Kuti v R

[2012] NSWCCA 43

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Kuti v R [2012] NSWCCA 43

Hearing dates:

20 March 2012

Decision date:

13 April 2012

Before:

McClellan CJ at CL at [1]
Davies J at [2]
Garling J at [50]

Decision:

(1) Leave to appeal granted.

(2) Appeal dismissed.

Catchwords:

CRIMINAL LAW - appeal against sentence - importing marketable quantity of heroin - Nigerian national - whether sentence manifestly excessive - whether proper consideration given to duress and hardship.

Legislation Cited:

Criminal Code (Cth)
Customs Act 1901 (Cth)

Cases Cited:

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2011) 205 A Crim R 1
R v Ferrer-Esis (1991) 55 A Crim R 231
Tiknius v R [2011] NSWCCA 215

Category:

Principal judgment

Parties:

Joseph Kolawole Kuti (Applicant)
Crown

Representation:

Counsel:
D O'Neil (Applicant)
P McGuire (Crown)
Solicitors:
Legal Aid NSW (Applicant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s):

CCA 2009/272499

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2011-04-01 00:00:00

Before:

Zahra DCJ

File Number(s):

2009/272499

Judgment

1. McCLELLAN CJ AT CL:I agree with Davies J.

1. DAVIES J: On 12 May 2010 the Applicant entered a plea of guilty in the Local Court to an offence against s 307.2(1) of the Criminal Code (Cth) of importing a marketable quantity of a border controlled drug, namely heroin. The maximum penalty for this offence is imprisonment for 25 years.

1. On 1 April 2011 the Applicant was sentenced by Judge Zahra SC in the District Court of NSW to a period of imprisonment for 7 years and 6 months with a non-parole period of 4 years and 6 months commencing 29 November 2009 and expiring 28 May 2014. The Applicant now seeks leave to appeal against that sentence claiming that it was manifestly excessive.

The facts

1. The following facts are taken from those found by the Sentencing Judge.

1. At about 3.10pm on Sunday 29 November 2009 the Applicant, a Nigerian national, arrived at Sydney Kingsford Smith Airport, aboard a flight originating from Nigeria. The Applicant was travelling alone on a Nigerian passport. The Applicant's Incoming Passenger card noted "Garden Lodge Sydney" as the Applicant's address in Australia and another address in Haberfield as the Applicant's contact details in Australia. The card noted the length of the Applicant's stay in Australia as two weeks.

1. The Applicant was selected by Customs officers for a search of his carry-on luggage. The Applicant did not have any checked luggage.

1. During the search, a Customs drug detector dog reacted positively to the presence of narcotics in the suitcase found in the possession of the Applicant. However no narcotics were located in that suitcase.

1. The Applicant was spoken to by Customs officers. The Applicant said that he worked as a farmer and had a coca farm. He said he had never been to Australia and was in Australia for a holiday during which he intended to "go to the zoo, museum and have a rest".

1. The Applicant told Custom's officers that he had a booking for three days at a hotel in Haberfield that was booked by his travel agent. He said he intended to look for somewhere else to stay after the period of the booking.

1. The Applicant said that he was married with four children and his wife was looking after the farm while he was away. He said that other members of his family did not want to go on holiday with him and that he did not know anyone in Australia.

1. During questioning by Customs Officers the Applicant produced a business card showing that he was "Chairman / Managing Director" of "Agro-Allied Farms Limited" with a Nigerian address.

1. Enquiries by Customs Officers revealed that there was no booking in the name of the Applicant at the Garden Lodge Motel in Haberfield.

1. Customs Officers suspected that the Applicant was internally concealing narcotics and requested consent for an internal search. The Applicant declined and the matter was then referred to the Australian Federal Police.

1. AFP agents attended the airport and conducted a recorded interview with the Applicant. The Applicant declined to consent to undergo an internal search, stating that he could not undergo an X-ray for various medical reasons. The Applicant requested an interpreter and said he wished to contact the Nigerian embassy and a lawyer. He also requested to be deported from Australia.

1. An amount of US$1,848 was found in the Applicant's possession.

1. The Applicant was taken to St George Hospital. He continued to decline consent to undergo an internal search.

1. At about 11:27pm AFP agents were granted an order for detention pursuant to s 219(T)(1)(b) of the Customs Act 1901 (Cth) authorising the Applicant's detention for a 48-hour period. Soon afterwards the Applicant spoke with a solicitor.

1. Police further interviewed the Applicant but he continued to decline to consent to an internal search.

1. At about 9:40pm on the 30 November, the Applicant requested to use the toilet at which time he passed a number of foreign objects into a bedpan. Shortly after this occurred the Applicant consented to an internal search. A CT scan revealed a number of foreign objects inside his stomach.

1. The recorded interview was recommenced. When asked what he believed was inside the objects he said that they contained drugs. He was then placed under arrest.

1. AFP agents seized a number of items found in the Applicant's possession. These included the Applicant's Nigerian passport issued on 20 August 2008 which noted the issue of a three month visitor's visa issued by the Australian High Commission in Arcardia, Pretoria, South Africa, on 5 November 2009, and two "Agro-Alliance Farms Limited" business cards in the name "Chief Joseph Kolawole Kuti, Chairman/Managing Director".

1. Between 9:40pm on 30 November 2009 and 3:07pm on 2 December 2009, the Applicant passed a total of 100 foreign objects from his body.

1. After a further CT scan which indicated that all the objects had been removed, the Applicant was discharged from the hospital.

1. When taken into custody the Applicant declined to be interviewed further.

1. The objects were forensically examined. The objects consisted of compressed powder wrapped in plastic wrap. The total gross weight of the powder was 796.9 grams. Further analysis revealed that the powder contained heroin of 56.8% purity. The total pure weight of heroin was 452.6 grams.

1. The "street value" of the heroin seized from the Applicant has been estimated by the AFP as being between $528,010 and $905,200.

1. Records from the Department of Immigration and Citizenship indicate that the Applicant had not previously travelled to Australia.

The offender's account of the offending:

1. The Applicant told the probation officer that he had borrowed $US10,000 from a man so that he could purchase a quantity of rice that he could re- sell. He said that he had been "tricked" by this person who "disappeared" with his money. He said that as he was unable to meet the debt that he had incurred he became involved in the importation of illicit drugs in order that the debt be cancelled. He said he intended that some of the monies would be retained for medical expenses. He said in evidence during the proceedings on sentence that he was having breathing difficulties.

1. The Applicant told the probation officer that he initially refused to become involved. However, he said that he had been threatened with death if he did not co-operate. He said that he acted out of fear. In evidence he said that there was constant harassment and that he had no choice.

1. The Applicant said that he was ultimately taken to a hotel and instructed how to conceal the drugs. He said he was told that the drug was cocaine. After he swallowed the drugs he was taken to a hotel in Lagos. All arrangements for travel had been organised by others.

1. The Applicant did not give entirely consistent accounts of events in Nigeria. He told the psychologist, John Taylor, who examined him, that the person from whom he had borrowed the money introduced him to a man who told him that if he brought drugs to Australia he would give him money when he returned to Nigeria to enable him to repay the debt. He said that he had rejected this proposition but his family was threatened with being killed. He said that he took this threat very seriously and became very afraid. He said that he did not commit the offence willingly.

1. His Honour's conclusions about these matters was as follows:

Whilst I have some reservations about the offender's evidence concerning the origin of his indebtedness, I accept his evidence, on balance, that he had owed money to others and that he had hoped that, by importing the heroin, that that debt be expunged. I accept his evidence that his decision to become involved was made against a background of threats made to him. The offender comes from an impoverished background. There is nothing before me to suggest that he had the ability to organise or fund an importation of this scale or to procure the drug. I accept the offender's evidence that his role was to internally conceal the drug and bring it into Australia where others would collect it. His role was that of a courier.

...

... Having considered the various accounts given by the offender and his evidence during the proceedings on sentence I am of the view that it is likely that his ultimate decision to become involved was precipitated by threats towards him. It is however difficult to determine the extent to which his will was overborne. He has entered a plea of guilty which is an admission that he was not acting under duress. Further the offender himself acknowledged that he had other options and could have notified the authorities and has expressed regret that he did not take that course.

1. Although the Crown had argued that the Applicant should be found to have been an importer of the drugs his Honour found that he should be regarded as a courier. His Honour went on to say, however:

This pursuit of a label however should not obscure what it is the offender did. The offender played a crucial role in the importation of a significant quantity of illicit drugs.

Subjective features

1. The Applicant had no prior criminal record in Australia, and his Honour accepted that he had no criminal record in Nigeria. His Honour noted, however, that good record is generally of less weight where the Court is dealing with the dissemination of large quantities of narcotic drugs.

1. At the time of sentence the Applicant was 69 years of age and is now 70 years of age. He resides in a village in Nigeria. He has four children although there are inconsistencies in the evidence offered by the Applicant about them. One or more of the children appears to be a minor.

1. His wife was apparently ill before he came to Australia and died before he was sentenced. The family was in a financially poor state. He had not had sufficient money to enable his children to attend school. He gave inconsistent information about his occupation, saying first that he was a farmer who owned a coca farm, and subsequently that he was a tailor from which he earned the Nigerian equivalent of about AUS $866 per annum. He did not have any history of alcohol or illicit drug use. He suffered from hypertension and chronic nose bleeding.

1. The psychologist noted that at the time of testing the Applicant was suffering from depression which appeared to be reactive to his incarceration in Australia. His Honour accepted that the Applicant required treatment for his depression.

Remarks on Sentence

1. Having made the factual findings and noted the subjective features detailed earlier his Honour made the following determinations in relation to the sentence:

(a)he found that his remorse was genuine;

(b)he found that the Applicant's plea was made at the earliest opportunity, and discounted the sentence by 25%;

(c)he noted the maximum penalty, and the need for general deterrence for offences of the type charged;

(d)in relation to the objective gravity of the offence he found that the quantity of the drug was substantial which was a matter known to the Applicant, that his role was that of a courier, and that he was expecting to receive a substantial monetary reward equivalent to him of many years' income;

(e)he noted the Applicant had no prior criminal record but said that that was of less weight where a court was dealing with dissemination of large quantities of narcotic drugs;

(f)he noted aspects of hardship including the Applicant's health, his wife's death, and his isolation away from his family and country;

(g)he was mindful of the limitations of making references to statistics of sentences.

The Appeal

1. The only ground of appeal is that the sentence was manifestly excessive. Nevertheless, the Applicant submitted that considerations of duress and hardship to the Applicant of his present incarceration should have resulted in a lesser sentence. Since actual error was not asserted (although the submission in relation to duress suggested error) it must be taken that the real complaint was that the weight attached by the Sentencing judge to these two matters led to an excessive sentence. The difficulty with this type of submission is emphasised by what Johnson J (with whom Tobias AJA and Hall J agreed) said in Tiknius v R [2011] NSWCCA 215:

[58] This court is generally reluctant to entertain favourably grounds of appeal which contend that there was a failure to give "adequate weight" to a factor on sentence: Ryan v R [2009] NSWCCA 183 at [33]. Matters of weight are for the sentencing Judge. Unless it be demonstrated that the sentencing Judge placed so little weight on the duress finding that the sentence fell outside the appropriate exercise of sentencing discretion, there is no basis for appellate intervention: El-Charr v R at [28].

1. The Applicant submitted that the Sentencing judge did not indicate how the duress which was found impacted on the assessment of the objective gravity. The Applicant pointed to what was said in Tiknius as follows:

[59]A significant feature of the submission in support of the first ground of appeal is that her Honour moved from strongly favourable findings on the duress issue to the imposition of sentence, without any assessment of the impact of the duress finding on the objective gravity of the Applicant's offences. In my view, this complaint is made out in this case.

[60]Her Honour's acceptance of the Applicant's evidence was a practical starting point in an assessment of the objective gravity of the Applicant's offences. What was then necessary, to comply with relevant principles, was an articulated assessment by her Honour of the impact of the finding of duress upon the objective gravity and moral culpability of the Applicant's offences. This did not require an elaborate and detailed analysis. However, some analysis, and an expression of conclusions, was required. It did not happen in this case.

[61]The very fact that an unusual and favourable finding was being made, which would operate in the interests of the Applicant, required analysis and conclusions with respect to moral culpability and objective seriousness of the offences. In light of her Honour's findings, this was a most important feature in this case, bearing upon the motivation of the Applicant to become involved in serious criminal activity.

1. I have set out above at [32] what his Honour said concerning the matter of duress. In my opinion those remarks contained "some analysis, and an expression of conclusions". It may be inferred from those remarks that his Honour concluded that the Applicant's will was not overborne to the extent that the duress may have provided a defence to the offence charged, and that the threats influenced his actions but that he could have dealt with them by notifying the appropriate authorities. It may also be inferred that his Honour found that the duress was a mitigating factor to some extent, but not such as to remove the need for deterrence. In that regard his Honour observed in the passage immediately following what is set out in [32] above:

As I have indicated, the governing principle under s16A(1) is the imposition of a sentence that is of a "severity appropriate in all the circumstances of the offence".

The offence is a prevalent one and one that is not always easy to detect. Offences of this kind have a significant impact upon illegal drug use in Australia and are the cause of substantial harm to the Australian community. A sentence must be imposed which will be regarded and seen by the community as carrying a strong element of deterrence.

1. I do not consider there was any error in the approach of the Sentencing Judge to the matter of duress.

1. The Applicant drew particular attention to the hardship he is experiencing, particularly because of his age, his health, and his being absent from his family particularly as his wife died after he was incarcerated here. These hardship matters were expressly taken into account by his Honour.

1. In addition, in R v Ferrer-Esis (1991) 55 A Crim R 231 Hunt J (with whom Gleeson CJ and Lee CJ at CL said) at 239:

There were a number of subjective facts which the judge took into account. The respondent is incarcerated in a foreign country, living amidst a foreign language and a foreign culture. He is isolated from any outside contact. However, with all due respect to views to the contrary which may have been expressed by others, I do not consider that very much weight should be given to that particular circumstance.

The fact is that any person who comes to this country specifically and quite deliberately to commit a serious crime here (as did the respondent) has no justifiable cause for complaint when, as the inevitable consequence of the discovery of his crime, he is obliged to remain incarcerated in this country, with its language and culture foreign to him, isolated from outside contact. The respondent has nevertheless responded well in custody, and favourable reports were tendered as to his attendance at English classes and as to his rapport with his fellow prisoners and with prison officers.

This approach was reaffirmed in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2011) 205 A Crim R 1 at [265] where McClellan CJ at CL said these matters were of "strictly limited" significance.

1. In further support for his submission that the sentence was manifestly excessive Mr O'Neil of Counsel for the Applicant took the Court to the decision of this Court in De La Rosa. He submitted, in particular, that the Applicant's case should be regarded as falling within Group 3 of importing a trafficable/marketable quantity as discussed at [223]. That paragraph of the judgment is as follows:

The sentencing range for cases in this group is 3.75 - 6 years (head sentence) and 2 - 4.25 years (non-parole period). The majority of the offenders were mere couriers. Many expected a financial reward, or were promised relief of a debt, measured in the thousands of dollars. Virtually all entered a plea of guilty at the earliest opportunity and received discounts of up to 25%. Many of the offenders in this group suffered adverse personal circumstances including drug use and dependency (Chong, Hoang, Tyn, Petrosyan, Blay, Salcedo, Le, Fisher, Berlitone), physical and mental health problems (Chong, Hoang, Danial, Petrosyan, Le, Seng, Ntsi) financial problems (Hoang, Huynh, Barany, Nhu Thi Ho, Thanh Nhu Ho, Chea & Ors, Le) and familial/relationship problems (Chong, Tyn, Blay, Chea & Ors, Le). The quantities of narcotics involved in the offences tend to lie at the more conservative end of the marketable (or trafficable, as it was known under the Customs Act) threshold. Petrosyan, which I have placed in this group, is something of an anomaly. It involved a high marketable quantity of cocaine and a role well above that of mere courier. On the other hand, it has features typical to this group, including a plea of guilty and adverse personal circumstances. Without the significant assistance provided by the offender in that case, I would have placed this decision into the second group of cases.

1. Whilst it is certainly true that the Applicant can be fitted into the descriptions contained in that category he can equally be placed in what McClellan CJ at CL described as Group 2 of those charged with trafficable or marketable quantity as follows:

[221] The head sentences in this group range from 6 to 9 years. The non-parole periods range from 3 years to just over 5 years. The quantity of drug does not seem to be of particular significance. The significant factors which are common are the role played by the offender, the anticipated reward, the nature and timing of any plea, as well as the level of any assistance provided. The majority of the offenders in this group were mere couriers (Mirzaee, X, Do, Bartlett, Mattheyer, Radebe, Jimson, Heryadi, P , Anna Le, De Campos, Toure, Kaldor) although some had more senior roles (Pham low level importer; Saputra principal, Boyd significantly involved; Tran involved in management but not a principal; Nikolovska facilitator). Discounts were allowed in Mirzaee (plea 25%), X (plea and cooperation 35%), Thom (plea 10%, cooperation 25%), Radebe (plea 25%), Pham (plea 25%), P (plea and assistance 40%), Anna Le (plea, assumed discount 25%), De Campos (plea, assumed discount 20%, offer of assistance 5%), Toure (plea and cooperation 25%), Saputra (late plea 10%), Viera (plea 25%) and Taylor (plea and assistance 35%). In many other cases discounts were applied without being specified in numerical terms. The sentences in Kaldor and Tran were imposed following successful Crown appeals.

1. McClellan CJ at CL stressed that he was not writing a guideline judgment, but was collecting previous decisions which might prove as a useful resource for judges sentencing for drug importation offences - see at [196] and [203]. He also said at [200]:

After analysis, I have placed the sentences into relevant groupings. I have taken this approach for ease of understanding by others. Of course the appropriate sentence for a particular offence will depend on all the circumstances of the offence and the offender. The groupings are merely an attempt to facilitate an understanding of the available information by reference to the common features of offenders and offences and the sentence imposed. There will inevitably be anomalies and others exercising their own judgement may have placed one or other of the decisions into a different group.

1. I do not consider that the determination in the present matter is assisted by the Applicant's approach of endeavouring to place himself within a particular grouping in De La Rosa and concluding that, because the present sentence exceeds the range in that group, the sentence is manifestly excessive. Even if it could be said that the case fits into the third group for marketable quantity the sentence imposed by the judge was sufficiently close to the range of sentencing in that group that manifest excess could not be demonstrated.

Conclusion

1. In my opinion the following orders should be made:

(1) Leave to appeal granted.

(2) Appeal dismissed.

1. GARLING J:I agree with the judgment of Davies J, and with the orders which his Honour proposes.

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Decision last updated: 14 April 2012