An Australian woman has been appealing against a conviction that could have seen her deported. Photo: 123rf
An Australian woman who has successfully appealed against a conviction of gang activity says she would have split up her family if she was deported from New Zealand.
The Supreme Court has allowed Elizabeth Bolea's appeal, saying her conviction would be quashed but her application for discharge without conviction would be reconsidered by the High Court with further evidence.
She pleaded guilty after knowingly driving her partner, a prospective gang member, and another person from Auckland to Christchurch in a car carrying at least 500 grams of methamphetamine in 2020.
She was sentenced to four months' home detention and sought a discharge without conviction, saying her daughter - whom she was pregnant with when she was arrested - would be separated from her 501 deportee father if she was deported to Australia.
As a resident visa holder, she faces deportation if she is convicted of an offence which faces a prison term of two years or more, as long as it was committed no later than five years after she first held the visa.
The High Court sentencing judge declined her application, finding that the possibility of deportation would be a consequence of her offending rather than the conviction.
The Court of Appeal dismissed her appeal application last March.
A Supreme Court hearing was held in October, with the court confirming it was allowing her appeal in a judgment released on Friday, but it would opt to remit the application for discharge back to the High Court rather than making a decision itself.
"If Ms Bolea is deported to Australia, their daughter will go with her. Accordingly, deportation would mean in practical terms that the family would be split. The family's ability to meet in another country would be problematic at best, given both parents' convictions," the court judgment said.
She was in a relationship with Comancheros Motorcycle Club nominee Rhakim Mataia at the time.
Bolea - who was 22 years old and pregnant - hired a rental car on 4 August 2020, driving Mataia and co-offender Diamond Katoa to Christchurch.
On the Cook Strait crossing, a covert police search found a commercial quantity of methamphetamine in the boot of the car, but did not try to arrest them or stop their trip.
They arrived in Christchurch the next day with Bolea staying at Mataia's family home and the two men going to a gang pad to supply the methamphetamine.
Rhakim Mataia was deported from Australia several years ago under section 501 of the Migration Act 1958 and is unable to return there.
During sentencing, the judge noted she acted with Mataia's direction, there was no suggestion she received any personal benefit, and her involvement was brief, considering the gravity of the offending as moderate to low.