Kuti v R

Case [2012] NSWCCA 43 13 April 2012

Type to search within this case.

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

McCLELLAN CJ AT CL:I agree with Davies J.

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.

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

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

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.

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

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.

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".

The Applicant told Custom's officers…

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 Kuti v R

Details

AGLC: Kuti v R [2012] NSWCCA 43
Case: [2012] NSWCCA 43
Decision Date: 13 April 2012

CaseChat Overview and Summary

Kuti, a Nigerian national, was convicted of importing a marketable quantity of heroin into Australia. Following his conviction, Kuti appealed against the sentence imposed by the court, arguing that it was manifestly excessive and that the court had not properly considered the mitigating factors of duress and hardship. The appeal was heard by the court, which was required to determine whether the sentence was appropriate in the circumstances and whether the mitigating factors had been adequately taken into account.

The court examined the principles of sentencing in relation to drug importation offences and the role of duress and hardship as mitigating factors. It considered the severity of the offence and the need to deter similar conduct, balanced against the personal circumstances of the offender. The court also evaluated whether the sentence imposed was disproportionate to the offence and whether the mitigating factors of duress and hardship had been given appropriate weight.

In assessing the appeal, the court determined that while the offence was serious, the sentence imposed was not manifestly excessive. The court acknowledged that Kuti had acted under duress and faced significant hardship but found that these factors, while relevant, did not sufficiently mitigate the gravity of the offence. The court concluded that the sentence reflected a proper balance between the need for deterrence and the personal circumstances of the offender. Therefore, the appeal was dismissed, and the original sentence was upheld.

The court did not make any further orders beyond dismissing the appeal and upholding the original sentence.

Orders