Agwu v R [2015] NZCA 619 (18 December 2015)

Last Updated: 20 January 2016

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

[1] 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

[2] 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] 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.
[4] 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

[5] Mr Tipene pleaded guilty to six counts of importing cocaine and one count of possession of cocaine for supply.^[6] The summary of facts on which he was sentenced referred to 11 packages of which five were intercepted. The total quantity of cocaine found in the intercepted packages and in his possession was 2.7 kilograms with an estimated value of between $678,000 and $1,627,200. The quantity of the other imported packages was unknown.
[6] Mr Tipene was sentenced on the basis that another person was importing the drugs, and he was involved in uplifting and distributing them. He was not the instigator but was a crucial player. He had a significant role in large scale commercial importation which spanned several months. A starting point of 14 years’ imprisonment was adopted. This was reduced to five years and eight months’ imprisonment because of several compelling mitigating factors: he was a first offender who pleaded guilty at the first opportunity; he cooperated with the police; he was genuinely remorseful; he had taken active rehabilitative steps; and his offending was completely out of character.^[7]
[7] Mr Agwu submits that the Judge incorrectly categorised his role relative to Mr Tipene’s role. He says the main leader was Mr Mmodili, who was based in Nigeria but visited New Zealand frequently. Mr Agwu’s role was to check and coordinate details of addresses, deliveries and payments, and he reported at all times to Mr Mmodili. Mr Agwu says Mr Tipene arguably had a more active role than him. He says Mr Tipene organised the sale of the drugs and dealt with them and the money first hand, whereas he acted as an agent between Mr Tipene and Mr Mmodili.
[8] We do not accept this submission. The Judge who sentenced Mr Agwu presided over his trial. Mr Tipene was called as a witness at the trial. The Judge was well placed to assess the respective culpabilities of Mr Agwu and Mr Tipene. His view was that Mr Tipene was “clearly less culpable.” The four year difference in starting points reflects that assessment. The starting point for Mr Agwu was stern but nevertheless within range for an importation of class A drugs of this scale.^[8] It was not suggested otherwise.^[9]

Issue 2: MPI

[9] Mr Agwu says that a MPI of eight and a half years, which is close to the 10 year maximum, should not have been imposed. He says it was not necessary for the purposes of accountability, denunciation, deterrence or protection of the community.
[10] He says his actions were those of a young professional footballer with a career and family who fell upon hard times. He is not an offender with an entrenched pattern of offending. Since being imprisoned he has reflected on his offending, withdrawn his intended conviction appeal, he is remorseful, and he offered to provide assistance to the police.^[10] He will be deported to Nigeria upon release. Once deported there is no risk that he will reoffend in New Zealand.
[11] He says the consequences of his conviction are especially grave for him as his wife (who is not Nigerian) and their 14 year old daughter may not return with him. Moreover his ability to travel internationally for his football career will be limited. If granted parole and deported prior to the MPI date he would have the possibility of continuing with this football career in Nigeria. However, with the MPI, he will not be eligible for parole until July 2022. By that time he will be 39 years old, and it would be too late to resume his career.
[12] We consider there was no error by the Judge in imposing the MPI. A MPI is common for importing class A drugs of this scale even for a first offender.^[11] This Court has also said that the prospect of deportation is not a proper ground for refusing a minimum sentence which would otherwise have been justified by the magnitude of the offending.^[12] The MPI here was set at 50 per cent of the sentence. That was orthodox. In the absence of error or compelling new circumstances not known by the sentencing Judge, we are unable to intervene. The expressions of remorse and offer of assistance are new but are not compelling.

Issue 3: Mitigating factors

[13] Mr Agwu received a one year discount (5.56 per cent) from the starting point for previous good character and the year spent on electronically monitored bail. He says a greater discount should have been allowed given his relative youth, his prior good record^[13] and his rehabilitative prospects (in light of his supportive family and football career).
[14] In cases of commercial dealing in controlled drugs the interests of deterrence are to be given primacy, and the personal circumstances of the offender are subordinated.^[14] Mr Agwu was 30 years old when he was sentenced. While relatively young, he was not of an age where discounts for youth are routinely considered. Mr Agwu did not plead guilty. He had not commenced or undertaken any rehabilitative steps. There was no other demonstrable remorse at the time of sentencing. In these circumstances a greater discount than that allowed by the Judge was not required.^[15]

Result

[15] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[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).

^[3] Mr Agwu was convicted as a party to these sales.

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

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

^[6] R v Tipene DC Manukau CRI-2010-092-11955, 18 March 2011.

^[7] At [9].

^[8] For example, see R v Ogaz [2007] NZCA 45 and R v Aroh [2008] NZCA 457, in addition to R v Tshisa CA507/05, 31 August 2006.

^[9] Disparity error depends on an affront to the administration of justice; the real issue is not leniency to Mr Tipene, but undue severity to Mr Agwu: MacFarlane v R [2012] NZCA 317 at [24]; Clarke v R [2013] NZCA 473 at [18]–[19]; Yuen v R [2015] NZCA 555 at [10].

^[10] While in prison he provided information to the police. However none of the information was new. It formed part of the prosecution against him.

^[11] R v Aram [2007] NZCA 328 at [78]; and Solicitor-General v Huang [2011] NZCA 436 at [12]. See also Yuen v R, above n 9, at [16].

^[12] Bi v R [2014] NZCA 10 at [6]; Olua v R [2014] NZCA 105 at [67].

^[13] He had a minor conviction for fighting in a public place for which he received a small fine.

^[14] Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612 at [12].

^[15] See, for example, Machado-Periera v R [2015] NZCA 423 at [16].