IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA501/2024
 [2025] NZCA 112

	
BETWEEN	
FELIPE MONTOYA-OSPINA
Appellant	
	
AND	
THE KING
Respondent	

Hearing:	
18 February 2025	

Court:	
Palmer, Peters and Edwards JJ	

Counsel:	
E Huda and S C Kim for Appellant
B Hawes and A M Harvey for Respondent 	

Judgment:	
11 April 2025 at 11 am	

JUDGMENT OF THE COURT

A	The application for an extension of time is granted.
B	The application to adduce evidence is granted.
C	The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Edwards J)
[1]	The appellant, Mr Montoya-Ospina, pleaded guilty to charges of:
(a)	participating in an organised criminal group; 
(b)	importing into New Zealand an estimated 11.4 kilograms of cocaine; 
(c)	attempting to import 28.87 kilograms of cocaine; and
(d)	supplying and offering to supply cocaine.
[2]	He was sentenced in the High Court to 14 years and seven months’ imprisonment.
[3]	Mr Montoya-Ospina appeals against the sentence on the grounds that the starting point was too high and the adjustment for guilty pleas was inadequate. 
[4]	The notice of appeal was filed four days late.  The Crown does not object to the appeal being filed out of time and there is no prejudice in allowing an extension.  We grant an extension of time to bring the appeal.
Offending 
[5]	Mr Montoya-Ospina was part of a group of Colombian and Argentinian nationals who were employed as dairy farmhands in rural Canterbury.  The group imported wholesale quantities of cocaine into New Zealand sourced from a cartel in Colombia. 
[6]	The sentencing Judge described the nature of Mr Montoya-Ospina’s offending as follows:
[3]	Your offending arises out of a significant police investigation into the importation of cocaine into this country from South America.  It involved international co-operation with Colombian and Spanish Police, and American drug enforcement authorities.  The drug syndicate operated from at least January 2018 to December 2021 and used farm workers, such as yourself, as “cover”.  It is estimated 42.5 kilograms of cocaine with a street price of over $19,000,000 was imported into New Zealand.  A further 59.1 kilograms of cocaine with a street value of more than $26,000,000 was also intercepted.
[4]	…  You are described as a senior member of the syndicate.  You were involved in the importation and attempted importation of cocaine into New Zealand and personally supplied cocaine to other members of the organised criminal group based in Auckland.  Your home address included an area specifically for deconstructing packaged items in which cocaine was imported.  You were a trusted member of the syndicate who received packages of cocaine and was in charge of the deconstruction of those packages.  However, you had limited, if any, contact with the overseas suppliers.
[5]	Your offending occurred between 1 January 2018 and December 2021.  In that period, you successfully imported seven packages of cocaine into New Zealand that weighed some 11.4 kilograms.  You attempted to import a further five packages of cocaine that amounted to 28.87 kilograms.
[6]	The representative charge of supplying cocaine arose from two discrete transactions.
[7]	On 24 April 2021, you travelled by bus from Christchurch to Auckland, arriving in the early morning of the next day.  You carried cocaine with you.  …  Later that morning, you retrieved the cocaine from a luggage store area and … rendezvoused with and supplied the cocaine to another person.
[8]	The second supply of cocaine was on 11 July of the same year.  As with the first trip, you travelled from Christchurch to Auckland by bus.  You …  provided … a package containing cocaine before immediately flying back to Christchurch.  …
[9]	You also offered to supply cocaine to two unknown persons via a messaging app on your cell phone on six occasions between 3 August 2021 and 10 September 2021.  That period overlapped with or comes shortly after the drug syndicate successfully imported four packages in July and August of that year.
[10]	Five of those offers appear to have been to the same person, who used the same messaging handle.  The details of those offers are as follows:
	(a)	Between 3 and 6 August 2021, half an ounce (14 grams) was offered for $3,920.  You arranged to meet at the Merivale Mall car park and the pair of you messaged each other once you had arrived at that location.
	(b)	Between 31 August and 2 September 2021, two ounces (56 grams) were offered for $8,400 per ounce.  The person wanted half an ounce for $4,200.  You arranged to meet at a local car park for the handover.
	(c)	Between 2 and 3 September 2021, two ounces of cocaine were offered.  The person asked for three quarters of an ounce and you said you could do that for $6,300.
	(d)	Between 4 and 6 September 2021, half an ounce was offered which was accepted.  Texting continued until the exchange was made.
	(e)	Between 9 and 10 September 2021, this same buyer asked to buy half an ounce from you, but you only had a quarter.  You indicated you would sell the quarter for $2,000.  You again arranged to meet and continued texting until the exchange was complete.
	(f)	The sixth occasion you offered to supply cocaine was on 9 September 2021, this time to a different person.  You offered one ounce for $8,120 and arranged to meet this person.  You were asked again to supply cocaine after 10 September, but you said you could not source the drug.  This is consistent with a number of the syndicate’s imports being intercepted at the border around this time.
[11]	On 10 November 2021, the police terminated its investigation.  A search of your address in Hororata located numerous items consistent with commercial scale drug offending.  Items included 10 cell phones; $30,000 in cash; various tools, including a drill bit used to extract cocaine from imported receptacles, snap lock bags, scales, a bottle of acetone; and various items, all of which matched the consignee description of seven successful imports.
High Court sentencing
[7]	Mr Montoya-Ospina pleaded guilty to the charges and was sentenced in the High Court at Christchurch on 4 July 2024. 
[8]	The Judge approached sentencing by assessing a starting point for the successful importations and then applying an uplift for the attempted importations.
[9]	The successful importation of 11.4 kilograms of cocaine placed the offending in band five of Zhang v R which indicated a starting point range of 10 years’ to life imprisonment.
[10]	As for role, the Judge assessed the appellant’s offending as falling in the middle of the “significant” category for four reasons:
(a)	First, the appellant played a role at each stage of the operation, including the importation, extraction of cocaine, and its eventual supply.  The deconstruction of the packages by the appellant at his home address was significant.  The Judge accepted, however, that the appellant acted under the direction of others.  
(b)	Second, the appellant was primarily motivated by financial gain.  The Judge rejected the contention that the offending was driven by drug addiction. 
(c)	Third, the Judge considered that it could be inferred that the appellant was receiving payment for ongoing services over the offending period.  The Judge found it likely that the financial rewards received were not insignificant.
(d)	Fourth, the Judge considered the appellant’s awareness of the scale of the operation and his involvement at each stage of it.  The Judge noted that this was not a case of discrete instances of importation or supply of small amounts, rather, the appellant “knowingly participated in an ongoing commercial drug importation operation”.
[11]	After reviewing the cases referred to by counsel (including the decision in Cavallo v R), the Judge adopted a starting point of 18 years’ imprisonment for the successful importation offending.  This captured the charge of participation in an organised criminal group, and the supply and offering to supply charges. 
[12]	That notional starting point was uplifted by 18 months for the attempted importation of 28.87 kilograms of cocaine.  This uplift was set by reference to the quantity of the drug, the level of ongoing assistance and the fact that it extended over a lengthy period of time.  This brought the starting point to 19 years and six months’ imprisonment. 
[13]	The Judge made adjustments for the isolation and denial of family support experienced by foreign nationals imprisoned in New Zealand (five per cent), and for background matters and rehabilitative potential (10 per cent).  A 10 per cent adjustment was afforded for the guilty plea.  Those adjustments totalled 25 per cent, resulting in an end sentence of 14 years and seven months’ imprisonment.  The Judge declined “by a fine margin” to impose a minimum period of imprisonment.
Was the starting point of 18 years’ imprisonment too high?
[14]	Counsel for Mr Montoya-Ospina submits that the starting point of 18 years’ imprisonment adopted by the Judge was too high and resulted in a manifestly excessive sentence.  Counsel says that cocaine offending should be sentenced more leniently than methamphetamine offending, and that the 18-year starting point was too high even for methamphetamine importation.
Differentiating cocaine from methamphetamine offending
[15]	There is no dispute that sentencing levels for controlled drugs of the same class may nevertheless be different based on the relative harm caused by each drug.  In Cavallo v R, a permanent panel of this Court considered expert evidence on the relative harm caused by cocaine and methamphetamine.  The Court concluded that:
… sentencing for like quantities: (1) should not, in the case of cocaine, exceed sentencing for methamphetamine; and (2) should generally be sentenced slightly below comparable methamphetamine starting points — engaging a discount of around five per cent.
[16]	The Court said that a cross-checking exercise should be employed by checking the sentences as against those for comparable quantities of methamphetamine and roles.  The appeals in that case were allowed and the sentences reduced accordingly.
[17]	Counsel for Mr Montoya-Ospina submits that the adjustment for cocaine offending should be higher than the five per cent applied in Cavallo and proposes a 10 per cent adjustment to mark the differentiation.  Counsel relies on two reports to support that submission: a New Zealand drug harms ranking study published in the Journal of Psychopharmacology; and the New Zealand Illicit Drug Harm Index 2023, prepared by the National Drug Intelligence Bureau (Drug Harm Index 2023).  Both reports suggest that cocaine is substantially less harmful than methamphetamine and other illicit drugs in New Zealand.
[18]	Neither report was before the sentencing Judge.  The Drug Harm Index 2023 is not fresh in the sense that it was released before sentencing, but it is nevertheless credible.  The Crown did not expressly object to the admission of these reports on appeal, and the content of both reports were addressed in submissions.  There is no prejudice in admitting both reports on appeal and we order accordingly.
[19]	We do not consider it appropriate to revisit or depart from Cavallo in this case.  That judgment was delivered by the permanent Court less than three years ago.  While the decision is not a guideline judgment, it nevertheless determines the approach to be taken to sentencing for cocaine (and other subsets of Class A drug offending).  Departure from Cavallo by a divisional court, based on two pieces of literature, would undermine the value of that approach.
[20]	Moreover, this Court has not been provided with the necessary expert evidence to contextualise and explain the conclusions reached in the reports.  That is important because the conclusions in these studies depend on a wide range of factors (including, for example, the prevalence of a drug in a community).  In the absence of expert evidence commenting on these reports, it is difficult to ascertain just how different the expert evidence is to that relied on in Cavallo.  Contrary to appellant counsel’s submissions, we cannot say that the new reports would have resulted in the Court concluding that an adjustment greater than 10 per cent should have applied.
[21]	Accordingly, we decline to depart from Cavallo and proceed to determine the appeal in accordance with the guidance set out in that case.
Case comparison
[22]	Counsel for the appellant submits that the 18-year starting point for the importation offending is too high for methamphetamine offending, let alone cocaine.  Counsel cites four cases to support that proposition: Fangupo v R; Rahman v R; Zhang v R; and Berkland v R.
[23]	We consider the comparisons drawn by the appellant, which focus solely on the quantities imported and the categorisation of the roles in these cases, are too narrow.  The context for the offending and the nature of the role performed must also be taken into account.  The operation in this case involved approximately 100 kilograms of cocaine.  It was of a much bigger scale than any of the other cases relied upon by the appellant.  As the sentencing Judge found, the appellant was involved in every stage of the offending and knowingly participated in an ongoing commercial drug importation operation which extended over a four-year period.
[24]	Moreover, the starting point in this case encompassed the participation in an organised criminal group, and the supply and offering to supply, charges.  Those charges underscored the level of engagement that the appellant had with the operation.  When these additional charges are added to the mix, and the context of the offending is given weight, we consider a starting point higher than 18 years’ imprisonment could have been justified if the illicit drug was methamphetamine.  Applying the five per cent adjustment for cocaine-related offending suggests that a starting point of 18 years’ imprisonment was within, albeit at the very upper end, of the available range for the offending.
[25]	Cases involving the importation of cocaine support that conclusion.  Of those referred to us, the most relevant is Cavallo v R.  That case involved a group of foreign nationals who were part of an international, organised criminal group importing cocaine from South America over a three-month period in 2017.  It was noted by the Court that the case involved the second largest intercepted importation of cocaine into New Zealand at that time.
[26]	Mr Cavallo assisted the New Zealand leader of the organisation to import a shipment of 46 kilograms of cocaine.  His role involved communicating with others about the operation, which was categorised as higher-level “significant”.  The Court said this offending would have attracted a starting point of 22 years’ imprisonment had the substance imported been methamphetamine.  A starting point of 20 years and 10 months’ imprisonment was adopted by the Court.
[27]	As the sentencing Judge in this case noted, the appellant’s offending was less serious than Mr Cavallo’s in terms of quantity and role.  However, the offending in that case involved only one discrete transaction, whereas the offending in this case spanned several years.  The appellant is estimated to have been personally involved in the successful importation of seven packages of cocaine into New Zealand, weighing 11.4 kilograms.  He attempted to import a further five packages of cocaine, amounting to 28.87 kilograms.  It also appears that the appellant was more engaged in the overall operation than Mr Cavallo.  A starting point less than 20 years and 10 months’ imprisonment was justified in this case, but we cannot say that it should have been substantially less than the 18 years’ imprisonment adopted by the Judge.
[28]	In sum, we are not persuaded that the starting point of 18 years’ imprisonment was out of range and the adoption of that starting point did not result in a manifestly excessive sentence.
Should there have been a greater allowance for the guilty plea?
[29]	The appellant was arrested and charged in November 2021.  He pleaded guilty in March 2024, a month before his trial was due to begin.  
[30]	Counsel for the appellant submits that this was a prompt guilty plea given the appellant’s limited English, the need for an interpreter, and the significant difficulties that counsel experienced in managing and receiving disclosure.  This latter point was underscored by the very late disclosure conference which occurred nearly two years after the arrest of the appellant and the co-defendants.  In the circumstances, counsel for the appellant submits that an adjustment of 15 per cent was warranted.
[31]	We are not persuaded that any of the factors identified by the appellant warranted a greater guilty plea allowance.  The plea was entered shortly before trial was due to begin and more than two years after the appellant’s arrest.  The adjustment was consistent with that applied for by the appellant’s co-defendants, who pleaded guilty around the same time.
[32]	It follows that there was no error in the Judge’s approach and the end sentence was not manifestly excessive. 
Result
[33]	The application for an extension of time is granted.
[34]	The application to adduce evidence is granted.
[35]	The appeal is dismissed.

Solicitors: 
Crown Solicitor, Christchurch for Respondent