R v Campbell

REMARKS ON SENTENCE

1. On 8 May 2023 the offender pleaded not guilty to the following two Counts on the Indictment:- 1. Between about 18 January 2017 and about 24 October 2017, at Sydney in the State of New South Wales and elsewhere, did conspire with each other, Rohan Peter Arnold and divers others to import a substance, the substance being a border-controlled drug, namely cocaine, and the quantity being a commercial quantity. 2. Between about 24 October 2017 and about 16 January 2018 at Sydney in the State of New South Wales and elsewhere, did conspire with each other, Rohan Peter Arnold and divers others to possess a substance, the substance being a border-controlled drug, namely cocaine, and the quantity being a commercial quantity, and the substance having been unlawfully imported.
2. On 1 August 2023, following a trial by jury, the offender was acquitted of Count 1 on the Indictment and a verdict of guilty was delivered by the jury in respect of Count 2. This is an offence pursuant to s307.5(1) and s11.5(1) of the Criminal Code Act 1995 ("the Code"). The maximum penalty prescribed for the offence is life imprisonment.
3. The offender is to be sentenced on the following facts which the court is satisfied were proved beyond reasonable doubt based on the evidence at trial and are consistent with the jury verdict:- 1. On 2 April 2017 the AFP intercepted a shipping container at Port Botany which contained prefabricated steel inside of which work concealed 2,576 blocks of cocaine with a purity between 72.6% and 82.5%, with a street value estimate of between $731,428,600 and $1,536,000,000. On 3 April 2017 the offender was informed by the shipping agent that the container was not available for collection as it was "lost on the dock." 2. On 24 October 2017 the offender was informed by the shipping agent that the container had been found. The offender immediately contacted Arnold and used coded language to arrange an urgent face-to-face meeting. 3. The offender and Arnold engaged in a series of face-to-face meetings. 4. The offender first contacted UCO Henry by phone and agreed to a face-to-face meeting in New Zealand to discuss return of the container. 5. The offender travelled to New Zealand and met with UCO Henry and UCO Ivan on 27 October 2017 at the JetPark Hotel. 6. At that meeting UCO Henry showed the offender photographs of the box of cocaine that had been retrieved from the container and told him that 900 kilograms in a tonne of blocks had been found and that 3% of the blocks were worth $3 million. 7. On the occasion when the offender met UCO Henry in Auckland on 27 October 2017 he was concerned about the police and surveillance. He used a falsely subscribed phone to contact UCO Henry. 8. The offender was involved in organising the provision of telecommunications devices installed with the encrypted Ciphr chat software to the UCOs in New Zealand and thereafter from 3 November 2017 was a member of the "NZ Project" group chat. 9. The offender continued to attempt to negotiate by numerous Ciphr messages the return of the border-controlled drugs. On 3 November 2017 the offender received a Ciphr message referring to "2,576 babies" in the shipment. 10. In late December 2017 the offender offered to Gov to travel to Serbia to assist Arnold. The offender had stated he was willing to kill UCO Ivan in an effort to retrieve the cocaine. 11. The offender sought and obtained a firearm in the days leading up to the meeting on 16 January 2018 at the Metropol Hotel in Belgrade. 12. In late December 2017 Gov exchanged messages with the offender concerning the loss of other shipments in which Gov had been involved. The offender had offered advice about whether the system should be scrapped. 13. The offender assisted Arnold to compose messages to UCO Ivan and was kept informed by Arnold about the efforts to accumulate cash in Belgrade. 14. The offender acted as a lookout outside the Metropol Hotel while the meeting took place on 16 January 2018 in the lobby of the hotel between Arnold, Waters and the two UCOs. 15. When arrested the offender was found to be in possession of a firearm, following which he was charged, pleaded guilty and served a sentence of 6 months imprisonment in Serbia, following which he was extradited to Australia.
4. The co-offender Rohan Peter Arnold was sentenced by Judge Culver on 20 February 2020 having pleaded guilty to an offence of conspiring to import a substance, being a border-controlled drug, namely cocaine and the quantity being a commercial quantity (i.e. the offence in Count 1 on the Indictment). The offender was tried with the co-offender Waters, who had pleaded not guilty to Count 1 but guilty to Count 2 on the Indictment "but for the date range which was from about 26 December 2017 to 16 January 2018". Waters was sentenced by me in respect of that offence on 19 April 2024. Thus the principle of parity is relevant in sentencing this offender in respect of Count 2 on the Indictment, notwithstanding the pleas of guilty entered by both co-offenders to the respective charges.

The sentence hearing

1. Following the jury verdict on 1 August 2023 the matter was set down for sentence hearing on 19 October 2023. The matter was not ready to proceed and by consent the matter was stood over for sentence hearing on 15 March 2024. The Crown bundle on sentence became Exhibit A.
2. Exhibit A.2 was a conviction report demonstrating that the offender, who was born in 1969, had a number of offences of dishonesty, drink-driving and firearm offences in the 1990s but no offences since 1997.
3. Exhibit A.3 was the decision of the Higher Court in Belgrade sentencing the offender to 6 months imprisonment from 16 January 2018 for an offence of possession of a pistol and 13 bullets of 9mm calibre.
4. Exhibit A.4 were the remarks on sentence of Judge Culver in the matter of R v Rohan Peter Arnold on 20 February 2020.

The offender's evidence

1. The offender's tender bundle became Exhibit 1. Exhibit 1.1 was a letter of apology by the offender to the court setting out his family background. He described growing up in a dysfunctional home with an abusive alcoholic father and a severely abused mother. Before completing his HSC he left school and joined the Army where he served for 9 ½ years. He described this as "one of the best times of my life and taught me many life lessons including loyalty."
2. The offender described suffering a fractured hand and perforated eardrum during his arrest in Serbia. He described the onerous conditions of his incarceration whilst in Serbia, and being targeted for extortion and described what was "a very scary time" for him.
3. The offender did not contest his extradition to Australia and whilst incarcerated here has spent time in four separate gaols which caused difficulties for him preparing for trial. Two trial dates were vacated due to the co-offender Waters being unable to access Legal Aid and the third trial set to commence on 2 May 2022 was vacated due to the offender applying for a temporary stay of proceedings due to Corrective Services removing his laptop and not returning it for more than one year.
4. The offender stated that he had worked diligently at every jail in trusted positions and had participated voluntarily in programs. He had no infractions and had volunteered to participate in a number of charity events.
5. The offender set out the impact of the COVID-19 protocols on himself, the prison population generally and on the families affected by the lack of contact visits.
6. The offender stated his desire to prove his worth to the community and his family upon release and stated that he had, during the trial, noted serious character flaws with his attitude which he was in the process of changing. He also described the daily difficulties in attending court during the trial and his difficulty in obtaining prescription medication whilst in jail.
7. The offender stated that one of his remaining friends has offered him employment upon his release doing work for which he is qualified in a project management role.
8. Exhibit 1.2 was a report from Dr R Furst dated 11 February 2024. Dr Furst set out the offender's family history. He also set out the offender's work history after leaving the army. He had experience in various jobs and business enterprises and between 2007 and 2012 was running three factories for a large steel company. He then incorporated an importing company, "Solutions 4 steel", with one of his co-offenders, Arnold. That company split "in July 2014" and the offender then had what he described as "the biggest farming shed supply company in the country".

The Crown submissions

1. The Crown relied on a detailed and thorough written outline of submissions setting out well established principles regarding fact-finding following trial, which are not in contention. Section 16A(2) of the Crimes Act 1914 (Cth) ("the Crimes Act") provides that a court sentencing a federal offender is to have regard to such of the matters listed "as relevant and known to the court".
2. The Crown submitted that during the period prescribed in Count 2 namely between 24 October 2017 and 16 January 2018 the offender was in contact with the UCO regarding the purported retrieval of drugs from first New Zealand and later Perth. In addition to contacting the UCO, the offender travelled to New Zealand to meet with him to discuss the return of the drugs in exchange for a sum of money. The Crown submitted he was responsible for organising the provision of telecommunications devices installed with Ciphr chat software to the UCOs in New Zealand and that he participated in the encrypted group chats and continued to negotiate with the UCOs for the handover of the border-controlled drugs. The Crown set out in Annexure A to its written submissions facts which it asserted were to be derived from the evidence at trial.
3. The Crown also set out the principles of sentencing for Commonwealth offences which are not controversial. In sentencing for an offence of conspiracy the court is to take into account the following:- 1. The essential feature of the conspiracy offence is the criminality inherent in an agreement to participate in organised criminal activity, relying on Tyler v the Queen; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 at [83]. 2. The court is required to consider the overt acts of the co-conspirators in so far as they bear upon the content, duration and reality of the conspiracy, including the extent to which the objectives of the conspiracy were achieved - Tyler at [85]. 3. The conduct of the offender and co-conspirators is relevant as part of identifying their role and position in the conspiracy, but it would be artificial and contrary to the concept of conspiracy to dissect with precision the physical acts of each offender and sentence for those separate acts alone - Tyler at [78-85]. The physical acts of the offender are relevant as one part of the synthesis.
4. The Crown noted that the offence provides the same maximum penalty as for the substantive offence subject of the conspiracy and is no less serious than the equivalent substantive offence.

Section 16A(2)(a) - The nature and circumstances of the offence

1. The Crown submitted that the maximum penalty for the offence pursuant to s11.5(1) and s307.5(1) of the Code of life imprisonment speaks with unmistakable clarity as to the seriousness with which Parliament views the commission of this offence. The critical consideration on sentence is to determine what the offender did in participating in the conspiracy. Here, the offender's criminality is to be assessed by consideration of both the actions of the offender and the role occupied by him within the criminal organisation.
2. The Crown submitted that the offender's role should be characterised as a high-level and trusted facilitator, whose role was crucial to the potential success of the conspiracy. The Crown relied on the following evidence to define the offender's role:- 1. The offender was trusted to meet and negotiate with UCO Henry, participate in the Ciphr chat involving Gov and UCO Ivan, and was trusted to be given a firearm. 2. The offender was trusted to know that the method of concealment in the original importation involved the use of specially constructed steel beams. 3. Gov trusted the offender to a sufficient degree to share information about the loss of other shipments in which Gov had been involved. 4. The offender assisted Arnold to compose messages to UCO Ivan, was kept informed by Arnold about the efforts to accumulate cash in Belgrade and acted as a lookout during the meeting at the Metropol Hotel.
3. The Crown submitted that the offender took numerous overt acts in furtherance of the conspiracy. It was submitted that the fact that he travelled overseas to both New Zealand and Serbia in furtherance of the conspiracy to possess the cocaine displayed his involvement in the offending and significantly aggravated the criminality of the offence.
4. It was submitted that the weight of the drug is also a relevant factor in determining the seriousness of the offence. The weight of the drug is relevant to both the potential harm that might be inflicted on the community and the size of any anticipated profit. Here the quantity of impure cocaine seized from the consignment was 1.28 tonnes, with a purity of 998.4 kilograms against a commercial quantity of the border-controlled drug being 2 kilograms. The Crown submitted that the evidence supported a finding beyond reasonable doubt that the offender knew the very significant quantity involved in this conspiracy throughout the entirety of his involvement. The Crown relies on the following evidence:- 1. When the offender was told that container BMOU5066548 had been found, he expressed concern that the steel might have been "touched" (Exhibit A, pp. 817-818). This showed that the offender knew that the steel had been used to conceal the drugs. 2. Immediately after being told that container BMOU5066548 had been found, the offender contacted Arnold and used coded language to arrange an urgent face-to-face meeting (Exhibit A, pg. 822). 3. When the offender first contacted UCO Henry, he readily agreed to a face-to-face meeting rather than discussing the return of container BMOU5066548 on the telephone (Exhibit A, pp. 832, 905). 4. In late October 2017, after being told that container BMOU5066548 had been found, the offender and Arnold engaged in a series of face-to-face meetings rather than discussing the return of the container on the telephone (Exhibit F, pp. 14-15). 5. The offender believed that travelling to New Zealand to recover the border-controlled drug would be worth a million dollars to him (Exhibit A, pg. 908). 6. The offender used a falsely subscribed phone to contact UCO Henry (Exhibit A, pg. 936; Exhibit G; Exhibit L). 7. The offender continued to attempt to negotiate the return of the contents of container BMOU5066548 after UCO Henry told him on 27 October 2017 that the steel had been disposed of (Exhibit A, pg. 950). 8. On 27 October 2017 UCO Henry showed the offender photographs of the blocks of cocaine that had been retrieved from container BMOU5066548, told the Offender that 900kg to 1 tonne of blocks had been found in the container, and told the offender that 3 percent of the blocks were worth NZD$3 million (Exhibit A, pp.948-951,968). 9. When the offender met UCO Henry in Auckland on 27 October 2017, he was worried about the police and surveillance (Exhibit A pp. 955-956,961). 10. On 3 November 2017 the offender received a Ciphr message referring to "2576 babies" in the shipment (Exhibit A, pg.1033). 11. In late December 2017 Gov trusted the offender to a sufficient degree to share information about the loss of other shipments in which Gov had been involved. The offender asked whether the "system" should be scrapped (Exhibit A, pp. 2313, 2316). 12. Arnold told the offender that the total agreed price for the return of the cocaine was EUR 1.96 million (Exhibit A, pg. 2184).

Section 16A(2)(ja) - General deterrence

1. The Crown submitted principles of general deterrence and denunciation are important in sentencing for serious drug offences in that stern punishment is warranted. This is largely because of the difficulty in detecting offending and the grave social consequences that flow from the dissemination of prohibited drugs within Australia. As this matter involved an unusually large quantity of drugs general deterrence was particularly important.

Section 16A(2)(k) - Need for adequate punishment

1. The Crown submitted that having regard to the nature and circumstances of the offence, and the offender's role, when objectively viewed the criminality of the offending was high.

Section 16A(2)(g) - Guilty plea

1. The Crown noted that between 22 July 2019 and 2 December 2020 the offender made a series of plea offers to the Crown, each proposed to be in full satisfaction of the matter. Ultimately however the jury found the offender guilty of the offence of conspiracy in Count 2. It was submitted that each plea offer was not fairly open to acceptance and was therefore of no utilitarian value. The Crown submitted that the plea offers were made in the context of a very strong prosecution case in which much of the offender's conduct was captured using legally obtained telephone intercepts, surveillance and a controlled operation. Any mitigation for the offender's willingness to facilitate the course of justice should be limited because the plea offers were simply a recognition of the inevitable.

Section 16A(2)(f) - Contrition

1. The Crown submitted that the plea offers were not evidence of contrition.

Section 16A(2)(j) - Specific deterrence

1. The Crown submitted that the offender's behaviour displayed a significant attitude of disobedience of the law such that specific deterrence is a relevant sentencing consideration. The Crown relied on the evidence which demonstrated the offender played a crucial role in the early negotiations with UCO Henry, and participated in negotiations with UCO Ivan. He sent messages calculated to place pressure on UCO Ivan after that UCO had ceased contact. He also willingly travelled to Belgrade for the meeting at the Metropol Hotel and expressed a willingness to use violence against UCO Ivan following which he obtained a firearm shortly before that meeting.

Section 16A(2)(m) - Character, antecedents, age, means and physical or mental condition

1. The offender was born in 1969 and was aged 48 years at the time of the offending. Whilst he had a criminal history for a range of offences between 1991 and 2015, none of those prior convictions were related to border-controlled drugs. The Crown submitted that his criminal history was sufficient to disentitle him to the leniency that is often granted to first-time offenders.

Section 16A(2)(n) - Prospect of rehabilitation

1. The Crown reserved its position with respect to the determination of the offender's prospects of rehabilitation, if any.

Section 16A(2)(p) - The probable effect that any sentence or order would have on the person's family or dependants

1. The Crown conceded that where there is evidence about the probable effect of a particular sentence on an offender's family then it must be taken into account. The weight to be given for this consideration is a discretionary matter which will turn on the facts of the case.

Hardship in custody

1. The Crown set out the following relevant principles derived from Milenkovski v The State of Western Australia (2014) 46 WAR 324; [2014] WASCA 48 at [151]-[157]:- 1. The fact that an offender has served or is likely to serve part of a term of imprisonment in conditions that are more onerous than those applicable to mainstream prisoners is a relevant sentencing factor; 2. If it is submitted or apparent at sentencing that this is likely, the prosecutor and defence counsel should provide the judge with all available information as to: 1. the facts and circumstances of the custody; 2. how those facts and circumstances differ from those applicable to mainstream prisoners, and 3. the nature and extent of any consequential hardship or benefit to the offender; 1. The weight to be given to an offender's detention under more onerous conditions depends on all the facts and circumstances including the reasons why the offender requires protection, and the likely duration of the more onerous conditions. Any benefits, as well as hardships to the offender from the protection must be taken into account; 2. Greater leniency will be given where the onerous conditions have caused or exacerbated an offender's physical or mental illness or disability; 3. The justification for allowing some leniency or a discount for onerous conditions is that time spent in custody under more onerous circumstances is in general, equivalent in evaluating the sentencing objectives of punishment, denunciation and deterrence, to a longer period in custody under less onerous circumstances.
2. The Crown accepted that the offender's incarceration has been made more onerous because of the COVID-19 restrictions imposed for the safety of the whole of the general prison population.
3. The Crown set out relevant principles relating to delay in sentencing and annexed a procedural history of the matter. The time elapsed between the offender's arrest in Serbia and the date of sentence was approximately six years and two months. However his extradition from Serbia was delayed due to him serving a sentence of six months imprisonment in Serbia for the firearms offence. Subsequent delays were caused by the trial date being vacated three times. The first two trial dates (6 October 2020 and 26 April 2021) were vacated on the application of the co-offender Waters and the third trial date (2 May 2022) was vacated due to the temporary stay application by the offender. The delay caused by the vacated trial dates was approximately two years and seven months.

The offender's submissions

1. Counsel for the offender also relied on a detailed written outline of submissions which set out the sentencing principles for Commonwealth offences which are not controversial. He submitted the key mitigation issues for the court to consider are:- "a. The offender's relatively low level and subservient role in the conspiracy and the circumstances of that involvement, including what will be submitted amounts to "non-exculpatory duress" influencing his criminal conduct, which it is submitted placed the offence towards the lower range of objective seriousness for offences of its type; b. His strong prospects of rehabilitation; and c. His relatively favourable subjective circumstances more generally."
2. Counsel noted the maximum penalty for the offence is life imprisonment and/or a fine of 7,500 penalty units ($1,275,000). Counsel referred to the principle in Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 where the High Court held that the maximum penalty represents the legislature's assessment of the seriousness of the offence and is therefore a sentencing yardstick.
3. Counsel made submissions relating to the following relevant matters pursuant to s16A(2) of the Crimes Act.

s16A(2)(a) - Nature and circumstances of the offence

1. Counsel referred to a number of authorities relating to the importance of the court determining the role of the offender in the drug importation, or in this case the conspiracy to possess enterprise. The offender accepted that the onus is on the offender to establish on the balance of probabilities any circumstances in mitigation of the offence, including a lower-level role as advocated on behalf of the offender. It was submitted that the low objective role was evident in two broad respects here. First, there is significant evidence of direction by others and in particular Mr Arnold and a complete lack of evidence of any involvement in the planning and organisation of the conspiracy by the offender. Secondly, a substantial body of evidence indicates that the offender was operating under a significant degree of duress even though the jury were clearly not satisfied that completely relieved him of criminal liability for his role. It was submitted that the jury may well have found verdicts "against him having regard to the objective aspect of the duress defence on the basis his response was not a reasonable one in all circumstances."
2. Counsel referred to the evidence of the offender being enlisted by Arnold to undertake the initial face-to-face meeting with UCO Henry in New Zealand as speaking volumes about the offender's position in the hierarchy of the syndicate. It was submitted that the offender went to the meeting, in effect as a "messenger boy" on behalf of the syndicate which spoke not of the trust placed in him but rather to his entirely dispensable nature. In attending that meeting he was exposed to a very high risk of detection.
3. Counsel submitted that the evidence established that the offender was not trusted to "negotiate" with UCO Henry as submitted by the Crown.
4. Counsel noted that there was no evidence that the offender was involved in any dealings regarding the retrieval of the drugs from Perth and the only chat group that he was involved in was that entitled "NZ project" which later became "Project Serbia". Significantly, the offender was not included in the "Big Day Part 8", "Perth boys for big day", "Serbia team" and "Enough" chat groups.
5. Counsel submitted that it was open to find that the offender's involvement in the conspiracy in Count 2 was premised on the lies and manipulation of Arnold, who had, unbeknownst to the offender, utilised the offender's company for the purpose of importing the cocaine. Thereafter the offender was left entirely vulnerable for further manipulation by Arnold who used the threats that were clearly emanating from the senior members of the syndicate to convince the offender that he and his family were at risk. Although the offender gave evidence that he was initially told by Arnold that they were at risk from persons in China, the offender came to understand that the threats were not emanating from the Chinese but rather the drug cartel.

s16A(2)(f) - Contrition

1. Counsel submitted that the offender had reflected on his involvement in the offence and expressed regret for the choices he had made and in particular for the effect of his offending upon his family.
2. The offender also relied on the plea offers made by him between 22 July 2019 on 2 December 2020 as having a mitigatory effect on any sentence.

s16A(2)(h) - Degree to which the offender has cooperated with law enforcement authorities

1. It was noted that the defendant did not contest extradition from Serbia to Australia.

s16A(2)(j) - Specific deterrence

1. Counsel submitted that the offender's custody following his arrest in January 2018 has had a significant deterrent effect on him having regard to his background, age and all the circumstances.

s16A(2)(ja) - General deterrence

1. The offender accepted that his sentence must serve as a warning to others, including those who are subject to pressure to participate in serious criminal offending.

s16A(2)(l) - Character, antecedents, cultural background, age, means, physical or mental condition

1. Counsel relied on the report of Dr Furst to establish the following:-

• The offender's childhood was marred by familial violence at the hands of his alcoholic and abusive father;
• He has two older sisters and one younger sister and maintains close and mutually supportive relationships with each of them, as evidenced by their letters of support;
• Despite a disadvantaged, dysfunctional childhood and fractured family unit, the offender managed to rise above that to become a productive and contributing member of the community including by serving in the army for a period of some nine and half years after leaving school before embarking on what appears to have been a successful business career up until the time of his arrest;
• He has been married to Jackie Campbell, who is of Filipino heritage since 2012 but he has sadly become estranged from Jackie since his incarceration and more particularly, since her deportation to the Philippines during his period of incarceration. He is particularly devastated that he was not allowed to attend the immigration hearing that resulted in her deportation to support her as a result of his custodial status at the time;
• He was previously married to Sonia Buckley for 17 years and he has two sons of that marriage, Kye aged 24 and Byron aged 21. He has remained on amicable terms with Sonia since their divorce in 2012 and he has very positive, mutually supportive relationships with his sons;
• He also has a 32 year old son named Jay from a previous relationship;
• The offender has a limited criminal record with entries recorded between 1991 and 1997, mostly involving minor dishonesty and driving offences but also firearm offences for which he was fined and placed on recognizances in 1994. His last entry is for AOABH in 1996 for which he also received a recognizance in May 1997. Having regard to the limited nature of his criminal history which is now somewhat dated and to the positive character testimonials tendered on his behalf, it is submitted that the Court would find that his record is not such as to deprive him of any consideration of leniency albeit it is accepted that he is not entitled to the full measure of leniency usually reserved for those who are first time offenders and otherwise come before the Court as persons of good character.

s16A(2)(n) - Prospects of rehabilitation

1. Counsel submitted that the offender is now 54 years old. He has progressed his rehabilitation and enjoys considerable family support. It was submitted that the seriousness of the offending does not appear to be consistent with his general character and background. He has been offered accommodation and employment by a long-standing friend and has gained insight into his offending behaviour. It was apparent that his arrest and incarceration have already had an enormous impact upon the offender. The offender had put his time in custody to good use by training and undertaking educational courses and was employed in positions of trust. He was characterised as having no institutional breaches whatsoever and as a model prisoner. It was submitted that it was open to the court to find that the offender is unlikely to re-offend and that his prospects of rehabilitation are very good.

s16A(2)(p) - Probable effect on the person's family

1. Counsel submitted that the offender's incarceration had taken an enormous toll on the offender's former wife, his sons and sisters, all of whom had written eloquently of the very significant impact upon them both emotionally and financially over the last six years, a factor which should be given weight in the determination of an appropriate sentence in accordance with Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75.

Non-parole period

1. Counsel submitted that in determining the appropriate non-parole period the court is required to determine the minimum time that justice requires to be served in all of the circumstances of the case. Counsel submitted that the court will have regard to the following subjective matters:-

• The offender's age and health.
• His limited antecedents.
• His good prospects of rehabilitation.
• The fact that this is the offender's first custodial sentence.
• The fact that the offender will be in custody for a lengthy period and will no doubt benefit from an extended period on parole to assist in his reintegration into society.
• The fact that conditions in custody have been more onerous since the onset of the public health emergency arising from the COVID-19 global pandemic which has resulted in more lock downs, restricted access to programs and facilities and apprehension amongst inmates about the risk of infection with heightened tension in the custodial setting.
• The extremely onerous conditions the offender experienced during the period of his incarceration in Serbia between his arrest on 16 January 2018 and his return to Australia on 30 July 2018, as set out in the letter of the offender, the references and supported by the documents produced by DFAT.

1. Counsel also referred to comparative sentences in similar matters noting the purpose of using comparative cases is twofold - "they provide guidance for the identification and application of relevant principles and analysis of them may yield discernible patterns and possibly a range of sentences against which to examine a proposed sentence" - R v Pham (2015) 256 CLR 550; [2015] HCA 39 at [26].
2. Counsel also noted that in Moodie v R [2020] NSWCCA 160; 284 A Crim R 87 the Court noted the important role of comparative sentences in promoting consistency in sentencing. It was submitted that the need for sentencing consistency should not usurp the discretion of the court, relying on Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [77].
3. In respect of the comparative cases referred to by the Crown, it was submitted that it was difficult to discern a sentencing pattern or range and that such direct comparisons with the present case should be approached with care.

The offender's oral submissions

1. Counsel in his oral submissions took issue with the Crown's submission that the offender's role should be characterised as that of a "high-level and trusted facilitator", whose role was crucial to the criminal enterprise.
2. It was submitted that the jury had accepted that the offender was used by Arnold who had exploited a long standing and legitimate business relationship over many years with the offender. The offender's involvement and actions were therefore premised by lies and manipulation by Arnold.
3. Counsel submitted that once the container went missing the offender was left in an invidious, vulnerable and dangerous position which was the starting point of his involvement in the conspiracy. This led to him travelling to New Zealand to meet with UCO Henry and Ivan which was not evidence of any position of trust but rather consistent with his being a low-level functionary and entirely dispensable "cannon fodder".
4. Further, the numerous messages outlining threats and suspicions by members of the syndicate regarding this offender being in cahoots or involved with the UCOs in a "sting" meant that he was clearly not a trusted and high-level facilitator.
5. Counsel submitted that in assessing the objective seriousness of the offending and the offender's moral culpability the Court would have regard to non- exculpatory duress. This led to his focus on getting the container returned and being seen by the syndicate to be doing so and thus clearing his name.
6. It was submitted that the offender's concern for both his family and Arnold's was based on misplaced loyalty and led him to ingratiate himself with "Gov". This included a demonstrated willingness to involve himself in violence however the Court would ultimately find this was to protect himself.
7. Counsel noted that Arnold was the only member of the syndicate that the offender was involved with. He had met Waters in Belgrade but only briefly.
8. Counsel submitted that the Crown submission that the offender had voluntarily associated himself with syndicate members could not be reconciled with the verdict of not guilty in Count 1.
9. It was submitted that the offender only became a party to the conspiracy in Count 2 after the importation of drugs went awry. His involvement was to be contrasted with that of Waters whose Counsel had conceded a voluntary association with senior members of the syndicate and that he was a close friend of Gov and Arnold.

The Crown's oral submissions

1. The Crown responded in oral submissions to the offender's submissions. The Crown clarified that it was not suggested the offender went to Perth but that he understood the border-controlled drugs to be located in Perth.
2. With respect to the offender's submissions concerning Mr Campbell's statement in a phone conversation to his sister that the potential job in New Zealand was worth nearly $1 million to him, the submission that the reference to $1 million was a ploy by Mr Arnold to incentivise Mr Campbell was completely unsupported by the evidence. At no time in his evidence did the offender say that the business opportunity that he was asserting in that conversation existed in New Zealand. It was never suggested that he was offered $1 million by Mr Arnold in order to incentivise him to go to New Zealand to meet with UCO Henry.
3. The Crown referred to [23] of the offender's submissions concerning Arnold keeping the offender abreast of developments in the ongoing conspiracy. The Crown submitted this only occurred in Belgrade. Those communications had all the hallmarks of people who were not under duress and were friendly and actively involved with each other participating voluntarily in a way which demonstrated they were trying to assist each other. It was not evidence that there was manipulative communication from Arnold to the offender.
4. The Crown referred to the messaging between syndicate members not involving UCO Ivan that involved threats including the message by Riverside to Gov stating that the offender should be "knocked". The Crown pointed to countervailing messages directly between the offender and Gov which demonstrated a level of trust rather than suspicion, manipulation and threats to the offender.
5. The Crown referred to the submissions of the offender concerning the meeting at the BP service station outside Canberra where Arnold and the offender were to meet three people. The Crown submitted that the offender's submission that he had no involvement in the provision of the communication devices provided to UCO Henry was not supported by the evidence. Rather there were text messages from the offender to the person in New Zealand where he was repeatedly asking whether the handover of the devices had occurred.
6. The Crown referred to the offender's submission that he had been excluded from the meeting at the Metropol Hotel was not supported by the evidence. Notwithstanding that he was outside the hotel he continued to send messages to Arnold updating him about people outside the premises who could be law enforcement.

The offender's oral submissions in response

1. In relation to the issue of delay counsel for the offender adopted the submissions of Mr Dalton SC on behalf of Mr Waters.
2. In relation to the Crown submission there was no evidence supporting an offer to the offender of $1 million to travel to New Zealand by Mr Arnold, counsel submitted it was open to infer that such an offer was made. It was further submitted, leaving aside whether there was a genuine offer or not, this should be dealt with under the rubric of lies and manipulation, controlling and incentivising the offender to attend the high-risk meeting in New Zealand.
3. The offender acknowledged the lie to his sister concerning the conversation that he was going to a job in New Zealand. This was distinguished from the reference to a potential project in New Zealand supplying steel as he was legitimately engaged in the supply of steel within the construction industry. It was submitted it was not inherently implausible that this was a reasonable version of the truth.
4. Counsel referred to an earlier submission that the offender was going to accept a reward of $1 million for going to New Zealand which was an inference open on all of the evidence. Ultimately the offender found out after his arrest that Arnold was in fact lying to and manipulating him.
5. It was submitted that the evidence established that Arnold was effectively presenting to the offender the notion that they were both under threat, they were both in danger and that was the manner of the manipulation by him of the offender. It was never part of the defence case that he and Arnold did not have a relationship of friendship and trust. Rather Arnold maintained that façade of friendship and trust until the very end. That was consistent with the offender's evidence that part of his perceived role was the protection of Arnold. This was distinct from the position as between the offender and the syndicate more broadly.
6. Counsel submitted that the manipulation of the offender by Arnold was subtle.
7. Counsel rehearsed his submissions concerning the offender's involvement at the BP service station being minimal. His evidence was unchallenged that he never got out of the car when three men were present although the offender had a role in providing the communication devices, he was not necessarily the organiser.

Supplementary submissions on behalf of the accused

1. On 26 March 2024 counsel for the offender filed supplementary written submissions. The first matter canvassed was the evidence concerning the offender's statement to his sister to the effect that he was flying to New Zealand in respect of a job that was "worth nearly a million dollars to me." Counsel submitted that if, as submitted by the Crown, the statement was in reference to the conspiracy and the potential reward of $1 million for his involvement in it, it makes no sense for the offender to be referring to it being worth "nearly a million dollars" rather an inference arose that the figure being discussed had not been precisely quantified as one would expect if it was a reference to a reward or payment for retrieval of the consignment. Counsel submitted that the statement was more consistent with the offender referring to the potential returns from his legitimate business opportunity where anticipated returns could not be precisely quantified but could be worth "nearly one million dollars" to him.
2. Counsel then set out a brief summary of the Corrective Services case notes between 19 September 2018 and 29 August 2023. Those notes contain relevant family, education and employment history and a number of very positive work assessments and completion of a number of courses. The final entry described him as "a role model for other inmates and is an extremely hard worker". Counsel also provided summaries of the Justice Health records (Exhibit 1.11). The entries date from 6 September 2018 to 23 August 2023 concerning mainly treatment for offender's psoriatic arthritis and prescription of medication for that condition.
3. Finally, counsel provided a short summary of the Department of Foreign Affairs and Trade documents in Exhibit 1.12 concerning the offender's incarceration in Serbia. The Crown took no issue with the supplementary submissions, relying on its written submissions regarding the evidence referred to in [142] above.

Determination

1. As submitted by the Crown the essential feature of conspiracy offences is the criminality inherent in an agreement to participate in organised criminal activity, in this case to obtain possession of a very large quantity of border-controlled drugs being cocaine. The Court is required to consider the overt acts of the co-conspirators insofar as they bear upon the content, duration and reality of the conspiracy, including the extent to which the objectives of the conspiracy were achieved. The conduct of the offender and the co-conspirators is relevant in identifying his role and position in the conspiracy however the physical acts of the offender are relevant as one part only of the synthetic process.
2. Conspiracy is an inchoate offence constituted by an agreement of a number of persons to carry into effect the unlawful purpose in combination, which is the essence of the crime. As Judge Culver stated when sentencing Arnold, "the charge of conspiracy is brought because criminal action organised and executed in concert is more dangerous to society than an individual breach of the law". Here, the conspiratorial agreement was made between members of an international crime group comprised of individuals based in Australia and elsewhere throughout the world. The purpose of the agreement was to obtain possession of a very large quantity of illegal drugs which had been seized by the AFP during what could only be regarded as a sophisticated, coordinated, premeditated, clandestine and diversified operation by those individuals working in concert as part of an international drug syndicate.
3. The cocaine which was concealed in pre-fabricated steel post structures being imported in a shipping container from China comprised 2,576 blocks, each weighing approximately half a kilogram and totalling approximately 1.28 tonnes. Analysis of the sample indicated that the purity of the cocaine ranged between 72.6% and 82.5%. The calculated weight of pure cocaine in that sample was 64,878 kilograms. The AFP estimated the street value of the 2,576 blocks seized would have been between $731,428,600 and $1,536,000,000.
4. As I said in my remarks sentencing Waters, the criminal organisation behind the conspiracy and underpinning the failed importation of the prohibited drugs is important in the assessment of the objective seriousness of the offending, as is distinguishing between the roles of the co-conspirators. The highly sophisticated operation bespoke of a highly organised criminal enterprise, the principals of which were based in Columbia, with the capacity to operate in countries around the world including Australia, Thailand and Serbia.

s16A(2)(a) - The nature and circumstances of the offence

1. The nature and circumstance of the offence and the objective seriousness of the offending is set out above. The fact that Parliament has prescribed a maximum penalty of life imprisonment for the offence indicates offending of the most serious kind at the top of the criminal calendar. The maximum penalty must be taken into account as a guidepost in the sentencing process.

s16A(2)(d) and (e) - The personal circumstance of any victim of the offence and any injury loss or damage resulting from the offence

1. Whilst there are no personal circumstances of any victim of the offence to be taken into account nor an injury or loss or damage resulting from the offence the potential for enormous harm to the community in the event that the purpose of the conspiratorial agreement had been successfully executed is a very relevant matter in sentencing for drug offences. The operations of international criminal syndicates are highly sophisticated, difficult to detect and are motivated by egregious financial gain to those who perpetrate the dissemination of prohibited drugs throughout the community. In doing so, they potentially cause enormous harm to those end users of the prohibited drugs and facilitate further criminal conduct in the community at an enormous cost, including policing resources.

s16A(2)(f) - The degree to which the person has shown contrition for the offence

1. The offender's reflection on his involvement in the offence and expression of regret for the choices that he made were particularly focused on the impact of his offending upon his family. He relies on the plea offers made by him between 22 July 2019 and 2 December 2020 as evidence of contrition having a mitigatory effect on any sentence, without that in effect being quantifiable. It has a limited role to play in sentencing for this offender.

s16A(2)(h) - The degree to which the person has cooperated with law enforcement agencies

1. The fact that the offender did not contest extradition from Serbia to Australia has little weight in sentencing as it did not concern the investigation of the offence, rather it involved bringing the offender back into the jurisdiction.

s16A(2)(j) - Specific deterrence

1. I accept the Crown's submission that the offender's criminal conduct displayed a significant attitude of disobedience of the law and is a relevant sentencing consideration having regard to the role that he played, and the overt acts referred to above. Not only did he volunteer to travel to Belgrade for the meeting at the Metropol Hotel he expressed a willingness to use violence against UCO Ivan following which he obtained a firearm shortly before that meeting. Whilst I accept the offender's submission that his incarceration following his arrest in January 2018 has had a significant deterrent effect on him having regard to his age and background, he must understand that if he were re-offend there would be most serious consequences for him.

s16A(2)(ja) - General deterrence

1. General deterrence is important in sentencing for serious drug offences. A clear message must be sent to like-minded members of the community that Parliament has prescribed the most serious punishment for this offence, namely, life imprisonment and that the courts will impose condign punishment in these cases. Not only is such offending difficult to detect, there are grave social consequences that flow from the dissemination of prohibited drugs within Australia particularly given the quantity of drugs imported in this case. Further, the presence of duress does not diminish the significance of general deterrence in sentencing - See Eyeson v R [2024] NSWCCA 52 at [54].

s16A(2)(k) - Need for adequate punishment

1. It is not in dispute that given the nature and circumstances of the offending and the offender's role there is a need for adequate punishment which will involve a lengthy term of imprisonment.

s16A(2)(m) - Character, antecedents, age, means and physical or mental condition of the offender

1. The offender was born in 1969 and was age 48 years at the time of the offending. I accept that his childhood as reported to Dr Furst was marred by familial violence at the hands of his alcoholic and abusive father. Despite a dysfunctional childhood the offender became a productive and contributing member of the community first as a serving member of the Armed Forces for almost a decade and then having a successful business career up until the time of his arrest. He was married for 17 years until his divorce in 2012 following which he remarried.
2. I accept that the offender has a limited criminal record, mostly between 1991 and 1997 which offences are now remote and unrelated to the type of offending for which he is to be sentenced. The offending does disentitle him to the leniency afforded to first-time offenders however I do accept the positive character testimonials tendered on his behalf. He is clearly well regarded by his family and friends, and I accept that he suffers from an arthritic condition for which has been medicated over a number of years.

s16A(2)(n) - Prospects of rehabilitation

1. The offender is now 54 years old and enjoys considerable family support. I accept that the seriousness of this offending is not consistent with his general character and background and that he has gained insight into his offending behaviour. I also accept that his arrest and incarceration have had an enormous impact on him, and he has progressed his rehabilitation by training and undertaking educational courses as well as being employed in positions of trust. I note that he has no institutional breaches and is regarded as a model prisoner. I therefore find that his prospects of rehabilitation are good and that any risk of him re-offending is likely to be regarded as low.

s16A(2)(p) - The probable effect that any sentence or order would have on any of the person's family or dependants

1. I accept that the offender's arrest and incarceration has taken an enormous toll on the offender's former wife, his sons and sisters all of whom have written eloquently of the very significant impact upon them both emotionally and financially over the last six years. I also accept that the offender's wife had to return to the Philippines with their son.
2. I accept that the offender has experienced onerous conditions in custody with the onset of the public health emergency arising from the COVID-19 global pandemic. This has resulted in numerous lockdowns, restricted access to programs and facilities and apprehension amongst inmates about the risk of infection with heightened tension in the custodial setting. I have not taken into account the clearly onerous conditions the offender experienced during his six months incarceration in Serbia which was the inevitable consequence of the offender's acquisition of a firearm whilst in that country.
3. The delay in bringing the offender to trial and ultimately being sentenced was not the result of any delay by the investigating authorities. The first delay was caused by the offender's incarceration in Serbia and extradition to Australia. On three occasions the matter was set down for trial with the co-offender Waters, two of which were adjourned on the application of the co-offender and one of which was adjourned given the offender exercising his right to bring a stay application. The ultimate delay was a period of some two years and seven months. Given the offender's adherence to his pleas of not guilty he was not left in a state of uncertain suspense as to the outcome of the sentencing process and therefore I do not take into account the delay on sentence as a mitigating factor.
4. The principle of parity is relevant to sentencing here. Given the facts which have now been determined following the trial of the offender on Counts 1 and 2 on the Indictment, and the trial of the co-offender Waters on Count 1 on the Indictment and the verdicts of the jury the Court is now in a much more informed position to determine the roles of the co-offenders than was Judge Culver in sentencing Arnold. The offender's role was clearly well below that of Arnold and below that of Waters. As set out above he was at the lowest level of the hierarchy. The jury rejected his defence of duress and I find that any non-exculpatory duress arising from threats made by those in the cartel towards him must be offset by first, his voluntary act in travelling to New Zealand for the first meeting with UCO Henry, his continuing engagement in the encrypted messages and volunteering to go to Belgrade, his acquisition of a firearm in Belgrade and also the ample opportunity he had to go to the authorities during the period of some three months.

Orders

1. I make the following orders:- 1. You are convicted of the offence in Count 2 on the Indictment that you between 26 December 2017 and 16 January 2018 at Sydney in the State of New South Wales and elsewhere, did conspire with Rohan Peter Arnold and divers others to possess a substance, the substance being a border-controlled drug, namely cocaine and the quantity, being a commercial quantity, and the substance having been unlawfully imported. 2. I sentence you to a non-parole period of 10 years and 6 months commencing on 16 January 2018 and terminating on 15 July 2028. 3. The balance of term will be a period of 7 years and 6 months commencing on 16 July 2028 and terminating on 15 January 2036.
2. Your parole eligibility date is 15 July 2028.
3. You should understand that release to parole is not automatic. The State Parole Authority will hold a hearing sometime before that date and decide whether they are going to release you to parole on that date or some later date. You should understand that your parole will be subject to stringent conditions, one of which is not to commit offences whilst on parole. Other conditions will include things such as who you associate with, where you live and doing what your parole officers direct. If, during the time you are on parole, you breach any condition of parole, the State Parole Authority will revoke your parole and you will have to go back to gaol to serve the balance of your sentence.

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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: 03 May 2024