R v Lembke

Court of Criminal Appeal (NSW)|2020-10-12|Before: McCallum JA, Garling J, Wright J, Bathurst CJ, Hoeben CJ, Harrison J, Callum JA

Judgment

McCALLUM JA: I agree with Garling J
GARLING J: The respondent, Craig William Lembke ("the respondent") was convicted by a jury after a trial in the District Court of NSW of an offence contrary to s 307.1(1) of the Criminal Code (Cth) 1995, namely, importing a commercial quantity of a border controlled drug. The substance the respondent was convicted of importing was cocaine.
The respondent had pleaded not guilty, but was convicted after a nine week trial.
On 17 April 2020, he was sentenced to a term of imprisonment of 9 years commencing on 15 November 2017, with a non-parole period of 6 years expiring on 14 November 2023.

Principles in Respect to Crown Appeals

The primary purpose of a Crown appeal is to lay down principles for the governance and guidance of courts which have the duty of sentencing convicted individuals: Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [1].
The Court can only interfere with a sentence where error is established. That error may be latent or patent. Even if error is demonstrated, the Court has to consider whether in its discretion it will intervene to overturn the sentence: s 5D Criminal Appeal Act 1912: Green at [36].
This Court has recently considered the principles to be applied where the Commonwealth Crown asserts manifest inadequacy in sentence when dealing with a conspiracy to import a commercial quantity of a border control drug: R v Sara [2020] NSWCCA 119. In that judgment, Bathurst CJ and Hoeben CJ at CL agreed with the judgment of Harrison J.
His Honour's customary clarity and lucidity of expression relieves me of the tasking of formulating the relevant principles. It is best if I, with respect, adopt what Harrison J has written. His Honour said: "97. The assertion that a sentence is manifestly inadequate is an assertion that the sentence is 'unreasonable or plainly unjust', as that expression is used in House v The King: see Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]. In other words, the Court must be satisfied that the non-parole periods and total sentences imposed were outside the range of sentences that could have been imposed: see R v Mereb; R v Younan [2014] NSWCCA 149 at [32]. 98. However, appellate intervention will not be justified simply because the result arrived at below is markedly different from other sentences imposed in other cases. The Court must be driven to conclude that there must have been some misapplication of principle: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]-[59], [75]-[76]; The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 at [28]. 99. In assessing whether the sentence imposed was 'unreasonable or plainly unjust', the following principles apply: (1) Sentencing is a discretionary judgment and there is no single correct sentence: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24]. (2) The Court of Criminal Appeal must not substitute its own opinion merely because it would have exercised the sentencing discretion differently to the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]. (3) Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Markarian at [25]; Hili at [58]. (4) The weight to be given to the various factors to be taken into account (including the evidence and various purposes of sentencing) is a matter for the sentencing judge: Bugmy at [24], [99]. (5) Although the Court of Criminal Appeal is not bound by the sentencing judge's assessment of objective seriousness, the Court should be very slow to form its own view: CMB at [78]; Mulato v R [2006] NSWCCA 282 at [37]. (6) Whether or not manifest error has occurred is not 'fundamentally intuitive'. What reveals manifest inadequacy is a consideration of all of the matters that are relevant to fixing the sentence: Hili at [60]. (7) Reviewing a history of sentencing can establish a range of sentences that have in fact been imposed. However, that history does not establish either that (i) that range is the correct range; or (ii) that the upper or lower limits to the range are the correct limits. They are only a yardstick against which to examine a proposed sentence: Hili at [54] approving Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [303]-[304]."

Facts of Offending

The sentencing Judge found the following facts as the basis for the sentence which he imposed. The Crown now accepts that those findings of fact were open to the sentencing Judge and are no longer challenged before this Court. It is appropriate to summarise those facts.
His Honour firstly noted that the two co-conspirators had pleaded guilty in relation to the same conspiracy and had been sentenced. Those co‑conspirators were Mr Kent Jackson (whom his Honour described by the pseudonym "AB") and Mr Dennis Bath (whom his Honour described by the pseudonym "CD").
In mid-2017, Mr Jackson agreed to the request of a Mr Bill Percy to become significantly involved in bringing 700kg of cocaine into Australia. One essential step for Mr Jackson was to find someone to sail a yacht from Tahiti to Australia.
The respondent was first contacted by Mr Jackson on 30 September 2017, and asked to sail the yacht from Tahiti to Australia.
On 4 October 2017, the respondent received $10,000 from Mr Jackson to cover the expenses connected with the yacht being sailed to Australia.
On 13 October 2017, the respondent, together with a Mr Mitchell (who was not charged with any criminal offence), travelled to Tahiti in order to collect the yacht and make arrangements for it to be sailed to Australia.
The yacht left Tahiti on 17 October 2017, and arrived in Australia on 10 November 2017.
On approaching Coffs Harbour on 10 November 2017, the respondent threw a mobile telephone overboard. He had been given this mobile telephone, which enabled encrypted conversations to take place, prior to commencing the voyage.
Having arrived in Coffs Harbour on 12 November 2017, the yacht was granted clearance allowing it to sail to Pittwater. On 13 November 2017, Mr Mitchell and the respondent sailed the yacht south. They arrived at the Royal Motor Yacht Club Toronto, just outside Newcastle, on 14 November 2017.
On 14 November 2017, the respondent met with Mr Jackson and Mr Bath. At that time, Mr Jackson offered the respondent $500,000. Later that day, Mr Jackson and Mr Bath again met with the respondent, to make arrangements for travelling to the boat on the next day.
On 15 November 2017, the respondent travelled with Mr Bath to the Royal Motor Yacht Club Toronto, where the yacht was moored. The respondent took Mr Bath out to the yacht in a dinghy in order to enable Mr Bath to commence the retrieval of the drugs which had been concealed in the yacht. The respondent later returned in the dinghy to the yacht to give Mr Bath his lunch.
Shortly after that the respondent was arrested.

Findings of the Sentencing Judge

There were disputed questions of fact. It was the Crown case that the respondent knew of the importation of drugs via the yacht before he travelled to Tahiti and that, accordingly, his participation in the conspiracy was a lengthy and most significant one. The respondent contended before the sentencing Judge that the Crown could not establish such a case beyond reasonable doubt, and that the respondent ought be sentenced solely on the basis that his state of knowledge was such that he could only have participated in the conspiracy on or after 14 November 2017, which was after the yacht had arrived in Australia.
His Honour found that the respondent had the relevant state of mind for participation in the conspiracy as at 14 November 2017, and not before. His Honour said, having taken into account a number of factors favourable to the Crown, that: "It is not enough however, on balance with the other considerations, to persuade me to accept that the Crown has established beyond reasonable doubt that the respondent intended to import the substance on the yacht at the time he left Tahiti."
His Honour assessed the objective seriousness of the respondent's criminality by considering his involvement in the steps taken to effect the importation. That involvement amounted to facilitating the attempted removal of the cocaine from the yacht by taking Mr Bath from the shore at Toronto to the yacht at its mooring (a short distance with a total travel time of less than five minutes) and on a second occasion, returning to the yacht with Mr Bath's lunch and delivering it to him. His Honour was satisfied that whilst on the yacht, the respondent looked into one of the holds at the front of the yacht but that his actual assistance to Mr Bath in doing the work on the yacht to remove the cocaine was negligible. His Honour then made this finding: "The true involvement of the [respondent] as being aware of what was happening once he had been offered the $500,000 on 14 November and then going along with it thereafter, including his two trips to the yacht … On any measure this is a minimal involvement."
His Honour, having noted that the offending occurred for profit, assessed the objective seriousness as being below mid-range and at the top of the low range. In coming to that finding, his Honour said: "Seeking to assess the objective seriousness of the offence in that context must be informed by the relatively very brief involvement of the respondent in the offending, and the very low level functionary task that involved. The respondent cannot be described as a courier, nor could he be described as some person with any management role in the importation. But for the weight of the drug involved [700kg] this would be a matter at the very low end of the range of objective seriousness."
His Honour considered the subjective case of the respondent and found that there was a low likelihood of the respondent re-offending. He further found that the past criminal history of the respondent was not such as would deny leniency on sentence.

Submissions of the Crown on Sentencing

His Honour was invited by submissions from the Crown to impose a sentence by reference to the principles of parity. The Crown submitted, by reference to Green that in sentencing the respondent the sentencing Judge had to have regard to the parity principle as an aspect of the systemic objectives of consistency and equality before the law: the treatment of like cases alike and different cases differently. His Honour was urged to avoid any unjustifiable disparity between the sentences imposed upon the two other co-conspirators, who had been sentenced, and that which he imposed upon the respondent. Ultimately the Crown put: "Ultimately, what is required is that there is a proper relationship between the sentences imposed on co-respondents. This requires a comparison of the sentence imposed on each of them, and an evaluation of their involvement in the commission of the offence and their antecedents."
The Crown drew the attention of the sentencing Judge to the sentences imposed upon Mr Jackson and Mr Bath by Berman SC DCJ.
It is convenient to shortly describe those sentences here. Mr Jackson pleaded guilty and, together with the provision of assistance, received a 40% discount off any sentence which would otherwise have been imposed. The sentence ultimately imposed was one of 19 years 6 months' imprisonment with a non‑parole period of 12 years and 6 months.
Mr Bath was given a 45% discount for his early plea of guilty and assistance. After taking that discount into consideration, he was sentenced to a total of 13 years' imprisonment with a non-parole period of 8 years.
Whilst the Crown provided the sentencing Judge with the Sentencing Remarks of Berman SC DCJ: R v Bath; R v Jackson [2019] NSWDC 1, each of those co‑conspirators was sentenced on an Agreed Statement of Facts. That Agreed Statement of Facts in respect of each of Mr Bath and Mr Jackson was not put before the sentencing Judge in these proceedings.

Sentencing Remarks

In considering the principle of parity his Honour, the sentencing Judge, correctly identified the relevant principle. His Honour undertook a comparison of the roles played by each of the respondent, Mr Jackson and Mr Bath. His Honour concluded that the involvement of Mr Jackson was "… far removed from and much greater than that of the [respondent]".
His Honour then turned to consider the role of Mr Bath. The Crown had submitted that the respondent played a much greater role than Mr Bath. His Honour rejected that submission. He found that Mr Bath was involved in the Australian part of the operation from the very beginning. He attended to and assisted Mr Jackson in his trips to Australia and in his various needs. His Honour described Mr Bath as being active in trying to rescue the enterprise when one of the proposed participants pulled out.
His Honour also found that Mr Bath was very much involved in the purchasing of tools and equipment to carry out the removal of the cocaine from the yacht. As well, it was Mr Bath who spent a significant period of time on the yacht working towards removing the cocaine so as to place it on another yacht to take to some other location. He concluded that Mr Bath had made significant contributions to the conspiracy and that they were made over a prolonged period of time, throughout which he had full knowledge of the drugs and the quantity, although he might not have known of the purity.
His Honour concluded: "For these reasons, I consider there is a marked and substantial difference in the degree of criminality and the degree of involvement of Mr Bath in this offending as compared to the involvement of the respondent."
His Honour drew careful attention in his Remarks to the need in the application of the principle of parity to avoid an unjustifiable disparity between the sentences imposed upon the respondents involved in the same criminal offence. In considering that matter, his Honour concluded that the feature of the case for the respondent was that there was a very marked distinction between the conduct of the respondent and the conduct of the co‑conspirators.
Having considered other matters, including general deterrence which his Honour noted was to be given chief weight, and a range of other cases provided by the Crown, his Honour imposed the sentence.

Crown Submissions on Appeal

The Crown submitted that the sentencing Judge had failed to appropriately assess the objective seriousness of the respondent's conduct. It submitted that to describe his participation as "minimal" did not account for the importance of his participation in the criminal enterprise. In particular, the Crown pointed to the fact that previous logistical arrangements for the removal of the cocaine from the yacht had been thrown into doubt because the person responsible for that task had become uncontactable. It submitted that without the respondent's participation, there was no effective means of getting either Mr Bath or Mr Jackson to the yacht and thereby enabling the removal of the drugs from their concealed locations.
The Crown noted that the respondent was not a reluctant participant but was, rather, a willing participant and appeared likely to obtain a very substantial financial reward. It submitted that the consequence of these matters was that the sentencing Judge had failed to properly assess the respondent's moral culpability in the undertaking of the enterprise.
Ultimately, the Crown submitted that by reference to the lack of a compelling subjective case, the maximum penalty which the offence carries, the amount of drugs involved and its value, combined with the substantial financial reward that the respondent was expecting to receive, the sentence imposed was manifestly inadequate.
In particular, the Crown submitted that, having regard to the sentence imposed on Mr Bath, there was a clear issue with the sentence imposed. This was on the basis of the fact that Mr Bath's subjective case was far more compelling than the respondent's, as there had been a finding of mental illness reducing his moral culpability and therefore making him an inappropriate vehicle for general deterrence, as well as the difference in the roles of the respondent and Mr Bath and the extent of their respective participation in the enterprise. The Crown submitted that, ultimately, these factors meant there was no justification in the sentencing Judge imposing a sentence that was less than half the notional starting point for Mr Bath.
The Crown submitted that there was not a proper relationship between the sentence imposed on the respondent and the sentences imposed on the co‑offenders. It concluded its submissions on this ground saying: "When the objective seriousness of the offending is combined with lack of parity with the sentences of the co-offenders, the sentence imposed in this case was manifestly inadequate."
Finally, the Crown submitted that the Court's residual discretion would not prevent intervention.

Respondent's Submissions

The respondent submitted that there was no latent or patent error discernible in the sentencing Judge's considerations of the objective seriousness of the offending on the part of the respondent. As well, the respondent called attention to the distinguishing features between the offending involving the respondent, Mr Jackson and Mr Bath, submitting that having regard to the differing roles and culpability, the different sentences were justified.
The respondent's submissions emphasised that his involvement in the conspiracy was undertaken at a very late stage and for a very short period of time. Consequently, the respondent submitted that the description given by the sentencing Judge to his involvement as "being minimal" was correct, and also that his finding of objective seriousness was correct.

Discernment

I am unable to conclude, as urged by the appellant, that the sentencing Judge's assessment of the objective seriousness of the respondent's involvement in the conspiracy, and his conduct, was erroneous.
Had the findings of fact made by the sentencing Judge been different, particularly if the sentencing Judge had been satisfied beyond reasonable doubt that the respondent was involved with knowledge as a co-conspirator when he flew to Tahiti to bring the yacht back to Sydney, then a finding of a much higher level of objective seriousness would be warranted.
However, the sentencing Judge's finding of fact meant that the respondent had an involvement with this particular conspiracy to import drugs in a way which was correctly described as minimal. Of course the role of the respondent was critical, as the Crown submitted. But, in a conspiracy to import drugs, generally speaking, each role is critical regardless of whether it was an involvement for a short or long period, or at a higher or lower level. To say that an involvement was critical in the success of the importation is to add nothing to the general proposition that an importation existed because of an interaction of a number of different players at a number of different times doing a variety of different jobs.
The finding that the objective seriousness was below the mid-range and at the top of the low-range was well open to the sentencing Judge and ought not be disturbed.
Leaving aside the question of parity, to which I will come, it cannot be doubted that the sentence imposed by this sentencing Judge was lenient. However, his Honour carefully attended to the correct principles of sentencing and took into account all that was appropriate to be taken into account, and although other Judges may have come to a different sentence, it has not been demonstrated by the Crown that the sentence is unreasonable or plainly unjust by reference to any of the matters properly to be taken into account on sentence.
It is necessary to examine then whether there was any error in the way in which the trial Judge dealt with parity principle of sentencing, having regard to the other two sentences which had been imposed by Berman SC DCJ.
It is appropriate to note that this case provides another example of why it is highly desirable that co-offenders in a conspiracy, or in any other joint offence, be sentenced by one Judge. This has been the subject of regular comment: see Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 320 (Gummow J), 338 (Kirby J); R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106 at [13], [24]; Ng v The Queen [2011] NSWCCA 227; (2011) 214 A Crim R 191 at [77]-[78].
There are significant difficulties in the Crown relying on appeal upon the principle of parity as a reason for this Court to increase a sentence. There are a number of decisions of this Court which point to that course of reasoning not being available. In R v Doff [2005] NSWCCA 119 the Court (Woods CJ at CL, Adams J and Bell J) said, at [58], in a single judgment: "It has been established, in any event, that it is inappropriate for a Crown appeal to turn on whether it has a legitimate sense of grievance by reason of a disparity with a sentence imposed on a co-offender: R v Moore and Weibe NSWCCA 11 August 1992 and R v Radloff (1996) 88 A Crim R 26 at 31-33."
In Regina v Gu [2006] NSWCCA 104, Howie J (with whom Grove and Simpson JJ agreed) found that a sentence imposed on the respondent was manifestly inadequate. In part, his reasoning for that conclusion was that a co‑offender who had been sentenced to a greater term of imprisonment had in fact participated in a lesser role in the joint offence. His Honour concluded that the respondent to the appeal should have received a longer sentence than his co-offender by reason of his role in the offences, the fact that they were committed whilst he was on bail, that they were committed for profit and because the respondent asked for a number of offences to be taken into account on a Form 1.
However, at [36] his Honour said: "This Court cannot increase a sentence at the behest of the Crown to achieve parity but the fact that the co-offender ended up serving a sentence of full‑time custody for what I believe to have been a lesser role in the offences indicated the inadequacy of the sentence imposed upon the respondent."
In R v Weismantel [2016] NSWCCA 204, R A Hulme J noted at [9] the effect of the decision of this Court in Doff, saying that parity was not something that could be relied upon by the Crown to argue for a sentence to be increased.
The correct way in which a Crown may be able to engage this Court's attention on appeal to a sentence which it submits is inadequate is to suggest that the sentence imposed on a co-offender provides an indication of the marked inadequacy of the sentence imposed on the respondent to the appeal. This was the way in which Howie J treated the matter in Gu.
However, if the Crown approaches an appeal in that way, it needs to persuade this Court that the facts upon which the respondent to the appeal and the other co-offenders were sentenced were similar, what the comparable roles in the offences were, and why the sentence imposed on the respondent is (by reference to those features) inadequate.
Here, the sentencing Judge in dealing with the respondent had different facts before him about the roles of both Mr Jackson and Mr Bath in the conspiracy. He was not given the agreed facts upon which they had been sentenced. He was entitled to and could only rely on the evidence before him in coming to an understanding of the sentences imposed on the other co-conspirators: R v Chandler; Chandler v R [2012] NSWCCA 135 at [6]. The sentencing Judge was not obliged to attempt to discern from the Sentencing Remarks of Berman SC DCJ, the entirety of the factual basis of their offending.
A disparity between sentencing can be justified by different findings between different sentencing Judges of the respective culpabilities of participants in the same crime. The sentencing Judge here was not bound by the findings of fact made by another Judge in different sentencing proceedings: Baquiran v R [2014] NSWCCA 221 at [27]; see also: Ith v R [2013] NSWCCA 280 at [61].
The sentencing Judge determined on the basis of the material before him that the roles of each of the respondent and other co-offenders, Mr Jackson and, in particular, Mr Bath, differed significantly in terms of their participation in the importation. He found that the role of the respondent was significantly less than the role of the others and that his criminality was significantly less.
I can detect no error in this approach. It was on that basis that his Honour sentenced the respondent to a lesser term of imprisonment.
The Crown has not persuaded me that the sentence was, although lenient, manifestly inadequate.

Orders

I propose the following orders: 1. Appeal dismissed.
WRIGHT J: I agree with Garling J.

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