-stage test.4
[18] First, I must determine the gravity of your offending by reference to aggravating and mitigating factors of the offending, as well as those factors that are personal to you.5 Secondly, I must identify the direct and indirect consequences that would follow from a conviction, and finally, I must undertake a proportionality assessment to determine whether those consequences are out of all proportion to the gravity of the offending.
[19] When I come to determine whether something is a consequence of a conviction, it is not necessary that I be satisfied it will be an inevitable outcome.6 Rather, what is required is a real and appreciable risk of the consequence occurring.7 If there is such a risk, the nature and seriousness of the consequence will be material to my assessment of whether the consequences are out of all proportion to the gravity of the offence, as too will the degree of likelihood of it actually occurring.8 That is to say, the higher the likelihood and the more serious the consequences, the more likely that the statutory test can be satisfied.9 But it is insufficient if the consequences simply outweigh the gravity of the offending. “Significantly more” is the standard required.10
[20] Lastly in relation to the principles, the Supreme Court has recently ruled that it is necessary for sentencing judges when considering a discharge without conviction whether or not the defendant may face a later process that will consider factors similar to those considered as part of the discharge without conviction analysis.11 Relevantly in your case, both liability to deportation and risk of actual deportation are to be considered as consequences of conviction, rather than treating those as consequences
4 Scott v R [2019] NZCA 261 at [79], citing Prasad v R [2018] NZCA 537 at [11].
5 Z v R [2012] NZCA 599, [2013] NZAR 142 (CA) at [27], citing Blythe v R [2011] NZCA 190,
[2011] 2 NZLR 620 at [13].
6 Noori v Police [2023] NZHC 3799 at [14].
7 At [14].
8 At [14], citing Iosefa v Police HC Christchurch CIV-2005-409-64, 21 April 2005 at [34].
9 Iosefa v Police, above n 8, at [35].
10 R v Smyth [2017] NZCA 530 at [12].
11 Bolea v R [2024] NZSC 46 at [43].
of the offending.12 The real question is whether those consequences are out of all proportion to your offending.13
Gravity of the offending
[21] In determining gravity, I must assess the likely sentence that would otherwise be imposed if you were not discharged without conviction. I must determine the sentence that is commensurate with the seriousness of your offending in accordance with sentencing guidelines for Class A drug dealing that have provided by the Court of Appeal,14 and further clarified by the Supreme Court.15 Importantly, sentencing must involve “a full evaluation of the circumstances to achieve justice in the individual case”.16
[22] Broadly, your culpability is to be assessed by the quantity of the drug involved, because quantity indicates both the extent to which an operation is commercial and the extent of harm that is caused to the community. But I also must have regard to the role you played in the offending.17 It is well recognised a more limited role deserves a less severe sentence than a significant or leading role.18
[23] First, as to quantum. As I have observed, the only known amount of cocaine in the four packages associated with your offending is the 1.007 kilograms within the intercepted package. The Crown estimates, by reference to other known importations in this operation, that you were involved in the importation of a total of 2.2 kilograms of cocaine. Mr McCormick, in his submissions on your behalf, submits that total might be around two kilograms. I do not consider the difference between counsel to be substantial. In my view, it does not impact the starting point range.
[24] The quantity of cocaine involved in your offending places you at the very bottom of what is described as band 5 of Zhang, which provides for a starting point of
12 Bolea v R, above n 11, at [44].
13 Singh v Police [2024] NZHC 1797 at [21].
14 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648; and Cavallo v R [2022] NZCA 276, (2022) 30
CRNZ 726.
15 Berkland v R [2022] NZSC 143, [2022] 1 NZLR 509.
16 Hessel v R [2020] NZSC 135, [2011] 1 NZLR 607 at [38], as cited in Zhang v R, above n 14, at
[104] and [120].
17 Zhang v R, above n 14, at [104], [106]-[117] and [126]-[127].
18 At [123]. See also, Berkland v R, above n 15, at [12].
10 years’ imprisonment through to a sentence of life imprisonment. That is a band that applies to offending involving quantities of two kilograms of a Class A controlled drug or more.19 Mr McCormick, on your behalf, submits a significant downward adjustment in the band classification is appropriate to reflect your role. He places emphasis on your role. He submits that it should be considered “lesser” because you performed a limited function under direction; that you were under at least emotional pressure from your then intimate partner; and because your involvement was through naivety. Further, he highlights that you received no financial gain, that you had no influence on other members of the drug syndicate and nor were you aware of the wider operation. Overall, he submits your offending is more appropriately categorised as falling within band 2 of Zhang and he urges the Court to adopt a starting point of two to three years’ imprisonment.
[25] Mr Harvey, for the Crown, acknowledges you played what is described as a lesser role but submits this is “tempered” by the fact your offending involving four importations; that you have no underlying vulnerability such as addiction; and you must, in the Crown submission, have benefitted from your partner, Mr Pelaez Garcia’s financial rewards. The Crown submits your offending is broadly similar to that of Ms Ramirez Alfonso who was sentenced recently in relation to the same operation. The Crown submit a starting point of five and a half to six years is appropriate for your offending. That would place you at the bottom of band 3 and towards the upper end of band 2 of Zhang.
[26] I agree with both counsel. I do not think there can be any doubt that you played a lesser role in the offending. I make that finding based on what I have identified as seven factors, being factors that are recognised by the Supreme Court in Berkland v R:20
(a)First, you performed a limited function under direction. Your involvement was confined to providing two addresses at the request of Mr Pelaez Garcia and picking up one of those packages upon its arrival. You had no other involvement in the importation of cocaine. Your role
19 Zhang v R, above n 14, at [125].
20 Berkland v R, above n 15, at [71].
was “hands-off” and indirect. It is clear, on my assessment, that members of the syndicate were able to utilise other addresses for illicit imports. In my view, this offending would have taken place with or without your involvement.
(b)Second, there is no evidence of coercion or intimidation by Mr Pelaez Garcia towards you. However, I do accept you felt pressure to provide addresses to him as requested, that pressure arising from the context of you being in an intimate relationship with a man who you say treated you kindly; someone you trusted; and with whom you saw a future, indeed you saw a family. You felt obliged to meet the expectations he imposed on you. I acknowledge, although it is not pursued as a formal mitigating factor of your offending, that you did see fit to engage with psychological assistance following your relationship with Mr Pelaez Garcia.
(c)Thirdly, I accept your involvement was borne out of naivety. You trusted your partner without making further inquiries. The Crown’s written submissions questions your naivety and you have been described as “savvy”, having been able to travel to New Zealand and establish yourself here. I do not accept that submission. You have worked very hard to achieve academically in Argentina and to secure a future in New Zealand. I doubt you would have risked that future had you had actual knowledge that Mr Pelaez Garcia’s request to provide addresses was for the purpose of facilitating the importation of cocaine. Your lack of action once you became aware of this, your turning a blind eye to his involvement in the syndicate I consider to be synonymous with your naivety.
(d)Fourthly and significantly in my view, you were not motivated by financial reward. You did not receive nor expect any financial reward for providing the addresses to your partner. I am satisfied your motivation was to simply to assist him. Whilst Mr Harvey has submitted that the Court should infer that you benefited from the
offending because of the nature of your relationship with Mr Pelaez Garcia, I agree with Mr McCormick that there is no evidence of you enjoying any of the fruits of the syndicate’s illicit operation. On my assessment of the material, you have been financially independent since you came to New Zealand, first by undertaking work on dairy farms and later, and still engaged in, a professional job. No evidence has been offered that Mr Pelaez Garcia was supporting you financially, nor is there evidence before me that he was enjoying a particularly affluent lifestyle that you may have indirectly benefitted.
(e)Fifth and linked to your lack of financial motivation and monetary reward is the disproportionate risk you assumed. That risk is in no way commensurate to your limited involvement. That is particularly so when considering the financial gain the syndicate received as a result of its overall drug operation.
(f)Sixth, I accept you had no influence over anybody else involved in the chain of command. Your only point of contact was Mr Pelaez Garcia, and that was a relationship that was highly personal and quite independent of the illicit enterprise.
(g)Finally, I accept, certainly at the beginning of your involvement, you had no awareness nor understanding of the scale of the operation that your partner was involved in. Even when through his repeated requests for addresses and inquiries about the receipt of packages were made by your partner, I accept you still did not know about the extent of the syndicate’s operation.
[27] On that evaluation, Ms Otero, I consider your involvement is appropriately assessed as being in the lesser category. Indeed, I would describe it as being at the lower end of that category.
[28] Role is important. As discussed by the Court of Appeal in Martin v R, an offender’s role is a significant consideration in determining culpability and may
require the Court to move not only within a Zhang band, but between bands.21 In Martin, the Court also recognised that liability that rests on the mental state of recklessness as opposed to actual knowledge may impact on the application of the bands.22 The Court also observed that treating the quantity of drug involved as the primary determinant of a sentence in a case where a person has no knowledge of the nature or quantity of the drugs involved will also diminish the relevance of quantity in assessing culpability.23 Finally, the Court observed that quantity will generally remain relevant even where an offender does not know the quantity of drugs involved. The Court said that was:24
… because it is usually a reasonable proxy for the social harm that has been or could be done by the drug, and for the illicit gains made from making, importing and selling it. But quantity does not always serve as a proxy for these important factors: for example, where a person with a lesser role receives no illicit gains or receives a benefit that is not linked to the quantity of drugs involved, quantity does not serve that second proxy function.
(footnote omitted)
[29] I accept your offending was based on wilful blindness or recklessness rather than knowledge and that you were not, at any stage, aware of the nature or quantity of the drugs involved. The proxy function I have referred to is not engaged here because you did not receive any benefit. I also take into account that this is offending that relates to cocaine rather than methamphetamine.
[30] Standing back, I consider a significant downward adjustment, from band 5 of Zhang to band 2, is appropriate to reflect the circumstances of your offending. Within band 2, the Court of Appeal has indicated a starting point range of between two up to nine years’ imprisonment.
[31] Both counsel have, in their written submissions, referred to cases that are of assistance in determining a more exact starting point.
21 Martin v R [2022] NZCA 285 at [91].
22 At [92].
23 At [92].
24 At [93].
[32] In R v Dickson, Mr Dickson provided his home address for a consignment of an unknown amount of cocaine which he received and then delivered to an old school friend.25 A second consignment of 300 grams was later intercepted. Mr Dickson did not consent to that delivery as he was no longer living at that address, but he assisted in trying to retrieve it. This Court there considered a starting point within band 2, rather than band 3, was appropriate due to the offending being related to cocaine rather than methamphetamine and to reflect Mr Dickson’s lesser role.26 Walker J observed there was no evidence Mr Dickson received any payment. The Court adopted a starting point of three years’ imprisonment.
[33] That same starting point was adopted in R v Paulo for a representative charge of supplying more than two kilograms of methamphetamine.27 Although Mr Paulo knew a particular vehicle was involved in drug offending when he tried to retrieve that vehicle, he had no knowledge of the quantity of drugs that was located within it, nor did he have influence over others. Rather, he acted under direction and was driven by his own personal addiction. In that case this Court considered a starting point within band 2, instead of band 5, was proportionate to his culpability.
[34] In R v Stone, a starting point of three years and six months’ imprisonment was adopted for the supply of at least two kilograms of methamphetamine, the Court finding a shift from band 5 to band 2 appropriate.28 Mr Stone’s involvement comprised accompanying a senior member of the syndicate to drop offs and pick ups, cash handovers and he had a vehicle registered in his name, a vehicle that was used by his co-offenders. He was assessed as having played a lesser role due to his limited awareness of the scale of the operation; he performed a limited function under direction; that he was motivated primarily by addiction; and that he was paid in drugs.
He had no influence over others in the chain.29
[35] Ms Otero, your offending involved a significantly higher quantity of drugs than Mr Dickson’s. Your culpability is more similar to Mr Stone who, like you, met all the
25 R v Dickson [2023] NZHC 1124.
26 At [22], citing Berkland v R, above n 15, and Harding v R [2022] NZSC 143 at [126].
27 R v Paulo [2020] NZHC 1797.
28 R v Stone [2021] NZHC 636.
29 At [31].
characteristics outlined by the Supreme Court of the “lesser” role category, although your offending, unlike Mr Stone’s, was solely through naivety, loyalty and misguided trust rather than addiction.
[36] In R v Fangupo, a case cited by the Crown, a defendant, Mr Ikuia, pleaded guilty to the importation of 449 grams of methamphetamine.30 He was paid $5,000 in return for providing a business address for the package to be delivered. This Court applied a starting point of five years’ imprisonment given Mr Ikuia’s “very modest role and naivete”.31 Your role was similarly modest, but you were not acting as a paid member of the syndicate. I consider your culpability to be lower than Mr Ikuia’s.
[37] The other cases cited by the Crown I consider involved significantly greater culpability and attracted starting points well above the range I consider appropriate for you.32
[38] I must ensure the sentence I impose on you is consistent with sentences imposed for your co-offenders. Consistency is an important principle of sentencing. Most relevantly is Ms Ramirez Alfonso. Her offending, although not on all fours with yours, is the most comparable, certainly out of Operation Mist. Her starting point was five years and six months’ imprisonment for importing three packages of cocaine totalling 1.8 kilograms.33 She provided her address to receive consignments of cocaine in exchange for payments and she arranged a “catcher” for the syndicate. She also topped up what was described as a consignment phone at the request of the syndicate’s head. She was paid $5,000 for one importation and another cash sum she maintained was less than $5,000, in exchange for receiving the packages. She stored them at her house and she would notify other members when the packages arrived.
30 R v Fangupo [2019] NZHC 2896.
31 At [32].
32 de Macedo v R [2020] NZCA 132: a starting point of 11 years’ imprisonment was adopted for the offender’s “lesser” role as a courier in the importation of approximately 2.4 kilograms of cocaine. Singh v R [2020] NZCA 211: a starting point of eight years’ imprisonment was adopted to reflect the lesser role of the offender who agreed to be the recipient of two packages of cocaine totalling
4.38 kilograms of methamphetamine. R v Dos Santos [2023] NZHC 966: a starting point of seven years’ imprisonment was adopted for importing 610 grams of cocaine. The offender was the knowing recipient and was found with items consistent with drug dealing and $2,000 cash upon arrest.
33 R v Ramirez Alfonso [2024] NZHC 1868 at [29].
[39] Although on a quantum basis alone, that offending fell within the higher end of band 4. Mander J, in sentencing Ms Ramirez Alfonso, placed her offending in the middle of band 2 due to her reduced role, initial naivety, and lack of insight as to quantum.34
[40] You are similar to Ms Ramirez Alfonso in that you had no contact with overseas suppliers; you did not direct others; and you acted through naivety. However, I consider your offending is less serious. She was paid not unsubstantial amounts for her role, and, although only becoming suspicious after the first package, she continued to assist in the syndicate’s activities. Her recklessness was assessed by Mander J as being at the “higher end”. I consider yours to be at the lower end. Your offending involved a greater quantity of cocaine, but only marginally so, and you had no knowledge of the amounts that were involved.
[41] As I have observed, guideline judgments do not alter the requirement that flexibility and discretion must be exercised in setting sentences.35 That is to say the sentence I impose on you must be individualised for you.
[42] I consider your limited role to be most significant in setting a starting point for your offending. I have assessed your role as being at the lower end of the lessor category. That you were not motivated by financial reward and did not receive financial reward aligns your offending more closely with that of Mr Dickson than that of Mr Ikuia and Ms Ramirez-Alfonso.
[43] I have accepted your offending can be described overall as naïve and borne out of loyalty, trust and the love of your then partner. But you are an intelligent woman. I can see that from the references, Ms Otero. When Mr Pelaez Garcia was making repeated requests for addresses to be used for delivery of packages while he was living at his own address, you must have been suspicious as to his motive. Hence your acknowledgement that you were wilfully blind. Your suspicions must have been only further aroused when on “several occasions” you had to check with your friends whether packages had arrived. You chose not to ask questions. You maintain you
34 R v Ramirez Alfonso, above n 33, at [29].
35 Zhang v R, above n 14, at [120].
were unaware of the risk that you were facilitating the importation of cocaine until after you had already provided the addresses and the first two consignments had already been uplifted. But as I have said, you have pleaded guilty to a representative charge that covers the four importations. I must proceed on the basis of your guilty plea. That tells me that at the very least you were wilfully blind, that is to say reckless as to the contents of the imported packages for which you were providing addresses to permit their importation.
[44] Overall, having regard to your lesser role to the cases that I have referred to and accepting your offending involved cocaine, which is recognised as “somewhat less harmful than methamphetamine”,36 I assess the appropriate starting point for your offending in the vicinity of three years and six months’ imprisonment.
[45] With focus on the application for a discharge without conviction, Mr McCormick points to the mitigating personal factors that he says reduce the gravity of your offending. That includes your guilty plea; your remorse; your status as a foreign national living in New Zealand; and your good character. Mr Harvey acknowledges those discounts would be available for those factors but there is disagreement as to the extent they mitigate the gravity of your offending. I have taken into account each of those factors when it comes to assessing the overall gravity of your offending in the s 106 evaluation.
[46] Mr McCormick submits the gravity of your offending can be assessed as low. The Crown says it is serious. I have assessed a starting point that is appropriate for you would be in the region of three years and six months’ imprisonment. While I have not yet quantified the exact credits I allow for personal mitigating features, overall, I consider the gravity of your offending to be of moderate seriousness.
Consequences of a conviction
[47] Your counsel submits the primary consequence of a conviction relates to your immigration status.
36 Cavallo v R, above n 14, at [62(c)]. At [63], the Court of Appeal held cocaine offending should generally be sentenced below comparable methamphetamine starting points “of around five per cent”.
[48] Ms Mason, who is an immigration lawyer, has filed an affidavit dated 29 May 2024 addressing your risk of deportation. She outlines the real and appreciable risk of both liability to and actual deportation if you are to be convicted. She opines that the entry of a conviction means it is “highly likely” you will be served a Deportation Liability Notice. Despite the mitigating circumstances of your offending and those that are personal to you, Ms Mason tells me there remains a high likelihood you will be deported just given the nature of your offending. If not deported, you would still face the barrier of obtaining a character waiver to secure the grant of any future temporary or residence class visa, which is a very discretionary process. If you are discharged without conviction, Ms Mason is of the view this would be less likely to occur.
[49] In your affidavit you also express your concern that a conviction would significantly limit your opportunities to travel or reside in other countries, and impact negatively on your prospects of securing good employment.
[50] The Crown accept a conviction will raise a real and appreciable risk you will be deported, but the Crown submission is a conviction is not necessary to trigger that liability.
[51] Under s 157 of the Immigration Act 2009, a Deportation Liability Notice is issued if the Minister determines there is sufficient reason to deport the visa holder, including, pursuant to ss (5), criminal offending and other matters relating to character. Liability to deportation arises regardless of the entry of conviction but I accept there is a real and appreciable risk of deportation if you are convicted and that the likelihood of Immigration New Zealand proceeding down that path will be increased if I enter a conviction.
[52] I acknowledge the consequence of deportation for you are serious. There is no question you have worked hard to establish your life here in New Zealand. You describe Argentina as a country with limited opportunities for young persons. A conviction would expose you to the risk of actual deportation and set back your sustained and, in my view, admirable efforts to build a better future for yourself here
in New Zealand. I observe that, putting aside your current offending, you have established yourself as a contributing member of the New Zealand community.
[53] Having said that, there are no aggravating factors associated with deportation such as the separation from a spouse or from children. You have no dependants, and your family and a lot of your closest friends remain in Argentina. I say that to make the point that if you were deported, you would not be alone and without a support.37 I accept you have now lived in New Zealand for eight years and you have established strong support networks here but you do have strong ties still to Argentina. That is clear.
Proportionality assessment
[54] Mr McCormick submits I ought to assess the risk of deportation as being moderately to highly serious. He emphasises your self-motivation to develop a successful career and life here in New Zealand which involved moving away from family and learning a new language. He submits that balanced against, what he contends, to be the lower level seriousness of your offending, that the Court should exercise its discretion to discharge you without conviction.
[55] Mr Harvey submits your admitted role in Class A drug dealing offending, offending that carries a maximum penalty of life imprisonment, means a conviction is proportionate to the consequences that might flow.
[56] The more general consequences that you have raised concern about, being travel and employment, I do not consider carry great weight in considering the merits of your application to be discharged without conviction. In my view, they are commensurate with the gravity of your offending. The real focus is whether the immigration consequences are out of all proportion to your offending.
[57] While I have assessed your level of involvement to be limited, it remains that the gravity of your offending attracts a starting point of around three and a half years’
37 For comparison, see Likiliki v Police [2023] NZHC 1428, where the appellant was granted a discharge without conviction in part due to the fact he would be returning to a potentially abusive family and be without support.
imprisonment. Relevantly, while a discharge without conviction may reduce the likelihood that you will be deported, it will not eliminate that risk. I acknowledge that you face a serious risk of being deported to Argentina given the nature of your offending, but that likelihood is, in my view, inherently reflective of your offending. I describe the risk of deportation as being unsurprising and an inevitable consequence for a person who has arrived in New Zealand as a foreign national and has subsequently engaged, albeit to a limited degree, in Class A drug dealing. As Mander J observed in refusing Ms Ramirez-Alfonso’s application to be discharged without conviction, she too relied on deportation risk:38
…There is no closed category of offending in respect of which an application can be entertained, but the jeopardy of your status in this country was an entirely predictable risk you took in involving yourself in such offending.
[58] And whilst I have assessed Ms Ramirez-Alfonso’s offending as being more serious than yours, the observations of Mander J, in my view, equally applies.
[59] It follows, Ms Otero, I am not satisfied the consequences of a conviction being entered would be out of all proportion to the gravity of your offending. The application you have made to be discharged without conviction is declined.
Personal mitigating factors
[60] That leaves me to fix what is the end sentence from the starting point that I have given, and it is here where I quantify credits for personal factors.
[61] There is no suggestion of there being any factors personal to you that aggravate your offending. There are a number of mitigating factors. The first is your guilty plea.
Guilty plea
[62] You pleaded guilty on 19 April 2024. That was over two years after you were first charged in November 2021 and it was about a month prior to your scheduled trial. The lateness of your plea necessarily limits the deduction to which you would be entitled. However, as Mr McCormick has highlighted, the Crown case against you did
38 R v Ramirez Alfonso, above n 33, at [40].
change, giving rise to the resolution to which you then promptly pleaded guilty. An organised criminal group charge was not pursued, nor were a number of specific allegations of importation or attempted importation of cocaine.
[63] I accept there is still significant public interest in avoiding a trial for what was a significant police operation. You were the second to last of the Operation Mist defendants to plead, and ultimately a trial was avoided.
[64] Mr McCormick has, somewhat boldly, submitted you should receive a discount of 25 per cent. The Crown submits a discount between 10 and 15 per cent is appropriate.
[65] In fixing what I consider to be the appropriate level of discount, I have regard to the deductions allowed for your co-defendants. Five of your co-defendants pleaded guilty in March 2024 and received a 10 per cent discount.39 The prosecution case against them was described as strong and their delayed pleas were described by the sentencing Judge as “belated”, and not as a result of a resolution.40 Although they pleaded earlier than you, I consider the circumstances relating to your guilty plea are different and warrant greater credit.
[66] Ms Ramirez Alfonso pleaded guilty in March of this year. She received a 15 per cent deduction on the basis of the resolution reached with the prosecution that “considerably changed” the case against her.41 Mr Blanco Gaviria similarly received a 15 per cent deduction for his guilty plea entered in April of this year due to a resolution that saw the Crown altering its assessment of his role in the syndicate.42 I consider the circumstances that surround your guilty plea are broadly similar to those two. Accordingly, I apply a deduction of 15 per cent for your guilty plea.
39 R v Pelaez Garcia, above n 2, at [27]; R v Montoya Ospina [2024] NZHC 1817 at [33]; R v Bonilla Casanas [2024] NZHC 1814 at [32]; R v Jordan [2024] NZHC 1810 at [22]-[23]; and R v C [2024] NZHC 1387 at [19].
40 R v Pelaez Garcia, above n 2, at [27]; R v Montoya Ospina, above n 39, at [33]; and R v C, above n 39, at [19].
41 R v Ramirez Alfonso, above n 33, at [45].
42 R v Blanco Gaviria [2024] NZHC 1916 at [41]-[43].
Previous good character
[67]You are entitled to an allowance to reflect your previous good character.
[68] I have read a vast array of references from persons who know you and who admire you. References have been provided by your parents, your sister, your brother, your oldest friends in Argentina, the parents of one of your closest friends who has since died, school and university friends, friends you have met in New Zealand, a former teacher and those both for and with whom you have previously and currently work.
[69] There is unquestionably a common thread that runs through each of those references. You are described as caring, considerate, intelligent, hardworking, entrepreneurial, driven, supportive, empathetic and honest. That is how those who know you best describe you. The references speak of your community spirit. They speak of the voluntary work you have undertaken to provide for those who struggle in your home country.
[70] Your references are most impressive. They tell me you came from very humble beginnings, and you have worked very hard to achieve academically, to better yourself and in doing so to create opportunities to give back to your family at home. No doubt your family, friends and referees shake their heads in disbelief, especially those so far from home that you became involved in international Class A drug dealing. At the age of 33, you appear as a first offender. You have lived in New Zealand for eight years. You are generally described as responsible and a contributing member of the community, both here and in your homeland of Argentina.
[71] I accept, without question Ms Otero, putting this offending aside, you are a person of outstanding character, willing and still able to make a positive contribution to your community.
[72] What level of credit ought to be allowed is “very much a matter of impression”.43 That you appear as an offender with an unblemished record and a very
43 Manawaiti v R [2013] NZCA 88 at [18], citing William Young P in R v Hockley [2009] NZCA 74 at [32].
good reputation means the fall from grace you have suffered in the eyes of your community is punishment in itself. The length of time over which you have exhibited your good character is a relevant consideration. I accept that, in your case, the evidence of your good character goes well beyond the absence of previous convictions.
[73] Overall, I assess a credit of 15 per cent to be appropriate to reflect your previous good character.
Remorse
[74] The pre-sentence report records your remorse and mortification at your involvement in this offending. It assesses you as being a low risk of re-offending. I have no doubt that is right. Unsurprisingly, you do not have any identified rehabilitative needs but, as I have mentioned, it is to your credit that you have taken steps to better yourself by engaging with a counsellor and, more recently, with a psychologist. Although perhaps not expressed as directly as I might have expected, I accept it is implicit within your affidavits when I read them alongside the pre-sentence report and the character references, that you are genuinely remorseful for your role in this offending, albeit I sense you are somewhat overwhelmed at the predicament you now face.
[75] I think it appropriate to allow a further five per cent to reflect your remorse. I consider a combined deduction of 20 per cent, both for previous good character and remorse, those factors being inter-related, to be within range.
Foreign imprisonment
[76] The final mitigating factor relevant in fixing sentence relates to your isolation and denial of family support that you would experience being imprisoned in New Zealand. It is acknowledged that could be treated as a mitigating factor if it would make the sentence harder to serve.44 Quantifying what, if any, credit should be allowed is very much a matter for the discretion of the sentencing Judge.45 And as
44 Zhang v R, above n 14, at [163].
45 At [163].
Mr Harvey responsibly acknowledged in his submissions this morning, many of your co-offenders have received a five per cent discount for the disproportionate impact imprisonment in New Zealand may have.46
[77] You have lived in New Zealand for several years. Your parents and one of your siblings remain in Argentina, as do your strong network of your friends and your broader community. You have not seen them since you came to live in New Zealand. Notwithstanding that you have a strong and supportive social network here, including your brother, and through the hard work you have undertaken, you do speak and understand English well, I am satisfied that a term of imprisonment for you would likely have a disproportionate impact. I consider it appropriate to adopt a similar course as that for your co-offenders and apply a discount of five per cent.
[78] The total deductions I have allowed equate to 40 per cent on a starting point I have assessed to be in the vicinity of three years and six months’ imprisonment. That results in an end sentence that I fix as 24 months’ imprisonment.
Should the sentence be commuted to home detention?
[79] Because that end sentence is one of a short-term sentence, I must consider whether it should be commuted to one of home detention. That is the outcome recommended in the pre-sentence report noting that you have a suitable address and you have the opportunity to continue in your current employment.
[80] A decision whether to convert a sentence of imprisonment to one of home detention involves the exercise of a discretion that is only fettered by the purposes and principles contained in the Sentencing Act.47 While Class A drug dealing offending is inherently serious and carries a presumption of imprisonment,48 that presumption may be displaced in “exceptional circumstances” such as where an offender has accepted responsibility by pleading guilty and where their rehabilitative prospects would be
46 R v Blanco Gaviria, above n 42, at [44]-[45]; R v Pelaez Garcia, above n 2, at [32]-[33]; R v Montoya Ospina, above n 39, at [34]-[35]; and R v Ramirez Alfonso, above n 33, at [46].
47 Smit v Police [2016] NZHC 2518 at [16]; and Manikpersadh v R [2011] NZCA 452 at [15]-[16].
48 Misuse of Drugs Act, s 6(4).
better supported by a sentence of home detention.49 In my view it can also be displaced if the offender’s role in the offending is assessed to be low.
[81] Ms Otero, I have, after much thought, resolved it would be both counter-productive for you and, indeed, damaging to you if I was to sentence you to a term of imprisonment. That is because you are otherwise a person of very good character and you pose such a low risk of further offending. It reflects significantly the level of culpability that I attach to your offending. A sentence of home detention will (subject to probation approval) allow you to continue to work from your home as your current employer has proposed. It will enable you to be surrounded by a supportive social network, including those who have filed references in your support.
[82] I am therefore satisfied that the sentencing purposes of denunciation and deterrence, and of holding you accountable for your role in this offending are met by the entry of a conviction, coupled with what I assess to be the less severe sentence of home detention.50 That is not to suggest that home detention is not a difficult and highly restrictive sentence; it is. It is second in the hierarchy of sentencing options only to imprisonment.
[83] As you may understand, an offender who is serving a sentence of home detention cannot be released prior to the expiry of that sentence, that is to say there is no equivalent to the entitlement to early release on parole at one half of a short-term prison sentence. It is conventional, albeit not mandatory, to fix the term of home detention at about one half of the term of imprisonment that would otherwise be imposed. I consider a sentence of home detention for the maximum term of 12 months to be appropriate and to be the least restrictive sentence to reflect your offending. I consider that term does take into account that you will not, as a result of the end sentence, be facing the burden of imprisonment to which I have referred and to which I have allowed a modest sentence deduction.
49 Zhang v R, above n 14, at [55].
50 Sentencing Act, s 7(1)(a) and (e).
Conclusion
[84]Ms Otero, would you please stand.
[85] You are now convicted, Ms Otero, on the charge of importing a Class A controlled drug.
[86] On that charge you are sentenced to 12 months’ home detention to be served at the address recorded on the pre-sentence report.
[87]You may stand down.
...................................................
Eaton J
Solicitors:
Crown Solicitors, Christchurch
Brandts-Giesen McCormick, Rangiora
Counsel:
N J Hansen, Barrister, Christchurch
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