R v Agu - [2017] NZHC 248

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-092-012087 [2017] NZHC 248

THE QUEEN

v

MERKINS BAH AGU

Hearing: 23 February 2017

Appearances:

Y V Yelavich for Crown
T J Darby for Defendant

Sentence:

23 February 2017

SENTENCING NOTES OF FOGARTY J

Solicitors:
Kayes Fletcher Walker, Crown Solicitors, Manukau
Pt Chevalier Law, Auckland

R v AGU [2017] NZHC 248 [23 February 2017]

[1] Mr Agu, you appear for sentence on five charges. Four relate to the importation of methamphetamine, one charge relates to an attempt to possess methamphetamine for supply. You were convicted on 8 November 2016 following a jury trial and a verdict of guilt.

[2] The story starts in June 2015 when New Zealand Customs intercepted a package containing six handbags, of which two were found to contain methamphetamine. This package was addressed to your ex-wife. Then in August
2015 Customs intercepted a package of women’s platform shoes. Within these they

found methamphetamine. The package was addressed to your home address. [3] These were the first two charges on which you were convicted.
[4] The third and fourth charges related to two suitcases containing methamphetamine which were found by Customs when a married couple, arriving from Hong Kong, attempted to take them through Auckland Airport. The couple were unable to open the suitcases. They did not have the keys. There was an arrangement put in place over Skype for the suitcases to be deposited in a self- storage unit in Auckland, which could only be accessed by a unique PIN number. These suitcases, no longer containing drugs, were placed in the unit by the police.

[5] On 30 October 2015 you attempted to access that unit, and were not successful. On 31 October you were successful and removed the suitcases. You were located approximately 100 metres from the building containing the storage unit, but no longer had the suitcases in your possession. You told the police you had been paid $500 to deliver the suitcases.

[6] The final charge upon which you were convicted, involves the importation of just under 24 kilograms of methamphetamine in three treadmills. The treadmills were addressed to a woman with whom you were in a relationship. They arrived in New Zealand three days after your arrest.

[7] The Crown and I have characterised your role as that of a “catcher”. You

were essentially involved in the provision of addresses and in the case of the

suitcases, more literally a catcher. You were involved in the first reception of these drugs crossing over the border.

[8] Catchers typically are very vulnerable people in a conspiracy to import illegal drugs into a country. They are vulnerable because one of the critical methods of getting illegal drugs into the country is to get them across the border and into circulation without detection.

[9] This role comes with normally low expectations of profit, because the catchers are typically vulnerable people who for one reason or another, agree to take on this high risk activity; and I…

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 [2017] NZHC 248
Case: [2017] NZHC 248
Decision Date: 23 February 2017

CaseChat Overview and Summary

In the case of R v Agu, the defendant was convicted on five charges related to the importation of methamphetamine into New Zealand. The charges involved multiple packages containing methamphetamine, including handbags, shoes, suitcases, and treadmills, all of which were addressed to various addresses associated with the defendant. The defendant was convicted following a jury trial and sentenced by Fogarty J in the High Court of New Zealand. The primary legal issue before the court was to determine the appropriate sentence for the defendant's involvement in the importation of over 33 kilograms of methamphetamine. The Crown argued for a starting point of 21 years’ imprisonment, while the defence contended for a lower starting point due to the defendant's role as a "catcher" rather than a manager or organiser of the importation.

The court considered the defendant's role as a "catcher" in the importation of the methamphetamine, noting that such roles typically involve vulnerable individuals who are susceptible to being recruited for high-risk activities. The court also considered the total quantity of methamphetamine involved, which warranted a sentence within the highest category, as per the Court of Appeal's guidelines for methamphetamine sentencing. Although the Crown cited cases supporting a starting point of 21 years, the court found these cases distinguishable due to factors such as the lower quantity of drugs involved and the offenders' roles as managers or organisers. Ultimately, the court determined that the appropriate starting point for the defendant's sentence was 16 years' imprisonment, reflecting his role as a "catcher" and the totality of the offending. The court also decided not to impose a minimum term of imprisonment, leaving the decision on the defendant's release to the Parole Board.

The final orders of the court were that the defendant be sentenced concurrently on each of the offences to a term of imprisonment of 16 years, with no minimum term of imprisonment. The court acknowledged the defendant's dignified conduct throughout the trial and expressed hope that he would learn from this experience and not return to court again.

Orders