Agwu v R

Case [2015] NZCA 619 18 December 2015

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA1/2014
[2015] NZCA 619

BETWEEN	KINDNESS ONYEDIKASHI AGWU Appellant
AND	THE QUEEN Respondent

Hearing:	9 November 2015
Court:	Kós, Fogarty and Mallon JJ
Counsel:	P K Hamlin for Appellant S K Barr for Respondent
Judgment:	18 December 2015 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Introduction

Mr Agwu was found guilty at trial of importing and supplying cocaine, a class A drug.[1] He was sentenced to 17 years’ imprisonment with a minimum period of imprisonment (MPI) of eight and a half years.[2] He appeals against his sentence on the ground that it is manifestly excessive. Three points are raised: disparity with a co-offender, imposing a MPI was not appropriate, and mitigating factors warranted a greater discount than that which was given.

The District Court sentencing

[1]Misuse of Drugs Act 1975, s 6(1)(a) (nine counts) and s 6(1)(c) (six counts) (maximum penalty of life imprisonment).

[2]R v Agwu DC Auckland CRI-2010-092-15204, 12 December 2013 (Judge Moses).

The charges related to the period between October 2009 and February 2010. The total quantity of cocaine imported over this period was conservatively estimated at upwards of four and a half kilograms. Most of the cocaine was sent by mail. Fifteen packages were sent during the period. Mr Agwu provided to overseas associates the street addresses to which the cocaine was to be sent. He recruited Mr Tipene, who in turn recruited others, to uplift the packages and on-sell them. Cocaine was also imported by a personal courier, Mr Finkelstein, and it was on-sold by Mr Tipene on Mr Agwu’s behalf.[3]
[3]Mr Agwu was convicted as a party to these sales.
The Judge considered that Mr Agwu was not the international mastermind of the operation, but he was involved with those who dispatched the drugs from overseas, and he was the head of the operation in New Zealand. The operation was well organised, involved substantial quantities of cocaine and was a commercial money-making venture.
The Judge decided upon a starting point of 18 years’ imprisonment. In taking that starting point, he noted that the starting point for Mr Tipene was 14 years’ imprisonment. He regarded Mr Tipene as being “clearly less culpable than” Mr Agwu.[4] The Judge also referred to R v Tshisa in which a starting point of 17 years’ imprisonment was taken.[5] The Judge regarded this as a comparable case although he noted that the quantity of drugs imported in that case was substantially less. The Judge reduced the starting point to 17 years because of Mr Agwu’s previous good record and the year he spent on restrictive electronically monitored bail. He regarded a 50 per cent MPI as appropriate in view of the quantity of drugs and Mr Agwu’s role.

Issue 1: parity

[4]R v Agwu, above n 2, at [10].

[5]R v Tshisa HC Auckland CRI-2005-092-4046, 29 November 2005

Mr Tipene pleaded guilty to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Agwu v R

Details

AGLC: Agwu v R [2015] NZCA 619
Case: [2015] NZCA 619
Decision Date: 18 December 2015 at 11.30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Kindness Onyedikashi Agwu, appealed against his sentence for importing and supplying cocaine, a class A drug, which resulted in a 17-year imprisonment term with an eight and a half-year minimum period of imprisonment (MPI). Agwu argued that his sentence was manifestly excessive on the grounds that there was a disparity with his co-offender's sentence, the imposition of a MPI was not appropriate, and mitigating factors warranted a greater discount than given. The appeal was dismissed by Kós, Fogarty and Mallon JJ.

The court considered three issues. First, regarding the disparity in sentence with a co-offender, the court found that the sentencing Judge was well placed to assess the respective culpabilities of Agwu and his co-offender, Mr Tipene, and the four-year difference in starting points reflected that assessment. Second, concerning the appropriateness of the MPI, the court noted that a MPI was common for importing class A drugs of this scale even for a first offender, and there was no error by the Judge in imposing the MPI. Third, on the mitigating factors, the court found that Agwu did not plead guilty, had not commenced or undertaken any rehabilitative steps, and there was no other demonstrable remorse at the time of sentencing. Therefore, a greater discount than that allowed by the Judge was not required.

The Court of Appeal dismissed the appeal and affirmed the sentence of 17 years' imprisonment with an eight and a half-year MPI. The court held that the Judge's assessment of the respective culpabilities of Agwu and his co-offender was accurate, and the imposition of a MPI was appropriate. Additionally, the court found that the mitigating factors presented by Agwu were not sufficient to warrant a greater discount than that given by the Judge. As a result, Agwu's appeal was dismissed, and the original sentence was upheld.

Orders