Ruling addresses concepts of exploitation and vulnerability in context of migrant labour
The Supreme Court has deemed it unnecessary in the interests of justice to hear and determine the proposed appeal of a woman sentenced to imprisonment for three years and six months on a charge of importing cocaine.
The case of Ramirez-Alfonso v R, [2025] NZSC 43, arose from a drug syndicate that used farm workers to cover up a cocaine importation operation. The applicant in this case was a Colombian national and migrant worker employed on dairy farms in South Canterbury.
The applicant admitted she was involved in and paid for the importation of 1.8kg of cocaine. She pleaded guilty to a single representative charge of cocaine importation and requested a discharge without conviction.
A judge of the High Court sentenced the applicant to three years and six months’ imprisonment for serious offending. The judge said the payment she received was significant given her limited involvement, but was not commensurate with the risk she assumed.
The sentencing judge noted that he ordinarily would have placed the offence at the higher end of band four of Zhang v R, [2019] NZCA 507. However, the judge decided to situate it in the middle of band two and select a starting point of five years and six months’ imprisonment.
The sentencing judge considered the applicant’s reduced role in the offending, her initial naivety, and her lack of insight about the amount of drugs imported. Personal factors like good character, the disproportionate impact of imprisonment, and the guilty plea led the judge to apply total discounts of 35%.
Lastly, the sentencing judge refused to grant the applicant a discharge without conviction. The judge said the deportation risk was not out of all proportion to the offending and was a predictable risk faced by offenders in her position.
The applicant, who received a deportation liability notice, challenged the High Court’s refusal to grant her a discharge without conviction. The Court of Appeal dismissed the applicant’s appeal. The court acknowledged that a conviction was a proportional and unsurprising consequence of this kind of offending.
The appeal court upheld the sentencing judge’s categorisation of the offending as serious and the factors he considered, including the fact that a conviction would significantly raise the real and appreciable risk of deportation and would therefore result in challenges relating to the applicant’s finances and personal relationships.
The applicant requested permission to appeal on the issue of whether she deserved a discharge without conviction. She alleged that she was exploited as a farm worker and vulnerable to manipulation, given her relative isolation in this country.
The applicant argued that naivety and exploitation led to her offending. The Supreme Court should further consider these concepts of naivety and exploitation, she said. While 28 decisions in the higher courts addressed these concepts, these rulings failed to engage meaningfully with what these concepts meant, she added.
The applicant alleged that the exploitation of migrant workers involved a complex intersection of factors, including economic precarity, social isolation, and power imbalances leading to susceptibility to manipulation.
On the other hand, the Crown argued that the Supreme Court did not need to tackle the concept of offending driven by naivety or exploitation since the appeal court already knew about the problem of the exploitation of migrant workers and correctly applied the rulings in Bolea v R, [2024] NZSC 46, and Berkland v R, [2022] NZSC 143.
The Supreme Court dismissed the application for leave to appeal. The court saw no risk of a miscarriage of justice in its refusal to hear and determine the applicant’s proposed appeal.
The court accepted that the concepts of exploitation and vulnerability in the context of migrant labour were potentially matters of general and public importance. However, the court noted that the cases of Berkland and Bolea discussed the matters of exploitation and vulnerability.
The court said what would constitute exploitative behaviour and vulnerability was generally an “intensely factual” issue. The court reiterated that the sentencing judge found, purely in connection with quantum, that the offending in this case should be at the higher end of band four.
