Keen v The King - [2024] NSWCCA 157

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Keen v R [2024] NSWCCA 157
Hearing dates: 1 May 2024
Date of orders: 26 August 2024
Decision date: 26 August 2024
Before: Wilson J at [1];
Dhanji J at [12];
Yehia J at [13]
Decision:
(1)   Extend the time within which to appeal and grant leave to appeal.
(2)   The appeal against sentence is allowed.
(3) The sentence imposed by Scotting DCJ on 19 August 2022 in respect of the Code offence is quashed and in lieu thereof the applicant is sentenced as follows:
(a) For the State offence, a term of imprisonment of 5 years, with a non-parole period of 3 years and 9 months, to date from 21 February 2021. The non-parole period will expire on 20 November 2024, and the head sentence will expire on 20 February 2026.
(b) I decline to make a finding of special circumstances because to do so would be futile taking into consideration the sentence to be imposed for the Code offence.
(c) For the Code offence, I impose a term of imprisonment of 7 years, with a non-parole period of 3 years and 6 months, to date from 21 February 2022. The non-parole period will expire on 20 August 2025, and the head sentence will expire on 20 February 2029.
(4)   The effective overall sentence is 8 years, with a non-parole period of 4 years and 6 months to date from 21 February 2021. The total effective non-parole period will expire on 20 August 2025, and the head sentence will expire on 20 February 2029.
(5)   The applicant will be eligible to be released on parole on 20 August 2025.

Catchwords:
CRIME – Appeals – appeal against sentence – parity – aid and abet in an attempt to possess a commercial quantity of cocaine – assessment of comparative culpability of co-offenders – extent of disparity not justified – appeal allowed – resentence

Legislation Cited:
Criminal Code (Cth), ss 11.1(1), 11.2(1), 307.5(1)
Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases Cited:
Assie v R (Cth) [2020] NSWCCA 249
Cameron v R [2017] NSWCCA 229
Carl v R [2023] NSWCCA 190
Chamon v R [2020] NSWCCA 112
Edmonds v R [2022] NSWCCA 103
Giles-Adams v R; Preca v R [2023] NSWCCA 122
Hung v R [2023] NSWCCA 172
Island Maritime Limited v Filipowski (2006) 226 CLR 328; [2006] HCA 30
Lupica v R [2024] NSWCCA 111
Mammone v R [2013] NSWCCA 95
Martellotta v R [2021] NSWCCA 168
Ooi v R [2023] NSWCCA 97
R v Barkl; R v Dumbrell; R v Theobald [2022] NSWDC 760
R v Barkl; R v Dumbrell; R v Theobald [2023] NSWCCA 309
R v Butler [2024] NSWCCA 133
R v Butler [2024] NSWDC 79
R v Grncarski (District Court (NSW), Girdham SC DCJ, 15 December 2023, unrep)
R v Humphrys [1977] AC 1
R v Keen [2022] NSWDC 369
Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42
Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77
Tatana v R [2006] NSWCCA 398
The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55
Vujinovic v R [2024] NSWCCA 10
Weir v R [2011] NSWCCA 123

Category: Principal judgment
Parties: Lloyd Norman Keen (Applicant)
Rex (Respondent)
Representation:
Counsel:
J Stratton SC (Applicant)
L Fernandez (Respondent)
Solicitors:
Hardinlaw Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2020/00362138; 2021/00089070
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Citation:

[2022] NSWDC 369

Date of Decision:

19 August 2022

Before:

Scotting DCJ

File Number(s):

2020/00362138; 2021/00089070

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Lloyd Norman Keen, was sentenced in the District Court for two drug offences on 19 August 2022. One of the offences was an offence under State legislation, the other, an offence of aiding and abetting in an attempt to possess a commercial quantity of a border controlled drug, namely cocaine, contrary to ss 11.1(1) and 307.5(1) with s 11.2(1) of the Criminal Code (Cth) (“the Code offence”). For the Code offence, the applicant was sentenced to a term of imprisonment of 9 years with a non-parole period of 5 years to date from 21 February 2022. The non-parole period will expire on 20 February 2027 and the head sentence will expire on 20 February 2031.

The applicant had five co-offenders: Laurie Barkl, Raymond John Dumbrell, Kevin Victor Theobald, Kyle Lindsey Butler and Branislav Grncarski. For the Code offence, Mr Barkl was sentenced to 6 years imprisonment with a 3 year and 3 month non-parole period. Mr Dumbrell and Mr Theobald each received a sentence of 7 years imprisonment with a 3 year and 6 month non-parole period. Mr Butler received a sentence of 3 years imprisonment to be released after 6 months on entering into a recognisance release order to be of good behaviour for 5 years. Mr Grncarski received a sentence of 6 years imprisonment with a 3 year and 2 month non-parole period.

Each of the co-offender’s subjective cases were different to, and in some cases, more compelling than the applicant’s subjective case. An important point of distinction between the applicant and his co-offenders is that the applicant was subject to conditional liberty at the time he committed the offence. However, the fact that the applicant was treated more severely than his co-offenders, cannot be justified by the differences between the applicant and co-offenders’ age, mental and physical ailments, backgrounds and criminal histories.

It can be inferred, having regard to the sentences imposed on Messrs Barkl, Dumbrell and Theobald, and a consideration of the starting points of each of their sentences, that the applicant was sentenced on the basis that his criminality was the same, or similar to that of, Messrs Barkl, Dumbrell and Theobald. The Court held that it was not open to the sentencing judge to make that finding, for six reasons. Firstly, unlike all the co-offenders, the applicant was not a member of the drug syndicate (his role was to aid and abet the group in acquiring possession of cocaine). Secondly, the applicant brought no particular expertise to the enterprise. Thirdly, the applicant was at the warehouse in which the cocaine was stored for a lawful purpose, as he was employed there. Fourthly, the applicant was not present at two (of a total of four) attempts to access the cocaine. Fifthly, the applicant was not involved in communicating with the suppliers of the cocaine. Sixthly, the applicant was not involved in any meetings held away from the warehouse, that were attended by the co-offenders either before or after the attempts to access the cocaine.

The applicant sought leave to appeal against his sentence on one ground.

Ground of Appeal: the disparity between the sentence imposed on the applicant, and the sentences imposed on his co-offenders, is such as to leave the applicant with a legitimate sense of grievance.

The ground of appeal is limited to the sentence imposed for the Code offence.

The Court held per Yehia J (per Wilson and Dhanji JJ agreeing) extending time within which to appeal, granting leave to appeal against the sentence, allowing the appeal and re-sentencing the applicant:

As to the ground of appeal, per Yehia J at [127], [128], [143], [144], [145], [147] (Wilson J at [1] and Dhanji J at [12] agreeing):

It is plain that the applicant was treated more severely than his co-offenders. There is a marked disparity between the sentence imposed on the applicant and those imposed on his co-offenders, such as to give rise to a justifiable sense of grievance.
The appropriate test to be applied in determining a justifiable sense of grievance is whether the sentence imposed on a co-offender is reasonably justified in light of the differences between co-offenders, bearing in mind the qualitative and discretionary judgments required of the sentencing judge.

Hung v R [2023] NSWCCA 182; Vujinovic v R [2024] NSWCCA 10

The Court of Criminal Appeal will be cautious and not overly willing to intervene where the same Judge has sentenced an applicant and their co-offenders, however, recognition of the deference that an intermediate appellate court must pay to the position of the sentencing judge, does not relieve the Court from the responsibility of analysing the differences in criminality and subjective circumstances to determine whether the proportion between the sentences leaves the applicant with a justifiable sense of grievance.

Chamon v R [2020] NSWCCA 112, Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77; Tatana v R [2006] NSWCCA 398; Mammone v R [2013] NSWCCA 95; Cameron v R [2017] NSWCCA 229

Where an applicant is not party to an inadequacy appeal relating to his co-offender’s sentence, to adopt the findings the Court makes in respect of the applicant, in the inadequacy appeal, offends the principles of procedural fairness.

Carl v R [2023] NSWCCA 190; Weir v R [2011] NSWCCA 123; Edmonds v R [2022] NSWCCA 103; Assie v R (Cth) [2020] NSWCCA 249.

As to the ground of appeal, per Wilson J at [8], [9] (Dhanji J at [12] and Yehia J at [121] agreeing):

There is no estoppel or issue estoppel in the criminal law. The application of the doctrine in criminal matters has been considered on many occasions, with the weight of authority holding that it does not apply.

R v Humphrys [1977] AC 1; Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42 at 276 – 277; The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55; Island Maritime Limited v Filipowski (2006) 226 CLR 328; [2006] HCA 30.

However, a very high standard of conduct is expected of the Crown in its conduct of criminal matters and that standard is not necessarily met where the Crown conducts related cases in an inconsistent way.

JUDGMENT

WILSON J: This is an application by Lloyd Keen for an extension of time in which to file an application for leave to appeal, together with leave to pursue an appeal against the sentence imposed upon him on 19 August 2022 in the District Court at Sydney for an offence contrary to the Criminal Code (Cth) (“the Code”). At [182] Yehia J proposes that both applications be granted, the sentence imposed in the District Court be quashed, and a lesser sentence imposed by this Court. I agree with her Honour’s proposed orders, although I prefer to (briefly) state my own reasons for that concurrence.
Her Honour has set out the facts and circumstances of the matter, the arguments advanced by the parties before us, and the relevant legal principles. I do not intend to repeat that material.
The applicant’s sole complaint is one of disparity between the sentence imposed upon him when considered against those imposed upon the co-offenders, particularly when regard is had to the two subsequent Crown appeals to this Court with respect to the sentences imposed upon co-offenders, determined in R v Barkl; R v Dumbrell; R v Theobald [2023] NSWCCA 309 and R v Butler [2024] NSWCCA 133. The latter was handed down after the hearing of this application, with the parties given leave to file further submissions addressing it. In each instance the Crown appeal was dismissed.
The parity argument rests upon the different role played by the applicant in the illicit drug enterprise in which all were engaged. The applicant, with a lesser role than his co-offenders, received the harshest sentence for the Code offence. Whilst he took on the role of worker directed by others, his moral culpability was determined by the sentencing judge to be similar to that of co-offenders more highly positioned in the hierarchy. The applicant submits that the greater penalty imposed upon him is neither explained nor justified by his subjective case, despite it including an earlier conviction for serious drug offending, for which the applicant was subject to parole at the time.
As Yehia J has pointed out, the applicant’s role was a lesser one than that of his co-offenders. He was a subordinate subject to direction and, on that basis alone, the much higher penalty imposed upon him must seem disproportionate. Also called into question by his lesser status and more limited role within the group engaged in this activity is the conclusion of the sentencing judge that the applicant’s moral culpability was similar to that of the offenders Barkl, Dumbrell and Theobald. It is difficult to see how that finding could be open given the differing roles of the men. Neither do I regard the applicant’s subjective case to be sufficient to explain the much higher term imposed upon him than upon more involved and more culpable co-offenders. The applicant’s case was less compelling than that of his older co-offenders, and he was subject to conditional liberty, but even that does not explain in my opinion the starkly different penalty imposed upon the applicant when compared to the sentences imposed upon the co-offenders.
In my conclusion the applicant does have a justified grievance concerning the penalty imposed upon him and I too would uphold his complaint and proceed to resentence.
Although reaching that conclusion is not dependent upon determination of the question of “estoppel” or “issue estoppel” as it may apply to the differing arguments advanced by the Crown before differently constituted benches of this Court concerning the same subject, it is a question of some importance nevertheless. For that reason, I wish to make the following observations.
There is no estoppel or issue estoppel in the criminal law. Estoppel is a concept familiar in the civil courts but one not comfortably applied in criminal matters. The application of the doctrine in criminal matters has been considered on many occasions, with the weight of authority holding that it does not apply: R v Humphrys [1977] AC 1; Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42 at 276 – 277; The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55; Island Maritime Limited v Filipowski (2006) 226 CLR 328; [2006] HCA 30. However, that does not mean that the rationale behind the civil doctrine has no relevance to the criminal law. It can be found in the doctrines of autrefois acquit and autrefois convict, in the principle of incontrovertibility, and in the remedies available for abuse of process.
Here, the Crown contended before one Bench of this Court (in Barkl; Dumbrell; and Theobald) that the applicant was a low level functionary or labourer subordinate to his co-offenders, whilst in this matter it submitted that his role was more in line with that of his co-offenders. Despite the inconsistency of approach, the Crown cannot be bound by differing submissions advanced in other proceedings touching on the case against the applicant, and its different positions is not relevant to the determination of the matter before the Court as presently constituted. However, a very high standard of conduct is expected of the Crown in its conduct of criminal matters and, in my opinion, that standard is not necessarily met where the Crown conducts related cases in an inconsistent way.
Sometimes, a different approach in related matters is dictated by differences in evidence, where evidence admissible against one co-accused or co-offender is not admissible against another. No criticism could be made of the Crown in a situation of that nature. Criticism can be levied however, where different approaches to the same subject appear to be dictated by convenience or a desire to secure a particular result. The Crown should always be cognisant of its vital role in the administration of the criminal justice system, and the critical importance of it conducting all prosecutions with fairness and integrity. Where necessary, that will mean presenting a consistent stance on related matters, even if the Crown’s ultimate position is disadvantaged by that approach.
I agree with the sentence Yehia J suggests should be imposed upon the applicant.
DHANJI J: I agree with Yehia J for the reasons her Honour gives. I also agree with the observations of Wilson J with respect to the importance that Crown conduct prosecutions with fairness and integrity. I would only add that, in my view, having regard to the proper role of the Crown in our system of criminal justice, there can be no question of the Crown being disadvantaged by acting in such a manner.
YEHIA J: Lloyd Norman Keen (“the applicant”) seeks leave to appeal from the sentence imposed on him by Scotting DCJ (“the sentencing judge”) in the District Court at Sydney on 19 August 2022.
The appeal is made out of time. The applicant filed a Notice of Appeal on 12 December 2023. The period for filing the Notice of Appeal expired on 19 November 2022. An application for leave to extend the time within which to appeal is “Annexure B” to the Notice of Appeal. The respondent took no issue with the extension of time being granted.
The applicant was sentenced by the sentencing judge for the following offences:

Aid and abet in an attempt to possess a substance that had been illegally imported, namely a commercial quantity of a border controlled drug, cocaine, contrary to ss 11.1(1) and 307.5(1) with s 11.2(1) of the Criminal Code (Cth) (“the Code offence”).

Knowingly take part in the supply of a commercial quantity of pseudoephedrine contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“the State offence”).

The maximum penalty for the Code offence is life imprisonment and/or a fine of 7,500 Commonwealth penalty units. There is no standard non-parole period applicable. The maximum penalty for the State offence is 20 years imprisonment and/or a fine of 3,500 State penalty units. The standard non-parole period is 10 years imprisonment.
The applicant’s sentence was handed down on 19 August 2022 in the decision of R v Keen [2022] NSWDC 369 (“the remarks on sentence” or “ROS”).
His Honour sentenced the applicant to the following, for each offence:

For the State offence, the applicant was sentenced to a term of imprisonment of 5 years, with a non-parole period of 3 years and 9 months to date from 21 February 2021. The non-parole period will expire on 20 November 2024 and the head sentence will expire on 20 February 2026.

For the Code offence, the applicant was sentenced to a term of imprisonment of 9 years, with a non-parole period of 5 years to date from 21 February 2022.

The overall sentence imposed on the applicant is a head sentence of 10 years, with a non-parole period of 6 years. The overall sentence commenced on 21 February 2021. The overall non-parole period will expire on 20 February 2027. The overall head sentence will expire on 20 February 2031.
The applicant will be eligible to be released on parole on 20 February 2027.

Co-offender’s sentences

The applicant’s co-offenders are Laurie Barkl, Raymond John Dumbrell, Kevin Victor Theobald, Kyle Lindsey Butler and Branislav Grncarski (“the co-offenders”). Messrs Barkl, Dumbrell and Theobald pleaded guilty in separate proceedings to an offence of attempting to possess a commercial quantity of a border controlled substance, namely, cocaine, contrary to
ss 307.5(1) and 11.1(1) of the Criminal Code (Cth). Mr Grncarski was charged with the same offence, pleaded not guilty, and was found guilty following a jury trial.
Mr Butler pleaded guilty (on the day his trial was set to commence) to an offence of aid, abet, counsel or procure commission of an offence, namely the attempted possession of a commercial quantity of a border controlled drug, contrary to ss 11.1(1), 307.5(1) and 11.2(1) of the Criminal Code (Cth). The offence that each of the co-offenders was charged with arose from the same criminal enterprise.
Mr Theobald was also convicted and sentenced for the same State offence for which the applicant was convicted and sentenced, namely, that he knowingly took part in the supply of a commercial quantity of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW).
Messrs Barkl, Dumbrell and Theobald were sentenced on 23 November 2022 by Scotting DCJ: R v Barkl; R v Dumbrell; R v Theobald [2022] NSWDC 760 (“Barkl; Dumbrell; Theobald”). Mr Butler was sentenced on 21 March 2024 by Scotting DCJ: R v Butler [2024] NSWDC 79 (“Butler”). Mr Grncarski was sentenced on 15 December 2023 by Girdham SC DCJ: R v Grncarski (District Court (NSW), Girdham SC DCJ, 15 December 2023, unrep) (“Grncarski”).

The following table sets out the respective sentences imposed on the applicant and his co-offenders for the Code offence, including the starting point of each sentence:

Offender	Plea and discount	Starting point Federal offence	Head sentence Federal offence	Non-parole period
Mr Keen (the applicant)	PG 25%	12y	9y	5y
Mr Barkl	PG 25%	8y 4m	6y	3y 3m
Mr Dumbrell	PG 25%	9y 4m	7y	3y 6m
Mr Theobald	PG 25%	9y 4m	7y	3y 6m
Mr Butler	PG 10%	3y 4m	3y	6m
Mr Grncarski	PNG	6y	6y	3y 2m

A Crown appeal against the inadequacy of the sentence imposed on Mr Butler was dismissed: R v Butler [2024] NSWCCA 133. That judgment was handed down after the hearing of this application with the parties given leave to file further submissions. Supplementary submissions on behalf of the applicant were filed on 7 August 2024. The respondent filed supplementary submissions on 14 August 2024.
Although error was established in that the sentencing judge erroneously treated a period on bail as quasi custody, the Crown appeal was dismissed in exercise of the residual discretion.

Ground of appeal

The sole ground of appeal relates to the application of the principle of parity and is particularised in the following terms:

Ground of Appeal: the disparity between the sentence imposed on the applicant, and the sentences imposed on his co-offenders, is such as to leave the applicant with a legitimate sense of grievance.

The Notice of Appeal indicates that the appeal is in relation to the sentences imposed for both offences. However, at the hearing of the appeal, Counsel for the applicant confirmed that there is no complaint made in respect of the sentence imposed for the State offence, nor is any issue taken with the commencement date of the sentence imposed for the Code offence.

Facts

For completeness, the following is a summary of the offending relating to both the Code and State offences. The summary of facts for the Code offence is based on the “Agreed Facts” that were before the sentencing judge and prepared by the Commonwealth Director of Public Prosecutions. The summary of facts with respect to the State offence is based on a separate set of “Agreed Facts” prepared by the Director of Public Prosecutions (NSW). Both sets of “Agreed Facts” were before the sentencing judge.

The Code Offence

Between late February and March 2019, a Sydney-based criminal group was identified as attempting to take possession of a commercial quantity of cocaine imported from Mexico, concealed in aluminium ingots. The group consisted of the co-offenders Laurie Barkl, Kyle Lindsey Butler, Raymond John Dumbrell, Branislav Grncarski and Kevin Victor Theobald. The group operated from the premises of Aviation Welding Services Pty Ltd (“AWS” or “the AWS warehouse”) at Bankstown Aerodrome. The applicant was identified as a person aiding and abetting the group in its attempt to get possession of the cocaine.
The investigation into the importation scheme, known as Operation Storkey, involved extensive physical and electronic surveillance.
From about June 2018, persons in Australia and Mexico undertook activities in preparation for the importation of cocaine concealed in aluminium ingots. This included the incorporation of Alumetal Trade Pty Ltd (“Alumetal”), an Australian company with a similar name to a European supplier of aluminium ingots, Alumetal SA. A bank account was opened for Alumetal and dry run consignments were arranged with freight forwarding companies in Australia.
On 5 February 2019, a shipping container loaded with 18 pallets of aluminium ingots arrived in Port Botany from Mexico. Each pallet held 105 ingots. On 6 February 2019 the ingots were inspected by officers from the Australian Border Force (“ABF”). The officers found that 188 of the ingots contained a white substance, later identified as cocaine. The total amount of the cocaine was 188.16kgs with a purity of between 78-81%, amounting to 149.3kgs pure. The estimated wholesale value of the cocaine was between about $35 million and $48 million.
On 7 February 2019, the 188 ingots containing cocaine were seized (and taken out of the ingots) by the Australian Federal Police. The remaining 1,702 ingots were repacked onto the pallets for delivery in a similar formation to the original consignment. Listening devices were installed in the repackaged consignment. On 19 February 2019 the ingots were delivered to the specified logistics provider, where they remained for eight days. Directions were given on 25 February 2019 to deliver them to Mr Butler at the AWS warehouse.
Some time prior to this, in 2011, the applicant was involved in the manufacture of a large commercial quantity of a prohibited drug. In 2015, he was sentenced for that offending to a term of imprisonment of 6 years and 3 months with a non-parole period of 4 years. Towards the end of his sentence, the applicant was sent on Works Release to do welding work at AWS. This is where he encountered Mr Butler, his employer, with whom he got along well. It was in this way that the applicant became involved in the offending.
At about 1:30pm on 27 February 2019, the ingots were delivered to AWS. The applicant signed for the delivery and then used a forklift to unload the pallets and place them inside the warehouse. The applicant then had a discussion with Mr Dumbrell and Mr Theobald before leaving the warehouse in a vehicle. A short time later he returned and entered the warehouse. He then had a further conversation with Mr Theobald, before locking the warehouse and leaving for the day.
At about 3:56pm on 27 February 2019, Mr Theobald met the applicant at the roller shutter door of AWS. They had a conversation for a few minutes before the applicant closed the roller shutter door. At this time, Mr Dumbrell was seen in a carpark nearby.
At about 4:02pm, Messrs Barkl, Dumbrell and Theobald travelled to Desoutter Street at Bankstown Aerodrome in a vehicle, stopping about two blocks away from AWS. Mr Theobald got into another vehicle. The vehicles then travelled in convoy towards Marion Street, Georges Hall and out of site. The applicant was not present with Messrs Barkl, Dumbrell and Theobald on that occasion.

“First attempt” to access the cocaine consignment

At about 5:19pm on 27 February 2019, the applicant was working at the AWS warehouse. Mr Dumbrell and Mr Grncarski attended the warehouse. The three men were then heard on the listening devices moving the ingots around in the warehouse. The men were heard looking for particular ingots. The recorded conversation indicated that the men did not find what they were looking for.
At about 6:13pm, two pallets of ingots were loaded onto a white Toyota utility, registered to Mr Grncarski (“the Toyota utility”). That vehicle was driven away by him, with Mr Dumbrell as a passenger. Mr Grncarski drove to Villawood. There, the men met with Messrs Theobald and Barkl. Mr Barkl exchanged text messages with an unknown person discussing what they would do with the “aluminium”. Later that day, Messrs Barkl, Dumbrell and Theobald met at a restaurant in Villawood. The applicant was not present for these activities and they were not referred to in the remarks on sentence (other than a reference to the two pallets of ingots being loaded on to Mr Grncarski’s vehicle).

“Second attempt” to access the cocaine consignment

At about 6:48am on 28 February 2019, the applicant telephoned Mr Butler discussing the delivery of the ingots and the need to make the paperwork look “right”. Other than this limited contact, the applicant was not involved in the second attempt to access the cocaine.
That afternoon, Messrs Barkl, Dumbrell and Theobald met at Bankstown Aerodrome and travelled together in the Toyota utility, to Georges Hall. All three men then went to meet Mr Butler at AWS at about 4:51pm. Listening devices placed in the repackaged consignment recorded the men attempting to cut open the ingots. The men then left the warehouse at about 5:00pm. The applicant was not present and not involved in the second attempt to access the cocaine. The remarks on sentence do not refer to what took place during the second attempt.

“Third attempt” to access the cocaine consignment

At about 7:45am on 2 March 2019, Messrs Barkl, Dumbrell, Theobald and Grncarski entered the AWS warehouse. The ingots were moved around the warehouse. The listening devices captured discussions between the men that something was missing, the inference being that the men expected that some of the ingots would look different to indicate that they contained cocaine. When the men exited the warehouse, Mr Theobald was holding a tool that looked like a saw. The applicant was not present at or involved in the third attempt to access the cocaine. This occasion was not referred to in the remarks on sentence.

“Fourth attempt” to access the cocaine consignment

At about 10:04am on 4 March 2019, Messrs Barkl, Dumbrell and Theobald met at a public car park on Birdwood Road, Georges Hall, before driving in convoy towards Marion Street, Yagoona. The applicant was not present at this meeting.
Later that afternoon, at about 4:26pm, Messrs Barkl, Dumbrell, Theobald, Butler and the applicant attended AWS arriving at about 4:26pm. Between about 4:26pm and 4:39pm the men were heard moving ingots from the consignment around the premises. The men had a conversation in which they were recorded trying to locate ingots of interest. At about 4:41pm Messrs Barkl, Dumbrell and Theobald left the premises together and were later seen seated on an outside table at a takeaway restaurant in Georges Hall where they had a discussion for about 10 minutes. The applicant was not present during this discussion.

Final inspection of the consignment

On 13 March 2019, police observed the applicant inside the AWS warehouse at about 4:00pm. He used a forklift to move a number of pallets to a different part of the warehouse. At 4:12pm the applicant and Messrs Theobald and Butler were seen inside the warehouse, inspecting, counting, taking photographs and moving individual ingots by hand. Their conversation was recorded and they were heard trying to move ingots around the warehouse. At 4:54pm the applicant exited the AWS warehouse.
On 3 April 2019, Mr Theobald met an associate, believed to be Gregory Pigott. They discussed meeting the son of the cocaine supply cartel; the method of concealing cocaine in aluminium ingots; future importations and the amount of money which Mr Theobald made from importing, which was described as being a “couple mil”. The applicant was not present during this meeting. The remarks on sentence do not refer to these communications.
On 5 April 2019, the applicant and Mr Butler exchanged text messages discussing how to sell the aluminium ingots and determine their value. Subsequently, a number of communications and meetings involving Messrs Theobald, Barkl and Butler took place about selling the aluminium ingots. These meetings and communications did not involve the applicant. They were not referred to by the sentencing judge in the remarks on sentence.
On 15 May 2019, the applicant assisted in loading the ingots on to a truck so they could be removed from the AWS warehouse. Mr Butler appeared to take a photograph of the ingots.
The applicant was arrested on 21 December 2020 in relation to the State offence and was subsequently charged with the Code offence. He has been in custody since 21 December 2020. The remarks on sentence state the applicant was arrested on 20 December 2020, however, this is an error, as was noted in the applicant’s written submissions.
The applicant’s co-offenders were all arrested on 30 March 2021.

The State Offence

In December 2020, the ABF identified a consignment of Toyota side steps with irregularities. The consignment consisted of 10 boxes of side steps. Within each side step was concealed a large bag containing an average of 2.6kg of pseudoephedrine. The bags had been glued to the bottom of the inside of the step.
Police replaced the drug with pool salt and it was delivered as intended on 18 December 2020. On 19 December 2020, Mr Theobald collected the consignment in a utility driven by him. He took it to the AWS warehouse, where it was unloaded by him and the applicant.
On 20 December 2020, the applicant attended the AWS warehouse. He took one of the side steps and placed it on a bench in the workshop. He was recorded on surveillance footage cutting the step which caused white powder to spill out onto the bench that he had covered with a black tarp. He took a piece of the side step out of view of the camera. He then packed up the side step, the power tool that he had been using and the packaging that the side step had been shipped in. He left the warehouse and drove to his residence in Picnic Point.
At about 9:06am on 21 December 2020, the applicant entered the AWS warehouse. During the day, listening devices recorded the applicant, Mr Theobald and one of his associates, Mr Xavier, using electric grinders and blunt objects in the consignment room. Later the room was cleaned and vacuumed. Mr Theobald, Mr Xavier and the applicant were aware that the consignment contained not less than a commercial quantity of pseudoephedrine.
At about 11:50am, the applicant was driving a vehicle in Birch Street, Bankstown when he was stopped by Police. Tied down in the back of the vehicle he was driving was a package from the consignment.
The applicant was arrested and cautioned. He told Police that the box contained a side step that he was “giving to a mate”. Police located a Makita angle grinder with white powder on it. Police also observed white powder on the applicant’s shoes. He was conveyed to Bankstown Police Station and declined to be interviewed.
A search of AWS located four side steps that had been cut and the contents accessed.

Remarks on Sentence (“ROS”)

Findings

With respect to the objective seriousness of the Code offence, the sentencing judge concluded that the applicant was actively engaged in the operation and intended that his conduct would assist his co-offenders. The sentencing judge made the following findings as to the applicant’s role ([52]-[53] ROS):

“[52] The offender intended that his conduct would assist others to possess the cocaine concealed in the aluminium ingots. The offender received the consignment and signed for it when it was delivered. He assisted to unload the consignment using a forklift, bringing the pallets onto the warehouse, before meeting with Dumbrell and Theobald. The offender assisted others on three occasions over a two week period to try to locate the ingots which they believed contained the cocaine. The offender was a party to discussions about the delivery and making the paperwork “right”. Later, the offender was involved with discussions about the sale of the ingots and assisted by loading them onto a truck with a forklift so they could be disposed of.
[53] The offender’s acceptance of the consignment assisted others to distance themselves from it. The offender was not a principal of the syndicate and acted as directed. He was a trusted participant in the activities to find the cocaine. The offender had some knowledge of what was to occur and accordingly his conduct involved some planning and pre-meditation.”

The sentencing judge observed that the quantity of the drugs was about 74 times that of a commercial quantity and that the applicant “must have been aware that he was aiding and abetting in an attempt to possess a substantial quantity of drugs with a significant value” ([54] ROS).
In determining the objective seriousness of the offence, the sentencing judge also took into account the applicant’s expectation that he would be paid for his involvement in the offending; that the course of conduct constituted a series of criminal acts; and the maximum penalty of the offence ([55]-[57] ROS).
The sentencing judge took into account, as an aggravating factor, that the applicant was on conditional liberty at the time of the offences ([63] ROS). As referred to at [36] of this judgment the applicant was convicted of an offence of manufacture of a commercial quantity of a prohibited drug in 2015 and he was sentenced to a term of imprisonment for 6 years and 3 months and a non-parole period of 4 years. The applicant was released from custody on “reintegration home detention”, on 8 July 2018, and transitioned to parole on 7 January 2019.

Subjective considerations

The applicant’s subjective case is set out by the sentencing judge in full ([38]-[51] ROS).
At the time of sentencing the applicant was 50 years of age. He grew up in Mount Druitt, living with his parents and older sister. His father was a Vietnam war veteran and worked as a prison officer. He suffered emotionally from his war service and was often emotionally distant. The applicant’s mother was supportive and encouraged him to play sport. He attended a Catholic school and was an average student, leaving school after completing Year 10.
The applicant completed a four year horticulture apprenticeship, working on the grounds of a private school. He then obtained work as a landscaper. When he was 19 years he suffered a serious thigh injury in a motor vehicle accident, prompting him to find lighter duties as a bartender. He always maintained an interest in practical work, and from time to time has performed labouring, spray painting and welding work. Between 2005 and 2011 the applicant operated a business with a friend, repairing boats and jet skis.
His work as a bartender introduced him to recreational drug use, including cannabis and amphetamines. He became embroiled in a party lifestyle for about the next eight years, with little regard for his future.
The applicant has been in a stable, long-term and supportive relationship with his partner for about 10 years. He is very close to her family and they are supportive of him.
As noted above, in 2011, the applicant was involved in the manufacture of a large commercial quantity of a prohibited drug and was sentenced for that offending in 2015.
Towards the end of that sentence, he was sent on Works Release to do welding work at AWS. He got on well with his boss, Mr Butler, in this placement and was allocated some space in the warehouse to restore a motor vehicle. He found himself more introverted after he was released from custody and spent long periods at work, where he became involved in the offences for which he was sentenced.
At the time of his arrest, he and his partner had saved money and planned to relocate to a regional area where they could afford to buy a house.
The sentencing judge took into account that the applicant had found his most recent period of incarceration difficult due to his classification and conditions imposed upon him associated with the COVID-19 pandemic. The applicant estimated during that period he had spent 116 days confined to his cell ([48] ROS).
At the time of sentence, the applicant was the “Team Leader” of the “Painting Team” at the Metropolitan Remand & Reception Centre and had undertaken some welding and metal fabrication work. The applicant had also undertaken a “Positive Lifestyle Programme” and was also due to commence a “Substance Abuse Course”. He reported having a good rapport with prison staff and other inmates ([49] ROS).
The sentencing judge found that the applicant had “accepted responsibility for his actions and embarked on a genuine process of rehabilitation” ([62] ROS). The sentencing judge also found the applicant had demonstrated remorse ([65] ROS).
The applicant was afforded a 25% discount with respect to the Code offence and State offence to reflect the utilitarian value of the pleas. The sentencing judge was satisfied that the applicant’s plea for the Code offence was of high utilitarian value, indicated an acceptance of responsibility for his actions and was motivated by a willingness to facilitate the course of justice ([5] ROS).

With respect to other mitigating factors, the sentencing judge considered the applicant to have “prospects of rehabilitation” and “a stable relationship and good social supports” ([64] ROS). He was planning to buy a house with his partner. The sentencing judge was satisfied the applicant was at an age where, upon release, “the pro-social features of his life will outweigh the anti-social features” ([64] ROS). The sentencing judge also considered that the applicant had completed courses in custody and engaged in “meaningful work” ([64] ROS).

Disposition of the co-offenders’ sentences

To determine whether the applicant has a legitimate sense of grievance it is necessary to consider the findings with respect to each of the co-offenders’ roles and criminality, their subjective circumstances and the penalty imposed upon each of them.

R v Barkl; R v Dumbrell; R v Theobald [2022] NSWDC 760

Three of the co-offenders, Messrs Barkl, Dumbrell and Theobald, were sentenced together by Scotting DCJ on 23 November 2022: Barkl; Dumbrell; Theobald.
Messrs Barkl, Dumbrell and Theobald pleaded guilty to, and were sentenced for, the offence of attempt to possess a commercial quantity of a border controlled substance, cocaine, contrary to ss 307.5(1) and 11.1(1) of the Criminal Code (Cth). The table at [25] sets out the sentence each co-offender received for that offence as compared to that imposed on the applicant.
The facts upon which these co-offenders were sentenced are set out in this judgment at [30]-[59]. Although an “Amended Agreed Statement of Facts” was before the Court when Messrs Dumbrell, Barkl and Theobald were sentenced, the facts upon which the applicant and the co-offenders were sentenced are substantially the same.
Each of the three men were present for, and involved in, the second, third and fourth attempts to access the cocaine. Only Mr Dumbrell was present at the first attempt to access the cocaine (however, all three men, met at a restaurant directly after the first attempt).

Findings

Scotting DCJ summarised his findings with respect to each of Messrs Barkl, Dumbrell and Theobald’s roles in the offending in the following manner ([134], [136] and [150]-[152] Barkl; Dumbrell; Theobald):

“[134] I am satisfied that the unknown consignment was imported into Australia by the same criminal syndicate. However, there was no evidence that the offenders were involved with the unknown consignment.
…
[136] In the relevant period, the offenders had a number of meetings between themselves and with others, including people who have not been identified. Apart from the conversations that were recorded by the listening devices, I do not know what was discussed at those meetings. The offenders were well known to each other and had been friends for many years. I am satisfied that they were each actively involved in trying to get access to the cocaine in the consignment and that topic was discussed regularly in the relevant period and that steps were taken on occasions to make those meetings clandestine.
…
[150] The offenders’ participation in the offences was clumsy and belied the sophistication of the importation operation to the point at which they became involved. They involved themselves in a way in which they were likely to get caught and they continued to look for the drugs a number of times when it was apparent that the drugs were missing, probably as a result of the intervention of the authorities.
[151] There was no evidence as to what was intended to happen to the drugs if they had been located in the consignment. In particular, there was no evidence that the offenders were going to be involved in the distribution of the drugs.
[152] I cannot be satisfied beyond reasonable doubt that the offenders had any significant position in the Australian arm of the syndicate. I am satisfied beyond reasonable doubt that they jointly participated in the exercise of going to AWS to sort through the consignment and locate the suspect ingots and remove the drugs from them. I accept that it is likely that they were to be paid a fee for their participation. I am reluctant to accept the untested evidence of the offenders as to the quantum of that fee. However, even on Mr Barkl’s account the fee which they thought they would get was not insubstantial and could have been as high as $60,000 each, if the sale proceeds of sale of the aluminium ingots were to be split 3 ways between the offenders.”

Subjective Case for Messrs Barkl, Dumbrell and Theobald

Mr Barkl was 61 years old at the time of sentencing. He grew up in a housing commission and his parents drank alcohol heavily. Mr Barkl’s father had gambling issues and his mother left his family when he was 15 years old. Mr Barkl left school after completing Year 10. In adulthood, he developed a gambling addiction. He had one child from his first marriage, and four from his second marriage. His first marriage broke down as a result of the financial instability his gambling addiction caused. Mr Barkl has been diagnosed with a gambling disorder. Mr Barkl has prior convictions for possession of heroin and a firearm. He was sentenced to 12 months imprisonment to be served by way of periodic detention for that offending.
Mr Barkl expressed remorse to his family, the Court and a psychologist, Dr Nielssen. He was assessed as having good prospects of rehabilitation owing to his age, family support, work ethic and attitude to his offending. He was found to pose a low risk of recidivism but Dr Nielssen recommended he participate in counselling to address his gambling disorder. Mr Barkl entered a plea of guilty and was afforded a 25% discount accordingly.
At the time of sentencing, Mr Dumbrell was 74 years of age. He had four children and five grandchildren. Mr Dumbrell had not consumed alcohol for forty years after attending Alcoholics Anonymous. He had a bilateral knee replacement in 2020 and was still recovering from that operation. He required analgesia and oxycodone for post-operative pain. Mr Dumbrell has also had prostate cancer, gout, type II diabetes and sleep apnoea. He reported some memory issues and the expert relied on at sentence, Dr Furst, confirmed a diagnosis of dementia. Dr Furst also stated Mr Dumbrell’s condition is likely to make custody more onerous through increased stress and anxiety and a shortened life expectancy as a result of his diabetes and dementia.
Mr Dumbrell expressed shame and remorse to his family and the Court. Scotting DCJ considered Mr Dumbrell’s age, physical ailments and mental health in considering his prospects of rehabilitation. Scotting DCJ was satisfied that by the time Mr Dumbrell is released from custody his ability and desire to participate in criminal activity will be “significantly diminished” and as such he was considered to have good prospects of rehabilitation ([173] ROS). Mr Dumbrell entered a plea of guilty and was afforded a 25% discount accordingly.
Mr Theobald was 63 years old at the time of sentence. Mr Theobald lived at his maternal grandmother’s house for much of his youth. He attended school until Year 10. He began an apprenticeship after leaving school and worked as a labourer for most of his 20s. Mr Theobald was diagnosed with Peyronie’s disease in 2009 and began using cocaine and alcohol to excess around that time. Mr Theobald’s first wife died by suicide. He has had several assault convictions and was also convicted in 2011 for the manufacture of a large commercial quantity of a prohibited drug (an offence for which he served about three and a half years in prison). Dr Ram, who produced material that was relied on at sentence, opined that Mr Theobald meets the criteria for major depressive disorder, trauma and stress related disorder, alcohol use disorder and cocaine use disorder.
Mr Theobald expressed remorse for the offending to those close to him, the Court, and Dr Ram. Scotting DCJ considered that in 2020 Mr Theobald was able to rehabilitate himself from drugs and alcohol abuse, and prior to incarceration he spent increasing amounts of time caring for his family. Mr Theobald entered a plea of guilty and was afforded a 25% discount accordingly.
In determining the sentences for each Messrs Barkl, Dumbrell and Theobald, Scotting DCJ addressed parity between the proposed sentences and the sentence imposed on the applicant in the following manner ([178]-[181] Barkl; Dumbrell; Theobald):

“[178] Mr Keen was sentenced for an offence of aiding and abetting the attempt to possess the cocaine. He was sentenced to a term of imprisonment of 9 years with a non-parole period of 5 years.
[179] Mr Keen was also a co-offender with Mr Theobald in relation to the State offence of supply prohibited drug. For that offence, he was sentenced to a term of imprisonment of 5 years with a non-parole period of 3 years and 9 months.
[180] Mr Keen’s sentences were partially accumulated to arrive at an overall effective term of imprisonment of 10 years with a non-parole period of 6 years. Mr Keen was on parole for a serious drug offence at the time of his involvement in the two offences and this was an aggravating factor. At age 50, he was considerably younger than the offenders and in better physical and mental health.
[181] Taking into account all of the evidence, the offenders’ culpability for the offences was similar to Mr Keen’s. There are good reasons based on the relative subjective cases to impose different sentences on the offenders, including:
(a) Mr Barkl had a less significant criminal history and the adverse impacts on his family as a result of his continued incarceration are profound;
(b) Mr Dumbrell’s age, and the state of his physical and mental health; and
(c) Mr Theobald’s physical and mental health conditions and the fact that he had managed to stop his illicit drug use in 2020.”

R v Butler [2024] NSWDC 79

The facts upon which Mr Butler was sentenced are set out in this judgment at [30]-[59]. Mr Butler was present at the second, third and fourth attempts to access the cocaine.
The facts upon which Mr Butler was sentenced also included additional details relating to Mr Butler’s conduct during the first attempt, and subsequent conduct following all the attempts to access the cocaine. During the first attempt Mr Butler received a number of text messages from an unknown number regarding the aluminium ingots and responded with a message which included the words “Prob just a mix up with delivery” ([28]-[29] Butler). Between 4 April 2019 and 7 May 2019, Mr Butler had several conversations with an unknown male over the phone and in SMS communications, regarding the sale of the aluminium ingots, possible purchasers, sale price and composition of the ingots ([41] Butler).

Findings

With respect to the nature and circumstances of the offence, Scotting DCJ found:

Mr Butler facilitated the offence by making the AWS premises available to the co-offenders to store, examine and cut the ingots. He initially rented the space to Mr Theobald to store the ingots on a legitimate basis. Mr Butler’s role commenced on 28 February 2019. It was not alleged that he was involved in any relevant events prior to that date. It was agreed that Mr Butler was reckless to the fact that the substance attempted to be possessed was a border controlled drug ([72] Butler).

Mr Butler was not present at the AWS warehouse on the first attempt to access the consignment on 27 February 2019 ([73] Butler).

On the second attempt to access the consignment on 28 February 2019, Mr Butler cut open an ingot to see if it was suitable to be forged into “mag wheels” ([74] Butler).

Mr Butler was present during the third attempt to access the consignment on 2 March 2019. The transcript of the listening device set out in the facts demonstrates that Mr Butler had very little involvement in the activities of the co-offenders on that day. However, it was clear that they were trying to locate particular ingots and that behaviour was objectively suspicious ([75] Butler).

Mr Butler was present during the fourth attempt to access the consignment on 4 March 2019, but the facts do not set out what he did, if anything, to assist the co-offenders ([76] Butler).

Mr Butler was present for the final inspection of the ingots on 13 March 2019. It was clear from the transcript of the listening device that Mr Theobald was looking for $40 million worth of drugs and Mr Butler was actively involved in helping to locate the particular ingots ([77] Butler).

It was difficult to discern from the facts, the time at which Mr Butler became aware that the co-offenders were trying to find drugs. Mr Butler did not participate in the off-site meetings of the co-offenders. He also had legitimate reasons to be at the AWS warehouse ([78] Butler).

It is clear from the way in which the charge was pleaded, that the steps taken by Mr Butler after 13 March 2019 were not a part of the offence. Accordingly those steps, which mainly relate to the disposal of the aluminium ingots, did not aggravate the offence ([79] Butler).

The role of Mr Butler was an essential one as it allowed the co-offenders to avoid detection, but he was less involved than any of the other co-offenders ([80] Butler).

The amount of the drugs at 149.3kg pure was substantial. The amount was more than 74 times the commercial quantity. Whilst the method of packaging suggested that Mr Butler was aware that the quantity of the drug was significant, there is no evidence that he knew the precise quantity. He was present on 13 March 2019 when Mr Theobald stated that the value of the drugs was very high ([81] Butler).

With respect to the role that Mr Butler played in the offending, Scotting DCJ concluded ([72], [80] Butler):

“[72] The offender facilitated the offence by making the AWS premises available to the co-offenders to store, examine and cut the ingots. He initially rented the space to Mr Theobald to store the ingots on a legitimate basis. The offender’s role commenced on 28 February 2019. It was not alleged that he was involved in any relevant events prior to that date. It was agreed that the offender was reckless to the fact that the substance attempted to be possessed was a border controlled drug.
…
[80] The role of the offender was an essential one as it allowed the co-offenders to avoid detection, but he was less involved than any of the other co-offenders.”

Subjective Circumstances

At the time of sentencing, Mr Butler was 40 years old and in good physical health. His character referees spoke highly of his work ethic and generosity. In the period leading up to the offence, he was under “substantial stress” owing to prolonged and unresolved grief over the death of his sister, an acrimonious separation from his ex-wife and associated attempts to deny him contact with his daughter ([89] Butler). In 2018 he began to drink alcohol and consume illicit substances to cope with these stressors. Professor Woods, who provided a forensic report that was relied upon at sentence, considered Mr Butler’s drug use such that it was classified as a “significant mental condition” ([89] Butler).
Scotting DCJ was satisfied there was a causal link between Mr Butler’s offending conduct and mental condition such that his moral culpability for the offending was reduced ([89] Butler). His Honour was satisfied his offending was “completely out of character” and that he became involved “by reason of the fact that the criminal activity of others took place in his business premises” ([90] Butler).
Scotting DCJ made favourable findings including that Mr Butler was remorseful; was a person of good character; had only one relevant conviction on his criminal record; accepted responsibility for his actions; and facilitated the course of justice. His Honour accepted he was genuinely contrite.
Scotting DCJ considered the impact of Mr Butler’s sentence on his family members and was satisfied that if Mr Butler was to be sent to prison that would have a “deleterious” impact on his daughter and niece ([92] Butler).
His Honour also considered parity when imposing the sentence upon Mr Butler. His Honour set out the co-offender’s sentences, other than Mr Grncarski, who had not yet been sentenced ([93]-[99] Butler). After setting out the different sentences imposed on the co-offenders, the sentencing judge appears to have distinguished Mr Butler’s criminality from that of Messrs Barkl, Dumbrell and Theobald on the basis that he was reckless to the fact that that the ingots contained a border controlled drug (as opposed to having knowledge that the ingots contained a border controlled drug) ([13] Butler).
At the time of Mr Butler’s sentence, all of the other co-offenders (including the applicant) had been sentenced, and a Crown appeal had been lodged against the sentence of Messrs Barkl, Dumbrell and Theobald. The applicant had lodged the present appeal but it was yet to be heard.

R v Grncarski (District Court (NSW), Girdham SC DCJ, 15 December 2023, unrep)

Mr Grncarski was sentenced by Girdham SC DCJ on 15 December 2023. The facts upon which Mr Grncarski was sentenced are set out in this judgment at [30]-[59].
Girdham SC DCJ sentenced Mr Grncarski on the basis that he was present during the first and third attempts to access the cocaine. He assisted the applicant in unpacking the pallets. He also assisted the applicant and Mr Dumbrell to move the pallets and the ingots within them. In the recorded conversation between the men, Mr Grncarski was recorded saying “it’s not like before”, “it was completely different”, and “the other one had epoxy on top”. Two pallets were then loaded onto a ute registered to Mr Grncarski who drove the vehicle, with Mr Dumbrell, to a factory belonging to Mr Grncarski. Of those ingots, six of which had been cut in half, were located by police during a search warrant executed at Mr Grncarski’s factory.
Girdham SC DCJ made the following finding with respect to Mr Grncarski’s role in, and knowledge of, the offending:

“I am satisfied his role was to identify those loaded ingots, which were, as he appreciated as at 2 March, “missing”. On that basis, I am satisfied that the offender attempted to possess the border controlled drug, and he did so with knowledge or expectation that the amount of that drug was substantial; but his attempt to possess was neither lengthy or attended with any great sophistication.” (Emphasis added.)

Girdham SC DCJ accepted that Mr Grncarski was not present at the premises on 13 March 2019, when Messrs Theobald, Keen and Butler were recorded discussing the monetary value of the consignment. Overall, her Honour was satisfied that Mr Grncarski participated in “what was overall a clumsy attempt to possess the border-controlled drug”.
Her Honour found that Mr Grncarski’s culpability fell below that of the applicant. In making that finding, her Honour said:

“The offender’s motivation was clearly financial, for otherwise his involvement is simply inexplicable. Given the risk of detection of his involvement, and, indeed, which ultimately eventuated, I am satisfied that the financial reward was not insubstantial.
Consistent with these findings, and whatever the roles undertaken by the others, what this offender did - his involvement - could only be much less than Mr Barkl, Dumbrell, and Theobald. Otherwise, I am not satisfied beyond reasonable doubt that what he did do places him in a position that could sustain the Crown’s submission that the offender’s crime demonstrates criminality greater than Mr Keen.” (Emphasis added.)

Her Honour also remarked that Mr Grncarski’s “limited social skills, coupled with English being his second language, contributed to his alleged misunderstanding or misinterpretation of the requests made of him which were indeed of a criminal nature.”

Subjective Circumstances

Mr Grncarski was born in Yugoslavia. His parents separated when he was young and he remained in the care of his father. Mr Grncarski spent much of his childhood looking after himself as his father was often intoxicated. He denied that his childhood was traumatic. Girdham SC DCJ remarked however, that the psychological report authored by Ms Cullen indicated that “the social deprivation the offender was subjected to… undoubtedly predisposed him to [an] introverted interpersonal start”.

Mr Grncarski immigrated to Australia in 1984. He was married for 32 to 33 years but separated from his wife in 2009. He continues to send money to his former wife’s family overseas. After immigrating and working for several months in Australia, he established his own business within the boilermaker-welder industry. He reported that he consumes alcohol in moderation. He has relatively mild or transient depressive symptomology. Mr Grncarski reported that in around 2019, a tumour in his brain was detected which was removed, and as a result of that, he now has a propensity for seizures. He also suffers from longstanding physical pain owing to his career in manual labour.
He did not plead guilty to the offence and was therefore not entitled to any discount for an early plea. Girdham SC DCJ remarked that this does not necessarily deprive him of a finding that he has prospects of rehabilitation and concluded that Mr Grncarski’s prospects of rehabilitation were in fact, “very good.”
Mr Grncarski’s score on the LSI-R Assessment Tool places him at a low risk of recidivism. The assessment also identified that he has various protective factors associated with a low chance of re-offending. He has a limited criminal history, and has not re-offended since the commission of the offence.
Girdham SC DCJ also took into account the unchallenged content of a report which dealt with the aspects of the probable effect of the sentence on Mr Grncarski’s family and dependents. Her Honour considered that a custodial sentence would not only have the effect of lost employment and income but would also create “significant hardships on his dependent family.”

Relevance of the decision in R v Barkl; R v Dumbrell; R v Theobald [2023] NSWCCA 309

Following the imposition of the sentence on Messrs Barkl, Dumbrell and Theobald on 23 November 2022, the Crown appealed on the basis the sentences imposed were manifestly inadequate. That appeal was dismissed by the Court of Criminal Appeal in R v Barkl; R v Dumbrell; R v Theobald [2023] NSWCCA 309 (“the inadequacy appeal judgment”) on 1 December 2023.
Both parties on the appeal currently before the Court relied, in different ways, on the proceedings relating to the inadequacy appeal. It is therefore necessary to address the parties’ submissions and determine what, if any, relevance the decision of the Court in the inadequacy appeal bears upon the applicant’s appeal.
The applicant relied upon the characterisation by the Crown in the inadequacy appeal, of the seriousness of the applicant’s conduct as being “at the lowest level”.
In the judgment, the Court made the following observations about the Crown’s submissions ([74] the inadequacy appeal judgment):

“The Crown submitted that having regard to Mr Keen’s role, the fact that he received a lengthier sentence indicated the marked inadequacy of the subject sentences in circumstances where the respondents had larger roles and their offending was more objectively serious.The Crown submitted that the sentencing judge erred in finding that each of the three respondents’ culpability for the offences was “similar to Mr Keen’s”.Out of all of the co-offenders, the seriousness of Mr Keen’s conduct was, in the Crown’s submission, at the lowest level, consistent with his role as a low-level functionary or labourer. It followed, in the Crown’s submission, that each of the three respondents should have been sentenced by reference to a starting point well in excess of that imposed on Mr Keen. …” (Emphasis added.)

In distinguishing the applicant’s role from that of his three co-offenders, the Crown, on the inadequacy appeal, also advanced the following further characterisation of Mr Keen’s involvement ([74] the inadequacy appeal judgment):

“…(1) Unlike Mr Keen, the three respondents knew what to look for, where to look for it and the value of the drugs. Mr Keen merely responded to the instructions that were given to him by the others.
(2) In contrast to the three respondents, Mr Keen was present at the warehouse for legitimate purposes, being employed by Mr Butler, and it was only after or during the course of the first attempt that Mr Keen believed there was an illicit drug concealed in the ingots and intended that his conduct would aid and abet.
(3) Mr Keen was not present at all of the attempts to access the cocaine.
(4) Mr Keen was sentenced on the basis that he was involved in order to distance others from the offending, particularly Mr Butler, which points to him being very low in the hierarchy of the syndicate (although the Crown clarified that it was not inviting the Court to assess the offending from the perspective of facts agreed in sentencing Mr Keen).”

The Crown, on the inadequacy appeal, accepted that the difference between the applicant and Mr Barkl’s culpability was “less stark” than the difference between his culpability and that of Messrs Dumbrell and Theobald, but nevertheless submitted that Mr Barkl was in a position of greater authority than the applicant ([76] the inadequacy appeal judgment).
In relation to Mr Dumbrell and Mr Theobald, the Crown submitted that they were in a position of greater authority, and had more knowledge, than the applicant. They gave instructions to the applicant, noting that Mr Theobald in particular had some very precise knowledge about the quantity of the drug and where to look for it. Mr Dumbrell and Mr Theobald were also involved in meetings and discussions at other locations and there was nothing to suggest that the applicant attended such discussions ([77] the inadequacy appeal judgment).
The respondent to this appeal argued that the reliance by the applicant on the submissions made by the Crown at the inadequacy appeal, was misplaced. The respondent submitted that what is important in this application for leave to appeal “is the actual determination of the Crown’s submissions, not the facts and detail of what the Crown’s unsuccessful submissions were”.
In that regard, the respondent relied upon the Court’s conclusion that there was “not an inexplicable discrepancy between Mr Keen’s sentence and the lesser sentences for the respondents” ([83] the inadequacy appeal judgment). The Court held that it was open to the sentencing judge to describe the culpability of the applicant and that of the respondents as “similar”, which description was not gainsaid by the applicant’s employment at AWS, the fact that he had a reason to be at the premises, or the directions given to him by Mr Dumbrell and Mr Theobald ([80]-[83] the inadequacy appeal judgment).
During oral submissions on the hearing of this appeal, the respondent submitted that the position taken by the Crown in the inadequacy appeal did not provide “an estoppel or any kind of bar to the Crown putting a different submission on this appeal…” That might be true. There is no “estoppel” and within the bounds of the conduct required of counsel prosecuting on behalf of the Crown, nothing at law to prevent the Crown from taking a different position on this appeal, in relation to the characterisation of the applicant’s role in the offending.
However, the substantially different positions taken by the Crown in the respective proceedings, causes me some considerable disquiet. I also agree with the remarks of Wilson J at [9] that a very high standard of conduct is expected of the Crown in its conduct of criminal cases and that standard is not necessarily met where the Crown conducts related cases in an inconsistent way. The position taken by the Crown during the inadequacy appeal was that the applicant’s conduct was “at the lowest level, consistent with his role as a low-level functionary or labourer”, contending that his role was less than that of Messrs Barkl, Dumbrell and Theobald.
On the present application, the Crown has not only submitted that it was open to the sentencing judge to find that the role of the three co-offenders was “similar” to that of the applicants but contended that the role played by the applicant was “extensive”.
Starkly different positions have been adopted by the Crown, before two differently constituted benches, about the same offender and the same offending conduct. Although I have expressed some disquiet about this approach, ultimately, I am not of the view that the characterisation of the objective seriousness of the applicant’s role by the Crown (in the inadequacy appeal) is relevant to the question that must be determined on this application.
Furthermore, the decision of the Court on the inadequacy appeal, is not binding on this Court in determining the ground of appeal. So much was conceded by the Crown. The extent to which the reasoning of the Court has persuasive effect is limited for two reasons.
First, although the Court considered the similarities and differences between the applicant’s culpability and that of his co-offenders, and their respective subjective cases, that comparison was undertaken in the context of a Crown appeal against the asserted inadequacy of sentence. What the Court was focused on was the question as to whether the Crown had established that the sentence imposed on the co-offenders was “unreasonable or plainly unjust” ([61], [110] the inadequacy appeal judgment).
The significant difficulties in the Crown relying on the principle of parity to increase the sentence, was referred to by the Court ([73] the inadequacy appeal judgment):

“In R v Lembke [2020] NSWCCA 293 (“Lembke”)at [56], Garling J (McCallum JA and Wright J agreeing) referred to the “significant difficulties in the Crown relying on appeal upon the principle of parity as a reason for this Court to increase a sentence”. His Honour referred in this context to an earlier decision of this Court in R v Doff [2005] NSWCCA 119 (“Doff”), in which the Court (Woods CJ at CL, Adams and Bell JJ) stated that it had been established “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” (emphasis in original). Recently, in R v FF [2023] NSWCCA 186, Beech-Jones CJ at CL (Fagan J and RA Hulme AJ agreeing), referred to Doff and Lembke, and the intervening decision of R v Gu [2006] NSWCCA 104, from which his Honour distilled that “on a Crown appeal and at the point where the Crown is contending that the sentence is manifestly inadequate, the sentence imposed on a co-offender is treated no differently to how a comparable sentence is to be considered by this Court”: at [65].”

The context in which the Court was considering the objective and subjective factors relevant to each offenders’ case, related to the question of whether the sentences imposed fell outside the range of the sentencing discretion, as opposed to the question of whether a justifiable sense of grievance had been established.
Secondly, the applicant was not a party to the inadequacy appeal. He was not afforded an opportunity to make submissions and his interests were not represented. In those circumstances, to adopt the findings of the Court that it was open to the sentencing judge to conclude that the role of Messrs Barkl, Dumbrell and Theobald was “similar to” the role of the applicant, and that there was “not an inexplicable discrepancy” between the applicant’s sentence and the lesser sentence for the co-offenders, offends the principles of procedural fairness.
The principles relevant to the denial of procedural fairness were recently restated in the decision of Carl v R [2023] NSWCCA 190 at [72] where I said (Leeming JA and Weinstein J agreeing):

“[72] The principles relevant to a denial of procedural fairness were outlined in Weir v Regina [2011] NSWCCA 123, per Garling J (Macfarlan JA and Johnson J agreeing), at [64]-[67]:
‘[64] It is clear that an offender is entitled to procedural fairness during criminal proceedings, including proceedings on sentence: Pantorno v The Queen (1989) 166 CLR 466 at 472-3 per Mason CJ and Brennan J, 482-483 per Deane, Toohey and Gaudron JJ; Parker v DPP (1992) 28 NSWLR 282; Baroudi v Regina [2007] NSWCCA 48; Button v Regina [2010] NSWCCA 264.
[65] The particular form which procedural fairness dictates may vary. That is because the content of the requirement of fairness may be affected by what is said and done during the proceedings: Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 at [34] per Gleeson CJ. Here the relevant process was the sentencing of Mr Weir by King DCJ in circumstances where, the applicant contends that, King DCJ indicated the sentence that he proposed to impose.
[66] The key to determining whether there has been a breach of the requirement of procedural fairness is to ascertain the consequence of any departure from the dictates of proper procedure because what is ultimately in issue is whether unfairness has resulted from the process: See Lam at [34]. The concern of the law is to avoid practical, and not merely theoretical, injustice: Lam at [37].
[67] One common basis for demonstrating that practical injustice and unfairness has occurred is where an individual has lost the opportunity to make submissions to the decision maker in opposition to a proposed course and in support of a course which he urges: Lam at [36]; Button at [18].’”

See also Weir v R [2011] NSWCCA 123 by Garling J (Macfarlan JA and Johnson J agreeing) at [64]-[67]; Edmonds v R [2022] NSWCCA 103 at [26] per Dhanji J (Macfarlan JA and Rothman J agreeing); Assie v R (Cth) [2020] NSWCCA 249 at [37] per Fullerton J (Payne JA and Walton J agreeing).

The conclusions reached by the Court in the inadequacy appeal judgment are not binding on this Court in determining the applicant’s ground of appeal. I proceed to determine the ground of appeal on the material available and the submissions made on this appeal.

Submissions on the Appeal

Applicant submissions

The applicant’s submissions turn on two key arguments. First, that the applicant’s culpability for the offence was less than that of Messrs Barkl, Dumbrell, Theobald and Grncarski. Secondly, even if the roles were similar, the differences in their subjective cases do not justify such a “stark” disparity in the sentence imposed on the applicant.
In support of the contention that the applicant’s role was less than four of his co-offenders, the applicant relies on his absence from two of the attempts to access the cocaine (the second and third attempt) and his absence at meetings between some of the co-offenders before and after attempts to access the cocaine.
His role in the offending was described as largely one of providing manual labour, in loading, unloading, and moving the pallets and attempting to locate drugs. He was not involved in meetings away from the warehouse, nor did he communicate with the suppliers of the illicit drugs. The applicant submitted it was not open to the sentencing judge to find that the criminality of the applicant was similar to Messrs Barkl, Dumbrell and Theobald.
In respect of Mr Butler, it was submitted that the objective gravity of the role played by him was very similar to that of the applicant.
In respect of Mr Grncarski, the applicant submitted that he exhibited greater criminality than the applicant because he brought some expertise to the enterprise. Mr Grncarski had been recruited to identify the ingots containing cocaine, apparently based on his prior knowledge and skills as a metal worker.
The applicant also submitted that although there were differences between the subjective cases of each of the co-offenders and the applicant, the points of difference do not justify the stark disparity in the sentences imposed.

Respondent submissions

The respondent submitted that the applicant’s reliance on establishing error by the sentencing judge in sentencing the co-offenders is misconceived.
I accept that a parity ground does not afford an applicant an opportunity to impugn the sentence by alleging error in the sentencing judgment for a co-offender: Martellotta v R [2021] NSWCCA 168 at [58] per Basten JA. Instead, a parity ground is to be resolved by reference to a comparison between the differences and similarities in the cases of co-offenders. An important aspect of the comparative exercise is an assessment of the role played by the applicant in comparison with the role played by the co-offenders to determine whether the disparity in sentence is justified.
The respondent addressed the asserted differences in the role and culpability between the applicant and his co-offenders. It was submitted that the applicant intended his conduct would aid and abet the commission of an offence; the applicant believed there was an illicit substance inside the ingots; the applicant expected to receive a “not insignificant” sum of money for his role in the enterprise; and the applicant was a trusted employee of Mr Butler.
With respect to the applicant’s moral culpability as compared to Mr Butler, the respondent relied on the sentencing judge’s findings that although it is difficult to discern the point in time at which Mr Butler became aware the co-offenders (including the applicant) were trying to find drugs, he also had “legitimate reasons” to be in the AWS warehouse.
The respondent relied on the sentencing judge’s finding that Mr Butler was “less involved than any of the other co-offenders” (including the applicant). Additionally, the respondent submitted that a key difference between the applicant and Mr Butler is that Mr Butler’s conduct was “completely out of character”, impacted by his impaired judgment and mental conditions, and he was “taken advantage of by the co-offenders.”
With respect to Mr Grncarski the respondent relied upon the findings of Girdham SC DCJ, that his involvement in the offending “could only be much less than Barkl, Dumbrell, and Theobald” and he did not demonstrate a level of criminality greater than the applicant’s. Although Mr Grncarski attempted to possess the cocaine with knowledge or expectation that the amount of the drug was substantial, his attempt to do so was not “lengthy” or of “great sophistication”. Additionally, the sentencing judge found he was not in a position of elevated power within any hierarchy.

Consideration of the Ground of Appeal

The principles of parity are well-established. They are helpfully summarised in the decision of this Court, Vujinovic v R [2024] NSWCCA 10 by Weinstein J (Davies and Button JJ agreeing) at [48]-[52]:

“[48] The principles with respect to parity are well-established and need not be repeated at length. There must not be a marked disparity between the sentences imposed on co-offenders such as to give rise to a justifiable sense of grievance or the appearance that justice has not been done: Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 609 – 610 per Gibbs CJ.
[49] In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28], French CJ, Crennan and Kiefel JJ said:
‘Consistency in the punishment of offences against the criminal law is ‘a reflection of the notion of equal justice’ and ‘is a fundamental element in any rational and fair system of criminal justice’. It finds expression in the ‘parity principle’ which requires that like offenders should be treated in a like manner. As with the norm of ‘equal justice’, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.’
(Citations removed)

[50] In DS v R [2014] NSWCCA 267 at [39], the Court (Bathurst CJ, Fullerton and Davies JJ) described the approach to be adopted in addressing a complaint of parity:-
‘The sense of grievance complained of when the sentence for one offender is compared relative to that of a co-offender or co-offenders, is to be assessed objectively governed by considerations of substance rather than form. It is only triggered where differences in the sentences imposed on co-offenders is disproportionate to relevant distinctions in the role each played in the commission of the offence (even if the roles might be differently described or involve different conduct) and in an offender's subjective circumstances. There are necessarily degrees of both similarity and difference in the criminal conduct of co-offenders and in their subjective circumstances. In some cases this requires that different sentences be imposed. However, it is only where the discrepancy between sentences is not reasonably explained by the degree of difference between co-offenders and their offending that the disparity is such that appellate intervention is required. For there to be a justifiable sense of grievance, the disparity must be ‘gross’, ‘marked’ or ‘glaring’ (see the discussion by Howie J in Crystal Lee England v R [2009] NSWCCA 274 at [61]-[67]).’

[51] In Jaafar v R [2022] NSWCCA 254, Yehia J (with whom Harrison and Fagan JJ agreed) said at [42] that:-
‘Merely pointing to some difference between the two subjective cases of co-offenders who commit the same crime would not of itself establish a justifiable sense of grievance. Ultimately, the question is whether the sentencing discretion miscarried, not whether this Court would have imposed a different sentence to that imposed the first instance: Moran v R [2022] NSWCCA 217 at [29].’

[52] I accept, as was submitted by the Crown, that the question for an appellate Court is whether the degree of disparity is unreasonable or irrational in some way so as to indicate that the sentencing discretion miscarried. In Lloyd v R [2017] NSWCCA 303, R A Hulme J (with whom Payne JA and Garling J agreed) said at [97]:
‘In short, it is not a question for this Court to second-guess the primary judge and to consider what we would have done: see Lowndes v The Queen (1999) 195 CLR 665 at 671-672 [15]; [1999] HCA 29. The question may be bluntly stated: was the differentiation made by the judge one that was open to her in the exercise of her discretion?’”

See also Lupica v R [2024] NSWCCA 111 at [66] per McNaughton J (Harrison CJ at CL and Cavanagh J agreeing); Ooi v R [2023] NSWCCA 97 at [21]-[27]; Giles-Adams v R; Preca v R [2023] NSWCCA 122 at [123] per Yehia J (Wright and Chen JJ agreeing).

In Hung v R [2023] NSWCCA 172 at [32] Leeming JA (Rothman and McNaughton JJ agreeing) stated the appropriate test to be applied in determining a justifiable sense of grievance and expressly rejected the necessity of finding a “gross, marked or glaring” discrepancy:

“The question is whether the sentence imposed on a co-offender is reasonably justified in light of those differences, bearing in mind the qualitative and discretionary judgments required of the sentencing judge: C v R [2022] NSWCCA 285 at [33]; Z v R [2022] NSWCCA 286 at [31]-[32]; Labban v R [2022] NSWCCA 275 at [24]. It is not necessary to find a "gross, marked or glaring" discrepancy: Miles v The Queen [2017] NSWCCA 266 at [9], [38], [67]. Instead, it is better to use the expressions of the High Court, namely, "marked disparity" or "marked and unjustified disparity": Fenech v R [2018] NSWCCA 160 at [30]; Weiss v R [2020] NSWCCA 188 at [89].”

This Court has endorsed the proposition that it will be cautious and not overly willing to intervene where the same Judge has sentenced all (or some) co-offenders: Chamon v R [2020] NSWCCA 112 at [35]-[37] per RA Hulme J (Hamill and Wilson JJ agreeing); Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77 at [173] per Hoeben CJ at CL (Johnson and Schmidt JJ agreeing); Tatana v R [2006] NSWCCA 398 at [28] per Howie J (Sully and Latham JJ agreeing). In Mammone v R [2013] NSWCCA 95 (“Mammone”) at [45]-[46] Latham J (Button J and Grove AJ agreeing) said:

“[45] Disparity giving rise to appellate intervention must be "marked". The imposition of different sentences does not, without more, raise "equal justice" considerations. Moreover, a sense of grievance is only "justifiable" or legitimate if the application of objective criteria compels the court to that conclusion. The age, background, criminal history and role in the offence of various offenders may justify some disparity: Green v The Queen; Quinn v The Queen [2011] HCA 49 at [31].
[46] In particular, as the majority in Green & Quinn make clear,
‘A court of criminal appeal deciding an appeal against the severity of asentence on the ground of unjustified disparitywill have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders.’”

As Hamill J observed in Cameron v R [2017] NSWCCA 229 (“Cameron”) at [86], the passage from Mammone is unremarkable. Recognition of the deference that an intermediate appellate court must pay to the position of the sentencing judge, does not, however, relieve the Court from the responsibility of analysing the differences in criminality and subjective circumstances to determine whether the proportion between the sentences leaves the applicant with a justifiable sense of grievance: Cameron at [83] per Hamill J.
The table at [25] sets out the sentences imposed on the applicant and co-offenders. As can be readily observed (and using the starting point of each sentence as a reference), the sentence imposed on the applicant was nearly four times more than that imposed on Mr Butler, double the sentence imposed on Mr Grncarski, one and a half times more than that imposed on Mr Barkl, and one and a third times more than the sentences imposed on Messrs Theobald and Dumbrell.
As is plain, the applicant was treated more severely than the co-offenders. The question then arises as to whether the disparity is justified having regard to the differences between each case.
Each of the co-offender’s subjective cases were different to, and in some cases, more compelling than the applicant’s subjective case. Each of co-offenders’ subjective case has been summarised above at [83]-[84] (Mr Barkl), [85]-[86] (Mr Dumbrell), [87]-[88] (Mr Theobald), [94]-[99] (Mr Butler), and [106]-[110] (Mr Grncarski). For present purposes, it is only necessary to set out some of the differences between the applicant’s subjective case and those of his co-offenders.
Mr Barkl was 61 years old at the time of sentence. He played competitive rugby league until the age of 26. It was while playing rugby league when he was 16 years old that he met Mr Theobald. Both Mr Theobald and Mr Dumbrell were lifelong friends. Mr Barkl had a propensity to gamble heavily and reported being stressed at the time of the offending due to his gambling losses. Dr Nielssen diagnosed Mr Barkl with a gambling disorder. He also reported the co-offender having an episode of depression some 15 years prior to the offending.
It was acknowledged by the sentencing judge that the circumstances of Mr Barkl’s arrest caused great stress for his family. Mr Barkl had contributed to community work through charitable causes and sporting organisations and through his work in bushfire affected communities.
We have not been provided with the co-offenders’ criminal records. The details relevant to the co-offenders’ criminal history is obtained from the remarks on sentence in each case. Mr Barkl was said to have “some criminal history” ([169] Barkl; Dumbrell; Theobald). He was sentenced to 12 months imprisonment to be served by way of periodic detention in the 1990s.
Mr Dumbrell was 74 years old at the time of sentence and suffered from a variety of physical and mental ailments. In 2020 he underwent a bilateral knee replacement, from which he was still recovering in April 2021. He has also previously been diagnosed with prostate cancer and suffered gout, type II diabetes and sleep apnoea. Of significance was the confirmed diagnosis of dementia and Dr Furst’s opinion that Mr Dumbrell’s offending stemmed from a cognitive impairment and poor health which led to impaired judgment, although he was aware of the nature of his actions and understood that they were wrong.
Mr Dumbrell has “a criminal history” and has “served a lengthy period of imprisonment for an importation offence” ([170] Barkl; Dumbrell; Theobald).
Mr Theobald was 63 years old at the time of sentence. He experienced a level of deprivation in his childhood. Mr Theobald also suffered from a number of medical conditions, including Peyronie’s Disease and the resection of a bowel carcinoma. He also suffered from arthritis. Mr Theobald had experienced stress and depression from the age of 50 and had been diagnosed with a major depressive disorder and anxiety. He has a history of drug and alcohol issues although he has been abstinent since 2020.
Mr Theobald has a similar criminal record to that of the applicant. He has “a significant criminal history” which includes a “lengthy prison term for a serious drug offence” ([171] Barkl; Dumbrell; Theobald).
Mr Butler was 40 years old at the time of sentence and younger than the applicant. He was diagnosed as suffering from prolonged grief disorder, adjustment disorder and mixed anxiety and depressed mood, stimulant use disorder and cannabis use disorder. Unlike the applicant, Mr Butler was sentenced as a person of good character, with one irrelevant conviction on his criminal record.
Mr Grncarski was 69 years old at the time of sentence and had been diagnosed with various health issues including diabetes, cholesterol and blood pressure, for which he was being medicated. In 2019, Mr Grncarski underwent surgery to remove a tumour on his brain. Following the procedure he reported suffering from seizures and was subsequently medicated to prevent them from occurring in future. Pathology tests disclosed that the tumour removed from his brain had in fact been a “Grade 2” cancer. He was assessed as a low risk of reoffending and had no prior criminal record.
The applicant was 50 years old at the time of sentence, and therefore younger than four of his co-offenders and did not suffer from ongoing physical ailments or mental health issues. Unlike Mr Butler and Mr Grncarski, the applicant was not a person of prior good character. Unlike Mr Barkl, the applicant did have a prior conviction for a serious drug related offence. In that regard, the applicant has a similar criminal history to that of Mr Theobald, who also has a conviction for a prior serious drug related offence. Mr Dumbrell had also served a lengthy period of imprisonment for an importation offence, although the details are unclear from the remarks on sentence.
An important point of distinction between the applicant and his co-offenders is that the applicant was subject to conditional liberty at the time he committed the offence. He was not only on parole, but on parole for a serious drug related offence. This was an aggravating factor that was rightly taken into account by the sentencing judge in determining the proportionate sentence.
In applying parity, the sentencing judge was required to take into account relevant differences in the case of each offender and make due allowances for them. However, the marked disparity in sentences is not justified by the differences between the co-offenders such as age, background and criminal history. In addition, there is a live issue as to whether the applicant’s criminality can be said to be the same, or similar to, Messrs Barkl, Dumbrell and Theobald.
Of the applicant and the co-offenders, the applicant was sentenced first in time. As a result, the sentencing judge was not required to go through a comparative exercise in determining parity issues. However, it can be inferred, having regard to the sentences imposed on Messrs Barkl, Dumbrell and Theobald, and a consideration of the starting points of each sentence, that the sentencing judge did proceed, in sentencing the applicant, on the basis that his criminality was the same, or similar to that of, Messrs Barkl, Dumbrell and Theobald.
That finding was not open to the sentencing judge for the following reasons. Firstly, unlike Messrs Barkl, Butler, Dumbrell, Grncarski and Theobald, the applicant was not identified as a member of the drug syndicate. His role was to aid and abet the group in its attempt to get possession of the cocaine.
Secondly, the applicant brought no particular expertise to the enterprise. Although he held a trusted position, his role was essentially limited to manual labour including loading, unloading and moving pallets.
Thirdly, the applicant was at AWS warehouse for a lawful purpose, namely he was employed there on Works Release and had developed a friendship with his employer, Mr Butler.
Fourthly, the applicant was not present at, or involved in, the second and third attempts to access the cocaine.
Fifthly, the applicant was not involved in communicating with the suppliers of the cocaine.
Sixthly, the applicant was not involved in any meetings held away from the warehouse that were attended by the co-offenders either before or after the attempts to access the cocaine.
These points of distinction demonstrate, in my view, that it was not open to the sentencing judge to proceed to sentence the applicant on the basis that his role was comparable to that of Messrs Barkl, Dumbrell and Theobald. Instead, the applicant’s criminality sits somewhere below that of Messrs Barkl, Dumbrell and Theobald.
A comparison of the applicant’s criminality with that of Messrs Butler and Grncarski, reveals that he played a greater role in the criminal enterprise. Mr Butler was sentenced on the basis that he was reckless as to the fact that the substance attempted to be possessed was a border controlled drug. Furthermore, although Mr Butler facilitated the offence by making the premises available to the co-offenders, he initially rented the space to Mr Theobald to store the ingots on a legitimate basis.
Mr Grncarski was sentenced on the basis that his involvement in attempting to possess the cocaine was “neither lengthy or attended with any great sophistication”. Whatever may have been the expectation, Mr Grncarski did not in fact bring any particular expertise to bear on the attempts to access the cocaine.
The applicant’s subjective case is not as compelling as that of his co-offenders. Furthermore, as I have observed, the applicant was subject to conditional liberty at the time he committed the offences. These factors do not favour the applicant. However, having conducted the comparative exercise, I am satisfied that a marked disparity between the sentence imposed upon the applicant and that imposed on his co-offenders has been demonstrated such as to give rise to a justifiable sense of grievance. I would uphold the ground of appeal. The applicant, having succeeded on an issue of proportionality between his sentence and that imposed upon his co-offenders, is entitled to have his sentence redetermined.

Resentence

In determining the ground of appeal, I have referred to the applicant’s role and an assessment of his criminality as somewhere below that of Messrs Barkl, Dumbrell and Theobald, but above that of Messrs Butler and Grncarski. It does not follow, however, that the applicant should be sentenced to a term of imprisonment that is less than that imposed upon Messrs Barkl, Dumbrell and Theobald. That is because there are differences in subjective cases that favour the three co-offenders and having regard to the aggravating factor that the applicant was subject to conditional liberty at the time he committed the offences.
The applicant’s subjective case is summarised above. The affidavit of Mr Paul Hardin affirmed 22 March 2024 was read on the usual basis. Although the applicant has had two minor breaches of discipline in custody, he has otherwise demonstrated positive behaviours in custody.
The Corrective Services Case Note Reports revealed that the applicant is progressing well in custody. He is described as “extremely easy to manage and is very trust-worthy”; “a trusted part of the team and often teaches other inmates and encourages them to work hard and enhance their skills”; and, “polite and willing to work in any job offered”.
The Governor of the Geoffrey Pearce Correctional Centre, Adam Schreiber, reported: “I am noting this case note for inmate Keen to highlight the interactions in the great work he has done within the Geoffrey Pearce Correctional Centre. Inmate Keen has been a model inmate for the period of time that I have managed the centre and I am of the understanding that his positive behaviour is historical. All case notes and discussions with staff support this.”
Walter Pospelyj, the Chaplain at the Geoffrey Pearce Correctional Centre, has known the applicant for a period of approximately one year and seven months during which time the applicant has demonstrated a pursuit of “positive and constructive endeavours”. The applicant has undertaken educational and vocational courses as well as having completed the “Animal Care” course whilst working at the RSPCA Centre at the John Morony Correctional Complex. The applicant has been employed as a sweeper, a position that involves a high level of trust. Chaplain Pospelyj describes the applicant as “very personable, genuine and caring… articulate and intelligent… always respectful, well mannered and polite”.
Like the sentencing judge, I am satisfied that the applicant is truly contrite and that upon his release, the prosocial features of his life will outweigh the antisocial features. Furthermore, given his progress in custody, I am satisfied that the applicant has good prospects of rehabilitation.
General deterrence plays an important part in sentencing the applicant, having regard to the nature and circumstances of the offence. Specific deterrence is also a relevant consideration, although the weight to be afforded to it is tempered, having regard to the applicant’s acceptance of responsibility for his actions and his positive prospects of rehabilitation.
Having determined that the applicant’s criminality is less than that of Messrs Barkl, Dumbrell and Theobald, but that his subjective case is less compelling and having regard to the fact that he was on parole for a serious drug related offence at the relevant time, I am of the view that the starting point for the sentence should be the same as the starting point for the sentence imposed upon Mr Theobald, namely 9 years and 4 months.
As no issue was taken with the sentence for the State offence, that sentence is confirmed.
Accordingly, I propose the following orders:

Extend the time within which to appeal and grant leave to appeal.

The appeal against sentence is allowed.

The sentence imposed by Scotting DCJ on 19 August 2022 in respect of the Code offence is quashed and in lieu thereof the applicant is sentenced as follows:

For the State offence, a term of imprisonment of 5 years, with a non-parole period of 3 years and 9 months, to date from 21 February 2021. The non-parole period will expire on 20 November 2024, and the head sentence will expire on 20 February 2026.

I decline to make a finding of special circumstances because to do so would be futile taking into consideration the sentence to be imposed for the Code offence.

For the Code offence, I impose a term of imprisonment of 7 years, with a non-parole period of 3 years and 6 months, to date from 21 February 2022. The non-parole period will expire on 20 August 2025, and the head sentence will expire on 20 February 2029.

The effective overall sentence is 8 years, with a non-parole period of 4 years and 6 months to date from 21 February 2021. The total effective non-parole period will expire on 20 August 2025, and the head sentence will expire on 20 February 2029.

The applicant will be eligible to be released on parole on 20 August 2025.

**********

Decision last updated: 26 August 2024

Medium Neutral Citation:	Keen v R [2024] NSWCCA 157
Hearing dates:	1 May 2024
Date of orders:	26 August 2024
Decision date:	26 August 2024
Before:	Wilson J at [1]; Dhanji J at [12]; Yehia J at [13]
Decision:	(1) Extend the time within which to appeal and grant leave to appeal. (2) The appeal against sentence is allowed. (3) The sentence imposed by Scotting DCJ on 19 August 2022 in respect of the Code offence is quashed and in lieu thereof the applicant is sentenced as follows: (a) For the State offence, a term of imprisonment of 5 years, with a non-parole period of 3 years and 9 months, to date from 21 February 2021. The non-parole period will expire on 20 November 2024, and the head sentence will expire on 20 February 2026. (b) I decline to make a finding of special circumstances because to do so would be futile taking into consideration the sentence to be imposed for the Code offence. (c) For the Code offence, I impose a term of imprisonment of 7 years, with a non-parole period of 3 years and 6 months, to date from 21 February 2022. The non-parole period will expire on 20 August 2025, and the head sentence will expire on 20 February 2029. (4) The effective overall sentence is 8 years, with a non-parole period of 4 years and 6 months to date from 21 February 2021. The total effective non-parole period will expire on 20 August 2025, and the head sentence will expire on 20 February 2029. (5) The applicant will be eligible to be released on parole on 20 August 2025.
Catchwords:	CRIME – Appeals – appeal against sentence – parity – aid and abet in an attempt to possess a commercial quantity of cocaine – assessment of comparative culpability of co-offenders – extent of disparity not justified – appeal allowed – resentence
Legislation Cited:	Criminal Code (Cth), ss 11.1(1), 11.2(1), 307.5(1) Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
Cases Cited:	Assie v R (Cth) [2020] NSWCCA 249 Cameron v R [2017] NSWCCA 229 Carl v R [2023] NSWCCA 190 Chamon v R [2020] NSWCCA 112 Edmonds v R [2022] NSWCCA 103 Giles-Adams v R; Preca v R [2023] NSWCCA 122 Hung v R [2023] NSWCCA 172 Island Maritime Limited v Filipowski (2006) 226 CLR 328; [2006] HCA 30 Lupica v R [2024] NSWCCA 111 Mammone v R [2013] NSWCCA 95 Martellotta v R [2021] NSWCCA 168 Ooi v R [2023] NSWCCA 97 R v Barkl; R v Dumbrell; R v Theobald [2022] NSWDC 760 R v Barkl; R v Dumbrell; R v Theobald [2023] NSWCCA 309 R v Butler [2024] NSWCCA 133 R v Butler [2024] NSWDC 79 R v Grncarski (District Court (NSW), Girdham SC DCJ, 15 December 2023, unrep) R v Humphrys [1977] AC 1 R v Keen [2022] NSWDC 369 Rogers v The Queen (1994) 181 CLR 251; [1994] HCA 42 Stocco, Gino v R; Stocco, Mark v R [2018] NSWCCA 77 Tatana v R [2006] NSWCCA 398 The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 55 Vujinovic v R [2024] NSWCCA 10 Weir v R [2011] NSWCCA 123
Category:	Principal judgment
Parties:	Lloyd Norman Keen (Applicant) Rex (Respondent)
Representation:	Counsel: J Stratton SC (Applicant) L Fernandez (Respondent) Solicitors: Hardinlaw Lawyers (Applicant) Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):	2020/00362138; 2021/00089070
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: [2022] NSWDC 369 Date of Decision: 19 August 2022 Before: Scotting DCJ File Number(s): 2020/00362138; 2021/00089070