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Hernandez v R [2018] NZCA 309 (24 October 2018)

Last Updated: 3 December 2018

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA710/2017
[2018] NZCA 309

	BETWEEN	EZEQUIEL HERNANDEZ Appellant
	AND	THE QUEEN Respondent

Hearing:	17 April 2018
Court:	Williams, Wylie and Thomas JJ
Counsel:	D G Young for Appellant R K Thomson for Respondent
Judgment:	24 October 2018 at 11.00 am

JUDGMENT OF THE COURT

The appeal is allowed.
The sentence of 11 years and four months’ imprisonment with an MPI of five years and eight months is set aside and a sentence of nine years and seven months’ imprisonment with an MPI of four years and nine months is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Williams J)

Introduction

[1] Mr Hernandez pleaded guilty to a single charge of importing a class A drug, methamphetamine, in breach of s 6(1)(a) of the Misuse of Drugs Act 1975. He was sentenced by Judge Andrée Wiltens in the District Court at Manukau to 11 years and four months’ imprisonment with a 50 per cent minimum period of imprisonment (MPI).^[1] He appeals against sentence.

The facts

[2] Mr Hernandez is of Mexican descent and is an American citizen. On 17 November 2016 he arrived at Auckland International Airport from San Francisco on United Airlines flight UA917. His suitcase was searched by customs officers. It contained a concealed compartment. Inside the compartment was 3.9 kilograms of methamphetamine of 79 per cent purity. This had an estimated wholesale value of between $702,000 and $1,092,000. If sold in retail quantities, it could have been considerably more valuable. At the time he denied knowledge of the methamphetamine, but the summary of facts to which Mr Hernandez pleaded guilty specifically confirmed that he knew he was importing an illegal drug.
[3] Mr Hernandez advised authorities that his flights had been booked by a Mr Manos and he eventually disclosed it was also Mr Manos who had provided the suitcase for him to bring to New Zealand. Mr Manos was subsequently arrested entering France with commercial quantities of cocaine.

Sentencing

[4] The Judge applied R v Fatu.^[2] He found the offending fitted within band four which relates to quantities above 500 grams.^[3] The starting point range for band four is 12 years to life imprisonment.^[4] The Judge adopted a starting point of 15 years’ imprisonment.^[5] He then deducted 10 months for lack of previous convictions and a further 10 months for personal circumstances.^[6] Those circumstances were that Mr Hernandez had a partner and two children residing in Mexico, had limited English language skills and no family in New Zealand.^[7] It would appear the Judge reasoned that these factors would make serving his sentence more difficult.
[5] The Judge considered, but declined to give discounts for, two further factors: first for the naming of Mr Manos; and second for genuine remorse.^[8] As to naming Mr Manos, the Judge considered that this was no more than an attempt to mitigate Mr Hernandez’s position by spreading the blame, rather than in a genuine gesture of assisting in his apprehension.^[9] The Judge was also sceptical about Mr Hernandez’s claims of remorse.^[10] His guilty plea was late, the Judge reasoned, having been entered one day before his trial was due to begin.^[11]
[6] The Judge applied a 15 per cent discount for that guilty plea leading to an end sentence of 11 years and four months’ imprisonment.^[12]
[7] The Judge then imposed a 50 per cent MPI. He reasoned that this was necessary to hold Mr Hernandez accountable, to denounce his conduct, to deter others and to protect the community.^[13]

Submissions

[8] Mr Hernandez submitted that the 15-year starting point was too high. It was, he submitted, out of step with the views expressed by this Court in a similar case, Tran v R.^[14] Mr Hernandez submitted further that a greater discount should have been given for personal considerations including co-operation with authorities, remorse and what counsel described as “wilful blindness”. That is, it was submitted that Mr Hernandez did not positively know he was carrying methamphetamine. Rather, he was merely wilfully blind as to that possibility. Finally, Mr Hernandez submitted, it was in error to impose an MPI because of his personal circumstances.
[9] The Crown submitted that the decision in Tran is distinguishable, that no further discounts for personal circumstances, remorse or assistance to authorities could be justified on the facts, and that a 50 per cent MPI was a common judicial response to large scale international drug importation offending.

Starting point

Knowledge of drugs

[10] We do not see any strength in Mr Hernandez’s argument that he was merely wilfully blind to the presence of the drugs in his suitcase, rather than actually aware of them. The fundamental difficulty with this submission is that it is at odds with the summary of facts to which he pleaded guilty.^[15] It is now not possible to go behind that. Rather, that was a matter which needed to be resolved when the factual basis for sentencing was settled.

Comparable cases

[11] As this Court made clear in R v Fatu, the role of the offender in the importation process will be an important factor in selecting a starting point within the appropriate band.^[16] Couriers (or “mules”) and “catchers” with no other role or responsibility in the process are seen to be at the bottom of the importation phase of the food chain. They are commonly found to be (though by no means always) vulnerable, naïve and susceptible to manipulation or exploitation. If this is established on the facts, it too will be relevant. Starting points for these offenders will be towards the bottom of the relevant band. Where the importation quantum is towards the bottom of band four — between 500 grams and five kilograms — starting points can range between 11 (one year below the bottom of band four) and 16 years,^[17] with couriers specifically ranging between 13 and 15 years.^[18]
[12] But of course, no two cases are the same. Solicitor-General v Huang was a case at the upper end of that 13–15 year range. The offender was, on the evidence, no more than a courier, and the amount imported relatively low at approximately 1.3 kilograms, but he was part of a tour group which collectively imported approximately 8.1 kilograms in a single entry into New Zealand.^[19] There is nothing of that scale and coordination in the present case. In Chen v R, another upper end case, the offender was not a mere courier. He was also an organiser and on-seller (for his role in supply the starting point was uplifted by three years). The offending in that case was more complex and impactful.
[13] Tran was a case at the lower end of the range. The background to Ms Tran’s offending was relevant to sentence in that case. She was arrested attempting to bring five kilograms of methamphetamine into New Zealand from Toronto, hidden in her two suitcases.^[20] She denied knowledge of the drugs.^[21] She had made a similar trip a few months earlier.^[22] Both trips were organised and paid for by a Mr Le with whom she had struck up a relationship on Facebook.^[23] This Court adopted a 13-year starting point in the case rather than the 15-year starting point adopted by the Judge in Mr Hernandez’s case for over a kilogram less methamphetamine.
[14] This Court placed weight on its acceptance that Ms Tran was motivated by her desire to pursue a relationship with Mr Le.^[24] The Court found that she undertook the courier activity for little or no financial gain.^[25]
[15] In the present case, there was no evidence to suggest that Mr Hernandez was engaged in anything but a business transaction over the transportation of the methamphetamine. Two factors weigh in his favour however. First, in this case there was only evidence of one importation. In Tran there were two, although the first importation went undetected at the time. Second, there was relatively extensive

evidence that Mr Hernandez had his own vulnerabilities. When subjected to objective clinical psychological testing, Mr Hernandez demonstrated a submissive personality style. According to the clinical psychologist who undertook the testing, Mr Hernandez’s score:

... indicates an individual who is interpersonally warm, sympathetic and supportive towards others. These persons are generally eager to be liked and trusting of others. They find it hard to be critical of others and may place themselves at risk of being taken advantage of.

Testing demonstrated he was also “suggestible”. The clinical psychologist summed the position up in this way:

Results from the PAI and the GSS 2 [tests] indicate that Mr Hernandez possesses a retiring, non-assertive and submissive type personality, and is a person who most probably avoids interpersonal conflict, is trusting of others and may in certain situations place themselves at risk of exploitation because of this personality style.

[16] Mr Hernandez also self-reported a difficult education and PTSD symptoms as a result of a childhood kidnapping in Mexico. None of this could be verified from objective sources, but there was no suggestion Mr Hernandez was a malingerer.
[17] All in all, we consider the 15-year starting point to be on the high side in the context of a single importation of 3.9 kilograms of methamphetamine by a courier with personality vulnerabilities. When these factors are considered, a starting point of 13 and a half years’ imprisonment is more appropriate.

Discounts

Remorse and assistance

[18] The Judge, it seems, was unimpressed by Mr Hernandez’s letter of remorse in light of his very late guilty plea.^[26]
[19] We think Mr Hernandez’s criticism of the Judge’s position may have a point, though not in the way argued. The letter confirmed that Mr Hernandez had completed a number of courses while on remand and accepted full responsibility for his crime and for the harm this kind of offending causes to the community. His pre-sentence report echoed this. The report said “Mr Hernandez presented as being genuinely remorseful for the offending and displayed good insight into the level of harm ... ”.
[20] Mr Hernandez’s psychological and personality profile also speak to the likely quality of the remorse being expressed. As noted, Mr Hernandez presented as trusting, naïve, biddable and exploitable. With no history of criminal offending in evidence, there is, in our view, every reason to believe that the expressions of remorse were indeed genuine rather than cynically manufactured for effect.
[21] We would deduct a further six months for that factor.
[22] It was open to the sentencing Judge to attribute no discount value to the assistance provided to the authorities through the mere naming of the person who bought his airline tickets. It was open to the Judge to conclude that the assistance was minimal and its effect with respect to the subsequent arrest of Mr Manos, unknown. As in the case of Anaru v R, it could not here be established that Mr Manos would have avoided apprehension without that assistance.^[27] A single inquiry with the airline into the identity of the party who paid for Mr Hernandez’s ticket would have disclosed Mr Manos’ identity anyway.^[28]
[23] The 20-month discount given by the Judge for good character and personal circumstances will remain. We also maintain the 15 per cent discount for Mr Hernandez’s guilty plea one day before his trial was due to commence. Mr Hernandez’s final sentence is calculated as follows: the sixmonth discount for remorse and existing 20-month discount are subtracted from the starting point of 13 and a half years, leaving 136 months’ imprisonment. Subtracting the 15 per cent discount for guilty plea leaves 115.6 months or nine years and seven months’ imprisonment.

Minimum period of imprisonment

[24] In Makanesi v R this Court considered that:^[29]

[10] The minimum period of imprisonment appropriate in any given case is a matter for the discretion of the sentencing judge. It falls to be assessed on the facts of each case and in light of the statutory considerations. The criteria in s 86(2) will almost invariably be made out in cases of very serious drug offending.

(footnotes omitted.)

[25] Plainly personal circumstances will be relevant to the exercise of the s 86(2) Sentencing Act 2002 discretion.^[30] But in the end the court must have a proper basis to be satisfied that the factors referred to in the provision (accountability, denunciation, deterrence and protection) require a departure from the usual one third parole period. In this case, the claims advanced by Mr Hernandez are similar to those made in Tarm v R: clean record, remorse and lack of family support in New Zealand.^[31] This Court in Tarm rejected those arguments.^[32] It may be that Mr Hernandez’s particular vulnerabilities make his case more deserving, but we still do not consider the Judge was wrong in the exercise of his discretion to impose a 50 per cent MPI. Even if we accepted that accountability and protection do not require an MPI given Mr Hernandez’s personality profile, this Court has considered that 50 per cent MPIs are appropriate on the basis of deterrence and denunciation alone.^[33] We decline to set aside the 50 per cent MPI. Its quantum will however be reduced in light of our view with respect to sentence.

Result

[26] The appeal is allowed.
[27] The sentence of 11 years and four months’ imprisonment and MPI of five years and eight months is set aside and a sentence of nine years and seven months’ imprisonment with an MPI of four years and nine months is substituted.

Solicitors:
Crown Law Office, Wellington for Respondent

^[1] R v Hernandez [2017] NZDC 29657.

^[2] R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).

^[3] R v Hernandez, above n 1, at [3].

^[4] R v Fatu, above n 2, at [36].

^[5] R v Hernandez, above n 1, at [4].

^[6] At [6].

^[7] At [6].

^[8] At [7] and [8].

^[9] At [7].

^[10] At [8].

^[11] At [8].