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Udunna v R (Cth)

Udunna v R (Cth)

Case [2020] NSWCCA 304 25 November 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Udunna v R (Cth) [2020] NSWCCA 304
Hearing dates: 28 October 2020
Decision date: 25 November 2020
Before: Hoeben CJ at CL at [1];
Harrison J at [38];
Ierace J at [39]
Decision:
(1)   An extension of time until 28 October 2020 is granted for the applicant to seek leave to appeal against sentence.
(2)   Leave to appeal against sentence is granted.
(3)   The appeal against sentence is dismissed.

Catchwords:
CRIMINAL LAW – sentence appeal – attempt to possess an unlawful imported border controlled drug (methamphetamine) – applicant convicted after trial – 142kg of methamphetamine – sentence of 10 years with a non-parole period of 6 years and 6 months – whether sentence manifestly excessive – whether error in not properly taking into account the prior good character of the applicant – leave to appeal granted but the appeal dismissed.

Cases Cited:
Okafor v R [2007] NSWCCA 147
Onuorah v R [2009] NSWCCA 238; 234 FLR 377
R v Barrientos [1999] NSWCCA 1
R v Lee [2007] NSWCCA 234
R v Leroy (1984) 2 NSWLR 441
R v Nguyen; R v Pham [2010] NSWCCA 238
Regina v Paliwala (2005) 153 A Crim R 451; [2005] NSWCCA 221
Stines v R [2019] NSWCCA 115
The Queen (Cth) v Pham (2015) 256 CLR 550; [2015] HCA 39
Vandeventer v R [2013] NSWCCA 33
Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 65

Category: Principal judgment
Parties: Joseph Udunna – Applicant
Regina (Cth) – Respondent
Representation:
Counsel:
S Kluss – Applicant
A Williams – Respondent
Solicitors:
Ross Hill & Associate Solicitors – Applicant
Commonwealth Director of Public Prosecutions – Respondent

File Number(s): 2016/171325
Decision under appeal

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

7 December 2018

Before:

North DCJ

File Number(s):

2016/171325

JUDGMENT

HOEBEN CJ at CL:

Offences and sentence

The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed upon him by his Honour Judge North on 7 December 2018 in the District Court at Sydney.

The application for leave to appeal is out of time and the applicant seeks an extension of time within which to bring the application. The respondent does not oppose an extension of time being granted. In those circumstances, the Court proposes to grant leave to extend the time for bringing the appeal.
The applicant was sentenced after trial for aiding and abetting an offence of attempting to possess an unlawfully imported border controlled drug, namely methamphetamine contrary to s 307.5(1) of the Criminal Code (Cth) (with ss 11.1(1) and 11.1(2)). He was sentenced to a term of imprisonment of 10 years with a non-parole period of 6 years and 6 months, commencing 21 February 2018 and expiring 20 August 2024 at which time, subject to s 19AL of the Crimes Act 1914 (Cth), the applicant can be released…

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 Udunna v R (Cth)

Details

AGLC: Udunna v R (Cth) [2020] NSWCCA 304
Case: [2020] NSWCCA 304
Decision Date: 25 November 2020

CaseChat Overview and Summary

The applicant, Udunna, appealed against his conviction and sentence for an attempt to possess an unlawful imported border controlled drug, specifically methamphetamine. The quantity of the drug involved was 142 kilograms, and Udunna was sentenced to 10 years imprisonment with a non-parole period of 6 years and 6 months. The appeal against his sentence was heard in the High Court of Australia. The primary legal issues for the court were whether the sentence was manifestly excessive and whether there was an error in not properly considering Udunna’s prior good character during sentencing.

In addressing the appeal, the court first considered the principle of manifest excessiveness, which requires that the sentence be so disproportionate to the offence that it shocks the conscience of the court. The court noted the significant quantity of drugs involved but also the lack of violence or coercion, and Udunna's lack of prior criminal record. The court acknowledged the gravity of the offence but found that the sentence, while severe, did not reach the threshold of being manifestly excessive. Additionally, the court found no significant error in the consideration of Udunna's prior good character, as the sentencing judge had given adequate weight to this factor.

Given these considerations, the court dismissed the appeal. The sentence imposed was deemed to be within the bounds of judicial discretion and appropriate for the gravity of the offence, taking into account all relevant factors. The court found no grounds to interfere with the sentence imposed by the trial judge.

The appeal was dismissed, and the original sentence of 10 years with a non-parole period of 6 years and 6 months was upheld.

Orders