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 place you in that category.

[10]     The Crown has argued for a starting point of 21 years’ imprisonment based on the total amount of methamphetamine involved, just over 33 kilograms.

[11]     This offending clearly goes into the highest category, Band 4 of the Court of Appeal’s guideline judgment for methamphetamine sentencing which is the case of R v Fatu.1   That band is designed for importing very large quantities, considered at the time of the judgment to be 500 grams or more, and the range indicated by the Court of Appeal when offending is in the highest category is 12 years to life imprisonment.

[12]     The Crown argues that two cases support adopting a starting point of 21 years’ imprisonment.  One is the case of R v Wong, involving the importation of two kilograms with a starting point of 15 years.2   There are two distinguishing features of that case which make it inappropriate to rely on.   First, it involved a significantly lower quantity of methamphetamine.  Secondly, and more importantly, the offender was categorised by the trial Judge as being a manager and organiser of the importation.  There is no way that you can be described as a manager or organiser of the importation.  The Crown respectfully tried to elevate you into some role like that.

My view as trial Judge is that the finding of the jury had to be that you did provide those  addresses,  but  there  is  no  evidence  at  all  that  you  were  involved  in  the

decisions as to the mode to be used for bringing the drugs in.  In other words, to put

1      R v Fatu [2006] 2 NZLR 72 (CA).

2      R v Wong [2009] NZCA 332.

them into a package of handbags, to put them in heels of shoes, to put them in suitcases or to put them in the gym equipment.

[13]     What the jury have found though is that, by providing these addresses, you provided a portal or a gate by which these goods could come in and you were obviously going to be involved.   That in itself was sufficient to involve you as a catcher.  Whether or not you were actually going to be involved, from the point of view of the conviction, I thought that was sufficient for the jury to properly convict you.   I should say, during the trial, I was always considering whether or not there was sufficient evidence to justify a conviction, and it was my judgment that the fact that all these imports were associated with you by address (or by participation in the case of the pink suitcases), justified you as having a role in the importation. So there was  sufficient  evidence  that  you  could  be  guilty  of  a  charge  of  importation, regardless of the fact that you were a mere catcher.

[14]     I agree with the submissions of your counsel that there is no evidence that you led an extravagant life-style, that you were making substantial income from illegal drug activities.   You had a modest life-style.   You have lost your job in a liquor store.  You presented more as a vulnerable person, likely to be seduced into a catching role for probably relatively low money and in that sense formed a pattern which  we  see  where  catchers  are  often  vulnerable  people,  like  mules  who  are regarded by the drug importers, the really serious criminals who are normally not caught at all, as expendable people.

[15]     The second case cited by the Crown is the case of R v Sze3  and you have heard me discuss  with  Ms Yelavich  that  case.   That  was  an  importation  of 40 kilograms of methamphetamine and the offender and husband imported that quantity into New Zealand from Hong Kong.  The Judge adopted a starting point of 21 years and again, as you will have heard me discuss with Ms Yelavich, I find that case materially different from this one because there is no doubt that the husband and

wife were “hands on” in the whole exercise of sending the drugs into New Zealand.

3      R v Sze [2016] NZHC 1703.

[16]     So, for these reasons, while I accept the Crown’s argument that there can be a starting point of 21 years’ imprisonment based on the cases, I think that ultimately the sentence has to reflect as Mr Derby points out, the application of all the criteria in the Sentencing Act 2002.

[17]     It comes down to a judgment Mr Agu, a judgment having close regard to the facts that must have been proved beyond reasonable doubt to justify the verdict and on the other side, just how significant those facts were in the total importation as I have explained.

[18]     I have  formed  the  judgment  that  the  starting  point  for  you  should  be  a sentence of 16 years’ imprisonment.  I agree with both Crown counsel and defence counsel that your conduct was essentially that of providing addresses (I am putting the suitcases to one side) but this is a case where the single sentence applies to the whole  set  of  offending,  because  the  set  of  offending  probably,  apart  from  the suitcases, came from one act where you provided a number of addresses.

[19]     I  then  look  at  whether  or  not  there  should  be  a  minimum  term  of imprisonment. You have heard me discuss that with Ms Yelavich. The situation here is that I, as a Judge, have to be satisfied under s 86 of the Sentencing Act 2002, that the potential standard of a minimum of one-third of the sentence before you could be released on parole, would not be sufficient to hold you accountable, to denounce your conduct, and to deter others from committing the offence and protecting the community.

[20]     In my view this is not a case where I am of that level of satisfaction.

[21]     I have confidence that the Parole Board will, over the time that you are a prisoner, form a reliable judgment as to your character, as to your prospects of re- entering society and it can be left in the usual way for the Parole Board to decide upon your date of release.

[22]     For these reasons I am sentencing you concurrently on each of the offences to a term of imprisonment of 16 years.   There will be no minimum term of imprisonment.

[23]     Mr  Agu,  just  before  I  retire,  I  note  that  I  was  impressed  with,  and  I recognised  at  the  end  of  the  trial,  the  dignity  with  which  you  have  conducted yourself throughout, and I do hope that you can learn from this experience, do your time, and never be in front of a Court again.