R v Barkl; R v Dumbrell; R v Theobald

[2023] NSWCCA 309

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

R v Barkl; R v Dumbrell; R v Theobald [2023] NSWCCA 309

Hearing dates:

12 July 2023

Date of orders:

01 December 2023

Decision date:

01 December 2023

Before:

Mitchelmore JA at [1]
Fagan J at [112]
R A Hulme AJ at [113]

Decision:

Appeal in each matter dismissed.

Catchwords:

CRIME — Appeals — Crown appeals against sentence — Commonwealth and State drug offences – import commercial quantity of border controlled drug – whether manifest inadequacy – whether sentencing judge determined objective seriousness – where co-offender received higher sentence – whether co-offender’s sentence and comparative cases demonstrative of error – subjective cases – whether sentences encompassed the whole of the criminality

Legislation Cited:

Crimes (Sentencing Procedure) Act1999 (NSW), ss 3A, 21A

Crimes Act 1914 (Cth), s 3LA, Part 1B

Criminal Appeal Act 1912 (NSW), s 5D

Criminal Code Act 1995 (Cth), ss 11.1(1), 307.5(1)

Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases Cited:

Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2

Chamon v R [2020] NSWCCA 112

Chen v R [2018] NSWCCA 158

DH v The Queen [2022] NSWCCA 200

Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45

Huckstadt v R [2016] NSWCCA 22

Jaafar v R [2022] NSWCCA 254

Lai v R [2021] NSWCCA 217

Lau v R [2014] NSWCCA 179

Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29

Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221

Pham v The Queen (2015) 256 CLR 550; [2015] HCA 39

R v Doff [2005] NSWCCA 119

R v FF [2023] NSWCCA 186

R v Gu [2006] NSWCCA 104

R v Kassir [2020] NSWCCA 88

R v Lembke [2020] NSWCCA 293

R v Mereb; R v Younan [2014] NSWCCA 149

R v Nguyen (2010) 205 A Crim R 106; [2010] NSWCCA 238

R v Sara [2020] NSWCCA 119

R v Schelvis; R v Hildebrand [2016] QCA 294

R v Yeo [2012] SASCFC 60

Ryan v R [2009] NSWCCA 183

Shakhanov v R [2019] VSCA 38

Tran v The Queen [2021] VSCA 278

Udunna v R [2020] NSWCCA 304

Category:

Principal judgment

Parties:

Proceedings 2021/88672
Commonwealth Director of Public Prosecutions (Appellant)
Lawrie Sampson Barkl (Respondent)

Proceedings 2021/88677
Commonwealth Director of Public Prosecutions (Appellant)
Raymond John Dumbrell (Respondent)

Proceedings 2021/88312; 2021/88317
Commonwealth Director of Public Prosecutions (Appellant)
Kevin Victor Theobald (Respondent)

Representation:

Counsel:
P McGuire SC / C Tran (Appellant)
T Edwards SC (Respondent in proceedings no. 2021/88672)
I Lloyd KC / T Bicanic (Respondent in proceedings no. 2021/88677)
A Djemal SC (Respondent in proceedings no. 2021/88312; 2021/88317)

Solicitors:
Commonwealth Director of Public Prosecutions (Appellant)
Gregory Goold Solicitors (Respondents)

File Number(s):

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

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

-

Date of Decision:

23 November 2022

Before:

Scotting DCJ

File Number(s):

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

HEADNOTE

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

The respondents, Mr Barkl, Mr Dumbrell and Mr Theobald, each pleaded guilty to a charge of attempt to possess a commercial quantity of an unlawfully imported border controlled drug (cocaine), contrary to ss 307.5(1) and 11.1(1) of the Criminal Code Act 1995 (Cth) (the Code), referred to herein as the Code Offence. Mr Barkl and Mr Dumbrell pleaded guilty to a charge of failure to comply with an order made under s 3LA(1)-(4) of the Crimes Act 1914 (Cth) where the warrant related to a serious offence, contrary to s 3LA(6) of that Act (the s 3LA Offence), while Mr Theobald pleaded guilty to the charge of knowingly supplying a commercial quantity of a prohibited drug (pseudoephedrine), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (the State Supply Offence).

On 23 November 2022, Mr Barkl was sentenced to a total effective term of imprisonment of 6 years and 3 months, with a non-parole period of 3 years and 3 months. Mr Dumbrell was sentenced to a total effective term of imprisonment of 7 years and 3 months, with a non-parole period of 3 years and 6 months. Mr Theobald was sentenced to a total effective term of imprisonment of 8 years, with a non-parole period of 4 years and 6 months.

The respondents were sentenced on the basis of an Agreed Statement of Facts. In summary, in early 2019, the Australian Federal Police (AFP) commenced investigating the activities of an alleged international criminal group that was importing border controlled drugs into Australia. The three respondents were identified as some of the Sydney-based members of the group, along with two other men. The AFP was aware that two consignments of aluminium ingots had been imported from Mexico prior to the importation that was the subject of the Code Offence.

In December 2018 and January 2019, arrangements were made for a further importation from Mexico of 1890 aluminium ingots packed on 18 pallets. That consignment arrived in Port Botany on 5 February 2019. On 6 February 2019, Australian Border Force officers discovered that 188.16 kg cocaine (149.3 kg pure) had been concealed in hollowed out ingots in the bottom two layers of pallets numbered 7 to 16. The AFP seized the ingots that contained the cocaine and repacked the pallets in a similar formation to the original consignment. On 27 February 2019, the pallets were transferred to Aviation Welding Services Pty Ltd (AWS).

The respondents and two other men, together with an employee of AWS, were variously involved in four attempts to access the cocaine at AWS. On 27 February 2019, Mr Dumbrell was heard on listening devices to be moving ingots around the premises and looking for pallet numbers. Although Mr Theobald and Mr Barkl were not present at AWS during the first attempt, they were observed that evening in conversation with Mr Dumbrell. On 28 February 2019, the respondents were heard moving ingots and attempting to cut them open. Mr Barkl was not recorded to have said anything of relevance, but the respondents were recorded making arrangements to return and using power tools. On 2 March 2019, the respondents were heard moving ingots around and discussing the missing ingots, again with Mr Barkl not being recorded as having contributed to this discussion. On 4 March 2019, the respondents were again heard moving the ingots around the premises and were observed meeting later at a restaurant.

On 13 March 2019, Mr Theobald was observed at AWS inspecting, counting, taking photos, and moving individual ingots. He was also heard to say, “40 million down the drain”. On 3 April 2019, Mr Theobald met with an unidentified male and discussed meeting the son of the cocaine supply cartel, the method of concealment in the ingots and future imports. On 10 April 2019, Mr Theobald met with Mr Barkl and, on 1 May 2019, Mr Barkl met with Mr Dumbrell. The ingots were disposed of on 7 May 2019.

In December 2020, Mr Theobald was involved in the State Supply Offence. ABF officers had identified 51.034 kg of pseudoephedrine in a consignment of Toyota side steps and replaced it with pool salt. Mr Theobald collected the consignment, drove it to AWS, unloaded it and was observed using electric grinders and other tools. Mr Theobald was stopped by police while driving with white powder on his clothes, which could not be differentiated from the substance in the side steps.

On 30 March 2021, the three respondents were arrested. During the arrests of Mr Barkl and Mr Dumbrell, the police found mobile and Ciphr devices and served a s 3LA Order on each of them to provide information about the devices. Both Mr Barkl and Mr Dumbrell refused to provide the passwords.

The Crown now appeals from the sentences imposed on each of the respondents, advancing identical grounds of appeal. By Ground 1, the Crown contends that the sentence imposed on each of the respondents for the Code Offence is manifestly inadequate. The focus of the Crown’s submissions was the objective seriousness of the offending, the sentence imposed on the AWS employee, Mr Keen, and the sentences that had been imposed for the Code Offence in other matters. By Ground 2, the Crown takes issue with the total effective sentence and non-parole period imposed on each respondent, also on the basis of manifest inadequacy, submitting that the sentencing outcome did not encompass the whole of the criminality.

The Court (Mitchelmore JA, Fagan J and R A Hulme AJ agreeing), dismissing the appeal, held:

As to Ground 1:

1. It was readily apparent from the sentencing judge’s reasons that his Honour considered that the respondents’ offending conduct was objectively serious. So much was evident from his Honour’s findings about the nature and extent of the offending and the role of the respondents in the criminal enterprise, which was an integral part of the determination of objective seriousness. It was not necessary for the sentencing judge to additionally state, “this is serious”: at [68]-[71].

   R v Sara [2020] NSWCCA 119; R v Mereb; R v Younan [2014] NSWCCA 149; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, considered; DH v The Queen [2022] NSWCCA 200, applied.

(2)   Having regard to the findings of the sentencing judge, there was not an inexplicable discrepancy between Mr Keen’s sentence and the lesser sentences for the respondents. It was open to the sentencing judge to describe the culpability of Mr Keen and that of the respondents as “similar”, which description was not gainsaid by Mr Keen’s employment at AWS, his having a reason to be at the premises, or the directions given to him Mr Dumbrell and Mr Theobald (the latter were not of a nature to support that either respondent was in a position of power or authority over Mr Keen). The sentencing judge considered there were significant factors which distinguished the subjective cases of the respondents and Mr Keen, and his Honour was entitled to give those differences the weight that his Honour did: at [80]-[83].

R v Lembke [2020] NSWCCA 293; R v Doff [2005] NSWCCA 119; R v Gu [2006] NSWCCA 104, considered; R v FF [2023] NSWCCA 186; Jaafar v R [2022] NSWCCA 254; Huckstadt v R [2016] NSWCCA 22; Chamon v R [2020] NSWCCA 112, applied.

(3) None of the cases to which the Court was referred demonstrated that his Honour’s approach in sentencing the respondents diverted from proper sentencing principle or led to sentences that were erroneously outside the range: at [100].

R v Kassir [2020] NSWCCA 88; Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2; Pham v The Queen (2015) 256 CLR 550; [2015] HCA 39, considered; Lau v R [2014] NSWCCA 179, Lai v R [2021] NSWCCA 217; Tran v The Queen [2021] VSCA 278; R v Schelvis; R v Hildebrand [2016] QCA 294; Shakhanov v R [2019] VSCA 38; R v Sara [2020] NSWCCA 119; R v Yeo [2012] SASCFC 60; Chen v R [2018] NSWCCA 158; Udunna v R [2020] NSWCCA 304; R v Lembke [2020] NSWCCA 293, distinguished.

(4)   The other aspects raised by the Crown concerning general and specific deterrence, the guilty pleas, delay, and the subjective features of each respondent’s case concerned matters of weight which were within the exercise of the sentencing discretion: at [102]-[108].

Ryan v R [2009] NSWCCA 183; R v Sara [2020] NSWCCA 119; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29, applied.

As to Ground 2:

(5) The Crown did not explain why, on the limited facts before the sentencing judge, his Honour’s approach to concurrence in respect of each respondent produced a total effective sentence and non-parole period that was manifestly inadequate: at [110].

JUDGMENT

1. MITCHELMORE JA: The Crown has appealed under s 5D of the Criminal Appeal Act 1912 (NSW) against the sentences imposed on the three respondents, Laurie Sampson Barkl, Raymond John Dumbrell and Kevin Victor Theobald. The sentences were imposed on 23 November 2022 by Scotting DCJ sitting in the Downing Centre District Court.

2. Each of Mr Barkl, Mr Dumbrell and Mr Theobald pleaded guilty to a charge of attempt to possess a commercial quantity of an unlawfully imported border controlled drug (cocaine), contrary to ss 307.5(1) and 11.1(1) of the Criminal Code Act 1995 (Cth) (the Code), referred to herein as the Code Offence. Mr Barkl and Mr Dumbrell pleaded guilty to a charge of failure to comply with an order made under s 3LA(1)-(4) of the Crimes Act 1914 (Cth) where the warrant related to a serious offence, contrary to s 3LA(6) of that Act (the s 3LA Offence), while Mr Theobald pleaded guilty to the charge of knowingly supplying a commercial quantity of a prohibited drug (pseudoephedrine), contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (the State Supply Offence).

3. The maximum penalty for the Code Offence is life imprisonment and/or a fine of 7,500 Commonwealth penalty units ($1,665,000 at the time of the offence), and the maximum penalty for the s 3LA Offence is imprisonment for 10 years and/or a fine of 600 Commonwealth penalty units ($133,200 at the time of the offence). For the State Supply Offence, the maximum penalty is 20 years imprisonment and/or a fine of $385,000 (3,500 State penalty units); there is also a standard non-parole period of 10 years.

4. On 23 November 2022, the three respondents were sentenced as follows:

1. Mr Barkl was sentenced on the s 3LA Offence to a term of imprisonment of 12 months to date from 30 March 2021, and on the Code Offence to a term of imprisonment of 6 years to date from 30 June 2021. The sentencing judge fixed a single non-parole period of 3 years and 3 months to date from 30 March 2021 and expiring on 29 June 2024. The total effective term of imprisonment was 6 years and 3 months, with a non-parole period of 3 years and 3 months.

2. Mr Dumbrell was sentenced on the s 3LA Offence to a term of imprisonment of 12 months to date from 30 March 2021, and on the Code Offence to a term of imprisonment of 7 years commencing on 30 June 2021. His Honour fixed a single non-parole period of 3 years and 6 months to date from 30 March 2021 and expiring on 29 September 2024. The total effective term of imprisonment was 7 years and 3 months, with a non-parole period of 3 years and 6 months.

3. Mr Theobald was sentenced on the State Supply Offence to a term of imprisonment of 5 years with a non-parole period of 3 years and 9 months to date from 30 March 2021, with his Honour declining to make a finding of special circumstances because of the impact of the sentence to be imposed for the Code Offence. For the Code Offence, Mr Theobald was sentenced to a term of imprisonment of 7 years with a non-parole period of 3 years and 6 months. His Honour fixed 3 years and 6 months as the single non-parole period, to date from 30 March 2021 and expiring on 29 September 2025. The total effective term of imprisonment was 8 years, with a non-parole period of 4 years and 6 months.

5. The Crown has appealed from the sentences imposed on each of the respondents, advancing identical grounds of appeal. By Ground 1, the Crown contends that the sentence imposed on each of Mr Barkl, Mr Dumbrell and Mr Theobald for the Code Offence is manifestly inadequate. By Ground 2, the Crown takes issue with the total effective sentence and non-parole period imposed on each respondent, also on the basis of manifest inadequacy. For the reasons outlined below, I do not consider that either ground is made out, and would dismiss the appeal.

The Code Offences

6. Mr Barkl, Mr Dumbrell and Mr Theobald were sentenced on the basis of an Agreed Statement of Facts (the Facts), from which I have distilled the following summary.

7. In early 2019, the Australian Federal Police (AFP) commenced an investigation into the activities of an alleged international criminal group that was importing border controlled drugs into Australia. The investigation involved extensive physical and electronic surveillance, including the lawful interception of telecommunications services, lawful use of listening, optical, tracking and data surveillance devices, and deployment of surveillance operatives from domestic law enforcement agencies.

8. The three respondents and two other men, Kyle Lindsey Butler and Branislav Grncarski, were identified as Sydney-based members of an international criminal group. The Crown alleged that between February and March 2019, they were attempting to take possession of a commercial quantity of cocaine at a warehouse located in Bankstown Aerodrome. Another individual, Lloyd Norman Keen, was identified as aiding and abetting the group’s criminal activities. I will refer to Mr Keen’s charges and sentence in more detail below.

9. By way of background to the conduct the subject of the Code Offence, in June 2018 a company by the name of Alumetal Trade Pty Ltd (Alumetal) was incorporated in Australia, with its registered office at an address in Crows Nest. The Crown alleged that the name of the company was selected by reference to a European company, Alumetal S.A., which sells products including aluminium alloys and has an online presence; and that Alumetal, which has no association with Alumetal S.A., was used to progress the importation of border controlled drugs into Australia.

10. In July 2018, a person with the user name “Valentin Alba Montano” contacted Gummerson Warehousing and Logistics (Gummerson) by email and requested a quote for storing aluminium and steel ingots, which were to be shipped in pallets each weighing approximately one tonne. In August 2018, a person with the user name “Alma Guadarrama” emailed All Ports International (All Ports) at Tullamarine in Victoria and organised customs clearance and delivery arrangements for an air freight consignment (referred to in the Facts as the “dry run consignment”). Ms Guadarrama also made arrangements for a sea freight consignment (referred to in the Facts as the “unknown consignment”).

11. On 2 September 2018, the dry run consignment arrived in Sydney from Mexico, comprising 12 aluminium ingots packed in six wooden boxes, with Alumetal listed as the consignee. On 7 September 2018, the consignment was delivered to Gummerson. The consignment was never collected by the intended recipient. The Crown alleged that its purpose was to build an importation history, identify vulnerabilities in the logistics chain and refine methodologies and security measures before the organisers imported a shipment that contained border controlled drugs.

12. On 6 November 2018, the unknown consignment arrived by sea into Port Botany, comprising 1,890 aluminium ingots and listing Alumetal as the consignee. On 13 November 2018, the unknown consignment was delivered to Gummerson, where it was stored for seven days before being taken to J&J Freightliners in Berkshire Park. An individual who worked at J&J Freightliners was questioned and denied all knowledge of taking receipt of the unknown consignment.

The importation the subject of the Code Offences

13. In December 2018, Mr Montano contacted Gummerson requesting transport and storage services for a further importation comprising 18 pallets of aluminium ingots from Mexico. In January 2019, Ms Guadarrama contacted All Ports International about transport and freight arrangements for the shipment. On 5 February 2019, the consignment arrived in Port Botany from Mexico, with Alumetal as the consignee. The consignment contained 1890 aluminium ingots packed on 18 pallets.

14. On 6 February 2019, Australian Border Force (ABF) officers inspected the consignment and detected a white substance that was concealed in 188 ingots, presumptive testing of which indicated the presence of cocaine. The ingots in which the substance was concealed were in the bottom two layers of pallets numbered 7 to 16. Those ingots had been hollowed out to form a compartment with a heavily glued lid; the white substance was located in the compartment in two compressed, rectangular blocks weighing 0.5 kg each. The ingots containing the white substance appeared lighter in colour and were shinier and more silver in appearance than the solid aluminium ingots, which were greyer and matte in appearance.

13. Subsequent forensic analysis of the white substance found in the 188 ingots confirmed that it was cocaine, with a minimum gross weight of 188.16 kg and purity ranging from 78.0% to 81.0% (149.3 kg pure). The estimated wholesale value of the drug was between $34.815 million and $48.530 million.

14. On 7 February 2019, the AFP seized the 188 ingots that contained the cocaine, leaving 1,702 solid aluminium ingots in the consignment. On 19 February 2019, those remaining ingots were repacked in the original 18 pallets in a similar formation to the original consignment; and the consignment was delivered to Gummerson. On 25 February 2019, Mr Montano contacted Gummerson and requested that the pallets be delivered to his “customer warehouse”, providing the location of Aviation Welding Services Pty Ltd (AWS) at Bankstown Aerodrome.

15. On 27 February 2019, an unknown female from Dot Express Pty Ltd (which had the same registered address as Alumetal) contacted Mr Butler about delivering the consignment to AWS. The discussion included the following exchange:

“BUTLER:                       … how much did you say there was?

UNKNOWN FEMALE:    … it’s about eighteen tonnes

BUTLER:   RIIGGGHHTTTT ok

UNKNOWN FEMALE:    Do you… it’s a pretty big order

BUTLER:                        It’s a very big order

UNKNOWN FEMALE:    I’ve got about um 18 pallets at 950kg each

BUTLER:           Woah ok alright no worries um just when the driver gets there um yeah yeah yeah just get my bloke there on the day to have a look at it because yeah something seems a bit odd about that”

18. The consignment was delivered to AWS on 27 February 2019. Mr Keen signed for the delivery and used a forklift to unload the pallets inside the warehouse, adjacent to the roller door-entrance. When Mr Keen was unloading the pallets, Mr Dumbrell and Mr Theobald were observed in the vicinity of the driveway of AWS. They were seen to meet with Mr Keen and to stand briefly in conversation, before Mr Dumbrell and Mr Theobald walked away from the premises. Mr Theobald returned to AWS that afternoon and spoke to Mr Keen.

Attempts to access the cocaine at AWS

19. The Facts detailed four attempts to access the cocaine at AWS. The first attempt occurred on the day the consignment was delivered, 27 February 2019. Further attempts were made on 28 February 2019, 2 March 2019 and 4 March 2019.

The first attempt: 27 February 2019

20. Mr Dumbrell and Mr Grncarski attended AWS at about 5:21pm on 27 February 2019; Mr Keen was also present. Between 5:21pm and 6:11pm, Mr Dumbrell and Mr Grncarski were heard on listening devices to be moving ingots around in the premises and looking for pallet numbers (Mr Keen was observed to be using a forklift to move the pallets around). Mr Dumbrell was recorded saying things that indicated an understanding that they were looking for ingots in particular pallets. For example, the following exchanges were recorded:

“DUMBRELL:   (ind) Are they numbered mate? (ind)

KEEN:              Possibly.

DUMBRELL:    Four eighteen alright (ind) it’s got the hook 7, 7, 7 to 16, so 8, 9, (ind) 7.

…

KEEN:              That’s 2…

DUMBRELL:    That’s 2 we don’t want 2.

…

GRNCARSKI:   What he tell you? What did he tell you to take?

DUMBRELL:     The bottom 2, the bottom 2.

…

DUMBRELL:     No (ind) told me to do mate. Number 3 is no good, number 3, number 3 (ind) 7 no, 3 to 6, 7 to 16 (ind) 18, 19 (ind) 12 and number 18 and 19 (ind).”

21. At about 6:13pm two pallets of ingots were loaded onto a white Toyota utility, registered to Mr Grncarski, who drove it away with Mr Dumbrell as a passenger. Although Mr Theobald and Mr Barkl were not present at AWS during the first attempt, they were observed at 7:27pm in Marple Avenue, Villawood in conversation with Mr Dumbrell and Mr Grncarski, and again at 7:56pm with Mr Dumbrell, at a Chinese restaurant in Villawood.

The second attempt: 28 February 2019

22. Mr Barkl, Mr Theobald and Mr Dumbrell were present for the second attempt, as was Mr Butler. It commenced shortly before 5:00pm on 28 February 2019. The men could be heard moving ingots and attempting to cut them open. By way of example, the following conversation was recorded:

“THEOBALD:    Just slice the top off it?

DUMBRELL:     Yeah, yeah, yeah.

THEOBALD:     Mate, if ya can, just (ind) cut that off… come here I’ll just show you cut it across there

BUTLER:          Slice it longways?

THEOBALD:    Yeah

BUTLER:         The whole way through?

THEOBALD:    Yeah

…

DUMBRELL:    This one’s a bit heavier. This one’s heavy, that’s light.

THEOBALD:    This one, this one.

DUMBRELL:    I’ll leave it here mate.”

23. Save for Mr Barkl, who was not recorded as saying anything of relevance, the men were recorded making arrangements as to when to return and using power tools to cut through some of the ingots. The respondents left AWS shortly after 5:00pm.

The third attempt: 2 March 2019

24. Mr Barkl, Mr Theobald and Mr Dumbrell were present for the third attempt, along with Mr Butler and Mr Grncarski. On 2 March 2019, the respondents entered the premises at about 7:45am, with Mr Grncarski arriving a short time later. The men could be heard moving ingots around and discussing the missing ingots, again with Mr Barkl not being recorded as having contributed to this discussion. By way of example, Mr Theobald was recorded as stating, “See these bottom ones? They are all missing (ind).” The listening device also recorded the group noting that the other pallets had ingots arranged in the same way but with no ingots missing. The respondents and Mr Grncarski left the AWS premises shortly before 8:00am. When Mr Theobald left the premises, he was holding a tool that looked like a saw.

The fourth attempt: 4 March 2019

25. On 4 March 2019, Mr Barkl, Mr Theobald and Mr Dumbrell, together with Mr Butler and Mr Keen, attended AWS at about 4:26pm. Between about 4:26pm and 4:39pm, they were heard moving ingots from the consignment around the premises. At around 4:41pm Mr Barkl, Mr Theobald and Mr Dumbrell left the premises. They were observed at about 5:20pm at a takeaway restaurant at Georges Hall, sitting at an outside table and having a discussion for about 10 minutes.

Subsequent events

26. On 11 March 2019, Mr Montano contacted Gummerson and requested documentary proof that all 18 pallets had been delivered to AWS.

27. On 13 March 2019, Mr Theobald, Mr Keen and Mr Butler were observed at AWS inspecting, counting, taking photos and moving individual ingots by hand, while Mr Keen moved pallets with a forklift. During the inspection, the following conversations were recorded:

“THEOBALD:    Well if you can just lift it up I’ll just pull number 9 out.

KEEN:              Maybe for another $100,000 I might be able to do it (laughter).

…

THEOBALD:    (ind) get number 9 out.

KEEN:              Yep.

THEOBALD:    (ind)

KEEN:              Yeah what one brick.

THEOBALD:    Yeah.

KEEN:              (ind)

KEEN:              10.5… 10.5.

THEOBALD:    That’s 11.

KEEN:              Oh is it?

THEOBALD:    Yeah.

…

THEOBALD:    Is that the good one (ind) look its supposed to be nah well (ind) chopped in half two two compartments right put one kilo there one kilo there.

…

THEOBALD:    They want us check because they want to check it I said we’re not checking it I said we’ll check number nine f***ing we’ll give you the number you have to do it (ind) but if they get rid of it do you want to have a check just in case.”

28. Mr Theobald was also recorded as saying “Mate, 40 f***ing million” and “40 million down the drain”.

29. On 18 March 2019, Mr Montano contacted Gummerson by email, complaining that while he had sent a delivery with a total weight of 18,490 kg, his customer’s delivery docket indicated that the total weight was only 17,100 kg. Mr Montano also referred to his customer having told him that the pallets “arrived incomplete with ingots … missing in different pallets”. On 20 March 2019, Ms Guadarrama emailed All Ports, stating that her client had advised that the cargo was incomplete and asking whether the inspection had taken a sample.

30. On 30 March 2019, Mr Barkl and Mr Dumbrell flew to Bangkok; and on 2 April 2019 they flew to Singapore. On 3 April 2019, Mr Theobald (in Sydney) met with an unidentified male. They discussed meeting the son of the cocaine supply cartel, the method of concealment in the ingots and future imports. The conversation included the following:

“THEOBALD:    Made 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.

…

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.”

31. On 4 April 2019, Mr Barkl returned to Sydney and Mr Dumbrell travelled back to Bangkok. On 6 April 2019, Mr Dumbrell returned to Sydney. On 10 April 2019, Mr Theobald met with Mr Barkl and an unknown male. They drove to AWS and Mr Theobald handed Mr Barkl a box. On 1 May 2019, Mr Barkl and Mr Dumbrell met and were observed driving in a car and walking and talking. On 7 May 2019, the aluminium ingots were loaded onto a truck by Mr Keen and disposed of.

32. On 30 March 2021, the three respondents were arrested.

The s 3LA Offences: Mr Barkl and Mr Dumbrell

33. On 30 March 2021, when arresting Mr Barkl at his residence, police undertook a search of the premises and located an Apple iPhone and a Samsung mobile Ciphr device. Mr Barkl was served with a s 3LA Order by the police to provide information or assistance for the two phones. He refused to provide the passwords.

34. When arresting Mr Dumbrell, police undertook a search of the premises and located a Samsung mobile phone and a Samsung Ciphr device. Like Mr Barkl, police served a s 3LA Order on Mr Dumbrell to provide information or assistance for the devices. He refused to provide the passwords.

The State Supply Offence: Mr Theobald

35. Mr Theobald was involved in the State Supply Offence with Mr Keen and a third person. In December 2020, ABF officers identified a consignment of Toyota side steps with irregularities. The consignment comprised 10 boxes with each box containing two side steps. Each side step concealed a large bag of pseudoephedrine. The combined total weight of pseudoephedrine was 51.034 kg.

36. Police replaced the drug in the side steps with pool salt and put the side steps back together to make it look like the package had not been opened. On 18 December 2020, it was delivered to the rear yard of a premises in Botany. On 19 December 2020, Mr Theobald collected the consignment from Botany and drove it to AWS, where he unloaded it with the help of Mr Keen.

37. At about 11:00am on 21 December 2020, Mr Theobald attended AWS with Mr Keen and another man. They were recorded on listening devices inside the premises, using electric grinders and other tools. At about 11:50am, Mr Theobald was stopped by police while driving and his clothing, which had white powder on it, was seized. Mr Theobald told the police that the white powder was horse feed. Subsequent analysis determined that the white powder found on his clothing could not be differentiated from the substance in the side steps.

The sentences imposed on the respondents

38. At the outset of the sentencing judge’s remarks on sentence, his Honour noted that each of Mr Barkl, Mr Dumbrell and Mr Theobald had pleaded guilty to the Commonwealth offences in the Local Court, which had a significant utilitarian value, the appropriate discount for which was 25%: at [9]. In relation to the State Supply Offence, Mr Theobald had also pleaded guilty in the Local Court and was entitled to a 25% discount: at [13].

39. In addition to the matters in Part 1B of the Crimes Act 1914 (Cth), his Honour noted that he had regard to the principles relevant to sentencing serious federal drug offenders set out in R v Nguyen (2010) 205 A Crim R 106; [2010] NSWCCA 238 (“Nguyen”) at [72] (Johnson J), and the comments of Bathurst CJ in R v Kassir [2020] NSWCCA 88 (“Kassir”) at [100]: at [11]. In relation to the State Supply Offence, his Honour referred to ss 3A and 21A of the Crimes (Sentencing Procedure) Act1999 (NSW).

40. His Honour set out the facts regarding the four attempts to access the cocaine, with which my summary above is consistent, in terms of who was present for each of the attempts and what the respondents were observed and/or recorded as doing and saying. He also set out the facts regarding the s 3LA Offences and the State Supply Offence. Ultimately, however, when considering the nature and circumstances of the offences, his Honour considered that the Facts did not permit him to make complete findings as to the role each respondent played in the attempt to possess the cocaine: at [132].

41. His Honour was satisfied that the importation of the cocaine was sophisticated and involved considerable planning. However, there was no evidence that the respondents were involved in making any of the arrangements in the lead up to the importation in February 2019, including the establishment of Alumetal, concealment of the cocaine, or organising the dry run consignment or the unknown consignment: at [133]-[134].

42. The sentencing judge accepted that the respondents were each in the vicinity of AWS in close proximity to the delivery of the consignment, but his Honour was not prepared to infer from that proximity that they were responsible for arranging its delivery. As his Honour acknowledged, it was “equally possible that… they had been arranged to be at AWS to locate the suspect ingots within the consignment when it arrived”: at [135]. His Honour was satisfied that the respondents 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”: at [136]. As to how they had become involved, his Honour noted that their respective evidence on that subject was untested: at [149].

43. His Honour described the respondents’ participation as “clumsy” and belying “the sophistication of the importation operation to the point at which they became involved”. His Honour considered that the manner of their involvement was likely to lead to them getting caught, noting that “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”: at [150].

44. In relation to what Mr Theobald was recorded to have said on 13 March 2019 about “40 million”, his Honour was not satisfied beyond reasonable doubt that Mr Theobald knew the value of the cocaine in the consignment at the start of the offence period. His Honour also noted that Mr Theobald’s description of the amount of drug in each suspect ingot was incorrect, from which he inferred that Mr Theobald had not actually seen a deconstructed suspect ingot that contained cocaine: at [143].

45. As to the recorded conversation between Mr Theobald and another male on 3 April 2019 (extracted at [30]), his Honour was not satisfied that it applied to the February consignment and was evidence that the respondents did what they did for a 20% share of the cocaine with an option to purchase blocks at a wholesale price. Rather, his Honour preferred Mr Theobald’s submission that the arrangements referred to in the conversation constituted an offer made by overseas representatives of the cartel to deal with Mr Theobald and the others on that basis in the future: at [145].

46. The sentencing judge made the following finding at [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 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.”

47. His Honour found that the quantity of cocaine (being more than 74 times the commercial quantity) was, to the respondents’ knowledge, substantial. The estimated wholesale value of the cocaine was between $35 million and $48 million, and his Honour was satisfied that the respondents knew it would have substantial value: at [154]. His Honour found that the offence formed part of a course of conduct comprising a series of criminal acts, and that it was committed for financial gain: at [155].

48. In relation to the s 3LA Offences, which concerned Mr Barkl and Mr Dumbrell, the sentencing judge noted that when they were arrested, they both had encrypted Ciphr devices. However, given the arrests occurred two years after the relevant events his Honour was not satisfied that they were using the same electronic devices at the time of their offences or that the devices had relevant information on them: [156].

49. In relation to the State Supply Offence, which concerned Mr Theobald, his Honour found that Mr Theobald was aware of what was in the side steps and was an active participant in undertaking a substantial process to remove the drugs, having collected the consignment, delivered it to AWS, unloaded it and cut the side steps to access the concealed substance. His Honour found that the quantity of the drug was about 40 times the commercial quantity, that Mr Theobald knew that the amount of drug was not less than the commercial quantity and had a significant value, that the drugs were in his possession for the purpose of supply, and that he committed the offence for financial gain: at [159].

50. The sentencing judge had regard to the maximum penalty for the federal offences and the maximum penalty and standard non-parole period for the State Supply Offence: at [157], [160].

51. The sentencing judge had earlier detailed the cases on sentence of Mr Barkl (at [78]-[99]), Mr Dumbrell (at [100]-[110]) and Mr Theobald (at [111]-[130]). His Honour noted that each had expressed remorse to his family (or in the case of Mr Theobald, those close to him) and the Court and, in the case of Mr Barkl and Mr Theobald, to their respective medical experts. Mr Dumbrell had also expressed shame: [161]-[163]. On the subject of specific deterrence, his Honour considered that the need for it was reduced to some extent for each respondent:

1. In respect of Mr Barkl, his Honour noted that his criminal history was less significant than the other respondents and that he had witnessed the adverse impacts of his arrest on his family. His Honour was satisfied by what had transpired that Mr Barkl understood “the extent of adverse consequences that can flow from criminal conduct”: at [165].

1. While Mr Dumbrell had a significant criminal record, his age and state of health would make his time in custody more difficult and render him less likely to reoffend: at [166].

2. As to Mr Theobald, he also had a significant criminal record but his family responsibilities were likely to lead him away from criminal pursuits, and he had insight into the “fallacy of fast money that led him into the offences”: at [167].

52. In relation to general deterrence, his Honour described it as a “fundamental consideration in serious drug offences”, further stating that the sentence “must be of such severity to deter others from engaging in drug related activities”: at [168]. In relation to each of the respondents’ character, antecedents, age and physical and mental condition at the time of sentence, his Honour made the following findings:

1. Mr Barkl was 61 years old. He had a serious dental condition which required treatment and had been diagnosed with a longstanding gambling disorder. He was very concerned about how his family was faring after the trauma they had experienced during his arrest. He also had some criminal history, having served a sentence of 12 months imprisonment in the early 1990s, to be served by way of periodic detention for drug supply: at [169].

2. Mr Dumbrell was 74 years old. He suffered from sleep apnoea, diabetes, osteoarthritis and prostate problems, and was in the early stages of dementia. As his Honour observed, Mr Dumbrell’s physical and mental health was “declining”. Mr Dumbrell had previously served a long period of imprisonment for a serious drug importation offence: at [170].

3. Mr Theobald was 63 years old. He had experienced stress and depression from the age of 50, following his diagnosis and treatment of Peyronie’s Disease and the resection of a bowel carcinoma. He suffered from arthritis, and previously had drug and alcohol issues although he had been abstinent since 2020. He had been diagnosed with a major depressive disorder and anxious distress, arising from the poor circumstances of his past life and to which his physical health conditions contributed. He had also served a lengthy prison term for a serious drug offence: at [171].

53. His Honour found that Mr Barkl and Mr Dumbrell had good prospects of rehabilitation: at [172]-[173]. His Honour did not make a specific finding regarding Mr Theobald’s prospects of rehabilitation, but did note that he had rehabilitated himself from drugs and alcohol and had spent increasing amounts of time caring for his mother and grandson: at [174].

54. His Honour next considered the impact on the respondent’s family members. Mr Barkl’s wife, son and daughter had suffered a clinically recognisable psychiatric disorder following the police conduct in the course of his arrest. Their health problems were exacerbated by their separation from Mr Barkl; at the least their recovery was made more difficult: at [175]. Mr Dumbrell’s mother suffered from dementia and had relied on him for support before he was arrested; his Honour considered that she would likely die while he was in prison: at [176]. Mr Theobald had been assisting his mother, who had terminal cancer and might also die while he was in prison; he had also been spending time with his grandson, who has mental health conditions, to assist his daughter who has drug addiction issues: at [177].

55. His Honour then addressed the issue of parity in relation to Mr Keen, who had been sentenced for the offence of aiding and abetting the attempt to possess cocaine to 9 years imprisonment with a non-parole period of 5 years: at [178]. Mr Keen was also a co-offender with Mr Theobald in relation to the State Supply Offence, for which he was sentenced to 5 years imprisonment with a non-parole period of 3 years and 9 months: at [179]. Those sentences were partially accumulated, and Mr Keen’s overall effective term of imprisonment was 10 years with a non-parole period of 6 years. His Honour stated at [180]-[181]:

“… 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.

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.”

56. His Honour considered it appropriate to mitigate the sentences “to some extent” due to the lengthy delay between the offending conduct and the arrests: at [185]. Although the COVID-19 pandemic occurred in the two-year period between the conduct and arrest, the delay had not otherwise been satisfactorily explained: at [182]. His Honour noted that Mr Barkl and Mr Dumbrell had not committed another offence during the intervening period. Mr Theobald did commit another offence (being the State Supply Offence), but also rehabilitated himself from drug use and alcohol abuse during that period.

57. The sentencing judge backdated the sentences to 30 March 2021 for each respondent, to take into account their pre-sentence custody: at [186]. His Honour also took into account the impact of the conditions imposed on prisoners due to the COVID-19 pandemic: at [187]. His Honour accepted the “appropriately made” concession by each respondent that a sentence of full-time imprisonment was the only appropriate sentence: at [188].

The Crown’s appeal

58. As I noted above, the Crown advanced identical grounds of appeal in relation to the sentence imposed on each of respondents. By Ground 1, the Crown contended that the sentence his Honour imposed on each respondent for the Code Offence was manifestly inadequate. The Notices of Appeal included the following as relevant to that contention:

“(a)   the sentence does not adequately reflect the serious nature of the offending, including the maximum penalty prescribed for the offence; and

(b)   the sentence does not adequately reflect the principles of specific and general deterrence, punishment and denunciation; and

(c)   the sentence does not reflect the application of the principle of parity in sentencing; and

(d)   the sentence does not adhere to the requirement for national consistency in sentencing standards for federal offences; and

(e)   the sentence demonstrates that too much weight was placed on the guilty plea.”

59. In its oral submissions, the Crown focused on three of the above indicia, namely: (i) the objective seriousness of the circumstances; (ii) the sentence imposed on Mr Keen; and (iii) sentences that have been imposed for the Code Offence in other matters.

60. Ground 2 of the Notices of Appeal alleged that the total effective sentence and non-parole period imposed on each respondent was manifestly inadequate. In addition to relying on some of the same factors that it relied on for Ground 1 (namely, those in (a), (b), (d) and (e) above), the Crown relied on the individual sentence imposed on the Code Offence as being manifestly inadequate. The Crown submitted in writing that Ground 2 must succeed if Ground 1 succeeded (and, in any event, the sentencing discretion would be reopened). The Crown also submitted that Ground 2 should succeed in any event because the total sentencing outcome did not encompass the whole of the criminality, in so far as the separate offence with which each of the respondents was charged reflected separate conduct and separate criminality which occurred at a different place and time.

Ground 1: manifest inadequacy of the sentences for the Code Offence

61. The principles that apply on an appeal on the ground of manifest inadequacy were summarised by Harrison J in R v Sara [2020] NSWCCA 119 (“Sara”) at [97]-[99] (Bathurst CJ and Hoeben CJ at CL agreeing). In Sara, Harrison J observed that the ground of manifest inadequacy entails the assertion that a sentence is “unreasonable or plainly unjust”: at [97]. The Court “must be satisfied that the non-parole period and total sentences imposed were outside the range of sentences that could have been imposed: see R v Mereb; R v Younan [2014] NSWCCA 149 at [32]”: at [97]. His Honour proceeded to identify the following seven principles that apply in assessing whether a sentence bears that character (at [99]; see also Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443] (R A Hulme J; Bathurst CJ, Leeming JA, Hamill J and N Adams J agreeing):

“(1)   Sentencing is a discretionary judgment and there is no single correct sentence: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24].

(2)   The Court of Criminal Appeal must not substitute its own opinion merely because it would have exercised the sentencing discretion differently to the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15].

(3)   Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with the application of proper principle and consistency of approach: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Markarian at [25]; Hili at [58].

(4)   The weight to be given to the various factors to be taken into account (including the evidence and various purposes of sentencing) is a matter for the sentencing judge: Bugmy at [24], [99].

(5)   Although the Court of Criminal Appeal is not bound by the sentencing judge’s assessment of objective seriousness, the Court should be very slow to form its own view: CMB at [78]; Mulato v R [2006] NSWCCA 282 at [37].

(6)   Whether or not manifest error has occurred is not ‘fundamentally intuitive’. What reveals manifest inadequacy is a consideration of all of the matters that are relevant to fixing the sentence: Hili at [60].

(7)   Reviewing a history of sentencing can establish a range of sentences that have in fact been imposed. However, that history does not establish either that (i) that range is the correct range; or (ii) that the upper or lower limits to the range are the correct limits. They are only a yardstick against which to examine a proposed sentence: Hili at [54] approving Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [303]-[304].”

Objective seriousness of the Code Offence

62. The Crown emphasised that the sentencing judge did not make a finding specifically about the objective seriousness of the respondents’ offending. Given the absence of a specific finding, the Crown submitted that his Honour had focused on attempting to discern the respondents’ respective roles at the expense of assessing objective seriousness and its impact on the sentencing discretion, leading to a sentence that was manifestly inadequate.

63. In support of the submission that the facts on which the respondents were sentenced pointed to their conduct and their roles as being “objectively very serious”, the Crown relied on the following matters:

1. Each of the respondents was actively involved in attempting to access the cocaine. The Crown pointed to the number of meetings between the three men, noting that steps were taken on some occasions to make the meetings clandestine, which revealed a level of planning and premeditation which did not find reflection in the sentencing judge’s assessment of their participation (as clumsy and belying the sophistication of the operation).

2. The joint participation of the respondents in the activity, which the Crown emphasised involved planning and premeditation. The Crown noted additionally in oral submissions that none of them had a legitimate reason to be at AWS.

3. The significant quantity of drugs, which was known to the three respondents at least after the first attempt to extract the cocaine. The Crown accepted that Mr Barkl may not have known as much as Mr Dumbrell and Mr Theobald before the first attempt, but submitted that he became aware after that (noting his presence at a meeting that evening). Relatedly, the Crown emphasised the substantial wholesale value of the cocaine and submitted that given the respondents had a generic sense of the quantity of drug, they impliedly had a sense of its value.

4. Each of the respondents committed the offence for financial gain.

64. The Crown submitted that the intermediate findings of fact that the sentencing judge made should have led to an elevated characterisation of the seriousness of the offence. It submitted that his Honour did not “draw those threads together” in assessing the objective seriousness of the offending. The Crown accepted that the sentencing judge had described general deterrence as “a fundamental consideration in serious drug offences” (emphasis added), but submitted that the description did not constitute a finding that the offending conduct was serious.

65. Specifically in relation to Mr Barkl, the Crown submitted that the fact that he was not recorded as having said anything of relevance at particular meetings should not distract from the fact that he was present at the attempts to access the cocaine (save for the first attempt). The Crown pointed to the fact that Mr Barkl was present during three of the four attempts and for relevant conversations (including on the evening of the first attempt); and he continued to participate.

66. In relation to Mr Dumbrell, the Crown emphasised that he went to AWS to check on the delivery of the consignment and he was present during the four attempts to access the cocaine. Mr Dumbrell was also recorded on the listening devices as displaying a degree of knowledge of what they were looking for.

67. As to Mr Theobald, the Crown submitted that he also went to AWS to check on delivery, he was present at the attempts to access the cocaine (save for the first attempt, of which he was at least aware), and he also had knowledge of the expected quantity of cocaine to be delivered and communicated with others about quantity.

68. In DH v The Queen [2022] NSWCCA 200, Yehia J observed at [60] that “[a] sentencing judge is required to identify all the factors relevant to the objective seriousness of an offence but is not required to nominate a point on the scale of seriousness by reference to a notional mid-point”, because the use of such descriptors “add nothing of value to the process of instinctive synthesis and the determination of a proportionate sentence”. The same may be said for the exercise for which the Crown advocated in the present case. Even accepting that the sentencing judge’s description of general deterrence did not amount to an express finding on objective seriousness, his statement as to the role general deterrence should play in sentencing the respondents, and the importance of that role, reflected what was otherwise readily apparent from his Honour’s reasons, namely, that his Honour considered that the respondents’ offending conduct was objectively serious.

69. I have summarised the reasons of the sentencing judge in some detail above. As Senior Counsel for Mr Barkl submitted, it is apparent from the structure of the remarks on sentence, in particular the heading “[n]ature and circumstances of the offences”, that his Honour was centrally concerned with evaluating the objective seriousness of the respondents’ conduct. His Honour was not satisfied that he could make findings consistently with all of the Crown’s submissions about the nature and extent of the respondents’ offending, but the findings his Honour did make indicated that his Honour was well aware that the conduct for which he was sentencing the respondents was objectively serious. The Crown’s acceptance, in oral submissions, that if the sentencing judge had said, “This is serious”, that would have met the requirement for stating a finding, emphasises the self-evidently serious nature of the conduct his Honour had otherwise found.

70. His Honour did not concentrate on the “role” of the respondents at the expense of objective seriousness. As Mr Theobald submitted, the determination of the role of an offender within a criminal enterprise was an integral part of the determination of objective seriousness. In circumstances where there was a real dispute about role in the course of the sentencing hearing, his Honour’s references to roles in the remarks on sentence were unsurprising.

71. Nor, contrary to the Crown’s submissions, did it follow from his Honour’s description of the respondents’ participation as “clumsy”, and in contrast to the sophistication of the importation, that his Honour downplayed the seriousness of their conduct. That said, it was relevant to seriousness that his Honour was not prepared to find that the respondents were involved in the importation or delivery of the consignment to AWS, and nor was he satisfied that they were to be involved in distributing the drugs. His Honour’s key finding in [152] was the culmination of what had gone before. As Mr Barkl and Mr Theobald separately submitted, it was inherent in that and the following paragraphs that his Honour undertook an assessment of objective seriousness by reference to all of the circumstances of the offence, and carried that forward in what followed.

Comparison with the sentence imposed on Mr Keen

72. The Crown emphasised in oral submissions that the sentences imposed on the respondents did not reflect the application of the principle of parity in sentencing. The focus of the Crown’s submissions in this regard was the sentence imposed on Mr Keen for aiding and abetting an attempt to possess a commercial quantity of a border controlled drug, being a term of imprisonment of 9 and a half years with a non-parole period of 5 years.

73. 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].

74. 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. The Crown advanced that submission for four main reasons:

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.

1. 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.

2. Mr Keen was not present at all of the attempts to access the cocaine.

3. 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).

75. The Crown acknowledged the aggravating factor that Mr Keen was on parole at the time of the relevant offending, but submitted that both Mr Dumbrell and Mr Theobald had serious drug offences in their criminal histories that should have placed them “effectively on par” with Mr Keen. It submitted that the aggravating factor does not “even come close to explaining” the difference between the sentences imposed.

76. The Crown accepted that the difference between Mr Keen and Mr Barkl’s culpability was “less stark” than for the other respondents, but nevertheless submitted that Mr Barkl was in a position of greater authority than Mr Keen. As to their respective subjective cases, the Crown submitted that the sentencing judge understated the findings of Mr Keen’s prospects of rehabilitation and focused too narrowly on Mr Barkl’s criminal history. The Crown further submitted that the disparity between the sentences imposed on the two offenders could not be explained by the repercussions of the arrest on Mr Barkl’s family.

77. 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 Mr Keen. They gave instructions to Mr Keen, 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 Mr Keen attended such discussions.

78. In so far as Mr Dumbrell’s age and health were relied upon to justify a lighter sentence as compared to Mr Keen, the Crown submitted that the comparison miscarried. The Crown submitted that Mr Theobald’s health conditions and the fact that he had stopped his illicit drug use by 2020 did not justify the stark disparity in sentences given the paucity of evidence on his health conditions and the fact that Mr Theobald committed the State Supply Offence after he had stopped using drugs.

79. In the context of appeals brought by offenders raising parity, this Court has stated that caution is required where the same judge hears the sentence matters of two or more co-offenders and is “in a position to consider the interrelationship between the objective and subjective features of the two offenders in an overarching way”: Jaafar v R [2022] NSWCCA 254 at [43] (Yehia J, Harrison and Fagan JJ agreeing), citing Huckstadt v R [2016] NSWCCA 22 at [91] (Button J, Johnson and Fagan JJ agreeing); see also Chamon v R [2020] NSWCCA 112 at [35]-[37]. That caution should apply equally, if by analogy, to evaluating the Crown’s arguments on this aspect of Ground 1.

80. I have set out above his Honour’s conclusions on the issue of parity as between the respondents and Mr Keen. Having regard to the events, as his Honour found them, that unfolded from the point of the first attempt to access the cocaine at AWS, it was open to the sentencing judge to describe the culpability of Mr Keen and that of the respondents as “similar”. In that context it is relevant to note that the facts specific to Mr Keen which were before the sentencing judge on Mr Keen’s sentencing hearing included the following:

“[7] Mr Keen accepts that:

(a)   By the afternoon of 27 February 2019, Mr Keen intended that his conduct would aid and abet the commission of an offence, namely an attempt to possess an illicit substance inside the aluminium ingots, being reckless as to the type of offence actually committed.

(b)   By this time, Mr Keen believed there was an illicit substance inside the aluminium ingots, and he was aware that there was a substantial risk that the illicit substance was either a border-controlled drug or a border-controlled precursor.

(c)   Mr Keen expected to receive money for his role in this enterprise, and it would not be an insignificant sum of money.

(d)   Mr Keen was a trusted employee of the accused Kyle Butler and was also trusted by his co-accused.”

81. As Senior Counsel for Mr Dumbrell submitted, Mr Keen’s employment at AWS and his having a reason to be at the premises did not relevantly distinguish his culpability from that of Mr Dumbrell or the other respondents, and certainly not to an extent that would render the description of “similar” inapplicable. Additionally, while Mr Dumbrell and Mr Theobald gave Mr Keen directions from time to time, the nature of those directions did not support that either person was in any position of power or authority over Mr Keen.

82. It is also apparent from the sentencing judge’s reasons that, at the time of the offending, Mr Keen had recently been released on parole in relation to another serious drug offence and that his Honour considered this to be a significant and distinguishing factor between him and the respondents. There were also differences between Mr Keen’s subjective case and the subjective cases of the respondents that his Honour considered to be significant and which he set out at [181] (extracted above at [55]). His Honour was well entitled to give those differences the weight that he did.

83. Contrary to the Crown’s submission, having regard to the above matters there was not an inexplicable discrepancy between Mr Keen’s sentence and the lesser sentences for the respondents.

Comparative cases advanced by the Crown

84. The Crown provided a schedule of seven comparative cases to the sentencing judge, which Senior Counsel for the Crown described on the appeals as demonstrating that the sentences his Honour imposed on the respondents were manifestly inadequate, sitting well below the available range. The Crown confirmed that it relied on the schedule in its entirety, but took the Court to four cases:

1. Lau v R [2014] NSWCCA 179 (“Lau”);

2. Lai v R [2021] NSWCCA 217 (“Lai”);

3. Tran v The Queen [2021] VSCA 278 (“Tran”); and

4. R v Schelvis; R v Hildebrand [2016] QCA 294 (“Hildebrand”).

85. As Bathurst CJ observed in Kassir, comparable cases provide a yardstick by which to examine a proposed sentence, but with an eye to consistency in the application of legal principle, not numerical equivalence (citing Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45 at [48]-[49]; Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [40]-[41]; and Pham v The Queen (2015) 256 CLR 550; [2015] HCA 39 at [26]-[28]). Having reviewed the cases in the schedule that the Crown provided to the sentencing judge, including the cases to which it gave particular emphasis on the appeal, I do not consider that the sentences imposed on the respondents in the present case fell outside the permissible range. True it is that the present cases share common features with those on which the Crown relied, but there are also relevant distinguishing factors that explain the differences between the sentences imposed.

86. Focusing on the cases to which the Crown took the Court in oral submissions, the applicant in Lau was found guilty after a 22 day trial of an offence contrary to ss 11.1(1) and 307.5(1) of the Code. The importation involved a consignment of 295 timber doors, 10 of which were inspected by Customs and were found to contain concealed silver foil packages of heroin. Mr Lau was a Chinese citizen and a resident of Hong Kong. He flew into Sydney from Hong Kong in the days before the attempted extraction of the heroin and, with a co-offender, Mrs Ma, and her son, he disassembled the dummy doors, placed 134 silver packages into bags and put the bags into Mrs Ma’s car. He was later arrested while driving the car with three suitcases which contained the packages. Once arrested, Mr Lau said that a friend in Hong Kong had given him Mrs Ma’s telephone number and told him to go and pick up something, and he did not know the silver packages contained drugs until a police officer told him later.

87. The sentence imposed on Mr Lau following a successful appeal against sentence was a term of imprisonment of 9 years with a non-parole period of 6 years. In this appeal, the Crown emphasised the following aspects of Mr Lau’s sentence:

1. The amount of heroin imported was 102 kg, which was less than the amount of cocaine imported in the present case.

2. Mr Lau had a crucial role in the enterprise, but it was at a low level.

3. Mr Lau was to collect a small fee ($2,500), with the sentencing judge finding that this did not suggest that at the time he agreed to do the job he knew that what he was to do involved a substantial quantity of border controlled drugs.

4. Mr Lau’s subjective features included what the sentencing judge described as something of an intellectual disability.

88. The sentence imposed on Mr Lau on resentence is not starkly different to the starting point of the sentences imposed on the respondents for the Code Offence before the discount they received for their guilty plea: 8 years for Mr Barkl, and 9 years and four months for Mr Dumbrell and Mr Theobald. The Crown submitted that what had to be brought to account in this context was the impact of the sentence imposed on Mr Lau’s co-offender, which Hoeben CJ at CL considered to be manifestly inadequate but which, absent a Crown appeal, raised a parity issue in circumstances where their subjective cases were not sufficiently significant to justify a 75% difference between their respective sentences: at [124]-[128]. That said, there are other subjective features of the respondents that would also need to be brought to account, including their age and the fact that, unlike Mr Lau, they pleaded guilty and expressed remorse. In oral submissions, Senior Counsel for Mr Theobald noted that no reference was made in the reasons in Lau, including Hoeben CJ at CL’s summary of the findings of the sentencing judge, to Mr Lau expressing remorse for his conduct.

89. The applicant in Lai pleaded guilty to the charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely methamphetamine, contrary to ss 11.1(1) and 307.5(1) of the Code. The starting point for Mr Lai’s sentence was 16 years, however following the application of a 25% discount, he was sentenced to 12 years imprisonment with a non-parole period of 8 years.

90. Police intercepted the importation of two lathes which were found to contain a total of 200 kg of methamphetamine, separated into 200 individual 1 kg blocks which were wrapped in vacuum sealed Chinese tea packaging. The pure weight of the methamphetamine was 160.7 kg and its street value was estimated to be between $30 million and $80 million. Mr Lai, who had flown into Sydney from Taiwan, was involved in extracting the drug. He had a particular familiarity with the working of lathes, and his role was to apply his knowledge and expertise to the task of opening each lathe so that the packages could be removed. Bellew J, with whom Bathurst CJ and Adamson J agreed, accepted that his role did not involve any managerial responsibility or exercise of authority, but nonetheless “his role and expertise were essential to a well organised venture of international drug trafficking”: at [72]. His Honour described Mr Lai’s subjective circumstances as “unremarkable”: at [74].

91. The Crown submitted that Lai involved a similar degree of seriousness in relation to the quantity and value of the drug, and that role of Mr Lai was similar to that of the respondents, in the sense that their expertise in looking for and knowing what they were looking for was essential to a well-organised venture of international drug trafficking. To these features might be added that Mr Lai, who was 33 years old, became involved in the operation as a result of a gambling debt and apart from clearing that debt there was no suggestion that he was to share in any profit from the venture: at [34]-[35], [62]. However, as Bellew J stated, Mr Lai had come to Australia specifically for the purposes of engaging in offending that relied on his particular expertise to remove the packages from where they had been concealed for importation: at [74]. When the differences between the offending conduct of the respondents and the applicant in Lai are considered along with the sentencing judge’s assessment of the respondents’ subjective circumstances, the difference between the sentence in Lai and the sentences in the present case do not bespeak error in the sentences imposed on the respondents.

92. The same can be said of the Crown’s reliance on Tran. Both Mr Tran his co-offender, Mr Ho, pleaded guilty to one charge of attempting to possess a border controlled drug in a commercial quantity, contrary to ss 11.1(1) and 307.5(1) of the Code. The case concerned the importation of 100 steel gates, 10 of which contained a number of concealed packages of methamphetamine. The weight of the pure methamphetamine was 229.6 kg and its street value was between $36.2 million and $75.4 million.

93. Mr Tran was sentenced to 28 years imprisonment with a non-parole period of 21 years. Mr Ho was sentenced to 6 years and 3 months imprisonment with a non-parole period of 3 years and 9 months, after a 30% discount had been applied to the head sentence and a 37.5% discount had been applied to the non-parole period. Mr Tran unsuccessfully appealed against the sentence imposed on him on grounds of parity. Although the Crown accepted that the decision on the appeal was not an endorsement of the sentence imposed on Mr Ho, it nevertheless relied on the case for what it said of Mr Ho’s involvement and conduct which was, in its submission, significantly less objectively serious than that of the three respondents. The Crown emphasised that Mr Ho had been recruited by Mr Tran and was very much subservient to Mr Tran, who directed his activities. Mr Ho’s involvement in the extraction of the methamphetamine was found to demonstrate a significantly lower criminality than Mr Tran’s, although it was nonetheless highly criminal: at [42].

94. Mr Ho was found to be a “somewhat naïve and compliant young man, in stark contrast to the way Mr Tran conducted himself”: at [23]. I accept that the respondents could not be similarly described, being much older and with criminal histories that involved prior offending of this kind. That said, the difference in criminality as between Mr Ho and the respondents is not so readily apparent, when one considers the findings that the sentencing judge made about their involvement as opposed to the findings for which the Crown unsuccessfully contended. In circumstances where their involvement was focused on locating the suspect ingots and extracting the drugs therefrom, it cannot be said that it was so different from that of Mr Ho that, once other factors were brought to account, the sentences imposed on the respondents were outside of the permissible range.

95. The final case that the Crown referred to in oral submissions was Hildebrand, which concerned the importation into Sydney of 104 kg of 3,4-methylenedioxymethamphetamine (“MDMA”). Ms Schelvis and her half-brother, Mr Hildebrand, pleaded not guilty to a charge under s 11.5(1) of the Code, based on the allegation that Mr Hildebrand and Ms Schelvis intended to import a commercial quantity of a border controlled drug contrary to s 307.1(1) of the Code. Mr Hildebrand was convicted and sentenced to 14 years imprisonment with a non-parole period of 9 years: at [40], [102].

96. The MDMA had been concealed in a pallet of bottles said to contain olive oil, some of which contained a liquid form of MDMA. On sentence, it was found that Ms Schelvis arranged the importation and that at her request, Mr Hildebrand communicated and met with other people about matters relating to the importation, keeping her informed of those communications and passing on to her the money he received. In so doing, Mr Hildebrand knew that Ms Schelvis intended to use the money to pay expenses she incurred in relation to the importation.

97. Although the sentencing judge considered that Mr Hildebrand was aware MDMA would be concealed, his Honour was not persuaded that he had any particular awareness of the vast quantity of MDMA that was concealed or that the quantity was large, although he must have known it was substantial. The sentencing judge considered that it was more probable than not that he had a significantly lesser appreciation of the quantity than Ms Schelvis did: at [51]. However, the sentencing judge found that Mr Hildebrand participated for financial reward; although the precise sum was not known, his Honour found that he expected to receive a sum that justified the great risk he took by his involvement: [52], [98].

98. Again, the Crown relied on the much higher sentence imposed on Mr Hildebrand and submitted that his knowledge was drastically more limited than that of the three respondents. Further, he was found to be acting directly on the instructions of his co-offenders. Again, the parallels that the Crown seeks to draw between Mr Hildebrand’s conduct and that of the respondents are apt to overstate the nature of their offending as found by the sentencing judge in this case. As Fraser JA (Morrison JA and Peter Lyons J agreeing) observed, the sentencing judge found that Mr Hildebrand’s involvement extended over many months, including leading up to and for some time after arrival of the pallet, and included communicating with others about the importation of the pallet and arranging to receive and then receiving cash in relation to it: at [43]-[44], [49].

99. Mr Hildebrand did not plead guilty, and he expressed no remorse (although the sentencing judge noted that he was too ashamed of his involvement to assist in gathering material in mitigation). Mr Hildebrand’s personal circumstances included that he was 40 years old when sentenced, of prior good character, with tertiary qualifications and having no particular need for additional money. The sentencing judge had described Mr Hildebrand’s involvement in those circumstances as “almost inexplicable”: at [56].

100. I am not persuaded that the cases to which the Crown drew specific attention, or the other cases included in the schedule that was provided to the sentencing judge, established that the sentences that his Honour imposed fall outside the range of sentencing discretion. In reaching this conclusion, I have had regard to the cases that the respondents called in aid, and which they submitted involved circumstances which were more proximate to their offending and subjective circumstances, including Shakhanov v R [2019] VSCA 38, Sara (to which I have referred above), Kassir (to which I have also referred above), R v Yeo [2012] SASCFC 60, Chen v R [2018] NSWCCA 158, Udunna v R [2020] NSWCCA 304, and Lembke. As the Crown submitted, there are, inevitably, differences between these cases and the cases currently before the Court. However, what the cases serve to highlight is the range of offending that the Code Offence can encompass, and the range of offenders who engage in the conduct. It is apparent from the reasons of the sentencing judge that his Honour punished the respondents for what they did, while also having regard to their subjective circumstances. None of the cases to which the Court was referred demonstrate that his Honour’s approach diverted from proper sentencing principle or led to sentences that were erroneously outside the range.

Further aspects of the sentencing judge’s approach with which the Crown took issue

101. The Crown addressed the other factors to which it referred in Ground 1 of the Notices of Appeal in its written submissions (Senior Counsel made oral submissions regarding delay in reply). These factors can be dealt with more briefly.

General deterrence and specific deterrence

102. The Crown accepted that the sentencing judge referred to the issue of general deterrence, but submitted that the sentences were so lenient that they do not reflect the need for general deterrence, punishment and denunciation. In particular, they did not reflect the “chief weight” on sentence, being the deterrence of importation offences, nor did they signal that the potential financial rewards of drug trafficking would be neutralised by the risk of severe punishment, citing Nguyen at [72(g) – (h)]. As the language of the submission demonstrates, and as Mr Dumbrell and Mr Theobald pointed out in their submissions, the Crown’s complaint in relation to general deterrence was essentially one as to weight, which was well within the discretion of the sentencing judge: Ryan v R [2009] NSWCCA 183 at [33]. The Crown has not otherwise identified how his Honour’s approach to general deterrence was inconsistent with the proper application of sentencing principles.

103. The same difficulty attends the Crown’s submissions on specific deterrence. The Crown contended that the sentencing judge grossly understated what was needed to deter the respondents, having regard to their criminal history, limited subjective cases and the serious nature of the offending. Again, however, the Crown’s complaints relate to matters of weight. In relation to Mr Dumbrell, for example, the Crown pointed to his history of drug and non-drug offences and submitted that the sentencing judge gave too much weight to Mr Dumbrell’s age and overstated the impact of Mr Dumbrell’s health on specific deterrence. The Crown’s submissions as to Mr Barkl and Mr Theobald were of a similar character.

Guilty plea

104. The Crown submitted that the strength of the Crown case should have qualified the extent to which the guilty pleas seem to have been taken to indicate a reduced likelihood of re-offending. As Senior Counsel for Mr Dumbrell submitted, this submission does not reflect his Honour’s actual findings. Apart from the unexceptional reference to the entitlement of each respondent to the utilitarian discount, the remarks on sentence do not indicate undue reliance on the respondents’ guilty pleas. In addressing the specific issue of the respondents’ prospects of rehabilitation, the sentencing judge referred to evidence specific to each respondent, including expert evidence, their family supports, their health and their circumstances before being incarcerated: at [172]-[174]. There is no basis for a conclusion that the sentencing judge placed undue weight on the respondent’s pleas.

Delay

105. The Crown submitted that the only delay identified was a very short one of two years between the commission of the offence and the arrest, which did not warrant any material mitigation of sentence given the respondents were not exposed to uncertain suspense. That his Honour considered it appropriate to mitigating the sentences “to some extent”, having regard to what his Honour considered was a lengthy delay between the offending conduct and the arrest (at [185]) was well open in the exercise of the sentencing discretion.

Subjective features

106. Finally, the Crown submitted that his Honour gave excessive weight to various of the respondents’ respective subjective circumstances:

1. In relation to Mr Barkl, the Crown submitted that his age and medical conditions, for which there was limited medical evidence, did not justify mitigation, especially since there was no evidence that his conditions could not be treated in custody. Additionally, his concern for his family was given excessive weight.

2. In relation to Mr Dumbrell, the Crown submitted he did not have a sufficiently strong subjective case to explain the lenient sentence imposed. His age and condition did not adequately explain the sentence. The findings on rehabilitation did not take account of his antecedents, the seriousness of his offending, the hearsay nature of his expressions of remorse, the lack of any expert evidence about rehabilitation and the limited nature of the evidence about his health.

3. In relation to Mr Theobald, the Crown submitted that the sentencing judge failed to consider that Mr Theobald committed the State Supply Offence after he had rehabilitated himself from drugs and alcohol. The fact that he had stopped using drugs and had been spending time with his mother and grandson provided limited insight into his prospects of rehabilitation. As there was no evidence that Mr Theobald’s medical conditions could not be managed in custody, that subjective feature did not explain the lenient sentence.

107. As the respondents variously submitted, although the Crown did not challenge any of the findings that the sentencing judge made, its submissions sought to engage the Court in matters which were quintessentially for the sentencing judge. As Senior Counsel for Mr Barkl submitted, the Court should approach such submissions with caution. In circumstances where the sentencing judge’s findings on subjective circumstances were supported by evidence, the weight that his Honour gave those matters in the sentencing process was for his Honour to determine.

108. As Harrison J observed in Sara, by reference to Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15], the Court of Criminal Appeal must not substitute its own opinion merely because it would have exercised the sentencing discretion differently to the sentencing judge. Having regard to all of the matters relevant to the sentencing exercise, the sentences that his Honour imposed on the respondents for the Code Offence were not manifestly inadequate. Ground 1 of the Notices of Appeal should be dismissed.

Ground 2: the total effective sentence and non-parole period were manifestly inadequate

109. The Crown gave brief attention to Ground 2 in its written submissions. Although the Crown submitted that Ground 2 should be upheld even if Ground 1 did not succeed, the submissions it put on that basis were limited to submitting that the sentencing judge erroneously made the sentence for the Code Offence almost entirely concurrent with the sentence for the other offence for which each respondent was respectively sentenced (the s 3LA Offence and the State Supply Offence), when the other offence reflected separate conduct and criminality.

110. I have referred above to the conduct in which Mr Barkl and Mr Dumbrell engaged in committing the s 3LA Offence, namely, not providing their phone passwords to the police in response to an order that they do so. The Crown submitted that the conduct comprising the s 3LA Offence involved separate criminal conduct occurring at a different time, and so much may be accepted. However, the Crown has not explained why it follows that, on the limited facts that were before the sentencing judge, his Honour’s approach to concurrence produced a total effective sentence and non-parole period that was manifestly inadequate in the sense of being unreasonable or plainly unjust. The same difficulty attends the Crown’s submissions regarding Mr Theobald, who was sentenced for the Code Offence and the State Supply Offence. Ground 2 should be dismissed.

Conclusion

111. I propose the following order in each appeal:

1. Appeal dismissed.

112. FAGAN J: I agree with Mitchelmore JA.

113. R A HULME AJ: I agree with Mitchelmore JA.

**********

Decision last updated: 01 December 2023