R v Bath; R v Jackson

District Court of NSW|2018-12-11

Solicitors: Director of Public Prosecutions - Cth Winter O'Brien Partners - offender Bath Wiggins Cheffings Lawyers - offender Jackson File Number(s): 2017/346213; 2017/346206

Introduction

On the 17th of October 2017 the catamaran Scarabej left Tahiti bound for Australia. On board were Mr Craig William Lembke, another person, and more than 700 kilograms of a powder containing cocaine. Waiting for the vessel, and more importantly the cocaine secreted inside it, were the 2 offenders who appear for sentence today, Mr Denis Malcolm Bath and Mr Kent Anthony Jackson. Mr Jackson had recruited both Mr Bath and Mr Lembke to perform their respective roles in relation to the importation of an enormous quantity of cocaine. Police were watching and listening as the vessel sailed southwest towards Coffs Harbour and then Lake Macquarie. Indeed they had been aware of this operation for some time. Fortunately police were able to intercept the drugs before they could be distributed within Australia and arrested Mr Lembke, Mr Bath and Mr Jackson.
Mr Bath and Mr Jackson have both pleaded guilty to one count of importing the commercial quantity of the border controlled drug cocaine. The pure quantity of cocaine within the more than 700 kilograms of powder was 547.71 kilograms, over 273 times the commercial quantity. In addition Mr Jackson has pleaded guilty to one offence of dealing in the proceeds of crime where the money or property is worth more than $50,000. The maximum penalty for an offence of importing a commercial quantity of drugs is life imprisonment and the maximum penalty for dealing in the proceeds of crime is 15 years imprisonment. It goes without saying, but I will say it anyway, that as far as the importation offences are concerned this was a serious example of a very serious offence.

Facts

The evidence in the Crown statement of facts before me dates from the 15th of September 2017. On that day Mr Jackson flew into Sydney from Bangkok. Mr Bath had driven down from Newcastle to meet Mr Jackson at Sydney airport. On the way back to Newcastle they had a conversation which police were able to record. In that conversation Mr Jackson speaks of a shipment in Papua New Guinea. Mr Bath asks if a boat is needed and Mr Jackson replies "well we got a boat, just need to fly up there and get it".
About 2 weeks later Mr Bath picked up Mr Jackson from his home in Newcastle and together they drove to Mr Lembke's address. He had some experience in yacht delivery, something Mr Bath and Mr Jackson did not have. Once they arrived Mr Jackson went inside while Mr Bath waited in the car. About 20 minutes later Mr Jackson returned to the car and told Mr Bath "O.K. So he's in". Thus it can be determined that on that day Mr Jackson recruited Mr Lembke to perform his role in the importation.
A few days later, on the 4th of October, Mr Bath again picked up Mr Jackson and drove him somewhere, this time to Sydney to catch a flight to Bangkok where Mr Jackson lived from time to time. On the way they had a discussion about how Mr Jackson could communicate to Mr Lembke in order to get Mr Lembke to provide a quote for the task of sailing the cocaine to Australia. Between the 6th of October and the 12th of October arrangements were made with an associate of Mr Lembke's for a sailing vessel to be collected from Tahiti and sailed to Australia for a fee.
On the 13th of October Mr Lembke and an associate flew to Tahiti, leaving on the Scarabej 4 days later.
On the 10th of November Mr Lembke sailed into Coffs Harbour. They met Australian Border Force officials and told them that they had been contracted to deliver the vessel to Pittwater. On the 13th of November 2017 Mr Lembke and another man left Coffs Harbour and sailed south arriving in Lake Macquarie the following day, the 14th of November.
Also on the 14th of November Mr Jackson arrived at Sydney airport from Thailand. Once again Mr Bath had driven down from Newcastle to meet Mr Jackson at Sydney airport. Together they returned north going to Lake Macquarie. During that drive an important conversation was recorded. It is important because it indicates that both Mr Bath and Mr Jackson knew the size of the importation. Bath: "can we get all off in one go? You reckon?" Jackson : " um seven hundred, I reckon (indecipherable)' Bath: "It's less than a tonne" Jackson: It is less than a tonne. It's um what's that 70 cement. Not even that."
Later on there was a reference to money when Mr Jackson said "we'll get another batch, another bunch of money on Friday. Then we'll get the 15 million".
Mr Jackson and Mr Bath also discussed, on a number of separate occasions, how the cocaine was to be removed from the Scarabej. Both that day and the following day it is clear that Mr Jackson was in possession of some information which gave instructions on where the cocaine was secreted within the hulls of the Scarbej and how it could be removed. It was necessary for them to go to a Bunnings store where they purchased some equipment, including masks in order to prevent anyone removing the cocaine from being overcome by the effects of it.
Eventually, on the 15th of November 2017 Mr Lembke and Mr Bath boarded the Scarabej with Mr Lembke departing the vessel 10 minutes later. Starting at about 9.20 am that day the noise of power tools operating was heard coming from the Scarabej while Mr Bath was alone on board.
Police waited until about 3.20 pm before they boarded the Scarabej and arrested Mr Bath. They found 700 wrapped blocks of powder containing cocaine concealed inside the hulls of the catamaran. Mr Lembke and Mr Jackson were arrested at separate locations that afternoon as well.

The roles played

The roles of the 2 offenders appearing for sentence today were not identical, Mr Jackson was more heavily involved, having a higher level of responsibility in the drug importation organisation which was responsible for this shipment. His role included co-ordination and logistics as well as recruitment of Mr Bath and Mr Lembke. He collected money to be used in this criminal endeavour and gave some of it to Mr Bath. He gave instructions to Mr Bath and Mr Lembke. It appears that he was the person within the organisation responsible for removing the drugs and getting them onto dry land for delivery to others. He provided encrypted mobile phones to Mr Bath and Mr Lembke and directed Mr Bath as to how the cocaine should be removed.
Mr Bath did what he was directed to do by Mr Jackson, his role being to assist Mr Jackson by driving him from place to place and performing the physical work involved in releasing the cocaine from its place of concealment on the Scarabej.

Motivation

Clearly the offenders were motivated by financial gain and significant financial gain at that given the sums of money which were discussed between them on occasions. It was revealed in evidence that Mr Jackson was to receive $3,000,000 which he planned to split equally between himself, Mr Bath and Mr Lembke. I will have more to say about another factor which motivated Mr Bath later in these remarks.
Both offenders pleaded guilty at the earliest opportunity. The discount for having done so is 25%, but there is another matter to which I will refer later, which is also relevant to the discount which I will ultimately apply to the sentences I would have otherwise imposed upon these 2 offenders.

Subjective features

Somewhat surprisingly given the seriousness of their offending on this occasion neither offender has much of a criminal history.
Mr Jackson is 64 years of age. He was born in New Zealand but came to Australia at quite a young age. He left school at the end of year 11. Although his parents separated and he lived with his mother, she re-married and Mr Jackson was brought up in a loving and supporting family. He was not exposed to domestic violence, sexual abuse or physical abuse. He has worked as a labourer in the past, but his work has usually involved being a musician. Most recently he ran a security company. He was married for 20 years and has 5 children all living in Australia. At the time of this offending he was in a relationship with a woman he met in Thailand in either 2015 or 2016 and was effectively living in both Australia and Thailand. He became depressed when his marriage broke down but his mood picked up once he met his current girlfriend.
Mr Sundstrom, who appeared for Mr Jackson tendered a series of character references from a number of people who have known Mr Jackson over the years. They speak of the offender being a caring person who does not have any of the characteristics of a person who would commit the crimes that he has committed. He is described as being a person who has a level of concern and care for others and who desires to make the community a better place. If those sentiments do truly reflect Mr Jackson's underlying character then becoming involved in an enterprise which had as its objective the distribution of this enormous amount of cocaine into the noses of drug users within Australia is grossly out of character.
Mr Bath came from a loving and supportive family as well. He was born in Newcastle, left school at year 9 and worked, mainly as a car sales man, before he went on to a disability pension because he suffered from depression. He appears to have been suffering from depression for many years. This appears to be associated with his diagnosis of bi-polar affective disorder which in turn has given rise to a substance use disorder as he self-medicated with cannabis. Dr Allnutt opines that based on the information provided to him he was experiencing a major depressive episode during the period of his offending. His depression, so says Dr Allnutt, contributed to his decision making and motivation to engage in the offending conduct.
The offender also told Dr Allnutt that his underlying motivation was to help his friend Mr Jackson. Apparently Mr Jackson had supported him over many years during his significant episodes of depression. That of course is consistent with the way Mr Jackson's character was described in the references to which I have already referred, but is also relevant as an explanation as to why Mr Bath would get involved in this seriously criminal behaviour.

Non-exculpatory duress

One of the matters which I have to consider as it relates to the sentence to impose upon Mr Jackson is the issue of what is known as "non-exculpatory duress". Mr Jackson gave evidence that he had been subjected to threats and that those threats were what motivated him to become involved in this importation of drugs. He gave evidence that he started attending trade shows in China in an effort to obtain hardware for the security business he ran at a cheaper price than he was paying. There he said he met up with someone he knew, a Bill Percy. Mr Percy then introduced him to another person who had some new encrypted phones which could be used to replace Blackberries as a secure means for criminals to conduct their illegal activities. He was offered a dealership for these phones and although he said that he did not believe supplying such phones was an offence, he was aware that they would be used to commit offences. This man started taking him to illegal casinos in Hong Kong where at first he won but eventually he lost. He ended up in debt for about $780,000 Hong Kong dollars which was the equivalent of $120,000 AUD.
It was in this context that when he was asked to bring some encrypted phones back to Australia, he agreed to do that even though he soon figured out that this was "dodgy". Then in late 2016 he was asked to buy a yacht in Australia. He made some investigations into this and then at the start of 2017 he learnt about the particular importation for which I must sentence him. By this stage he had come to fear what would happen if he did not cooperate with the person to whom he owed money and his associates. He was told not to "screw around with them" because they had triad connections. There was no particular threat but it was made known to him that they could get anyone in Asia.
Despite the fact that he had incurred this debt in Hong Kong, he returned to Hong Kong on many occasions socialising with Mr Percy the man who was at least associated with the people who were apparently threatening him. Mr Jackson's evidence was that he felt threatened from the day he lost money at the Casino. Mr Percy knew that he lived both in Thailand and Australia. He knew his partner's name in Thailand and that when in Australia he lived in Newcastle. Mr Jackson said that he believed that if he reported matters to police, even in Australia, then someone in the syndicate would find out.
The Crown's first submission about this issue is that I would not be satisfied on the balance of probabilities that any threat at all was made to Mr Jackson. There is one particular matter in this regard which does tend to suggest that a threat had been made. Mr Jackson told Mr Bath about such threats at the time he recruited Mr Bath to assist him. The offender has known Mr Bath for many years and has been very kind to him over that time. Whatever else can be said about Mr Jackson's character, the evidence would tend to suggest that he was not the sort of person who would manipulate his good friend's state of mind by falsely claiming that he had been threatened as a means of obtaining Mr Bath's involvement in the importation. I am satisfied therefore that there was some threat made to Mr Jackson in connection with this importation.
However there are a number of matters which suggest that the relevance of such threat to the sentence I will impose upon Mr Jackson is relatively modest. In Tiknius v R [2011] NSWCCA 215 the Court of Criminal Appeal examined the principles regarding the effect of non-exculpatory duress on sentence. The matters to which I will now refer largely come from that decision.

His criminal behaviour went on for a considerable time and ultimately involved an offence of great seriousness. The offender incurred his gambling debt in mid-2015 but he was involved in this large scale importation more than 2 years later.
Mr Jackson continued to associate with Mr Percy who was a friend of his, Mr Jackson retuning to Hong Kong to do so.
The nature of the threats made. Mr Jackson in his evidence referred to no specific threat against either him or any specific member of his family. The threats he spoke about were all in general terms. This was not a case where he had a gun put to his head, where a loved one had a threatening note pushed through their letter box or Mr Jackson was shown a photograph of a school which one of his grandchildren attended.
Mr Jackson had many opportunities to report the matter to relevant authorities, in particular in Australia, a country which he knew that Mr Percy could not enter.
Any disclosure to authorities in Australia would have led to the drugs being seized but that would not necessarily lead to him being disclosed as an informer.
The extent to which this threat was still operating on Mr Jackson's mind as at the 14th of November 2017 has to be assessed in view of the evidence that he was to receive $3,000,000 and keep $1,000,000 for himself. One can ask rhetorically why the syndicate would pay him that much money for his endeavours when they could get Mr Jackson to work for free simply by threatening him.
Related to this is the circumstance that he was clearly trusted by people higher up in the syndicate. He was instructed that once the drugs were removed from the boat he was take some of them to Hornsby where he would receive $15,000,000 and he was to hold on to the remaining 300 kilograms of cocaine. That he was put in that position is not consistent with him being only involved in this offence because of his gambling debt.
Mr Jackson was exercising a degree of autonomy and fulfilling a trusted role. He was not supervised in his criminal activities in Australia.
And finally, in a sense the situation in which Mr Jackson found himself was one of his own making. He chose to associate with Mr Percy over a protracted period, that association was largely based around the distribution of encrypted phones which were to be used for illegal purposes and the offender was not pressured in any way to go to the illegal gambling casinos where eventually he lost money.

As a result therefore, while I accept that some vague and veiled threats may have been made to Mr Jackson over the years, the effect of those threats on the sentence that I should impose upon Mr Jackson is relatively modest.

Categorisation of the roles played by each offender.

I will now say a bit more about how the roles of the two offenders should be categorised.

Mr Bath.

Although labels are apt to mislead I am satisfied that Mr Bath's role is properly categorised as being an assistant to Mr Jackson. He did only what he was directed to do. He was told to perform that part of the operation which was most dangerous because it exposed him directly to contact with the drugs. It is notorious that those higher up a drug importation syndicate get others to do their dirty work, especially when that work involves contact with the drugs.
Certainly Mr Bath's role was in one sense essential. The whole purpose of the scheme was to import drugs into Australia and that necessarily involved removal of the drugs from their hiding place on the Scrabej. But Mr Bath brought no special skills to this operation and it indeed seems he may have done what he was required to do rather badly, having trouble following the instructions Mr Jackson gave him.

Mr Jackson

On the other hand Mr Jackson's role could be described as one which approached that of a middle manager in the operation. He did not do only what he was directed to do. He was able to exercise independent judgment as to who he would recruit to assist him. These were Mr Bath, Mr Lembke and a man named Leon. He was going to be paid the $3,000,000 and it was his job to divide up that payment. He was the person who supplied Mr Bath and Mr Lembke with their encrypted phones so that they could communicate securely with him, and also with other members of the syndicate, albeit in Mr Bath's case this was not terribly successful.
It is clear also that Mr Jackson held a position of some trust within the organisation. He was trusted to receive payment from whoever it was in Hornsby who was to receive 450 kilograms of cocaine, the sum of $15,000,000. And he was also trusted to hold onto the remaining 300 kilograms.

The age of the offenders

Mr Bath is 69 years of age and Mr Jackson is 64. Both Mr Sundstrom and Mr Burke made submissions about the relevance of that circumstance. Certainly the risk that each offender will serve a significant part of the remainder of his life in custody is a matter which is to be taken into account. They will do their time in custody much harder than a person who knows that on release from custody they will have many years ahead of them.
But on the other hand that circumstance must be balanced by this: both offenders knew that if they were detected then they would go to jail for a long time. They knew how old they were when they were committing this offence. Just as those who come to Australia to commit offences cannot complain too loudly when they are required to serve their sentences in a foreign country, so those who know exactly how old they are when they commit a serious offence cannot be heard to complain too loudly if the sentence imposed reflects a substantial part of the remainder of their lives.

Assistance

Both offenders are entitled not only to a discount for pleading guilty, something I have mentioned earlier, but also because of matters to be taken into account under section 16AC of the Commonwealth Crimes Act. Both have undertaken to give evidence against Mr Lembke at his forthcoming trial. Both have done more than that too although what Mr Bath has done is more useful, and has the potential to be more promising, than that provided by Mr Jackson,
For good reasons I will say no more, beyond noting that combining the plea of guilty and the matters to which I have most recently referred will lead to a discount of 45% in Mr Bath's case and 40% in Mr Jackson's case. In each case 10% of that discount is for matters which are the subject of undertakings to do things in the future.

Parity

Neither offender should have any justifiable sense of grievance when he compares the sentence I impose upon him with the sentence I impose upon his co-offender. Significantly different sentences will be imposed not only to reflect the different roles performed by the two offenders but also because there are other differences as well in what motivated their offending, in their moral culpability and their subjective features amongst other matters.

Motivation

Let me now return to the issue of what motivated these two offenders, as it is an important part of assessing their moral culpability.
At least by the 14th of November 2017 the offenders knew that they were to both receive $1,000,000. This was a powerful motivating factor for their continued involvement in this offence.
For reasons I have given I am satisfied that any threats made to Mr Jackson were not a significant feature of his motivation. Instead I am satisfied
On the other hand Mr Bath is in quite a different category. I am satisfied that what initially motivated him to get involved was his desire to assist his friend Mr Jackson, a person who had been very kind and supportive to him over the years. When Mr Jackson told him that he was being threatened it would have operated on his mind in a powerful way. Mr Bath has had some troubles over the years, in particular, as a result of him suffering from bi-polar affective disorder. Mr Jackson looked after him, something which is consistent with Mr Jackson's character as referred to in the references tendered on his behalf. This help included giving him jobs to do and being a supportive friend.
Although the listening devices reveal that Mr Bath was quite enamoured by the prospect of getting a million dollars for his work there is no evidence that he expected to receive this sum of money when he initially was recruited by Mr Jackson and indeed it is likely that when that occurred Mr Bath had no idea that he was later going to be given the job of physically removing the drugs from their hiding place. Thus I find that when he was recruited by Mr Jackson a substantial factor operating on his mind was the idea of repaying Mr Jackson for his many acts of kindness towards him, and that while he was quite excited by the idea of being paid a substantial sum of money, it was likely that this came relatively late in the piece, albeit before he agreed to do the physical work of removing the drugs from the Scarabej.

The extra offence for Mr Jackson

It must be remembered that Mr Jackson is also to be sentenced for an offence of dealing in the proceeds of crime. That related to a sum of money found in Mr Jackson's possession upon his arrest. That in turn was the money left over from a bag of money that Mr Jackson received from a man in North Sydney where he and Mr Bath stopped on the way back up to Newcastle from Sydney airport. It is clear that Mr Jackson received this money as part and parcel of his role in the importation offence. Although there is some extra criminality involved in this extra offence, both Madam Crown and Mr Sundstrom agree that the extent of any accumulation should be modest.

Mr Bath

Although Mr Bath did not give evidence I have no hesitation in accepting that Dr Allnut's report is accurate insofar as it diagnoses Mr Bath with a mental illness. Dr Allnut's report was based on much more than an acceptance of things told to him by Mr Bath. In particular there are entries in his diary between the 8th of February 2016 and 31st of October 2017 which reveal the sad state that Mr Bath was in. There are many reference in those diary entries to thoughts of self-harm and worthlessness. Mr Bath was experiencing those thoughts when approached by Mr Jackson to become involved in this importation. I am satisfied that this circumstance reduces Mr Bath's moral culpability for his involvement in this importation. I am also satisfied that it makes him an inappropriate vehicle for a sentence which contains a full measure of general deterrence and finally I am satisfied that his mental illness will make his conditions of custody harder.

Mr Jackson

Mr Jackson suffered a number of stressors - the death of his mother, the discovery of a debt to the ATO and the breakdown of his marriage as a result of which Dr Allnutt opines that he suffered what was likely to have been a major depressive episode lasting several months. His mental state improved however when he began another relationship with a woman in Thailand.
As regards his mental state at the time of his offending, Dr Allnut is of the view that he had developed a syndrome of symptoms consistent with a depressed and anxious mood making him more vulnerable to engage in his offending behaviour.
Dr Allnut's opinions regarding the effect of the threats Mr Jackson had received on Mr Jackson's mental state were based largely, if not exclusively, on the version which Mr Jackson provided. In my view, for the reasons I referred to above when dealing with the issue of exculpatory duress, the effect of those threats on Mr Jackson's decision making process was not as great as Mr Jackson claims.

Protection

It is possible that both offenders will need to serve part, or perhaps even all, of their sentences in protective custody and there is a risk that if that occurs those conditions of custody will be harsher than those of the general prison population. However such factors are already built in to the discount which I have mentioned earlier. To reduce the sentences because of the risks which I have just mentioned would be to double count.

Assault in gaol

Another factor which I have to bear in mind concerning the way in which Jackson will serve his time in custody is this. He says that he was assaulted whilst in gaol. There could have been medical evidence to back this up. None was produced, but as Mr Jackson's oral evidence was not challenged in cross examination I will accept what he says.
As a result of the assault Mr Jackson complains again of vertigo having experienced it once before after a motor vehicle accident. Although he has been promised treatment by Justice Health none has thus far been forthcoming. Even at the best of times gaols are no place for men in their sixties but Mr Jackson's vertigo will make things even worse for him.

Prospects of rehabilitation

I am satisfied that both offenders have good prospects of rehabilitation. Although both have minor matters on their criminal histories they were effectively men of otherwise good character before they committed these offences. Also, the deterrent effect of the sentences I must necessarily impose upon them, and the age at which they will be first eligible to be released point very much against them being involved in any serious offences in the future.

The weight of the drugs.

I was exhorted not to become overwhelmed by the size of the importation here. I won't be. But all other things being equal it is a more serious offence to import 500 kilograms of pure cocaine than it is to import 50 kilograms of pure cocaine.
This is particularly the case where the offenders were fully aware of the size of the importation. Many people sentenced for importing drugs do not know with any certainty at all the quantity they are importing. They take the risk that the quantity will be large. But these two offenders, at least from the 14th of November 2017, acted with full knowledge, and accurate knowledge at that, as to the quantity they were importing. They may not have known the volume but they certainly knew the weight.

Remorse

To a judge who hears criminal matters in the District Court the idea that importing cocaine is not capable of causing great harm to the community is one which would be immediately rejected. But I have to be careful not to impute my knowledge to that of everyone in the community, including people like Mr Jackson and Mr Bath.
Mr Jackson gave evidence that it was only when he went to gaol and he saw how harmful drugs were, that he realised the true extent of the harm that a successful importation would have caused. I am satisfied that he has, belatedly, accepted responsibility for his actions,
On the other hand Mr Bath did not give evidence. Although Dr Allnutt says "he felt remorseful" what Dr Allnutt quoted Mr Bath as saying is limited to Mr Bath feeling remorseful at letting down people he loves and people who have been good to him. Despite that there are other indications of contrition on the part of Mr Bath. They include the plea of guilty, his admissions and the 16A(2) matters. I am satisfied that he too is remorseful.

Comparative cases

The Crown assisted me by providing me with a number of cases from appellate courts where sentences for large scale importations were considered. I am grateful to the Crown for that assistance. Of course no two cases are alike but the Crown not only summarised the cases for my assistance but also provided me with the cases themselves. I am thus able to take into account the similarities and differences between those comparative cases and the matter before me at present.
In particular I can take into account such matters as to whether those comparative cases involved pleas of guilty and the roles played by each relevant offender. As far as the last matter is concerned there is one observation I should make. It is an important observation as regards Mr Bath. The Crown conceded, and it was an accurate concession as well, that none of those comparative cases involved an offender playing a limited role that Mr Bath did in the present case.

Division between head sentence and non-parole period

It is no longer the case that the ratio between non-parole period and head sentence for Commonwealth offences should usually be in any particular range. Nevertheless, the non-parole period is the minimum which is appropriate to the circumstances of the case.

Sentence

I impose sentence as follows.
For the offence of dealing with proceeds of crime I impose a sentence of 2 years imprisonment upon Mr Jackson to have commenced on 15 November 2017. That is a fixed term of imprisonment because of the sentence I will now announce.
For the offence of importing a commercial quantity of cocaine I sentence Mr Jackson to imprisonment for 19 years with a non-parole period 12 years to date from the 15th of May 2018. Thus his overall sentence is one of imprisonment for 19½ years with a non-parole period of 12½ years thus the earliest day on which Mr Jackson can be released to parole is 14 May 2030.
For Mr Bath, I sentence him to imprisonment for 13 years with a non-parole period of 8 years to date from 15 November 2017 thus the earliest day on which he can be released to parole is 14th of November 2025.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 November 2019

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