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Court of Criminal Appeal 13 April 2012

Kuti v R

[2012] NSWCCA 43

Drugs
CRIMINAL LAW APPEAL AGAINST SENTENCE IMPORTING MARKETABLE QUANTITY OF HEROIN NIGERIAN NATIONAL WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Kuti v R [2012] NSWCCA 43
Court: Court of Criminal Appeal, NSW
Date: 13 April 2012
Judges: McClellan CJ at CL, Davies J, Garling J

Background

The applicant, a Nigerian national, arrived at Sydney Kingsford Smith Airport in November 2009 carrying 100 pellets of heroin concealed internally. The pellets contained 452.6 grams of pure heroin, with a street value estimated between $528,010 and $905,200. He had entered on a visitor's visa and gave customs officers a cover story about a holiday, but no hotel booking existed in his name.

The applicant pleaded guilty in the Local Court to importing a marketable quantity of a border controlled drug under s 307.2(1) of the Criminal Code (Cth), which carries a maximum penalty of 25 years' imprisonment. In the District Court, Judge Zahra SC sentenced him to 7 years and 6 months imprisonment with a non-parole period of 4 years and 6 months.

The applicant sought leave to appeal to the Court of Criminal Appeal, arguing the sentence was manifestly excessive given his role as a courier and the circumstances of duress and hardship he claimed had driven his involvement.

  • Whether the sentence of 7 years and 6 months was manifestly excessive for a first-time offender acting as a drug courier who claimed to have been threatened into participating.
  • Whether the sentencing judge gave proper weight to the applicant's account of duress, including threats made to him and his family.
  • Whether the applicant's impoverished background and claimed hardship warranted a more lenient sentence.
  • Whether comparison with sentencing ranges identified in Director of Public Prosecutions (Cth) v De La Rosa demonstrated manifest excess.

Decision

The Court of Criminal Appeal unanimously dismissed the appeal, with Davies J delivering the principal judgment and McClellan CJ at CL and Garling J agreeing.

On the duress claim, the sentencing judge had accepted that the applicant's decision to participate was made against a background of threats, and that he came from an impoverished background with no capacity to organise such an importation independently. However, the judge also noted that the applicant acknowledged he had other options, including notifying authorities, and that his guilty plea was itself an admission that he had not been acting under duress in the strict legal sense. The Court of Criminal Appeal found no error in this approach.

On the question of manifest excess, the court rejected the applicant's argument that the sentence fell outside the appropriate range for a courier convicted of importing a marketable quantity of heroin. Davies J observed that the applicant had internally concealed 100 pellets of heroin with a significant pure weight and street value, and that the quantity and nature of the offending placed it at a meaningful level of seriousness even for a courier role.

The court also declined to treat the De La Rosa sentencing survey as a rigid grid against which manifest excess could be mechanically demonstrated. Even accepting the applicant's placement within a particular De La Rosa grouping for marketable quantity offences, the sentence imposed was sufficiently close to the range in that group that manifest excess could not be established.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a guilty plea to importing a border controlled drug constitutes an admission that the offender was not acting under duress in the strict legal sense, even where a sentencing court accepts that threats contributed to the offending.
  • A sentencing court may treat an offender as a courier rather than an importer while still imposing a substantial sentence, particularly where the quantity of drug internally concealed is significant.
  • The De La Rosa sentencing compilation does not establish binding sentencing bands. The Court of Criminal Appeal reiterated that it was not a guideline judgment, and that placing a case within a particular grouping does not by itself demonstrate manifest excess if the sentence is reasonably close to that range.
  • Where an offender acknowledges having had available options (such as contacting authorities) but did not take them, a sentencing court is entitled to treat the duress claim as a mitigating factor of limited weight rather than as a complete answer to culpability.
  • No error of principle was found where the sentencing judge balanced impoverishment, claimed threats, and a guilty plea against the seriousness of importing nearly 453 grams of pure heroin.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), s 307.2(1)
- Customs Act 1901 (Cth), s 219T(1)(b)

Cases:
- 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