HEADNOTE
[This headnote is not to be read as part of the judgment]
The respondents, Mr Barkl, Mr Dumbrell and Mr Theobald, each pleaded guilty to a charge of attempt to possess a commercial quantity of an unlawfully imported border controlled drug (cocaine), contrary to ss 307.5(1) and 11.1(1) of the Criminal Code Act 1995 (Cth) (the Code), referred to herein as the Code Offence. Mr Barkl and Mr Dumbrell pleaded guilty to a charge of failure to comply with an order made under s 3LA(1)-(4) of the Crimes Act 1914 (Cth) where the warrant related to a serious offence, contrary to s 3LA(6) of that Act (the s 3LA Offence), while Mr Theobald pleaded guilty to the charge of knowingly supplying a commercial quantity of a prohibited drug (pseudoephedrine), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (the State Supply Offence).
On 23 November 2022, Mr Barkl was sentenced to a total effective term of imprisonment of 6 years and 3 months, with a non-parole period of 3 years and 3 months. Mr Dumbrell was sentenced to a total effective term of imprisonment of 7 years and 3 months, with a non-parole period of 3 years and 6 months. Mr Theobald was sentenced to a total effective term of imprisonment of 8 years, with a non-parole period of 4 years and 6 months.
The respondents were sentenced on the basis of an Agreed Statement of Facts. In summary, in early 2019, the Australian Federal Police (AFP) commenced investigating the activities of an alleged international criminal group that was importing border controlled drugs into Australia. The three respondents were identified as some of the Sydney-based members of the group, along with two other men. The AFP was aware that two consignments of aluminium ingots had been imported from Mexico prior to the importation that was the subject of the Code Offence.
In December 2018 and January 2019, arrangements were made for a further importation from Mexico of 1890 aluminium ingots packed on 18 pallets. That consignment arrived in Port Botany on 5 February 2019. On 6 February 2019, Australian Border Force officers discovered that 188.16 kg cocaine (149.3 kg pure) had been concealed in hollowed out ingots in the bottom two layers of pallets numbered 7 to 16. The AFP seized the ingots that contained the cocaine and repacked the pallets in a similar formation to the original consignment. On 27 February 2019, the pallets were transferred to Aviation Welding Services Pty Ltd (AWS).
The respondents and two other men, together with an employee of AWS, were variously involved in four attempts to access the cocaine at AWS. On 27 February 2019, Mr Dumbrell was heard on listening devices to be moving ingots around the premises and looking for pallet numbers. Although Mr Theobald and Mr Barkl were not present at AWS during the first attempt, they were observed that evening in conversation with Mr Dumbrell. On 28 February 2019, the respondents were heard moving ingots and attempting to cut them open. Mr Barkl was not recorded to have said anything of relevance, but the respondents were recorded making arrangements to return and using power tools. On 2 March 2019, the respondents were heard moving ingots around and discussing the missing ingots, again with Mr Barkl not being recorded as having contributed to this discussion. On 4 March 2019, the respondents were again heard moving the ingots around the premises and were observed meeting later at a restaurant.
On 13 March 2019, Mr Theobald was observed at AWS inspecting, counting, taking photos, and moving individual ingots. He was also heard to say, "40 million down the drain". On 3 April 2019, Mr Theobald met with an unidentified male and discussed meeting the son of the cocaine supply cartel, the method of concealment in the ingots and future imports. On 10 April 2019, Mr Theobald met with Mr Barkl and, on 1 May 2019, Mr Barkl met with Mr Dumbrell. The ingots were disposed of on 7 May 2019.
In December 2020, Mr Theobald was involved in the State Supply Offence. ABF officers had identified 51.034 kg of pseudoephedrine in a consignment of Toyota side steps and replaced it with pool salt. Mr Theobald collected the consignment, drove it to AWS, unloaded it and was observed using electric grinders and other tools. Mr Theobald was stopped by police while driving with white powder on his clothes, which could not be differentiated from the substance in the side steps.
On 30 March 2021, the three respondents were arrested. During the arrests of Mr Barkl and Mr Dumbrell, the police found mobile and Ciphr devices and served a s 3LA Order on each of them to provide information about the devices. Both Mr Barkl and Mr Dumbrell refused to provide the passwords.
The Crown now appeals from the sentences imposed on each of the respondents, advancing identical grounds of appeal. By Ground 1, the Crown contends that the sentence imposed on each of the respondents for the Code Offence is manifestly inadequate. The focus of the Crown's submissions was the objective seriousness of the offending, the sentence imposed on the AWS employee, Mr Keen, and the sentences that had been imposed for the Code Offence in other matters. By Ground 2, the Crown takes issue with the total effective sentence and non-parole period imposed on each respondent, also on the basis of manifest inadequacy, submitting that the sentencing outcome did not encompass the whole of the criminality.
The Court (Mitchelmore JA, Fagan J and R A Hulme AJ agreeing), dismissing the appeal, held:
As to Ground 1:
(1) It was readily apparent from the sentencing judge's reasons that his Honour considered that the respondents' offending conduct was objectively serious. So much was evident from his Honour's findings about the nature and extent of the offending and the role of the respondents in the criminal enterprise, which was an integral part of the determination of objective seriousness. It was not necessary for the sentencing judge to additionally state, "this is serious": at [68]-[71].
R v Sara [2020] NSWCCA 119; R v Mereb; R v Younan [2014] NSWCCA 149; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, considered; DH v The Queen [2022] NSWCCA 200, applied.
(2) Having regard to the findings of the sentencing judge, there was not an inexplicable discrepancy between Mr Keen's sentence and the lesser sentences for the respondents. It was open to the sentencing judge to describe the culpability of Mr Keen and that of the respondents as "similar", which description was not gainsaid by Mr Keen's employment at AWS, his having a reason to be at the premises, or the directions given to him Mr Dumbrell and Mr Theobald (the latter were not of a nature to support that either respondent was in a position of power or authority over Mr Keen). The sentencing judge considered there were significant factors which distinguished the subjective cases of the respondents and Mr Keen, and his Honour was entitled to give those differences the weight that his Honour did: at [80]-[83].
R v Lembke [2020] NSWCCA 293; R v Doff [2005] NSWCCA 119; R v Gu [2006] NSWCCA 104, considered; R v FF [2023] NSWCCA 186; Jaafar v R [2022] NSWCCA 254; Huckstadt v R [2016] NSWCCA 22; Chamon v R [2020] NSWCCA 112, applied.
(3) None of the cases to which the Court was referred demonstrated that his Honour's approach in sentencing the respondents diverted from proper sentencing principle or led to sentences that were erroneously outside the range: at [100].
R v Kassir [2020] NSWCCA 88; Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2; Pham v The Queen (2015) 256 CLR 550; [2015] HCA 39, considered; Lau v R [2014] NSWCCA 179, Lai v R [2021] NSWCCA 217; Tran v The Queen [2021] VSCA 278; R v Schelvis; R v Hildebrand [2016] QCA 294; Shakhanov v R [2019] VSCA 38; R v Sara [2020] NSWCCA 119; R v Yeo [2012] SASCFC 60; Chen v R [2018] NSWCCA 158; Udunna v R [2020] NSWCCA 304; R v Lembke [2020] NSWCCA 293, distinguished.
(4) The other aspects raised by the Crown concerning general and specific deterrence, the guilty pleas, delay, and the subjective features of each respondent's case concerned matters of weight which were within the exercise of the sentencing discretion: at [102]-[108].
Ryan v R [2009] NSWCCA 183; R v Sara [2020] NSWCCA 119; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29, applied.
As to Ground 2:
(5) The Crown did not explain why, on the limited facts before the sentencing judge, his Honour's approach to concurrence in respect of each respondent produced a total effective sentence and non-parole period that was manifestly inadequate: at [110].