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 1McCLELLAN CJ AT CL:I agree with Davies J. 2DAVIES 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. 3On 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.