R v Barkl; R v Dumbrell; R v Theobald - [2022] NSWDC 760 - NSWDC 2022 case summary — Zoe

NSWNSWDC

R v Barkl; R v Dumbrell; R v Theobald

[2022] NSWDC 760

District Court of NSW|2022-11-11|Before: Gregory J, Gleeson CJ, Callinan JJ

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At a glance

Source facts

Court

District Court of NSW

Decision date

2022-11-11

Before

Gregory J, Gleeson CJ, Callinan JJ

Source

Original judgment source is linked above.

Judgment (35 paragraphs)

[1]

Introduction

Laurie Simpson Barkl and Raymond John Dumbrell appear for sentence after pleading guilty in the Local Court to the following offences: 1. that between about 27 February 2019 and 15 May 2019 they each attempted to possess a commercial quantity of a border controlled substance, cocaine, contrary to s 307.5(1) and s 11.1(1) of the Criminal Code 1995 (Cth); and 2. that on 30 March 2021 as a person subject to an order under s 3LA(2) Crimes Act 1914 they each omitted to provide access to a data storage device contrary to s 3LA(6) Crimes Act 1914.
Kevin Victor Theobald appears for sentence after pleading guilty in the Local Court to the following offences: 1. that between about 27 February 2019 and 15 May 2019 he attempted to possess a commercial quantity of a border controlled substance, cocaine contrary to s 307.5(1) and 11.1(1) of the Criminal Code 1995 (Cth); and 2. that between 19-21 December 2020 he knowingly took part in the supply of a commercial quantity of a prohibited drug, pseudoephedrine, contrary to s 25(2) Drug Misuse and Trafficking Act 1985 (NSW).
The maximum penalty for the s 307.5(1) offence is life imprisonment and/or a fine of $1,665,000.
The maximum penalty for the s 3LA(6) offence is 10 years imprisonment and/or a fine of $133,200.
The maximum penalty for the s 25(2) offence is 20 years imprisonment and/or a fine of $385,000. The offence also carries a standard non-parole period of 10 years.

[2]

[8]

Importation of the cocaine

In December 2018 Mr Montano contacted Gummerson again requesting transport and storage services for the importation of 18 pallets of aluminium ingots from Mexico.
In early January 2019 Ms Guadarrama exchanged a number of emails with All Ports making transport and freight arrangements for the new shipment, due to arrive on 5 January 2019.
On 5 January 2019 the consignment arrived in Port Botany in a shipping container. The consignment contained 1,890 aluminium ingots on 18 pallets (105 ingots per pallet). The consignor was Mulia Metals SA (Mulia) and the consignee was Alumetal.
On 6 February 2019 the consignment was examined by Australian Border Force (ABF) officers and anomalies were detected. The consignment was found to contain a concealed white substance inside 188 of the aluminium ingots. Presumptive testing indicated the presence of cocaine.
On 7 February 2019 crime scene officers from the Australian Federal Police (AFP) conducted a forensic deconstruction of the consignment. The suspect ingots were found to contain a white substance that was later identified as cocaine. The suspect ingots had been hollowed out and two compressed blocks of cocaine placed inside. A lead plate was then secured over the top of the cocaine and glued in place with an epoxy. The top cover was painted silver, with the suspect ingots having a glossy appearance when compared with the solid ingots. The suspect ingots were located in the bottom two layers of pallets 7-16.
Each block of cocaine weighed approximately 0.5kg and was impressed with the characters "LMV3". The total amount of the cocaine was 188.16kgs with a purity of between 78-81%, amounting to 149.3kgs pure. The estimated wholesale value of the cocaine was between about $35 million and $48 million.
Further analysis revealed that the cocaine in the unknown consignment and this consignment were both made from Colombian leaf, using the Colombian methodology and having similar solvent profiles.
The 188 suspect ingots were seized by the AFP. On 13 and 14 February 2019 the remaining ingots were repacked onto the original 18 pallets in a similar formation to the original formation in preparation for delivery. Listening devices were installed in the consignment.
On 19 February 2019 the repacked consignment was delivered to Gummerson's warehouse. On 25 February 2019 Mr Montano sent an email to Gummerson requesting delivery of the consignment to Mr Butler at AWS.
At about 1.30pm on 27 February 2019 the consignment was delivered to AWS. Mr Keen signed for the delivery and then between about 2.37pm and 3.11pm used a forklift to unload the pallets and place them inside the premises.
At about 2.47pm Mr Dumbrell and Mr Theobald were observed in the vicinity of the driveway at AWS. They met Mr Keen and had a conversation with him, before leaving with an unidentified person in a vehicle.
At about 3.48pm Mr Theobald met Mr Keen at the roller shutter door of AWS. They had a conversation for a few minutes before Mr Keen closed the roller shutter door. At this time, Mr Dumbrell was seen in a carpark nearby.
At about 4.02pm Mr Barkl, Mr Dumbrell and Mr Theobald travelled to Desoutter Street at Bankstown Aerodrome in a vehicle, stopping about two blocks away from AWS. Mr Theobald got into another vehicle. The vehicles then travelled in convoy towards Marion Street, Georges Hall and out of site.

[12]

Fourth attempt to access the cocaine

At about 10.04am on 4 March 2019 the offenders met at a public car park on Birdwood Road, Georges Hall, before driving in convoy towards Marion Street, Yagoona.
Later that afternoon the offenders, Mr Keen and Mr Butler attended AWS arriving at about 4.26pm.
Between about 4.26pm and 4.39pm the offenders, Mr Keen and Mr Butler were heard moving ingots from the consignment around the premises.
At about 4.41pm the offenders left the premises.
At about 5.20pm the offenders were seated on an outside table at a take away restaurant in Georges Hall where they had a discussion for about 10 minutes.
At about 2.53pm on 6 March 2019 Mr Dumbrell was observed at Mr Grncarski's residence.
On 11 March 2019 Mr Montano emailed Gummerson requesting documentary proof that all 18 pallets had been delivered to the customer, AWS.
Between about 4.12pm and 4.50pm on 13 March 2019 Messrs Theobald, Keen and Butler were observed inside the premises inspecting, counting, taking photos and moving individual ingots by hand. Mr Keen used a forklift to move pallets of ingots around inside the warehouse. A conversation was recorded in which Mr Theobald was trying to locate an item with a number 9 on it. Mr Theobald was then recorded as saying "Mate 40 fucking million" and "40 million down the drain".
On 18 March 2019 Mr Montano contacted Gummerson complaining that 1,390 ingots were missing from the consignment.
On 20 March 2019 Ms Guadarrama emailed All Ports stating that her client had advised that the cargo was incomplete and wanted to know if the inspection had taken a sample.
On 30 March 2019 Mr Barkl and Mr Dumbrell departed Sydney on a flight to Bangkok.
On 2 April 2019 Mr Barkl and Mr Dumbrell departed Bangkok on a flight to Singapore.
At about 11.40am on 3 April 2019 Mr Theobald met with an unidentified male. They discussed the loss of the cocaine in the aluminium ingots. Mr Theobald showed the other male photographs of the consignment identifying "missing" ingots and referring to the fact that the pallets were not symmetrically stacked. The entire exchange is recorded in the amended version of [111] of the agreed facts as follows: Theobald You wanna read it again … look. They are ok with us, the son came out, from London, son from cartel came … they want to start working with us. … Theobald (ind) this is how it come in mate. Unknown Shit house. Theobald See all the ones missing. Unknown Yeah. Theobald One sec, see the one on the bottom how it's all nice and square? Unknown Yeah. Theobald And these ones are all missing but that's how it come in. Unknown Is that alright on the bottom was it. Theobald No cause there was nothing in it. There were some pallets that had nothing in em, and the ones that had something, all missing mate. Unknown Well they can't they do it again mate? Theobald That's what their gonna do, that's what they said were saying nothing here. Unknown How come it's silver? Theobald Make out of aluminium, and what they'll do, they cut the bottom out, put in a mould then they put, and they fucken put the infill back over it. They can't be x-rayed, they can't be smelt, they can see all the ones missing. … Unknown Still haven't got no fucken money have ya (ind) Theboald Eh? Unknown You still haven't got paid by (ind). Theobald Na mate (ind). Theobald (ind) you want me to text all that? Unknown (ind) be home this afternoon, if you got no money mate, don't even bother. … Unknown Leave it there and see you later. Theobald Oh .. c'mon cartel, c'mon cartel. Unknown It sounds good that one. The main thing is they've trusted ya, that's the main thing. Theobald Yeah did you hear what I said, the cartel's son came over, the other bloke from Europe come over, they said they know it wasn't us, they said they want to start work straight away. Unknown How do you buy? When they send, how do you buy? Theobald We don't buy it mate. They give to us on tick, that's what happens. They give us 20 percent. Just say they send a hundred kilos. They give you 20 kilos, enough. Right and they give you an opportunity to buy 25 blocks. You might have only enough to buy 10 blocks right. So that's out of that hundred, you get 20, 20 you get 30 kilos, but if you've got the money you can buy 25 blocks that's 40 grand a block, you buy 25 blocks, and you still get 20, and you get 45 blocks out of that. Theobald See, the one that we've just lost right, next lot we're, we're gonna buy 70 blocks, I wouldn't have gotten that. I might have got, I might have got 10, mate I told ya, I make couple mil (ind). It's just getting bigger and bigger woo woo.

[14]

State offence - Mr Theobald

In December 2020, ABF identified a consignment of Toyota side steps with irregularities. The consignment consisted of 10 boxes of side steps, with each box containing two steps. Within each step was concealed a large bag containing an average of 2.6kgs of pseudoephedrine. The bags had been glued into each step. The total amount of the drug was 51.034 kgs.
Police replaced the drug with pool salt and it was delivered as intended on 18 December 2020.
On 19 December 2020, Mr Theobald collected the consignment in a utility driven by him. He took it to the AWS premises, where it was unloaded by him and Mr Keen.
On 20 December 2020 Mr Keen attended the AWS premises. He took one of the side steps and placed it on a bench in the workshop. He was recorded on surveillance footage cutting the step causing white powder to spill out onto the bench that he had covered with a black tarp. He took a piece of the side step out of view of the camera. He then packed up the side step, the power tool that he had been using and the packaging that the side step had been shipped in. He left the premises and drove to his residence in Picnic Point.
At about 11.00am on 21 November 2020 Mr Keen, Gary Xavier and Mr Theobald were present at the AWS warehouse. They were recorded on listening devices using electric grinders and hand tools in the consignment room. Later the room was cleaned and vacuumed. The offenders knew that the consignment contained not less than a commercial quantity of pseudoephedrine.
At about 11.50am Mr Xavier and Mr Theobald were travelling in a motor vehicle, when they were stopped by police and cautioned. Mr Theobald was observed to have white powder on his clothing, which was seized. He told the police that the white powder was horse feed. He was released pending further enquiries. Subsequent analysis determined that the white powder on Mr Theobald's clothing could not be differentiated from the substance in the side step.
On 21 December 2020 police executed a search warrant at the premises of AWS. Police located 4 side steps that had been cut open, the remainder of the consignment and other evidence indicating that the side steps had been cut open at the AWS premises.
During the course of recordings made by listening devices at AWS, Mr Theobald described the side steps as "heavy" and during the course of trying to access the material inside the side steps said to Mr Keen "Hard work this mate, being a fucking criminal".

[15]

Mr Barkl's Case on Sentence

Mr Barkl tendered the following documents: 1. affidavit of Donna Barkl (wife) dated 3 November 2022; 2. letter from Jack Barkl (son)(undated); 3. letter from Daniel Barkl (son)(undated); 4. letter from Harrison Barkl (son)(undated); 5. letter of Lauren Barkl (daughter)(undated); 6. letter from Julieanne Ryan (psychologist) regarding Morgan Barkl (daughter) dated 3 November 2022; 7. letter of apology from the offender (undated); 8. character reference from Henry Morris dated 7 November 2022; 9. character reference from Craig Coleman dated 7 November 2022; 10. forensic psychiatrist report by Dr Olav Nielssen dated 18 October 2022; and 11. offender's life history.
The following is a precis of the evidence relied upon by Mr Barkl.
Mr Barkl was born in Sydney in 1961 and is currently 61 years of age.
He was the only child from his parents' relationship but had two older half-brothers from his mother's previous relationship. His father was a SP bookmaker and bookmaker's clerk. His grandfather was a groundsman at Randwick Racecourse.
The offender's family moved from Kingsford to a housing commission flat in Redfern when he was two years old. Both Mr Barkl's parents were heavy drinkers. When his father was home, he spent his time drinking and listening to horse racing over the radio. Mr Barkl reported that if he wanted his father's attention, he would have to show interest in gambling.
His parents regularly fought about finances and his father's gambling issues. Mr Barkl's mother left the family when the offender was 15 years old.
Mr Barkl reported that he had no issues in school and that he was an average student. He left school after completing Year 10. When he was in high school, he started working at Gordon and Gotch delivering books. He spent most of the money he earnt in this job gambling on horses.
From the age of 21, Mr Barkl started working as an advertising salesman. He continued to bet on the horses and made enough money from betting to start buying and selling cars, which became his main source of income.
Mr Barkl played competitive rugby league until the age of 26. He met Mr Theobald playing rugby league at age 16. Mr Dumbrell is a lifelong friend.
In 1984 he married his first wife and the following year they had a daughter, Morgan. They bought a house in Kingsford. Mr Barkl began to gamble substantial sums of money on races and other sports. His first marriage broke down as a result of his gambling and the financial instability it caused.
In 1988, Mr Barkl was convicted of offences relating to the possession of heroin and a firearm. He was sentenced to 12 months imprisonment to be served by periodic detention.
In 1991, Mr Barkl met his second wife, Donna. They moved to Lindfield and had four children together. As a result of Mr Barkl's car business, and his wife's financial management and family connections, they accumulated a number of businesses, including a food and milk delivery business and several hotels. His wife knew that he had the propensity to gamble, so she kept her business interests separate from his.
Mr Barkl continued to gamble heavily during this period, hiding it from his family. He would sometimes be in debt. In the months leading up to the offences, Mr Barkl borrowed $50,000 from his wife, telling her that it was to buy cars. He lost this money gambling.
He would take out cash loans from people involved in criminal activity. These loans had higher interest rates and were done without paperwork. To further enable his gambling habit, the offender started to take up offers to earn "quick cash". Mr Barkl told Dr Nielssen that he was offered $20,000 and a share in the sale of the aluminium ingots which he understood to be worth $120,000, for his assistance in "moving the pallets".
When asked by Dr Nielssen about his emotional state at the time of offending, Mr Barkl reported that he was stressed because of his gambling losses. Mr Barkl is not a heavy drinker and would drink once every two weeks. He has used recreational drugs, including cocaine, but only in social settings.
Mr Barkl reported an episode of depression about fifteen years ago, in which he had difficulty sleeping and was conscious of feeling low in mood and unmotivated. He spoke to his General Practitioner, who prescribed an antidepressant medication. Mr Barkl ceased this after a week because of side effects.
Dr Nielssen in his report diagnosed Mr Barkl with a gambling disorder.
Mr Barkl tendered letters from his wife and children which describe their experience since his arrest. They all wrote of their strong attachment to Mr Barkl. The circumstances of his arrest appear to have caused great stress for his family, with the police forcibly entering the house in the early hours of the morning. According to her GP, the offender's daughter, XXXX, has developed post-traumatic stress disorder (PTSD) as a result of the arrest and another separate incident. Mr Barkl's son, XXXX, has been diagnosed with severe generalised anxiety disorder since the arrest, which his general practitioner opined could lead to PTSD. Mr Barkl's wife believes that the family's recovery is contingent on the offender's return from custody. His other sons have moved back home to support the family through this time.
Mr Barkl's periodontist wrote in July 2021 that he requires urgent dental treatment for his broken "temporary bridge" and that if treatment is further delayed, he will develop a more serious condition.
Mr Barkl acknowledged the potential consequences of his actions had the drugs entered the community in his letter to the Court.
Mr Barkl has maintained regular contact with his family since entering custody.
Mr Barkl has contributed to the community through his work for charitable causes and sporting organisations and his work in bushfire affected communities.

[16]

Mr Dumbrell's Case on Sentence

Mr Dumbrell tendered the following documents: 1. affidavit of Loren Dumbrell (daughter) dated 7 November 2022; 2. reference of Bruce Pollard (friend)(undated); 3. apology letter from Mr Dumbrell (undated); 4. personal history of the offender; 5. medical reference letter Dr Graham Chin (General Practitioner) dated 1 April 2021; and 6. report of Dr Richard Furst (psychiatrist) dated 15 November 2022.
The following is a precis of the evidence relied upon by Mr Dumbrell.
Mr Dumbrell was born in 1948 and is currently 74 years of age.
He has four children aged 29, 38, 42 and 50 and five grandchildren. His mother resides in Elizabeth Bay. Her health is deteriorating with dementia and blindness. She believes that Mr Dumbrell is living in Thailand and, as a result of COVID-19 travel restrictions, cannot travel back to Australia. Mr Dumbrell maintains his relationships with his mother, children and grandchildren.
Mr Dumbrell has worked as a stevedore, a professional lifeguard and a property developer renovating houses.
Mr Dumbrell has not consumed alcohol for forty years, after attending an Alcoholics Anonymous program.
He maintained an active lifestyle until about ten years ago, with the onset of osteoarthritis in his knees. He had a bilateral knee replacement in December 2020. Dr Chin reported in April 2021 that Mr Dumbrell was still recovering from this operation and required appropriate analgesia and oxycodone for post-operative pain.
Mr Dumbrell has also had prostate cancer, which has resulted in an enlarged prostate, pain and the need to urinate frequently. He also has gout, type II diabetes and sleep apnoea, which disturbs his sleep. He has used a CPAP machine for eighteen years and has had access to one in custody. He reports some memory issues, which his daughter Loren and Mr Pollard also mention in their evidence.
Loren Dumbrell reports that she speaks to her father three times per week and they meet weekly via AVL. She has visited in person 5 or 6 times since COVID-19 restrictions have been relaxed. When she has visited in person, she observed that her father's physical health had deteriorated, particularly that he was less mobile due to his arthritis in his knees. She also reports that his diabetes has worsened. She is most concerned, however, about his failing memory.
Mr Dumbrell reports committing the offence for financial reasons, to fund his medical treatments and to cater for his mother's needs.
Dr Furst confirmed the diagnosis of dementia. He opined that Mr Dumbrell's offending conduct stemmed from poor health and cognitive impairment leading to impaired judgement, but that he aware of his actions and understood they were wrong. Dr Furst stated that Mr Dumbrell's condition is likely to make custody more onerous through his increased stress and anxiety and a shortened life expectancy as a result of his diabetes and dementia. Dr Furst recommended that Mr Dumbrell continue to be kept in an age-appropriate setting in the prison system and that he receive appropriate medical treatment for his various conditions.

[17]

Mr Theobald's Case on Sentence

Mr Theobald tendered the following documents: 1. affidavit of Nicole Reynolds (former partner) dated 4 November 2022; 2. affidavit of Lorraine Theobald (mother) dated 4 November 2022; 3. report of Dr Kala Ram(psychologist) dated 1 November 2022; 4. reference of Peter John Hanson dated 7 November 2022; 5. apology letter of the offender; and 6. offender's personal history.
The following is a precis of the evidence relied upon by Mr Theobald.
Mr Theobald was born in 1959 and is currently 63 years of age. He was born and raised in Redfern. His mother identifies as Aboriginal. He was the only child from his parents' relationship. His parents married when they were quite young and his mother was 17 when he was born.
Mr Theobald's maternal grandfather was removed from his family as a child and Mr Theobald and Ms Reynolds reported that he had expressed anxiety throughout his childhood that he would also be removed from his family.
Mr Theobald lived at his maternal grandmother's house for the first ten years of his life. He reported that there were twelve people living in the one-bedroom house, that there was no hot running water and his mother slept in the hallway with his father when he was there. He reported that there wasn't much food. His mother worked as a cleaner and later became a preschool teacher. His father worked as a labourer. His parents eventually bought a house in Condell Park and the family moved there.
Mr Theobald maintained that there was no significant domestic violence in his parents' relationship and that neither of his parents consumed alcohol or used drugs. His father would occasionally physically discipline him and be aggressive with his mother, throwing meals at her. He advised that his step-grandfather was an alcoholic and abusive towards his grandmother.
Mr Theobald reported having a very close relationship with both sides of his family growing up.
Mr Theobald attended school until Year 10. He was a "slow learner". He began an apprenticeship as a gardener after leaving school. He attended TAFE for a few months but struggled to complete coursework. Mr Theobald then worked as a landscaper for the council for 4-5 years and then as a labourer for most of his 20s. In his 30s, Mr Theobald worked as a cleaner in Camperdown. When Mr Theobald was about 40, he started working for his father, who owned a brewery truck. Mr Theobald worked for him for 3-4 years, loading kegs of beer onto and off the truck. He injured his back performing this work and has had back problems since. Mr Theobald has worked largely odd jobs in more recent years. Mr Hanson stated that Mr Theobald completed odd jobs for him in his horse stables up until his incarceration. At the time of the offences, he was in receipt of a pension and was a carer for his mother, who was diagnosed in 2016 with terminal cervical cancer.
Mr Theobald commenced drinking at around age 16. He has experimented using speed, cannabis, LSD and magic mushrooms in the past, but never regularly used these drugs. In his 30s, he would use cocaine socially.
Following his Peyronie's disease diagnosis in 2009, Mr Theobald began using cocaine and consuming alcohol to excess. Mr Theobald disclosed that he had a drug debt of $30,000 at this time. Mr Theobald identified that his excessive alcohol and cocaine use contributed to gambling behaviours and that he had a significant gambling problem prior to his incarceration in 2011. Since his mother's cancer diagnosis in 2016 and his own diagnosis of small bowel cancer in 2017, Mr Theobald's drug and alcohol use has substantially decreased. He reported only consuming alcohol and using cocaine every 7-8 months.
Mr Theobald's first partner was Vanessa Whitfield. Their relationship lasted ten years. They had a child together. In 2015, Ms Whitfield took her own life. Mr Theobald reported that the circumstances of her death were particularly distressing, with Ms Whitfield blaming Mr Theobald's attempts to re-establish contact with her and her daughter in her suicide note. Since Ms Whitfield's death Mr Theobald has not had any contact with his daughter.
He had his second child, a daughter, with his housemate. They were never in a serious relationship. Mr Theobald discovered that she was his child when she was 14 after a DNA test. Mr Theobald's daughter has suffered substance abuse issues. Prior to his incarceration, Mr Theobald was financially supporting his daughter. He also cared for his grandson, for two periods of time over five years while his daughter was undertaking a rehabilitation program. His grandson has been diagnosed with autism spectrum disorder (ASD), attention deficit hyperactivity disorder (ADHD) and oppositional defiant disorder (ODD).
Mr Theobald's relationship with Ms Reynolds began during his mid-30s. They have a daughter together. They have separated but remain close friends and Mr Theobald has regular contact with their daughter. He reported financially supporting Ms Reynolds and their daughter prior to his incarceration.
Mr Theobald was greatly impacted by several significant losses, including his father, who died when Mr Theobald was 42, and his friend Paul, who died in his early 30s from Motor Neurone Disease. Mr Theobald had grown up with and acted as a "big brother" to Paul throughout his life. His cousin, Jason, with whom Mr Theobald was very close, was murdered when Mr Theobald was in his mid-40s, after an intruder entered his house and stabbed him in the stomach. No one was ever arrested for his death.
Mr Theobald reported that his first criminal conviction was supply of Indian hemp at age 21. He was sentenced to six months for this offence. During his 30s, he had several assault convictions. In 2011, he reported that he was convicted of manufacture a large commercial quantity of a prohibited drug and sentenced to 3.5 years in prison. He was released in 2015.
Prior to incarceration, Mr Theobald was the primary carer for his mother, who has a terminal cancer diagnosis.
Mr Theobald reported that he committed the offence for financial reasons, to fund his own medical treatment and to financially support his mother. Ms Reynolds, Mr Hanson and Mr Theobald's mother all stated that Mr Theobald has always been greatly concerned with providing for his family.
Mr Theobald also told Ms Ram that his offending was motivated by the people he was associating with and his feelings of "loss of manhood" resulting from his Peyronie's disease.
Ms Ram opined that Mr Theobald meets criteria for major depressive disorder with anxious distress, trauma and stress related disorder, alcohol use disorder and cocaine use disorder, although he is currently in sustained remission and has not consumed alcohol or used cocaine since 2020.
Mr Theobald expressed remorse for his actions and recognised the impacts of his offending behaviour on the community in his letter to the Court. His character references similarly report that he is remorseful.

[18]

The role of the offenders

There was a significant dispute as to the role of the offenders in the attempt to possess the cocaine. The prosecution's case was that the offenders were trusted members of the drug syndicate who were responsible for accessing and distributing the cocaine at the Australian end of the operation. The prosecution relied on admissions made by Mr Theobald to another male on 3 April 2019 to contend that for their participation in the offence, the offenders were entitled to 20% of the drugs as well as having an option to purchase more of the drugs at a wholesale price and that they would make a couple of million dollars from their involvement. The offenders have made untested statements to the authors of reports that they agreed to participate in the location of the suspect ingots at the AWS warehouse for a fee of $20,000 plus a share of the sale proceeds of the aluminium ingots.
The agreed facts, whilst comprehensive, do not allow me to make complete findings as to the role each offender played in the attempt to possess the cocaine and it is difficult to be satisfied beyond reasonable doubt of a number of matters. What follows is the best I can make of the available information.
The importation of the cocaine into Australia was sophisticated and involved considerable planning, through the establishment of dummy corporations, bank accounts, relationships with logistics providers, the organisation of dummy runs and the concealment of the cocaine in the aluminium ingots so as to avoid detection. There is no evidence that the offenders were involved in making any of those arrangements.
I am satisfied that the unknown consignment was imported into Australia by the same criminal syndicate. However, there was no evidence that the offenders were involved with the unknown consignment.
The offenders were each in the vicinity of AWS in close proximity to the delivery of the consignment on 27 February 2019. I cannot infer from that fact that the offenders were responsible for arranging the delivery of the consignment. It is equally possible that, consistent with their version, they had been arranged to be at AWS to locate the suspect ingots within the consignment when it arrived.
In the relevant period, the offenders had a number of meetings between themselves and with others, including people who have not been identified. Apart from the conversations that were recorded by the listening devices, I do not know what was discussed at those meetings. The offenders were well known to each other and had been friends for many years. I am satisfied that they were each actively involved in trying to get access to the cocaine in the consignment and that topic was discussed regularly in the relevant period and that steps were taken on occasions to make those meetings clandestine.
On 27 February 2019 during the first attempt to access the cocaine of the offenders only Mr Dumbrell was present. He was recorded by the listening device as having knowledge that he was required to look for the suspect ingots in the bottom 2 layers of pallets 7-16. Mr Grncarksi was recorded as having knowledge of how the suspect ingots were constructed and what they looked like from previous experience. Mr Dumbrell engaged in showing ingots to Mr Grncarski for the purpose of having them identified as what they were looking for. Mr Dumbrell went with Mr Grncarski to another place with 2 pallets of the ingots. Later that night, the offenders met with Mr Grncarski and I am satisfied that they discussed the attempt to find the cocaine in the consignment.
On 28 February 2019 the offenders met before proceeding to AWS for the second attempt to access the cocaine. The offenders were present while ingots were cut with power tools in an effort to find the cocaine. On the listening device evidence, nothing of relevance was said by or attributed to Mr Barkl.
On 2 March 2019 the offenders went to AWS for the third attempt to access the cocaine. The offenders were present while the ingots were moved around the warehouse. The recorded conversations indicated that they were looking at something (such as a photo of the original configuration of the consignment or by comparing the appearance of the pallets) from which they could conclude that some of the ingots were missing. On the listening device evidence, nothing of relevance was said by or attributed to Mr Barkl.
On 4 March 2019 the offenders met at a public car park, before meeting at AWS later in the day. For about 15 minutes, the offenders were present while the ingots were moved around the warehouse. On the listening device evidence, nothing of relevance was said by or attributed to Mr Barkl. The offenders had a further meeting afterwards.
On 6 March 2019, Mr Dumbrell attended Mr Grncarski's residence.
By 11 March 2019, the unknown persons who made arrangements to import the consignment were making enquiries of Gummerson about the missing ingots. There was no evidence as to how those persons were provided with that information.
On 13 March 2019 Mr Theobald attended AWS for the final inspection. The recorded conversations indicated that Mr Theobald had been asked to make a further check of the consignment, that he knew the value of the drugs involved was $40 million and that a suspect ingot would be chopped in half and have two compartments in which 1kg of cocaine could be put into each compartment. I cannot be satisfied beyond reasonable doubt that Mr Theobald had this knowledge from the start of the offence period. It is clear from the request to make a final check of the consignment, that there had been some exchange of information with persons higher in the syndicate. It is reasonably possible that Mr Theobald was told about the wholesale value of the drugs after they were missing. Further, his description of the amount of the drug in each suspect ingot was incorrect. There were 2 half kilogram blocks in each suspect ingot, not 2 one-kilogram blocks. From this, I infer that Mr Theobald had not actually seen a deconstructed suspect ingot that contained cocaine.
On 30 March 2019 Mr Barkl and Mr Dumbrell travelled overseas for about one week each. I cannot infer from the evidence that their reason for travel was related to the offence.
On 3 April 2019 Mr Theobald was recorded discussing the offence with another male. The prosecution submitted that the arrangements outlined by Mr Theobald in that conversation applied to the consignment and that it was evidence that the offenders did what they did for a 20% share of the cocaine and an option to purchase blocks of cocaine for a wholesale price of $40,000 per block. Mr Theobald submitted that, read in context, the arrangements referred to in that conversation were an offer made by the overseas representatives of the cartel to deal with Mr Theobald (and others) on that basis in the future and that the offer was made in a meeting that took place after the drugs went missing. Having carefully reviewed the transcript of the recorded conversation, I am not satisfied beyond reasonable doubt that the prosecution has established that the offenders were the principals in the Australian operation in the manner alleged. Conversely, I am satisfied that Mr Theobald's interpretation is more likely and should be preferred. For the sake of completeness, it should be noted that the prosecution did not rely on this evidence of future intentions to aggravate the offence committed by Mr Theobald.
Mr Barkl told Dr Nielssen that he participated in the offence for a fee of $20,000 plus a share of the sale proceeds of the aluminium ingots, which he was told were worth about $120,000.
Mr Dumbrell in his letter to the Court stated that he could not remember how he became involved but it was through a horse racing acquaintance.
Mr Theobald told Dr Ram that the offenders were approached and asked to separate the top and bottom pallets of a consignment, which he later suspected contained drugs for a fee of $20,000 plus whatever the offenders could make from selling the aluminium ingots. Mr Theobald stated that he told the person giving him instructions that there were ingots missing and that he did not receive any payment. He stated that the offenders could not sell the ingots because they were of poor quality and worth nothing. In relation to the supply offence, Mr Theobald told Dr Ram that he was offered $10,000 to collect and cut open the side steps.
As to the offender's versions of how they became involved, I note that they are untested. The offenders did not ultimately arrange the sale of the ingots. The agreed facts suggest that was undertaken by Mr Butler. The fact that Mr Theobald, and by inference the offenders, did not get paid for his involvement with the ingots is corroborated by the recorded discussion of 3 April 2019.
The offenders' participation in the offences was clumsy and belied the sophistication of the importation operation to the point at which they became involved. They involved themselves in a way in which they were likely to get caught and they continued to look for the drugs a number of times when it was apparent that the drugs were missing, probably as a result of the intervention of the authorities.
There was no evidence as to what was intended to happen to the drugs if they had been located in the consignment. In particular, there was no evidence that the offenders were going to be involved in the distribution of the drugs.
Taking into account all of the evidence, I cannot be satisfied beyond reasonable doubt that the offenders had any significant position in the Australian arm of the syndicate. I am satisfied beyond reasonable doubt that they jointly participated in the exercise of going to AWS to sort through the consignment and locate the suspect ingots and remove the drugs from them. I accept that it is likely that they were to be paid a fee for their participation. I am reluctant to accept the untested evidence of the offenders as to the quantum of that fee. However, even on Mr Barkl's account the fee which they thought they would get was not insubstantial and could have been as high as $60,000 each, if the sale proceeds of sale of the aluminium ingots were to be split 3 ways between the offenders.