R v AGU [2018] NZCA 147

R v AGU [2018] NZCA 147 [10 May 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA148/2017[2018] NZCA 147BETWEEN THE QUEENAppellantAND MERKINS BAH AGURespondentHearing: 22 March 2018Court: Winkelmann, Courtney and Mallon JJCounsel: JEL Carruthers for AppellantG J Newell for RespondentJudgment: 10 May 2018 at 3.30 pmJUDGMENT OF THE COURTThe appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Winkelmann and Courtney JJ)Introduction[1] In 2015 Mr Merkins Agu assisted in the importation of a total of just over33 kilograms of methamphetamine. He was convicted following a jury trial on fourcharges of importing methamphetamine and one of attempting to possessmethamphetamine for supply. Fogarty J sentenced Mr Agu to 16 years' imprisonmentand declined to impose a minimum period of imprisonment.1 The Solicitor-General1 R v Agu [2017] NZHC 248.appeals on the ground that the sentence is manifestly inadequate and wrong inprinciple. The Solicitor-General argues that given the scale and seriousness ofMr Agu's offending, the starting point and end point should have been at least20 years' imprisonment and a minimum period of imprisonment of 10 years shouldhave been imposed.Offending[2] The charges arose from four separate events. In June 2015, a package arrivedin New Zealand from Thailand addressed to Mr Agu's former wife's nephew, at theaddress of Mr Agu's former wife. The package contained handbags in which952 grams of methamphetamine had been hidden.[3] In August 2015, a package arrived from China. The address it was to be sentto, "322 Barmey's Farm Road, Clendom, Manurewa", was very similar to Mr Agu'saddress, 3/22 Barney's Farm Road, Clendon. The package contained shoes in which1.394 kilograms of methamphetamine had been hidden.[4] In October 2015, two United States citizens, Mr and Mrs Ross, were stoppedat Auckland International Airport coming off a flight from Hong Kong. They werecarrying two suitcases, to which they did not have keys and which they had beeninstructed to place in a locked storage facility for collection. New Zealand CustomsService (Customs) opened the suitcases and found just under 7 kilograms ofmethamphetamine. The suitcases were delivered in accordance with the instructionsand eventually Mr Agu retrieved them. When he was located, however, he no longerhad the suitcases and said that he had been paid $500 for retrieving them and sendingthem on. This incident formed the basis of one of the importing charges and the chargeof attempting to possess methamphetamine for supply.[5] In December 2015, a package arrived in New Zealand with the delivery addressof "2A Barney's Farm Road, Clendon, Manurewa". The named addressee was"Cindy Nazareth". Mr Agu was in a relationship with Cindy Nazareth Pritchard andhad previously lived at 2A Barney's Farm Road. By the time the package arrived inNew Zealand, Mr Agu had already been arrested and was in custody. Efforts by theunknown sender to re-direct the package were brought to the attention of Customs.Upon inspection, the package was found to contain three treadmills in which23.9 kilograms of methamphetamine had been concealed.Sentencing[6] Fogarty J sentenced on the basis of Mr Agu's role as a "catcher":2[7] You were involved in the first reception of these drugs crossing overthe border.[8] Catchers typically are very vulnerable people in a conspiracy to importillegal drugs into a country. They are vulnerable because one of the criticalmethods of getting illegal drugs into the country is to get them across the borderand into circulation without detection.[9] This role comes with normally low expectations of profit, because thecatchers are typically vulnerable people who for one reason or another, agree totake on this high risk activity; and I place you in that category.[7] The Judge observed that there was no evidence Mr Agu had any role in whatwent into the various items he received. He noted that Mr Agu had not livedextravagantly, and had not made a substantial income from his activities as a catcher.Rather, he considered that Mr Agu:3 presented more as a vulnerable person, likely to be seduced into a catchingrole for probably relatively low money and in that sense formed a pattern whichwe see where catchers are often vulnerable people, like mules who are regardedby the drug importers, the really serious criminals who are not normally caughtat all, as expendable people.[8] The Judge emphasised on a number of occasions that his assessment ofMr Agu's role was based upon close consideration of the evidence that he heard andsaw at trial. He was satisfied that a single sentence should apply to the whole ofthe offending because the offending probably, apart from the suitcases, came from oneact on the part of Mr Agu, namely providing a number of addresses.[9] Having established the nature of Mr Agu's role, the Judge identifiedthe offending as falling within band 4 of R v Fatu.4 He rejected comparisons with2 R v Agu, above n 1.3 At [14].4 R v Fatu [2006] 2 NZLR 72 (CA).the cases relied on by the Crown, R v Wong and R v Sze.5 He said that in both of thosecases, the nature of the tasks undertaken by the offender were more significant thanthose of a "mere catcher".6 The Judge then observed that whilst a starting point of21 years was possible on the authorities "ultimately the sentence has to reflect theapplication of all the criteria in the Sentencing Act 2002".7[10] The Judge clearly saw Mr Agu's very limited role, including the fact that hehad been used by others more senior in the criminal enterprise and the apparentlylimited remuneration he received, as critical in setting a starting point of 16 years'imprisonment, a lower starting point than that sought by the Crown. No minimumterm of imprisonment was imposed.Appeal[11] On appeal, Mr Carruthers submits that because of the scale and seriousness ofMr Agu's offending, the starting point and end sentence should have been at least20 years' imprisonment with a minimum period of imprisonment of 10 years imposed.He cites a number of authorities which he says support this submission.8[12] Mr Carruthers also argues that parity with co-offenders Mr and Mrs Ross, whocarried some of the drugs into the jurisdiction, acting as drug mules, required a muchhigher starting point for Mr Agu. Mr Carruthers submits that Mr Agu's role as catcheris more serious than that of a mule or courier. In that regard he relies upon R v Wongand the statements by this Court in that case that the role of catcher is regarded moreseriously than that of drug mule who carry drugs into the jurisdiction. He also reliesupon the following passage from the evidence of Detective Sergeant Sowter given attrial about the roles of catchers and mules:Not always, but generally the courier is someone that if they get apprehended,they will not know a great deal about the supply chain itself, who the supplieris, who the intended recipient is, their role would be they may have beenrecruited by associates they don't know, the head of the organisation, andwhen they get to — and we're talking New Zealand — they may not have any5 R v Wong [2009] NZCA 332; R v Sze [2016] NZHC 1703.6 R v Agu, above n 1, at [13].7 At [16].8 Lam v R [2012] NZCA 280; R v Nguyen [2009] NZCA 239; Chen v R [2010] NZCA 552; andSolicitor-General v Huang [2011] NZCA 436.information as to who they are meeting or what they are supposed to do, sothey'll be someone that I guess because of their vulnerability and agreeing todo the courier role is someone that's expendable to the organisation but, thenagain, I'm talking generally here, that's not always the case, but it's generallythe case.There's another role that we sort of term colloquially as a catcher. A catcheris someone that their role is to ultimately arrange for or receive the drugsbecause at some point in a drug importation, the buyer wants to get the drugsto sell them, so a catcher is someone that is quite a diverse role. They may bea person that has organised the particular address for drugs to be sent to. Theymay be a person that will arrange for somebody else to uplift a drug or theymay even receive it at an address themselves and go and pick it up. So, theirrole is something along the lines of facilitating that import to get to eitherthemselves, if they are the intended recipient, or to the ultimate purchaser ofthe drug.Analysis[13] The fundamental task for the sentencing judge in selecting a starting point isto identify the criminality involved in the offending, the offender's culpability for thatoffending, and also to take into account the purposes and principles of sentencing setout in the Sentencing Act. In Fatu, this Court identified quantity and role as criticalin the assessment of the seriousness of the offending and the offender's culpability forit.9 The Court in Fatu provided clear guidance as to how the quantity ofmethamphetamine is to be assessed in terms of culpability preferring the quantity ofdrug as a measure over monetary yield. But the Court acknowledged the significanceof the role played, as well as the importance of other Sentencing Act considerations:10[31] Our sentencing ranges overlap between categories. Where an offenderfits within any particular band will depend not just on the quantity and purityof the drugs involved but also the role played by the offender. Those who areprimary offenders can expect starting point sentences towards the higher endof the relevant band with the converse applying to those whose role is lesssignificant. Obviously the sentencing Judge will also need to take into accountthe principles of sentencing referred to in s 8 of the Sentencing Act 2002.Further, the aggravating and mitigating factors relevant to the offending (asopposed to the offender), as set out in s 9 of the Sentencing Act, will also behighly relevant in fixing the starting point within a particular band.[14] Mr Carruthers relies upon a number of authorities which were not referred toby the sentencing Judge in support of his submission that the sentence imposed in this9 R v Fatu, above n 4, at [31].10 R v Fatu, above n 4.case was manifestly inadequate.11 It is unclear whether these authorities were reliedupon by the Crown at sentencing. The Judge's sentencing notes record only two casesrelied upon by the Crown as supporting a starting point of 21 years' imprisonment.One of those was R v Wong, also relied upon by Mr Carruthers, which wasdistinguished by the Judge on the basis that although there was a starting point of 15years adopted for the importation of two kilograms of methamphetamine, the offenderwas categorised by the trial Judge as a manager and organiser of the importation.12The Judge was also referred to the case R v Sze, which involved an importation of 40kilograms of methamphetamine, where a starting point of 21 years was adopted.13However the Judge thought Mr Agu's offending was materially different from theoffending in that case because in Sze, "there [was] no doubt that the husband and wifewere "hands on" in the whole exercise of sending the drugs into New Zealand".14[15] As to the other cases referred to by Mr Carruthers, this Court has stated onmany previous occasions that on a sentence appeal it is not helpful to isolate individualsentencing decisions of the High Court and to seek to argue from those selecteddecisions that the sentence imposed was inappropriate.15 Each case must turn on itsown facts, informed by the principles articulated in the decided cases but alwaysguided by the Sentencing Act. Nevertheless, we have read the multiple authoritiesreferred to us and we discuss them, if briefly, below.[16] In R v Nguyen, Mr Nguyen was convicted on one charge of importingmethamphetamine and one of cultivating cannabis.16 The importation related to1.7 kilograms of methamphetamine and a starting point of 16 years' imprisonment wastaken for that charge. However, Mr Nguyen's involvement seems to have been greaterthan Mr Agu's, as he was involved in a level of processing of the drugs received.Involvement in the processing of the drugs is significant because it reveals a greaterlevel of involvement in the criminal enterprise than those who merely receive apackage and pass it on.11 Lam v R, above n 8; R v Nguyen, above n 8; Chen v R, above n 8; and Solicitor-General v Huang,above n 8.12 R v Wong, above n 5, at [4].13 R v Sze, above n 5.14 R v Agu, above n 1, at [15].15 See R v Curry CA272/00, CA273/00, CA326/00, 28 September 2000 at [11].16 R v Nguyen, above n 8.[17] In Chen v R, a starting point of 15 years was fixed for importing a total of2.99 kilograms of methamphetamine.17 In that case, the Court found that theappellant's role was "significantly above that of a courier".18 The appellant was notonly receiving the goods, but extracting the methamphetamine and re-packing it intosmall zip-lock bags for supply.[18] In R v Pai, a starting point of 18 years' imprisonment was adopted for Mr Pai'sinvolvement as a catcher in relation to an importation of 22.6 kilograms ofmethamphetamine, for which he and another were each paid $10,000.19 Mr Pai renteda property in order to receive shipments of heavy machinery with methamphetaminepacked inside. Mr Pai also was involved in the processing of the drugs on arrival.[19] In R v Wan, a starting point of 17 years and six months' imprisonment wasgiven for the importation of 19.1 kilograms of methamphetamine where the defendantacted as catcher but the offending had a greater level of sophistication andpremeditation than the role played by Mr Agu.20 Mr Wan found accommodation andset up an office using false names, so that the drugs could be received by the"company". This is to be contrasted to the Judge's assessment that Mr Agu's wrongfulactions had consisted largely (with the exception of the suitcase) of the provision ofaddresses, probably on a single occasion.[20] In Lam v R, Mr Lam pleaded guilty to four separate charges of importing atotal of 1.89 kilograms of methamphetamine and one charge of supply.21 A startingpoint of 17 years for the totality of the offending was adopted. However, Mr Lam'srole was more than "a mere mule or catcher"; rather his role was that of facilitator ororganiser.22 Mr Lam admitted coming to New Zealand from Hong Kong for thepurpose of facilitating the importation of methamphetamine in order to make money.17 Chen v R, above n 8.18 At [21].19 R v Pai [2015] NZHC 2345.20 R v Wan [2017] NZHC 2376.21 Lam v R, above n 8.22 At [8].[21] In Solicitor-General v Huang, five co-offenders arrived in New Zealand fromTaiwan carrying a collective total of 8.1 kilograms of methamphetamine.23 Mr Huangcarried 1.3 kilograms and was paid $8,900 for his part in the importation. A startingpoint of 15 years' imprisonment was adopted. On appeal, a minimum period ofimprisonment of four years was imposed.[22] Mr Carruthers submits that these authorities show that an offender in the roleof a catcher or slightly above who imports one to two kilograms of methamphetaminecan expect a starting point in the region of 15 to 16 years' imprisonment, as can a'mere' mule who imports slightly more than that. Since Mr Agu's role was a catcherof 33 kilograms of the drug, the starting point should have exceeded that by aconsiderable margin. It should likewise have exceeded, again by a considerablemargin, the starting point of 14 years used when sentencing Mr and Mrs Ross —Mr Agu's co-offenders who brought the suitcases into the country.24[23] We are not persuaded that Mr Carruthers is right that there is a clear hierarchyin sentences between 'mules' and 'catchers'. The actions taken by each person inconnection with the offending must be closely assessed by the sentencing judge todetermine the extent of the offender's involvement in and responsibility for thecriminal enterprise — it is not a question of simply applying labels, such as mule orcatcher. Detective Sergeant Sowter's evidence was, in its own terms, describingpatterns the police observe in offending and did not address Mr Agu's offending. Inthis case the Judge considered Mr Agu to have played a limited role and to havebecome involved in the offending through vulnerability — characteristics the officerdescribes as typical of drug mules.[24] As to the many authorities relied upon by Mr Carruthers, they reveal a rangeof sentences based on each court's assessment of the offenders' culpability, havingregard to the quantity of methamphetamine involved and a close analysis of the roleplayed by the offender. That was the approach taken by the Judge in this case.23 Solicitor-General v Huang, above n 8.24 R v Ross [2016] NZHC 698.[25] As to parity with co-offenders, the Judge had the opportunity to assessMr Agu's culpability as against that of Mr and Mrs Ross. And we note that while thetotal amount of methamphetamine involved in his offending was significantly greaterthan that of Mr and Mrs Ross, that was reflected in a higher starting point.[26] Having considered all of the arguments for the Solicitor-General, we are notpersuaded that the starting point Fogarty J adopted was outside the available range ofsentences so that the sentence imposed was manifestly inadequate and wrong inprinciple.Minimum period of imprisonment[27] In declining to impose a minimum period of imprisonment, Fogarty J identifiedthe requirements of s 86 of the Sentencing Act, that the sentencing Judge had to besatisfied that the potential standard of a minimum of one-third of the sentence beforerelease on parole would not be sufficient to hold the offender accountable, denouncehis conduct, deter others from committing the offence or protecting the community.He was not satisfied of those matters. He went on to say that:25[21] I have confidence that the Parole Board will, over the time that you area prisoner, form a reliable judgment as to your character, as to your prospectsof re-entering society and it can be left in the usual way for the Parole Boardto decide upon your date of release.[28] Mr Carruthers relied on this Court's previous decisions that indicate that incases of serious drug offending, the criteria for imposing a minimum period ofimprisonment will almost invariably be made out.26 Mr Carruthers emphasised theimportance of denouncing and generally deterring such offending and submitted thatFogarty J had given insufficient weight to these considerations. He argued thatMr Agu's offending was very serious; he was not merely a mule involved in a one-offimportation but, rather, a catcher who facilitated four separate importations totalling alarge amount of methamphetamine over a period of six months. In addition,25 R v Agu, above n 1.26 See R v Aram [2007] NZCA 328 at [78]; R v Zhou [2009] NZCA 365 at [19]; Solicitor-General vHuang, above n 8, at [12]–[13] and [23]; Makanesi v R [2015] NZCA 134 at [10]; Chea v R [2016]NZCA 207 at [118]; and Mok v R [2017] NZCA 537 at [14].Mr Carruthers referred to the fact that Mr Agu had a previous conviction for importingheroin into the United States in 2001.[29] Finally, Mr Carruthers submitted that Fogarty J had wrongly deferred to theParole Board's expertise in determining when a prisoner is ready to be released fromprison, conflating the questions of denunciation and deterrence which were matters forthe sentencing Judge, with rehabilitation and reintegration, which were matters for theParole Board.[30] Mr Newell acknowledged the effect of the decisions relied on by the Crownbut submitted that the length of the sentence itself was sufficient to reflect theconsiderations contained in s 86(2) of the Sentencing Act.[31] We do not consider that Fogarty J did defer to the Parole Board's expertise indetermining when a prisoner is ready to be released from prison rather than addressingthe issues he was required to address under s 86(2). It is apparent from the sentencingnotes that the Judge addressed himself to the requirements of s 86(2), and expressedhimself not satisfied that any of those purposes of sentencing required the impositionof a minimum period of imprisonment in this case. We are not in a position to say thathe erred in that regard, given the Judge's assessment of the very limited role thatMr Agu played. The fact that Mr Agu had a previous conviction in the United Statesdoes not alter this position, given the age of the conviction and the fact that nothingwas known about the circumstances in which it was entered.Result[32] The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Appellant.