The Queen v Cristia [2008] NZCA 19 (25 February 2008)

Last Updated: 27 June 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA542/07

[2008] NZCA 19

THE QUEEN

v

MARIA ASTRID CRISTIA

Hearing: 20 February 2008

Court: Robertson, Randerson and Ronald Young JJ

Counsel: P J B Winter for Appellant
M D Downs for Crown

Judgment: 25 February 2008 at 9.30 am

JUDGMENT OF THE COURT

A The sentences imposed in the High Court are quashed.

2. On the charge of importing cocaine, Ms Cristia is sentenced to six years’ imprisonment. On the charge of attempting to export cocaine, she is sentenced to three and a half years’ imprisonment. The terms are to be served concurrently.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1] Maria Astrid Cristia appeals against an effective sentence of eight years’ imprisonment imposed on her by Keane J in the High Court at Auckland on 26 September 2007.
[2] The lead sentence was imposed on a charge of importing cocaine into New Zealand and there was a concurrent sentence of five years’ imprisonment in respect of an associated charge of attempting to export the same cocaine.
[3] Ms Cristia was jointly charged in both offences with her partner, Dario Seguel, and his brother Sergio Seguel.
[4] On 24 August 2006 Dario Seguel was sentenced to seven years’ imprisonment for the importation and to five years for the attempted exportation of cocaine, after he had pleaded guilty before Baragwanath J. On 5 December 2006, Sergio Seguel was sentenced in an identical manner, after he too admitted the charges.

Background

[5] Ms Cristia went to trial on both counts. Keane J, who presided, described the factual situation in sentencing her as follows:

[2] On 15 February 2006, in the early hours of the morning, you and Sergio met Dario at the Auckland International Airport. You had flown into New Zealand from Australia on 12 February, Sergio the day before. Dario had flown from Australia to Chile on 23 January and was returning to Australia. Your paths were clearly intended to coincide in that all of you were to fly back to Australia from Auckland on 15 February. Dario was carrying with him 546 grams of cocaine at 23 percent purity – 125.626 grams of pure cocaine. He was carrying that in cosmetic items. He had a Lancome travel set containing three bottles, in one of which was 163.7 grams of cocaine at 23 percent purity. He carried also two Yves St Laurent containers, each with cocaine, one 248.3 grams at 23 percent purity and the other 239.8 grams.

[3] You had the day before purchased at the duty free shop in Auckland a Lancome travel set identical to the one that he carried in. At the airport, at the time when you met Dario, Sergio went to duty free there and purchased the two matching Yves St Laurent containers. While you were purchasing coffee with Sergio, Dario took the bar code off your Lancome travel pack and put it on his. Later you and Sergio left for Australia on the flight on which you were booked. Sergio was in possession of all the items that had been brought in by Dario from Chile. You retained the Lancome travel set that you had purchased the day before but without the barcode. Dario, on a later flight, was going to take into Australia the two remaining Yves St Laurent bottles. At the time when you and Sergio were boarding your flight, you were apprehended by the police.

[6] Ms Cristia’s defence was that the Seguel brothers were the importers and exporters and that she was an innocent bystander. The jury verdicts made clear that she was actively and knowingly involved in each offence. On the available evidence, such a conclusion appears to have been inevitable.

Issues on appeal

[7] Two matters were alive before this Court:

(a) whether Keane J’s starting point was manifestly excessive for Ms Cristia’s involvement in the offending; and

(b) whether the sentence imposed on her was disproportionate to those imposed on her two co-offenders.
[8] In sentencing each of the Seguel brothers, the respective Judges had taken a starting point of eight years for the importing, with an uplift to nine and a half years to reflect the attempted exporting. In each case there was a 25 percent discount to reflect their guilty pleas.
[9] Although Mr Winter raised some points about the value of the drug and the correctness of the other sentences imposed, he realistically accepted that there was no basis for contending that the starting point was beyond discretion: see generally R v Davis and R v Collinson CA440/04 and CA135/05 20 October 2005.
[10] The question of a discount for a guilty plea does not arise with Ms Cristia.
[11] However, the Judge had to engage with the issue of whether the Seguel brothers were the main players and to determine the appellant’s comparative role. He said at [17] that her position:

... at most, was to normalise what they were doing ... You must unquestionably have known what was going on ... But I see you as a follower rather than a leader and drawn into this by Dario.

[12] The Judge did not identify the particular differential he applied in respect of this important factor. He made an overall allowance of 18 months for personal mitigating features, and for her lesser role in the offending.
[13] As the Crown noted, it was unfortunate that the Judge did not distinguish between these two factors. Within the total factual circumstances of the case her involvement to “normalise what they were doing” when she was a “follower rather than a leader” suggests that a significant differential was justified. The reduction of 18 months for all aspects does not reflect even that issue.
[14] The mitigating features identified included that, at the time of sentence, Ms Cristia was a 45 year old first offender. She was to serve her term of imprisonment in New Zealand where she has no family or support. The Judge also noted that she was on bail from 10 March 2006 until she was convicted at trial – a period of virtually 18 months. The terms of her bail were restrictive and, while she was not on home detention, the principles discussed in R v Faisandier CA185/00 27 October 2000 nonetheless justified consideration, as the Judge recognised.
[15] Given these mitigating factors, along with the conclusion of the Judge as to her lesser role, we consider a reduction of 18 months was insufficient to recognise all those factors in combination.

Conclusion

[16] Accepting the Crown’s submission that the starting point of nine and a half years was available, we are persuaded that the 18 month reduction given does not properly reflect the two factors which required assessment. In our judgment, the lesser degree of involvement by Ms Cristia demanded a reduction of at least 20 percent, giving her a starting sentence of seven years. A deduction of a further year was justified to reflect her personal circumstances and the effect of the lengthy period on which she was on bail.
[17] For completeness, we note that counsel’s attempts to draw direct comparisons with the final sentences imposed on the other two offenders were not helpful because of the material differences as a consequence of their guilty pleas. Similarly, the fact that they were sentenced long before Ms Cristia necessarily means that their release dates will not be informative in determining the appropriate sentence to be imposed on Ms Cristia.

Result

[18] We are satisfied that an effective sentence of six years’ imprisonment would properly reflect Ms Cristia’s total culpability and would adequately reflect the relevant principles under the Sentencing Act 2002.
[19] The appeal is allowed. The sentences imposed in the High Court are quashed. On the charge of importing cocaine, Ms Cristia is sentenced to six years’ imprisonment and, on the charge of attempting to export cocaine, to three and a half years’ imprisonment, the terms to be served concurrently.

Solicitors:
Crown Law Office, Wellington