R v Hernandez [2017] NZDC 27050 (23 November 2017)

Last Updated: 25 July 2018

IN THE DISTRICT COURT AT MANUKAU

CRI-2016-092-013110

[2017] NZDC 27050

THE QUEEN

v

EZEQUIEL HERNANDEZ

Hearing:	23 November 2017
Appearances:	M Regan and F Gourlay for the Crown G Young for the Defendant
Judgment:	23 November 2017

NOTES OF JUDGE G A ANDRÉE WILTENS ON SENTENCING

[1] Mr Hernandez, you are to be sentenced for one charge of importing methamphetamine. The amount involved is 3.9 kilograms with a purity of 79 percent.

[2] The aggravating factors that are obvious from those bare statements are that this was a commercial enterprise worth a significant amount of money, and the potential harm to the end users, New Zealand citizens, is catastrophic for them.

[3] The tariff case that determines what the appropriate starting point for the offending is the case of R v Fatu1and this case fits squarely within band 4 of that decision with a range of 12 years to life imprisonment.

1 R v Fatu (2005) 22 CRNZ 524 (CA)

R v EZEQUIEL HERNANDEZ [2017] NZDC 27050 [23 November 2017]

[4] Similar cases have been referred to by both counsel, and they demonstrate so far as I am concerned that the appropriate starting point in your particular case is 15 years’ imprisonment.

[5] I acknowledge that you have no previous convictions here or overseas that are known to the authorities. I acknowledge also your personal circumstances that have been adverted to by Mr Yong in terms of your personal background, the mishaps that you have had and the fact that you have a family overseas that you will not be seeing for some time; but with offending of this type and involving this seriousness, those personal circumstances are subordinate to the more important consideration of deterrence.

[6] So taking into account the requirement that I am required to impose the least restrictive outcome that’s available in all the circumstances, I am prepared to reduce the starting point by 10 months for your lack of previous convictions and your personal circumstances.

[7] I take into account, as I say, that you have a young family overseas that you will not be seeing for some time. You are going to be incarcerated in New Zealand away from your family, away from your support base. You also have the issue of a lack of language and the lack of comprehension; although I note from your letter that you have penned to me in fairly fluent English that you are able to get by reasonably well. Nevertheless, taking those things into account, I further reduce the starting point by a second period of 10 months.

[8] Mr Young says that you have assisted the authorities by naming Mr Ramos who was undoubtedly involved in this enterprise.

[9] The prosecution does not accept that.

[10] I think your involvement with Mr Ramos would have been well known to the authorities before you said anything about it here in New Zealand; and I cannot say with certainty that your naming him and his involvement in this has in anyway contributed to his subsequent arrest in France. The reality is that you were really

pointing the finger at him for being wholly responsible for this offending in an attempt to mitigate your own position. It seems to me that that is not mitigation.

[11] Mr Young also says, which is supported in the pre-sentence report, that you are truly remorseful. I do not accept that. You were apprehended at the airport with a suitcase which you knew contained a significant amount of methamphetamine.

[12] Today, almost a year later, you are finally saying that you are sorry, but right up until one day ahead of a jury trial that had been scheduled, you were maintaining your innocence. That does not demonstrate true remorse. That demonstrates that you understand the system. The prosecution need to prove the charge and you were going to make them prove it because you were not admitting anything. Eventually you accepted that the evidence was overwhelming as indeed it was from the very beginning because you knew exactly what you had done.

[13] Had you admitted the offending on day one, I would have regarded the position as totally different - and I would have accepted a submission of true remorse, but that is not what we are dealing with here.

[14] As I indicated to you two days before the jury was about to be empanelled 15 percent mitigation is the most that is available for a plea at that stage ahead of a very complicated and complex, and lengthy trial so that members of the public did not need to be involved; but I am afraid that that is the most that is available by way of further mitigation, 15 percent for your plea. What that means is that the end sentence that needs to be imposed is one of 10 years six months’ imprisonment.

[15] The drugs and the suitcase are, of course, to be destroyed.

[16] The last thing that needs to be considered is whether it is appropriate and necessary to impose a minimum period of imprisonment; and while Mr Young advances an argument that that should not be done, there is ample authority to suggest that in cases of this type it should. The reason for that is so that internationally, it is well-known and easily seen that New Zealand does not take this type of thing lightly.

[17] So in order to hold you accountable for your offending, to denounce your conduct and to deter you and others from acting in this way, and considering the need to protect the community, it is important to impose a minimum period of imprisonment and that is what I need to do here.

[18] The law enables me to impose a minimum period of up to two-thirds of the ultimate sentence. In your particular instance, I am not imposing it for that long, I am imposing it for 50 percent of the sentence, namely five years three months. That is the minimum period of imprisonment that you need to serve before the Parole Board can consider early release, and then repatriation back to Mexico.

Judge GA Andrée Wiltens

District Court Judge

Date of authentication: 05/12/2017

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.