R v Barkl; R v Dumbrell; R v Theobald

[2022] NSWDC 760

District Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

10 and 11 November 2022

Date of orders:

23 November 2022

Decision date:

23 November 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

Mr Barkl’s Penalty

See [189] – [195]

Mr Dumbrell’s Penalty

See [196] – [202]

Mr Theobald’s Penalty

See [203] – [210]

Catchwords:

CRIME — Drug offences — Commonwealth offences

Legislation Cited:

Crimes Act 1914

Criminal Code 1995 (Cth)

Cases Cited:

Bugmy v The Queen (1990) 169 CLR 525

Deakin v The Queen (1984) 58 ALJR 367

Hili v The Queen (2010) 242 CLR 520

Johnson v The Queen (2004) 78 ALJR 616

Power v The Queen (1974) 131 CLR 623

R v El Karhani (1990) 21 NSWLR 370

R v Nassir [2020] NSWCCA 88

R v Nguyen (2010) 205 A Crim R 106

R v Olbrich (1999) 199 CLR 270

Category:

Sentence

Parties:

Rex (Crown)
Laurie Barkl (Offender)
Raymond Dumbrell (Offender)
Kevin Theobald (Offender)

Representation:

Counsel:
Proceedings 2021/88672
L Fernandez ( Crown)
D Dalton SC (Offender)

Proceedings 2021/88677
L Fernandez (Crown)
I Lloyd KC (Offender)

Proceedings 2021/88312 and 2021/88317
L Fernandez (Crown)
A Djemal (Offender)

Solicitors:
Proceedings 2021/88672
Commonwealth Director of Public Prosecutions (Crown)
Gregory J Goold Solicitors (Offender)

Proceedings 2021/88677
Commonwealth Director of Public Prosecutions(Crown)
Gregory J Goold Solicitors (Offender)

Proceedings 2021/88312 and 2021/88317
Commonwealth Director of Public Prosecutions ( Crown)
Office of the Director of Public Prosecutions (Crown)
Gregory J Goold Solicitors (Offender)

File Number(s):

2021/88672
2021/88677
2021/88312
2021/88317

Publication restriction:

None

Judgment

Introduction

1. Laurie Simpson Barkl and Raymond John Dumbrell appear for sentence after pleading guilty in the Local Court to the following offences:

1. that between about 27 February 2019 and 15 May 2019 they each attempted to possess a commercial quantity of a border controlled substance, cocaine, contrary to s 307.5(1) and s 11.1(1) of the Criminal Code 1995 (Cth); and

2. that on 30 March 2021 as a person subject to an order under s 3LA(2) Crimes Act 1914 they each omitted to provide access to a data storage device contrary to s 3LA(6) Crimes Act 1914.

2. Kevin Victor Theobald appears for sentence after pleading guilty in the Local Court to the following offences:

1. that between about 27 February 2019 and 15 May 2019 he attempted to possess a commercial quantity of a border controlled substance, cocaine contrary to s 307.5(1) and 11.1(1) of the Criminal Code 1995 (Cth); and

2. that between 19-21 December 2020 he knowingly took part in the supply of a commercial quantity of a prohibited drug, pseudoephedrine, contrary to s 25(2) Drug Misuse and Trafficking Act 1985 (NSW).

3. The maximum penalty for the s 307.5(1) offence is life imprisonment and/or a fine of $1,665,000.

4. The maximum penalty for the s 3LA(6) offence is 10 years imprisonment and/or a fine of $133,200.

5. The maximum penalty for the s 25(2) offence is 20 years imprisonment and/or a fine of $385,000. The offence also carries a standard non-parole period of 10 years.

Approach to Sentencing

6. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

Federal offences

7. I must have regard to Part IB Crimes Act 1914 (Cth) (the Act) in passing sentence and in particular the matters provided for in section 16A of that Act.

8. A court determining a sentence in respect of any person for a Federal offence must impose a sentence that is of a severity appropriate in all the circumstances: section 16A(1) of the Act. The Court must take into account the matters listed in section 16A(2) that are relevant and known to the Court: R v El Karhani (1990) 21 NSWLR 370. The list of factors in section 16A(2) of the Act is not exhaustive and common law principles apply: Johnson v The Queen (2004) 78 ALJR 616 at [15].

9. The offenders entered pleas of guilty to the Commonwealth offences in the Local Court. The pleas of guilty have saved the need for witnesses to be called at trial and there is significant utilitarian value in the pleas of guilty. The appropriate discount for each offender is 25%.

10. For a Federal offence the non-parole period is the minimum period that justice requires the offender to serve in custody, fixed by reference to s 16A(1), the relevant matters in s 16A(2) and by application of the principles set out by the High Court in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367 and Bugmy v The Queen (1990) 169 CLR 525: see Hili v The Queen (2010) 242 CLR 520 at [40]-[44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

11. I have had regard to the principles relevant to sentencing serious Federal drug offenders set out in R v Nguyen (2010) 205 A Crim R 106 at [72] (Johnson J) and the comments of Bathurst CJ in R v Nassir [2020] NSWCCA 88 at [100].

State offence

12. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of that Act.

13. Mr Theobald entered a plea of guilty in the Local Court to the State offence and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

Facts

Federal offences

14. The parties presented an Agreed Statement of Facts that sets out the involvement of all relevant parties and is by necessity quite lengthy. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offenders to permit an understanding of the sentence imposed for each offence.

15. Between late February and March 2019, a Sydney-based criminal group was identified as attempting to take possession of a commercial quantity of cocaine to be imported from Mexico, concealed in aluminium ingots. The group included Mr Barkl, Mr Dumbrell, Mr Theobald, Branislav Grncarski, Kyle Butler and Lloyd Keen and operated from the premises of Aviation Welding Services Pty Ltd (AWS) at Bankstown Aerodrome.

16. From about June 2018, persons in Australia and Mexico undertook activities in preparation for the importation of the cocaine concealed in aluminium ingots, including the incorporation of Alumetal Trade Pty Ltd (Alumetal), an Australian company with a similar name to a European supplier of aluminium ingots, Alumetal SA, opening a bank account for Alumetal and arranging dry run consignments with freight forwarding companies in Australia.

17. In July 2018 Valentin Montano contacted Gummerson Warehousing and Logistics (Gummerson) enquiring about the cost of importing, warehousing and delivering aluminium ingots on pallets in shipping containers. Mr Montano provided photographs of aluminium ingots on pallets that the prosecution alleges appeared on Alumetal SA’s website.

18. In August 2018 Alma Guadarrama contacted All Ports International (All Ports) in Tullamarine, Victoria seeking to arrange customs clearance and delivery services for one airfreight consignment and one sea freight consignment.

The dry run consignment

19. On 2 September 2018 an air cargo importation consisting of 12 aluminium ingots packed in 6 wooden boxes arrived in Sydney on a flight from Mexico. The consignor was Mulia Metals SA (Mulia) and the consignee was Alumetal. On 7 September 2018, the dry run consignment was delivered to Gummerson’s warehouse in Huntingwood. The dry run consignment was never collected by the intended recipient and the importation had no commercial purpose.

The unknown consignment

20. On 6 September 2018 a shipping container arrived in Port Botany on a ship. The consignment consisted of 1,890 aluminium ingots packed on 18 pallets. The consignor was Mulia Metals SA (Mulia) and the consignee was Alumetal. On 13 November 2018 the consignment was delivered to Gummerson’s warehouse, where it was stored for seven days. On 20 November 2018 was taken to the premises of J&J Freightliners in Berkshire Park, where it was signed for by a male using the name “Sam”.

21. On 7 February 2019 a search warrant was executed at the residence of an unrelated individual. During the search, police located two heat sealed bags containing white blocks of cocaine, with the marking “LMV” impressed into the blocks. Police believe that the cocaine was concealed in the aluminium ingots of the unknown consignment.

Importation of the cocaine

22. In December 2018 Mr Montano contacted Gummerson again requesting transport and storage services for the importation of 18 pallets of aluminium ingots from Mexico.

23. In early January 2019 Ms Guadarrama exchanged a number of emails with All Ports making transport and freight arrangements for the new shipment, due to arrive on 5 January 2019.

24. On 5 January 2019 the consignment arrived in Port Botany in a shipping container. The consignment contained 1,890 aluminium ingots on 18 pallets (105 ingots per pallet). The consignor was Mulia Metals SA (Mulia) and the consignee was Alumetal.

25. On 6 February 2019 the consignment was examined by Australian Border Force (ABF) officers and anomalies were detected. The consignment was found to contain a concealed white substance inside 188 of the aluminium ingots. Presumptive testing indicated the presence of cocaine.

26. On 7 February 2019 crime scene officers from the Australian Federal Police (AFP) conducted a forensic deconstruction of the consignment. The suspect ingots were found to contain a white substance that was later identified as cocaine. The suspect ingots had been hollowed out and two compressed blocks of cocaine placed inside. A lead plate was then secured over the top of the cocaine and glued in place with an epoxy. The top cover was painted silver, with the suspect ingots having a glossy appearance when compared with the solid ingots. The suspect ingots were located in the bottom two layers of pallets 7-16.

27. Each block of cocaine weighed approximately 0.5kg and was impressed with the characters “LMV3”. 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.

28. Further analysis revealed that the cocaine in the unknown consignment and this consignment were both made from Colombian leaf, using the Colombian methodology and having similar solvent profiles.

29. The 188 suspect ingots were seized by the AFP. On 13 and 14 February 2019 the remaining ingots were repacked onto the original 18 pallets in a similar formation to the original formation in preparation for delivery. Listening devices were installed in the consignment.

30. On 19 February 2019 the repacked consignment was delivered to Gummerson’s warehouse. On 25 February 2019 Mr Montano sent an email to Gummerson requesting delivery of the consignment to Mr Butler at AWS.

31. At about 1.30pm on 27 February 2019 the consignment was delivered to AWS. Mr Keen signed for the delivery and then between about 2.37pm and 3.11pm used a forklift to unload the pallets and place them inside the premises.

32. At about 2.47pm Mr Dumbrell and Mr Theobald were observed in the vicinity of the driveway at AWS. They met Mr Keen and had a conversation with him, before leaving with an unidentified person in a vehicle.

33. At about 3.48pm Mr Theobald met Mr Keen at the roller shutter door of AWS. They had a conversation for a few minutes before Mr Keen closed the roller shutter door. At this time, Mr Dumbrell was seen in a carpark nearby.

34. At about 4.02pm Mr Barkl, Mr Dumbrell and Mr 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.

First attempt to access the cocaine

35. At about 5.19pm Mr Keen opened the roller door at AWS. Mr Dumbrell and Mr Grncarski entered the premises shortly afterwards. The three men were heard on the listening devices to be moving ingots around in the premises, including with the use of a forklift. The men were heard looking for particular ingots by reference to the numbers on the pallets, where ingots were located on the pallets, and their appearance. Mr Grncarski referred to how the suspect ingots should appear. Mr Dumbrell was recorded as having an understanding of where they were meant to look for the suspect ingots, being the bottom 2 layers of pallets 7-16. The men did not find what they were looking for.

36. At about 6.13pm two pallets of ingots were loaded onto a white Toyota utility, registered to Mr Grncarski, that was driven away by him with Mr Dumbrell as a passenger.

37. At about 7.27pm Messrs Grncarski, Dumbrell, Theobald and Barkl had a conversation on Marple Avenue, Villawood. At about 7.56pm the offenders went to a Chinese restaurant in Villawood and remained there until about 8.17pm. They left in the same vehicle and surveillance ceased at 8.30pm.

Second attempt to access the cocaine

38. At about 3.32pm on 28 February 2019 the offenders met on Desoutter Street, Bankstown Aerodrome and had a conversation. At about 3.43pm they travelled in a vehicle to Georges Crescent, Georges Hall where they exited the vehicle and had a further conversation. At 4.30 pm they drove to the High Flyer Hotel in Condell Park before exiting the vehicle.

39. At about 4.51pm Mr Butler was seen in the doorway of AWS. A short time later Mr Theobald entered the premises through the doorway, followed closely by Mr Barkl and Mr Dumbrell.

40. The offenders and Mr Butler were then heard moving ingots and attempting to cut them open, over the listening devices in the consignment. The men were recorded making arrangements as to when to return and using power tools to cut through some ingots. Nothing of relevance was said by Mr Barkl.

41. At about 5.04pm Mr Barkl departed the premises. Mr Butler and Mr Dumbrell departed a short time later.

Third attempt to access the cocaine

42. At about 7.45am on 2 March 2019 the offenders entered the AWS premises. Mr Grncarski arrived and entered the premises a short time later.

43. Messrs Barkl, Butler, Dumbrell, Theobald and Grncarski were then heard moving ingots around the premises. Discussions between the men were recorded about the “missing” ingots. Conversation was also recorded to the effect that the ingots were all the same, in that the ones in the consignment did not have the appearance of the suspect ingots. Nothing of relevance was said by Mr Barkl.

44. At about 7.56am Mr Barkl and Mr Grncarski exited the premises. They engaged in conversation for a few minutes before Mr Barkl took out his mobile phone and started typing on it.

45. At about 7.58am Mr Dumbrell and Mr Theobald exited the premises. Mr Theobald was holding a tool that looked like a saw.

Fourth attempt to access the cocaine

46. At about 10.04am on 4 March 2019 the offenders met at a public car park on Birdwood Road, Georges Hall, before driving in convoy towards Marion Street, Yagoona.

47. Later that afternoon the offenders, Mr Keen and Mr Butler attended AWS arriving at about 4.26pm.

48. Between about 4.26pm and 4.39pm the offenders, Mr Keen and Mr Butler were heard moving ingots from the consignment around the premises.

49. At about 4.41pm the offenders left the premises.

50. At about 5.20pm the offenders were seated on an outside table at a take away restaurant in Georges Hall where they had a discussion for about 10 minutes.

51. At about 2.53pm on 6 March 2019 Mr Dumbrell was observed at Mr Grncarski’s residence.

52. On 11 March 2019 Mr Montano emailed Gummerson requesting documentary proof that all 18 pallets had been delivered to the customer, AWS.

53. Between about 4.12pm and 4.50pm on 13 March 2019 Messrs Theobald, Keen and Butler were observed inside the premises inspecting, counting, taking photos and moving individual ingots by hand. Mr Keen used a forklift to move pallets of ingots around inside the warehouse. A conversation was recorded in which Mr Theobald was trying to locate an item with a number 9 on it. Mr Theobald was then recorded as saying “Mate 40 fucking million” and “40 million down the drain”.

54. On 18 March 2019 Mr Montano contacted Gummerson complaining that 1,390 ingots were missing from the consignment.

55. On 20 March 2019 Ms Guadarrama emailed All Ports stating that her client had advised that the cargo was incomplete and wanted to know if the inspection had taken a sample.

56. On 30 March 2019 Mr Barkl and Mr Dumbrell departed Sydney on a flight to Bangkok.

57. On 2 April 2019 Mr Barkl and Mr Dumbrell departed Bangkok on a flight to Singapore.

58. At about 11.40am on 3 April 2019 Mr Theobald met with an unidentified male. They discussed the loss of the cocaine in the aluminium ingots. Mr Theobald showed the other male photographs of the consignment identifying “missing” ingots and referring to the fact that the pallets were not symmetrically stacked. The entire exchange is recorded in the amended version of [111] of the agreed facts as follows:

Theobald	You wanna read it again … look. They are ok with us, the son came out, from London, son from cartel came … they want to start working with us.
…
Theobald	(ind) this is how it come in mate.
Unknown	Shit house.
Theobald	See all the ones missing.
Unknown	Yeah.
Theobald	One sec, see the one on the bottom how it’s all nice and square?
Unknown	Yeah.
Theobald	And these ones are all missing but that’s how it come in.
Unknown	Is that alright on the bottom was it.
Theobald	No cause there was nothing in it. There were some pallets that had nothing in em, and the ones that had something, all missing mate.
Unknown	Well they can’t they do it again mate?
Theobald	That’s what their gonna do, that’s what they said were saying nothing here.
Unknown	How come it’s silver?
Theobald	Make out of aluminium, and what they’ll do, they cut the bottom out, put in a mould then they put, and they fucken put the infill back over it. They can’t be x-rayed, they can’t be smelt, they can see all the ones missing.
…
Unknown	Still haven’t got no fucken money have ya (ind)
Theboald	Eh?
Unknown	You still haven’t got paid by (ind).
Theobald	Na mate (ind).
Theobald	(ind) you want me to text all that?
Unknown	(ind) be home this afternoon, if you got no money mate, don’t even bother.
…
Unknown	Leave it there and see you later.
Theobald	Oh .. c’mon cartel, c’mon cartel.
Unknown	It sounds good that one. The main thing is they’ve trusted ya, that’s the main thing.
Theobald	Yeah did you hear what I said, the cartel’s son came over, the other bloke from Europe come over, they said they know it wasn’t us, they said they want to start work straight away.
Unknown	How do you buy? When they send, how do you buy?
Theobald	We don’t buy it mate. They give to us on tick, that’s what happens. They give us 20 percent. Just say they send a hundred kilos. They give you 20 kilos, enough. Right and they give you an opportunity to buy 25 blocks. You might have only enough to buy 10 blocks right. So that’s out of that hundred, you get 20, 20 you get 30 kilos, but if you’ve got the money you can buy 25 blocks that’s 40 grand a block, you buy 25 blocks, and you still get 20, and you get 45 blocks out of that.
Theobald	See, the one that we’ve just lost right, next lot we’re, we’re gonna buy 70 blocks, I wouldn’t have gotten that. I might have got, I might have got 10, mate I told ya, I make couple mil (ind). It’s just getting bigger and bigger woo woo.

59. On 4 April 2019 Mr Barkl returned to Sydney and Mr Dumbrell travelled to Bangkok.

59. Between about 4 April 2019 and 18 April 2019 Mr Butler had several conversations with an unknown male referred to as “Mark” relating to the sale of the aluminium ingots.

60. On 6 April 2019 Mr Dumbrell returned to Sydney.

61. At about 11.30am on 10 April 2019 Mr Theobald met with Mr Barkl and an unknown male at Condell Park. At about 11.42am Mr Theobald, Mr Barkl and the unknown male drove to AWS and continued their conversation.

62. At about 9.30am on 1 May 2019 Mr Barkl and Mr Dumbrell met in Forest Lodge.

63. At about 11.15am on 15 May 2019 Mr Barkl, Mr Theobald and an unidentified male met and had a conversation in Rosebery.

64. On 15 May 2019 the aluminium ingots were loaded onto a truck by Mr Keen and removed from AWS.

65. The offenders had no reason to possess the aluminium ingots. The aluminium ingots were disposed of for scrap metal once it was confirmed they did not contain any cocaine.

66. At about 4.01am on 30 March 2021 Mr Theobald was arrested at his residence.

67. At about 4.08am on 30 March 2021 Mr Barkl was placed under arrest at his residence. Police located an Apple iPhone and a Samsung mobile Ciphr device. At about 4.54am Mr Barkl was served with a s 3LA Order by police. Mr Barkl refused to provide passwords to the devices.

68. At 4.03am on 30 March 2021 Mr Dumbrell was arrested at his residence. Police located a Samsung mobile phone and a Samsung Ciphr device. At 4.14am Mr Dumbrell was served with a s 3LA Order by police. Mr Dumbrell refused to provide passwords to the devices. Later during the search warrant, police located two further mobile phones inside a safe in Mr Dumbrell’s bedroom.

State offence – Mr Theobald

70. In December 2020, ABF identified a consignment of Toyota side steps with irregularities. The consignment consisted of 10 boxes of side steps, with each box containing two steps. Within each step was concealed a large bag containing an average of 2.6kgs of pseudoephedrine. The bags had been glued into each step. The total amount of the drug was 51.034 kgs.

71. Police replaced the drug with pool salt and it was delivered as intended on 18 December 2020.

72. On 19 December 2020, Mr Theobald collected the consignment in a utility driven by him. He took it to the AWS premises, where it was unloaded by him and Mr Keen.

73. On 20 December 2020 Mr Keen attended the AWS premises. 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 causing 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 premises and drove to his residence in Picnic Point.

74. At about 11.00am on 21 November 2020 Mr Keen, Gary Xavier and Mr Theobald were present at the AWS warehouse. They were recorded on listening devices using electric grinders and hand tools in the consignment room. Later the room was cleaned and vacuumed. The offenders knew that the consignment contained not less than a commercial quantity of pseudoephedrine.

75. At about 11.50am Mr Xavier and Mr Theobald were travelling in a motor vehicle, when they were stopped by police and cautioned. Mr Theobald was observed to have white powder on his clothing, which was seized. He told the police that the white powder was horse feed. He was released pending further enquiries. Subsequent analysis determined that the white powder on Mr Theobald’s clothing could not be differentiated from the substance in the side step.

76. On 21 December 2020 police executed a search warrant at the premises of AWS. Police located 4 side steps that had been cut open, the remainder of the consignment and other evidence indicating that the side steps had been cut open at the AWS premises.

77. During the course of recordings made by listening devices at AWS, Mr Theobald described the side steps as “heavy” and during the course of trying to access the material inside the side steps said to Mr Keen “Hard work this mate, being a fucking criminal”.

Mr Barkl’s Case on Sentence

78. Mr Barkl tendered the following documents:

1. affidavit of Donna Barkl (wife) dated 3 November 2022;

2. letter from Jack Barkl (son)(undated);

3. letter from Daniel Barkl (son)(undated);

4. letter from Harrison Barkl (son)(undated);

5. letter of Lauren Barkl (daughter)(undated);

6. letter from Julieanne Ryan (psychologist) regarding Morgan Barkl (daughter) dated 3 November 2022;

7. letter of apology from the offender (undated);

8. character reference from Henry Morris dated 7 November 2022;

9. character reference from Craig Coleman dated 7 November 2022;

10. forensic psychiatrist report by Dr Olav Nielssen dated 18 October 2022; and

11. offender’s life history.

79. The following is a precis of the evidence relied upon by Mr Barkl.

80. Mr Barkl was born in Sydney in 1961 and is currently 61 years of age.

81. He was the only child from his parents’ relationship but had two older half-brothers from his mother’s previous relationship. His father was a SP bookmaker and bookmaker’s clerk. His grandfather was a groundsman at Randwick Racecourse.

82. The offender’s family moved from Kingsford to a housing commission flat in Redfern when he was two years old. Both Mr Barkl’s parents were heavy drinkers. When his father was home, he spent his time drinking and listening to horse racing over the radio. Mr Barkl reported that if he wanted his father’s attention, he would have to show interest in gambling.

83. His parents regularly fought about finances and his father’s gambling issues. Mr Barkl’s mother left the family when the offender was 15 years old.

84. Mr Barkl reported that he had no issues in school and that he was an average student. He left school after completing Year 10. When he was in high school, he started working at Gordon and Gotch delivering books. He spent most of the money he earnt in this job gambling on horses.

85. From the age of 21, Mr Barkl started working as an advertising salesman. He continued to bet on the horses and made enough money from betting to start buying and selling cars, which became his main source of income.

86. Mr Barkl played competitive rugby league until the age of 26. He met Mr Theobald playing rugby league at age 16. Mr Dumbrell is a lifelong friend.

87. In 1984 he married his first wife and the following year they had a daughter, Morgan. They bought a house in Kingsford. Mr Barkl began to gamble substantial sums of money on races and other sports. His first marriage broke down as a result of his gambling and the financial instability it caused.

88. In 1988, Mr Barkl was convicted of offences relating to the possession of heroin and a firearm. He was sentenced to 12 months imprisonment to be served by periodic detention.

89. In 1991, Mr Barkl met his second wife, Donna. They moved to Lindfield and had four children together. As a result of Mr Barkl’s car business, and his wife’s financial management and family connections, they accumulated a number of businesses, including a food and milk delivery business and several hotels. His wife knew that he had the propensity to gamble, so she kept her business interests separate from his.

90. Mr Barkl continued to gamble heavily during this period, hiding it from his family. He would sometimes be in debt. In the months leading up to the offences, Mr Barkl borrowed $50,000 from his wife, telling her that it was to buy cars. He lost this money gambling.

91. He would take out cash loans from people involved in criminal activity. These loans had higher interest rates and were done without paperwork. To further enable his gambling habit, the offender started to take up offers to earn “quick cash”. Mr Barkl told Dr Nielssen that he was offered $20,000 and a share in the sale of the aluminium ingots which he understood to be worth $120,000, for his assistance in “moving the pallets”.

92. When asked by Dr Nielssen about his emotional state at the time of offending, Mr Barkl reported that he was stressed because of his gambling losses. Mr Barkl is not a heavy drinker and would drink once every two weeks. He has used recreational drugs, including cocaine, but only in social settings.

93. Mr Barkl reported an episode of depression about fifteen years ago, in which he had difficulty sleeping and was conscious of feeling low in mood and unmotivated. He spoke to his General Practitioner, who prescribed an antidepressant medication. Mr Barkl ceased this after a week because of side effects.

94. Dr Nielssen in his report diagnosed Mr Barkl with a gambling disorder.

95. Mr Barkl tendered letters from his wife and children which describe their experience since his arrest. They all wrote of their strong attachment to Mr Barkl. The circumstances of his arrest appear to have caused great stress for his family, with the police forcibly entering the house in the early hours of the morning. According to her GP, the offender’s daughter, XXXX, has developed post-traumatic stress disorder (PTSD) as a result of the arrest and another separate incident. Mr Barkl’s son, XXXX, has been diagnosed with severe generalised anxiety disorder since the arrest, which his general practitioner opined could lead to PTSD. Mr Barkl’s wife believes that the family’s recovery is contingent on the offender’s return from custody. His other sons have moved back home to support the family through this time.

96. Mr Barkl’s periodontist wrote in July 2021 that he requires urgent dental treatment for his broken “temporary bridge” and that if treatment is further delayed, he will develop a more serious condition.

97. Mr Barkl acknowledged the potential consequences of his actions had the drugs entered the community in his letter to the Court.

98. Mr Barkl has maintained regular contact with his family since entering custody.

99. Mr Barkl has contributed to the community through his work for charitable causes and sporting organisations and his work in bushfire affected communities.

Mr Dumbrell’s Case on Sentence

100. Mr Dumbrell tendered the following documents:

1. affidavit of Loren Dumbrell (daughter) dated 7 November 2022;

2. reference of Bruce Pollard (friend)(undated);

3. apology letter from Mr Dumbrell (undated);

4. personal history of the offender;

5. medical reference letter Dr Graham Chin (General Practitioner) dated 1 April 2021; and

6. report of Dr Richard Furst (psychiatrist) dated 15 November 2022.

101. The following is a precis of the evidence relied upon by Mr Dumbrell.

102. Mr Dumbrell was born in 1948 and is currently 74 years of age.

103. He has four children aged 29, 38, 42 and 50 and five grandchildren. His mother resides in Elizabeth Bay. Her health is deteriorating with dementia and blindness. She believes that Mr Dumbrell is living in Thailand and, as a result of COVID-19 travel restrictions, cannot travel back to Australia. Mr Dumbrell maintains his relationships with his mother, children and grandchildren.

104. Mr Dumbrell has worked as a stevedore, a professional lifeguard and a property developer renovating houses.

105. Mr Dumbrell has not consumed alcohol for forty years, after attending an Alcoholics Anonymous program.

106. He maintained an active lifestyle until about ten years ago, with the onset of osteoarthritis in his knees. He had a bilateral knee replacement in December 2020. Dr Chin reported in April 2021 that Mr Dumbrell was still recovering from this operation and required appropriate analgesia and oxycodone for post-operative pain.

107. Mr Dumbrell has also had prostate cancer, which has resulted in an enlarged prostate, pain and the need to urinate frequently. He also has gout, type II diabetes and sleep apnoea, which disturbs his sleep. He has used a CPAP machine for eighteen years and has had access to one in custody. He reports some memory issues, which his daughter Loren and Mr Pollard also mention in their evidence.

108. Loren Dumbrell reports that she speaks to her father three times per week and they meet weekly via AVL. She has visited in person 5 or 6 times since COVID-19 restrictions have been relaxed. When she has visited in person, she observed that her father’s physical health had deteriorated, particularly that he was less mobile due to his arthritis in his knees. She also reports that his diabetes has worsened. She is most concerned, however, about his failing memory.

109. Mr Dumbrell reports committing the offence for financial reasons, to fund his medical treatments and to cater for his mother’s needs.

110. Dr Furst confirmed the diagnosis of dementia. He opined that Mr Dumbrell’s offending conduct stemmed from poor health and cognitive impairment leading to impaired judgement, but that he aware of his actions and understood they were wrong. Dr Furst stated that Mr Dumbrell’s condition is likely to make custody more onerous through his increased stress and anxiety and a shortened life expectancy as a result of his diabetes and dementia. Dr Furst recommended that Mr Dumbrell continue to be kept in an age-appropriate setting in the prison system and that he receive appropriate medical treatment for his various conditions.

Mr Theobald’s Case on Sentence

111. Mr Theobald tendered the following documents:

1. affidavit of Nicole Reynolds (former partner) dated 4 November 2022;

2. affidavit of Lorraine Theobald (mother) dated 4 November 2022;

3. report of Dr Kala Ram(psychologist) dated 1 November 2022;

4. reference of Peter John Hanson dated 7 November 2022;

5. apology letter of the offender; and

6. offender’s personal history.

112. The following is a precis of the evidence relied upon by Mr Theobald.

113. Mr Theobald was born in 1959 and is currently 63 years of age. He was born and raised in Redfern. His mother identifies as Aboriginal. He was the only child from his parents’ relationship. His parents married when they were quite young and his mother was 17 when he was born.

114. Mr Theobald’s maternal grandfather was removed from his family as a child and Mr Theobald and Ms Reynolds reported that he had expressed anxiety throughout his childhood that he would also be removed from his family.

115. Mr Theobald lived at his maternal grandmother’s house for the first ten years of his life. He reported that there were twelve people living in the one-bedroom house, that there was no hot running water and his mother slept in the hallway with his father when he was there. He reported that there wasn’t much food. His mother worked as a cleaner and later became a preschool teacher. His father worked as a labourer. His parents eventually bought a house in Condell Park and the family moved there.

116. Mr Theobald maintained that there was no significant domestic violence in his parents’ relationship and that neither of his parents consumed alcohol or used drugs. His father would occasionally physically discipline him and be aggressive with his mother, throwing meals at her. He advised that his step-grandfather was an alcoholic and abusive towards his grandmother.

117. Mr Theobald reported having a very close relationship with both sides of his family growing up.

118. Mr Theobald attended school until Year 10. He was a “slow learner”. He began an apprenticeship as a gardener after leaving school. He attended TAFE for a few months but struggled to complete coursework. Mr Theobald then worked as a landscaper for the council for 4–5 years and then as a labourer for most of his 20s. In his 30s, Mr Theobald worked as a cleaner in Camperdown. When Mr Theobald was about 40, he started working for his father, who owned a brewery truck. Mr Theobald worked for him for 3–4 years, loading kegs of beer onto and off the truck. He injured his back performing this work and has had back problems since. Mr Theobald has worked largely odd jobs in more recent years. Mr Hanson stated that Mr Theobald completed odd jobs for him in his horse stables up until his incarceration. At the time of the offences, he was in receipt of a pension and was a carer for his mother, who was diagnosed in 2016 with terminal cervical cancer.

119. Mr Theobald commenced drinking at around age 16. He has experimented using speed, cannabis, LSD and magic mushrooms in the past, but never regularly used these drugs. In his 30s, he would use cocaine socially.

120. Following his Peyronie’s disease diagnosis in 2009, Mr Theobald began using cocaine and consuming alcohol to excess. Mr Theobald disclosed that he had a drug debt of $30,000 at this time. Mr Theobald identified that his excessive alcohol and cocaine use contributed to gambling behaviours and that he had a significant gambling problem prior to his incarceration in 2011. Since his mother’s cancer diagnosis in 2016 and his own diagnosis of small bowel cancer in 2017, Mr Theobald’s drug and alcohol use has substantially decreased. He reported only consuming alcohol and using cocaine every 7–8 months.

121. Mr Theobald’s first partner was Vanessa Whitfield. Their relationship lasted ten years. They had a child together. In 2015, Ms Whitfield took her own life. Mr Theobald reported that the circumstances of her death were particularly distressing, with Ms Whitfield blaming Mr Theobald’s attempts to re-establish contact with her and her daughter in her suicide note. Since Ms Whitfield’s death Mr Theobald has not had any contact with his daughter.

122. He had his second child, a daughter, with his housemate. They were never in a serious relationship. Mr Theobald discovered that she was his child when she was 14 after a DNA test. Mr Theobald’s daughter has suffered substance abuse issues. Prior to his incarceration, Mr Theobald was financially supporting his daughter. He also cared for his grandson, for two periods of time over five years while his daughter was undertaking a rehabilitation program. His grandson has been diagnosed with autism spectrum disorder (ASD), attention deficit hyperactivity disorder (ADHD) and oppositional defiant disorder (ODD).

123. Mr Theobald’s relationship with Ms Reynolds began during his mid-30s. They have a daughter together. They have separated but remain close friends and Mr Theobald has regular contact with their daughter. He reported financially supporting Ms Reynolds and their daughter prior to his incarceration.

124. Mr Theobald was greatly impacted by several significant losses, including his father, who died when Mr Theobald was 42, and his friend Paul, who died in his early 30s from Motor Neurone Disease. Mr Theobald had grown up with and acted as a “big brother” to Paul throughout his life. His cousin, Jason, with whom Mr Theobald was very close, was murdered when Mr Theobald was in his mid-40s, after an intruder entered his house and stabbed him in the stomach. No one was ever arrested for his death.

125. Mr Theobald reported that his first criminal conviction was supply of Indian hemp at age 21. He was sentenced to six months for this offence. During his 30s, he had several assault convictions. In 2011, he reported that he was convicted of manufacture a large commercial quantity of a prohibited drug and sentenced to 3.5 years in prison. He was released in 2015.

126. Prior to incarceration, Mr Theobald was the primary carer for his mother, who has a terminal cancer diagnosis.

127. Mr Theobald reported that he committed the offence for financial reasons, to fund his own medical treatment and to financially support his mother. Ms Reynolds, Mr Hanson and Mr Theobald’s mother all stated that Mr Theobald has always been greatly concerned with providing for his family.

128. Mr Theobald also told Ms Ram that his offending was motivated by the people he was associating with and his feelings of “loss of manhood” resulting from his Peyronie’s disease.

129. Ms Ram opined that Mr Theobald meets criteria for major depressive disorder with anxious distress, trauma and stress related disorder, alcohol use disorder and cocaine use disorder, although he is currently in sustained remission and has not consumed alcohol or used cocaine since 2020.

112. Mr Theobald expressed remorse for his actions and recognised the impacts of his offending behaviour on the community in his letter to the Court. His character references similarly report that he is remorseful.

Consideration

Nature and circumstances of the offences

Federal offences

The role of the offenders

131. There was a significant dispute as to the role of the offenders in the attempt to possess the cocaine. The prosecution’s case was that the offenders were trusted members of the drug syndicate who were responsible for accessing and distributing the cocaine at the Australian end of the operation. The prosecution relied on admissions made by Mr Theobald to another male on 3 April 2019 to contend that for their participation in the offence, the offenders were entitled to 20% of the drugs as well as having an option to purchase more of the drugs at a wholesale price and that they would make a couple of million dollars from their involvement. The offenders have made untested statements to the authors of reports that they agreed to participate in the location of the suspect ingots at the AWS warehouse for a fee of $20,000 plus a share of the sale proceeds of the aluminium ingots.

132. The agreed facts, whilst comprehensive, do not allow me to make complete findings as to the role each offender played in the attempt to possess the cocaine and it is difficult to be satisfied beyond reasonable doubt of a number of matters. What follows is the best I can make of the available information.

133. The importation of the cocaine into Australia was sophisticated and involved considerable planning, through the establishment of dummy corporations, bank accounts, relationships with logistics providers, the organisation of dummy runs and the concealment of the cocaine in the aluminium ingots so as to avoid detection. There is no evidence that the offenders were involved in making any of those arrangements.

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.

135. The offenders were each in the vicinity of AWS in close proximity to the delivery of the consignment on 27 February 2019. I cannot infer from that fact that the offenders were responsible for arranging the delivery of the consignment. It is equally possible that, consistent with their version, they had been arranged to be at AWS to locate the suspect ingots within the consignment when it arrived.

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.

137. On 27 February 2019 during the first attempt to access the cocaine of the offenders only Mr Dumbrell was present. He was recorded by the listening device as having knowledge that he was required to look for the suspect ingots in the bottom 2 layers of pallets 7-16. Mr Grncarksi was recorded as having knowledge of how the suspect ingots were constructed and what they looked like from previous experience. Mr Dumbrell engaged in showing ingots to Mr Grncarski for the purpose of having them identified as what they were looking for. Mr Dumbrell went with Mr Grncarski to another place with 2 pallets of the ingots. Later that night, the offenders met with Mr Grncarski and I am satisfied that they discussed the attempt to find the cocaine in the consignment.

138. On 28 February 2019 the offenders met before proceeding to AWS for the second attempt to access the cocaine. The offenders were present while ingots were cut with power tools in an effort to find the cocaine. On the listening device evidence, nothing of relevance was said by or attributed to Mr Barkl.

139. On 2 March 2019 the offenders went to AWS for the third attempt to access the cocaine. The offenders were present while the ingots were moved around the warehouse. The recorded conversations indicated that they were looking at something (such as a photo of the original configuration of the consignment or by comparing the appearance of the pallets) from which they could conclude that some of the ingots were missing. On the listening device evidence, nothing of relevance was said by or attributed to Mr Barkl.

140. On 4 March 2019 the offenders met at a public car park, before meeting at AWS later in the day. For about 15 minutes, the offenders were present while the ingots were moved around the warehouse. On the listening device evidence, nothing of relevance was said by or attributed to Mr Barkl. The offenders had a further meeting afterwards.

141. On 6 March 2019, Mr Dumbrell attended Mr Grncarski’s residence.

142. By 11 March 2019, the unknown persons who made arrangements to import the consignment were making enquiries of Gummerson about the missing ingots. There was no evidence as to how those persons were provided with that information.

143. On 13 March 2019 Mr Theobald attended AWS for the final inspection. The recorded conversations indicated that Mr Theobald had been asked to make a further check of the consignment, that he knew the value of the drugs involved was $40 million and that a suspect ingot would be chopped in half and have two compartments in which 1kg of cocaine could be put into each compartment. I cannot be satisfied beyond reasonable doubt that Mr Theobald had this knowledge from the start of the offence period. It is clear from the request to make a final check of the consignment, that there had been some exchange of information with persons higher in the syndicate. It is reasonably possible that Mr Theobald was told about the wholesale value of the drugs after they were missing. Further, his description of the amount of the drug in each suspect ingot was incorrect. There were 2 half kilogram blocks in each suspect ingot, not 2 one-kilogram blocks. From this, I infer that Mr Theobald had not actually seen a deconstructed suspect ingot that contained cocaine.

144. On 30 March 2019 Mr Barkl and Mr Dumbrell travelled overseas for about one week each. I cannot infer from the evidence that their reason for travel was related to the offence.

145. On 3 April 2019 Mr Theobald was recorded discussing the offence with another male. The prosecution submitted that the arrangements outlined by Mr Theobald in that conversation applied to the consignment and that it was evidence that the offenders did what they did for a 20% share of the cocaine and an option to purchase blocks of cocaine for a wholesale price of $40,000 per block. Mr Theobald submitted that, read in context, the arrangements referred to in that conversation were an offer made by the overseas representatives of the cartel to deal with Mr Theobald (and others) on that basis in the future and that the offer was made in a meeting that took place after the drugs went missing. Having carefully reviewed the transcript of the recorded conversation, I am not satisfied beyond reasonable doubt that the prosecution has established that the offenders were the principals in the Australian operation in the manner alleged. Conversely, I am satisfied that Mr Theobald’s interpretation is more likely and should be preferred. For the sake of completeness, it should be noted that the prosecution did not rely on this evidence of future intentions to aggravate the offence committed by Mr Theobald.

146. Mr Barkl told Dr Nielssen that he participated in the offence for a fee of $20,000 plus a share of the sale proceeds of the aluminium ingots, which he was told were worth about $120,000.

147. Mr Dumbrell in his letter to the Court stated that he could not remember how he became involved but it was through a horse racing acquaintance.

148. Mr Theobald told Dr Ram that the offenders were approached and asked to separate the top and bottom pallets of a consignment, which he later suspected contained drugs for a fee of $20,000 plus whatever the offenders could make from selling the aluminium ingots. Mr Theobald stated that he told the person giving him instructions that there were ingots missing and that he did not receive any payment. He stated that the offenders could not sell the ingots because they were of poor quality and worth nothing. In relation to the supply offence, Mr Theobald told Dr Ram that he was offered $10,000 to collect and cut open the side steps.

149. As to the offender’s versions of how they became involved, I note that they are untested. The offenders did not ultimately arrange the sale of the ingots. The agreed facts suggest that was undertaken by Mr Butler. The fact that Mr Theobald, and by inference the offenders, did not get paid for his involvement with the ingots is corroborated by the recorded discussion of 3 April 2019.

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. Taking into account all of the evidence, 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.

Other matters

153. The amount of the drugs at 149.3kg pure was substantial. The amount was more than 74 times the commercial quantity. I am satisfied by reference to the size of the consignment and the way that the consignment was packed that the offenders knew that the quantity of the drugs involved was substantial.

154. The wholesale value of the cocaine estimated to be between $35 million to $48 million was significant. I am satisfied by reference to what the offenders knew about the quantity of the drugs involved that they also knew that they would have a substantial value. Mr Theobald was recorded by the listening devices on 13 March 2019 to have actual knowledge of the wholesale value of the cocaine as being $40 million, but he may have gained this knowledge during the course of the offending.

155. The offence formed part of a course of conduct consisting of a series of criminal acts. The offence was committed for financial gain.

156. The offenders were arrested about 2 years after the relevant events. Mr Barkl and Mr Dumbrell were arrested with encrypted Ciphr devices. The s 3LA offence is aimed at requiring suspected persons to provide access to such devices to the authorities. I cannot be satisfied beyond reasonable doubt that Mr Barkl and Mr Dumbrell were using the same electronic devices that they were at the time of the offences, or that the electronic devices that were located at the time of their arrest had therefore had relevant information on them.

157. I have had regard to the maximum penalty for the offences.

State offence – Mr Theobald

158. Mr Theobald collected the consignment, drove it to the AWS premises and unloaded it with the assistance of Mr Keen. He participated in cutting the side steps and accessing the substance concealed inside. Mr Theobald was aware of what was concealed in the side steps and was an active participant in undertaking a substantial process to remove the drugs. He knew that the amount of the drug was not less than the commercial quantity and that it had a significant value.

159. The commercial quantity for pseudoephedrine was 1.25kg. The quantity of the drug was about 40 times the commercial quantity. The drugs were in Mr Theobald’s possession for the purpose of supply. The offence was committed for financial gain.

160. I have taken into account the maximum penalty and the standard non-parole for the offence.

Contrition

161. Mr Barkl has expressed remorse to his family, the Court and Dr Nielssen.

162. Mr Dumbrell has expressed shame and remorse to his family and to the Court.

163. Mr Theobald has expressed remorse to those close to him, the Court and Dr Ram.

Specific deterrence

164. The sentences imposed must reflect the need for specific deterrence, but it is reduced to some extent for each of the offenders for the reasons that follow.

165. Mr Barkl’s criminal history is less significant that the other offenders and he has had to witness the adverse impacts on his family caused by the circumstances of his arrest. I am satisfied by what has transpired that he understands the extent of adverse consequences that can flow from criminal conduct.

166. Mr Dumbrell has a significant criminal record but is reaching an age and state of health that will make his time in custody more difficult and render him less likely to reoffend.

167. Mr Theobald has a significant criminal record but he has responsibilities in caring for his family which are likely to lead him away from criminal pursuits. I am satisfied from what he told Dr Ram that he now has insight into the fallacy of fast money that led him into the offences.

General deterrence

168. General deterrence is a fundamental consideration in serious drug offences. The sentence must be of such severity to deter others from engaging in drug related activities. The sentence must signal to would be participants in drug offences that the financial rewards will be neutralised by the risk of severe punishment.

Character, antecedents, age, physical and mental condition

169. Mr Barkl is 61 years of age. He has a serious dental condition in urgent need of repair that has not been attended to whilst he has been in custody. He has difficulty eating the food he is provided with in prison and requests for treatment have been ignored. He has been diagnosed with a longstanding gambling disorder. He is understandably very concerned about how his family is faring after the trauma they experienced during his arrest. He has some criminal history. He was sentenced to 12 months imprisonment to be served by way of periodic detention in the early 1990s.

170. Mr Dumbrell is 74 years of age and suffers from sleep apnoea, diabetes, osteoarthritis, prostate problems and is in the early stages of dementia. His physical and mental health is declining. He has criminal history and has served a lengthy period of imprisonment for an importation offence.

171. Mr Theobald is 63 years of age. He has experienced stress and depression from age 50 following diagnosis and treatment of Peyronie’s Disease and the resection of a small bowel carcinoma. He suffers from knee and back pain caused by arthritis. He has previously had drug and alcohol issues. He has been abstinent since about 2020 as a result of his health conditions. Dr Ram diagnosed him as suffering from major depressive disorder with anxious distress, arising from the poor circumstances of his past life and contributed to by his physical health conditions. He has a significant criminal history including a lengthy prison term for a serious drug offence.

Prospects of rehabilitation

172. Mr Barkl was assessed by Dr Nielssen as having good prospects of rehabilitation by reference to his age, family support, work ethic and attitude to the offences. Dr Nielssen opined that the offender posed a low risk of recidivism but recommended that he participate in counselling to deal with his longstanding gambling disorder.

173. Mr Dumbrell is 74 years of age and his physical and mental health is declining. He has good family support and he is sorry for the position he has put them in. In his letter to the Court, he accepted responsibility for his actions. By the time he is released from custody, I am satisfied that his desire and ability to participate in criminal activity will be significantly diminished and accordingly his prospects of rehabilitation are good.

174. In 2020, Mr Theobald managed to rehabilitate himself from drugs and alcohol abuse. Prior to his incarceration he had spent increasing amounts of time caring for his mother and grandson.

Impact on family members

175. The circumstances of Mr Barkl’s arrest would have been terrifying for the occupants of the residence. The actions of the police have had a significant impact on his wife, son and daughter, which each of them suffering a clinically recognisable psychiatric disorder. His other children have been required to assist in their care, including by moving back into the family home and ending intimate relationships with their respective partners. The family’s separation from Mr Barkl as a result of his incarceration is exacerbating their plight and/or making their recovery more difficult.

176. Mr Dumbrell’s mother relied on him for support before his incarceration. She resides in aged care and suffers from dementia. It is difficult for the offender as a result of her condition to maintain a relationship with his mother by telephone from prison. It is likely that she will die while he is in prison.

177. Mr Theobald was assisting his mother who has terminal cancer prior to his incarceration, through providing personal care and financial support. It is possible that she will die while he is in prison. He also spent time with his grandson who has mental health conditions to assist his daughter, who has drug addiction issues.

Other matters

Parity

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:

1. Mr Barkl had a less significant criminal history and the adverse impacts on his family as a result of his continued incarceration are profound;

2. Mr Dumbrell’s age, and the state of his physical and mental health; and

3. Mr Theobald’s physical and mental health conditions and the fact that he had managed to stop his illicit drug use in 2020.

Delay

182. The drug offence was committed in the period February to May 2019, but the offenders were not arrested until 30 March 2021. Delay of itself is not a mitigating factor. The offenders did not know that they were under suspicion or investigation and were thereby not exposed to “uncertain suspense”. This is not a case where, as a result of the delay, that the offenders had a legitimate expectation that they would not be charged, but I accept that they did not cause the delay. The COVID-19 pandemic arose during the relevant period, but otherwise the delay has not been satisfactorily explained.

182. Mr Barkl and Mr Dumbrell did not commit another offence during the delay.

183. Mr Theobald committed another offence in December 2020. However, during the delay he did manage to rehabilitate himself from drug use and alcohol abuse in 2020.

184. Taking into account all of those factors, it is appropriate to mitigate the sentences imposed to some extent by reference to the lengthy delay between the offending conduct and the arrest of the offenders.

Pre-sentence custody

186. I will back date the sentences imposed to 30 March 2021 to take into account the period of pre-sentence custody for each offender.

COVID-19 and conditions in prison

187. I have taken into account the conditions imposed on prisoners in New South Wales in response to the COVID-19 pandemic and the impacts those conditions have had on the offenders. I accept that those conditions will continue for some time into the future.

No alternative to imprisonment

188. Each offender conceded that a sentence of full-time imprisonment was the only appropriate sentence. I have had regard to s 17A of the Crimes Act 1914 and s 5 Crimes (Sentencing Procedure) Act1999 and conclude that the concession was appropriately made, for the reasons I have set out in this judgment.

Penalty – Mr Barkl

189. Laurie Simpson Barkl is convicted.

190. For the s 3LA offence, I impose a term of imprisonment of 12 months to date from 30 March 2021 and expiring on 29 March 2022.

191. For the s 307.5(1) offence, I impose a term of imprisonment of 6 years to date from 30 June 2021 and expiring on 29 June 2027.

192. Pursuant to s 19AB(1) Crimes Act 1914, I fix a single non-parole period of 3 years and 3 months to date from 30 March 2021 and expiring on 29 June 2024. Mr Barkl will be eligible to be released on parole on 29 June 2024.

193. This is a total effective term of imprisonment of 6 years and 3 months with a non-parole period of 3 years and 3 months.

194. Mr Barkl, the sentences I have imposed mean that you will be obliged to spend a minimum period in custody of 3 years and 3 months. This means that, having regard to the time you have already spent in custody, you will be eligible for release on parole on 29 June 2024.

195. It will be a matter for the Federal Attorney General as to whether you will be released on that day. It may depend upon your behaviour in prison. It will also be a matter for the Attorney General to determine whether any conditions should apply to you while you are at conditional liberty on parole after 29 June 2024. If you are released on that day, you will remain on parole for a further period of 3 years. If you were to breach your parole, you may be required to return to prison to serve the balance of the term of your sentence.

Penalty – Mr Dumbrell

196. Raymond John Dumbrell is convicted.

197. For the s 3LA offence, I impose a term of imprisonment of 12 months to date from 30 March 2021 and expiring on 29 March 2022.

198. For the s 307.5(1) offence, I impose a term of imprisonment of 7 years to date from 30 June 2021 and expiring on 29 June 2028.

199. Pursuant to s 19AB(1) Crimes Act 1914, I fix a single non-parole period of 3 years and 6 months to date from 30 March 2021 and expiring on 29 September 2024. Mr Dumbrell will be eligible to be released on parole on 29 September 2024.

200. This is a total effective term of imprisonment of 7 years and 3 months with a non-parole period of 3 years and 6 months.

201. Mr Dumbrell, the sentences I have imposed mean that you will be obliged to spend a minimum period in custody of 3 years and 6 months. This means that, having regard to the time you have already spent in custody, you will be eligible for release on parole on 29 September 2024.

202. It will be a matter for the Federal Attorney General as to whether you will be released on that day. It may depend upon your behaviour in prison. It will also be a matter for the Attorney General to determine whether any conditions should apply to you while you are at conditional liberty on parole after 29 September 2024. If you are released on that day, you will remain on parole for a further period of 3 years and 9 months. If you were to breach your parole, you may be required to return to prison to serve the balance of the term of your sentence.

Penalty – Mr Theobald

203. Kevin Victor Theobald is convicted.

204. For the State supply offence, I impose a term of imprisonment of 5 years with a non-parole period of 3 years and 9 months to date from 30 March 2021. The head sentence will expire on 29 March 2026 and the non-parole period will expire on 29 December 2024.

205. I decline to make a finding of special circumstances because of the impact of the sentence to be imposed for the Federal offence.

206. For the s 307.5(1) offence, I impose a term of imprisonment of 7 years to date from 30 March 2022 and expiring on 29 March 2029.

207. Pursuant to s 19AB(1) Crimes Act 1914, I fix a non-parole period of 3 years and 6 months and to date from 30 March 2022 and expiring on 29 September 2025. Mr Theobald will be eligible to be released on parole on 29 September 2025.

208. This is a total effective term of imprisonment of 8 years with a non-parole period of 4 years and 6 months.

209. Mr Theobald, the sentences I have imposed mean that you will be obliged to spend a minimum period in custody of 4 years and 6 months. This means that, having regard to the time you have already spent in custody, you will be eligible for release on parole on 29 September 2025.

210. It will be a matter for the Federal Attorney General as to whether you will be released on that day. It may depend upon your behaviour in prison. It will also be a matter for the Attorney General to determine whether any conditions should apply to you while you are at conditional liberty on parole after 29 September 2025. If you are released on that day, you will remain on parole for a further period of 3 years and 6 months. If you were to breach your parole, you may be required to return to prison to serve the balance of the term of your sentence.

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Decision last updated: 21 February 2024