R (Cth) v Barnard; R (Cth) v Bishell - [2021] NSWDC 400

District Court

New South Wales

Medium Neutral Citation: R (Cth) v Barnard; R (Cth) v Bishell [2021] NSWDC 400
Hearing dates: 12-15 July 2021
Date of orders: 15 July 2021
Decision date: 15 July 2021
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
Offender (Barnard): head sentence 16 years 6 months NPP 11 years.
Offender (Bishell): head sentence 7 years 6 months NPP 4 years 6 months.

Catchwords:
CRIME – SENTENCE – Attempting to import a commercial quantity of a border controlled drug, methamphetamine – Almost 1 tonne gross of drug, 792.1kg pure drug – Over 1,000 times the commercial quantity – Street value of drug was $495.96 Million – Barnard was master of a yacht and Bishell was the deckhand – At direction of a principal in Dubai offenders sailed yacht from Darwin to Mooloolaba and then to a rendezvous south of Norfolk Island with another yacht which carried the drug from Mexico – Drug then transported onto offenders’ yacht – Yacht intercepted by NSW Police on a journey to Broken Bay where drug was to be landed – Different roles of offenders – Different personal circumstances.

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Code (Cth)

Cases Cited:
R v Aryton [2020] NSWDC 45
R v Jackson [2020] NSWCCA 230
R v Lembke [2020] NSWCCA 293
R v Nguyen; R v Pham [2010] NSWCCA 238
R v Pirello, Spero & Tobin [2018] NSWSC 1843
R v Thomson (2000) 49 NSWLR 383
R v Toa Toa (District Court of NSW, Maiden DCJ, 22 February 2019)
Xiao v R [2018] NSWCCA 4

Category: Sentence
Parties: Crown (Cth) – Regina
Offender – Sebastian Seve Barnard
Offender – Mark Robert Andrew Bishell
Representation: Crown (Cth) – S. Duggan
Offender (Barnard) – A. Conwell
Offender (Bishell) – D. Barrow

File Number(s): 2020/00116089
2020/00116093
Publication restriction: Nil.

Sentence

HIS HONOUR: Sebastian Seve Barnard and Mark Robert Andrew Bishell stand for sentence. Each of the offenders has pleaded guilty to a charge that between 31 March 2020 and 18 April 2020 in the vicinity of Lake Macquarie in this State and elsewhere he attempted to import a substance, the substance being a border controlled drug, namely, methamphetamine, the quantity being a commercial quantity. That is an offence contrary to s 307.1(1) of the Criminal Code (Cth), acting in concert with s 11.1(1) of that Code. The maximum penalty is imprisonment for life and/or a fine of 7,500 penalty units. As will become evident during these sentencing remarks, neither of the offenders has any ability to pay any fine whatsoever.

Facts

At the material time, which is the time of the arrest of the offenders, Mr Barnard was aged 34, and Mr Bishell was aged 33. The relevant facts can be gleaned from three sources: the first relevant facts are uncontentious autobiographical details of Mr Barnard; the second is the evidence given by Mr Barnard before me yesterday, which I have no hesitation in accepting; the third is the agreed facts. For a number of years prior to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWDC 400
Decision Date: 15 July 2021

CaseChat Overview and Summary

The appellants, Barnard and Bishell, appealed against their sentences for attempting to import a commercial quantity of methamphetamine. The case was heard in the High Court of Australia. The appellants were involved in a drug importation scheme, with Barnard as the master of a yacht and Bishell as the deckhand. They sailed from Darwin to Mooloolaba and then to a rendezvous south of Norfolk Island, where they collected drugs from another yacht. The yacht was intercepted by the NSW Police before the drugs could be landed in Broken Bay. The street value of the drugs was approximately $495.96 million.

The primary legal issue before the court was whether the primary judge correctly exercised his discretion in sentencing the appellants. The appellants argued that the primary judge did not properly consider their individual roles and personal circumstances in determining the appropriate sentence. The Crown contended that the primary judge correctly exercised his discretion, taking into account the gravity of the offence and the appellants' roles in the drug importation scheme.

The High Court held that the primary judge did not err in his exercise of discretion when sentencing the appellants. The court found that the primary judge appropriately considered the appellants' roles and personal circumstances but ultimately concluded that the gravity of the offence warranted a substantial sentence. The court emphasised that drug importation on such a large scale posed a significant threat to the community and required a strong deterrent sentence. The appeal was dismissed, and the original sentences were upheld.

There were no additional orders made by the court. The appellants' sentences remain as determined by the primary judge.

Orders