R v Agu

Case [2018] NZCA 147 10 May 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA148/2017
[2018] NZCA 147

BETWEEN	THE QUEEN Appellant
AND	MERKINS BAH AGU Respondent

Hearing:	22 March 2018
Court:	Winkelmann, Courtney and Mallon JJ
Counsel:	JEL Carruthers for Appellant G J Newell for Respondent
Judgment:	10 May 2018 at 3.30 pm

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann and Courtney JJ)

Introduction

In 2015 Mr Merkins Agu assisted in the importation of a total of just over 33 kilograms of methamphetamine. He was convicted following a jury trial on four charges of importing methamphetamine and one of attempting to possess methamphetamine for supply. Fogarty J sentenced Mr Agu to 16 years’ imprisonment and declined to impose a minimum period of imprisonment.[1] The Solicitor-General appeals on the ground that the sentence is manifestly inadequate and wrong in principle. The Solicitor-General argues that given the scale and seriousness of Mr Agu’s offending, the starting point and end point should have been at least 20 years’ imprisonment and a minimum period of imprisonment of 10 years should have been imposed.

Offending

[1]R v Agu [2017] NZHC 248.

The charges arose from four separate events. In June 2015, a package arrived in New Zealand from Thailand addressed to Mr Agu’s former wife’s nephew, at the address of Mr Agu’s former wife. The package contained handbags in which 952 grams of methamphetamine had been hidden.
In August 2015, a package arrived from China. The address it was to be sent to, “322 Barmey’s Farm Road, Clendom, Manurewa”, was very similar to Mr Agu’s address, 3/22 Barney’s Farm Road, Clendon. The package contained shoes in which 1.394 kilograms of methamphetamine had been hidden.
In October 2015, two United States citizens, Mr and Mrs Ross, were stopped at Auckland International Airport coming off a flight from Hong Kong. They were carrying two suitcases, to which they did not have keys and which they had been instructed to place in a locked storage facility for collection. New Zealand Customs Service (Customs) opened the suitcases and found just under 7 kilograms of methamphetamine. The suitcases were delivered in accordance with the instructions and eventually Mr Agu retrieved them. When he was located, however, he no longer had the suitcases and said that he had been paid $500 for retrieving them and sending them on. This incident formed the basis of one of the importing charges and the charge of attempting to possess methamphetamine for supply.
In December 2015, a package arrived in New Zealand with the delivery address of “2A Barney’s Farm Road, Clendon, Manurewa”. The named addressee was “Cindy Nazareth”. Mr Agu was in a relationship with Cindy Nazareth Pritchard and had previously lived at 2A Barney’s Farm Road. By the time the package arrived in New Zealand, Mr Agu had already been arrested and was in custody. Efforts by the unknown sender to re-direct the package were brought to the attention…

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 R v Agu

Details

AGLC: R v Agu [2018] NZCA 147
Case: [2018] NZCA 147
Decision Date: 10 May 2018 at 3.30 pm

CaseChat Overview and Summary

In this case, the Queen appealed against the sentence of Merkins Agu, who was convicted for his involvement in the importation of over 33 kilograms of methamphetamine. The Crown argued that the sentence of 16 years' imprisonment was manifestly inadequate and wrong in principle. The appeal was heard by the Court of Appeal of New Zealand, with Winkelmann, Courtney, and Mallon JJ. The court considered whether the starting point and end point of the sentence, as well as the decision not to impose a minimum period of imprisonment, were appropriate.

The court found that the sentencing judge had correctly assessed Mr. Agu's culpability and role in the offending. The court considered the quantity of methamphetamine involved, Mr. Agu's role as a "catcher", and the principles and purposes of sentencing. The court found that the starting point and end point of 16 years' imprisonment was within the available range of sentences and did not find the sentence manifestly inadequate or wrong in principle. Furthermore, the court found that the sentencing judge had correctly considered the requirements of s 86 of the Sentencing Act in deciding not to impose a minimum period of imprisonment. The appeal against sentence was dismissed.

The final orders of the court were that the appeal against sentence is dismissed.

Orders