R v Butler

[2024] NSWDC 79

District Court

New South Wales

Medium Neutral Citation:

R v Butler [2024] NSWDC 79

Hearing dates:

08 March 2024

Date of orders:

21 March 2024

Decision date:

21 March 2024

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Kyle Butler is convicted.

2   Taking into account the discount for the plea of guilty, I impose a term of imprisonment of 3 years to date from 22 September 2023 and expiring on 21 September 2026.

3   The offender is to be released on 21 March 2024 after having served 6 months of the sentence, and on entering into a recognisance in the sum of $1,000 to be of good behaviour for 5 years. The further conditions of the recognisance are:

(a)   The offender accepts supervision by an officer of Community Corrections;

(b)   The offender obeys all reasonable directions from Community Corrections;

(c)   The offender is to undertake such treatment or rehabilitation program as reasonably directed by Community Corrections.

Catchwords:

CRIME — Drug offences — Commonwealth offences

Legislation Cited:

Crimes Act 1914 (Cth)

Criminal Code (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 Barkl; R v Dumbrell; R v Theobald [2023] NSWCCA 309

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)
Kyle Lindsey Butler (Offender)

Representation:

Counsel:
D New (Crown)
G James AM KC (Offender)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Monardo Legal Services (Offender)

File Number(s):

2021/88833

Publication restriction:

None

JUDGMENT

Introduction

1. Kyle Lindsey Butler (the offender) appears for sentence after pleading guilty in the District Court on the day that his trial was set to commence, to the offence of aid, abet, counsel or procure commission of an offence, namely the attempted possession of a commercial quantity of a border controlled drug, contrary to ss 11.1(1), 11.2(1) and 307.5(1) of the Criminal Code (Cth).

2. The maximum penalty for the offence is life imprisonment and/or a fine of 7,500 penalty units.

Approach to Sentencing

3. 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).

4. 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.

5. 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].

6. 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).

7. The offender entered a plea of guilty which has saved the need for witnesses to be called at trial and there is some utilitarian value in the plea. The plea also indicates a willingness to facilitate the course of justice. The appropriate discount is 10%.

8. 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].

Facts

9. The parties presented an Agreed Statement of Facts. 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 offender to permit an understanding of the sentence imposed.

Background

10. 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 Laurie Barkl, Raymond Dumbrell, Kevin Theobald, Branislav Grncarski, and Lloyd Keen and operated from the premises of Aviation Welding Services Pty Ltd (AWS) at Bankstown Aerodrome.

11. From about June 2018 to September 2018, persons in Australia and Mexico had undertaken 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.

12. On 6 November 2018, a shipping container arrived in Port Botany on a ship. The consignment consisted of 1,890 aluminium ingots packed onto 18 pallets. On 13 November 2018, it was delivered to Gummerson’s warehouse in Huntingwood, where it was stored for seven days, before being taken to the premises of J&J Freightliners in Berkshire Park, where it was signed for by a male using the name “Sam”. 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 onto the blocks. Police believe that the cocaine was concealed in the aluminium ingots of the unknown consignment.

13. It was accepted by the Crown that the following could not be proven beyond reasonable doubt:

1. that the offender was criminally involved with the co-offenders prior to 28 February 2019;

2. that he had any connection to any of the consignments prior to that date in which cocaine was concealed in aluminium ingots; and

3. that the offender had knowledge that the ingots contained a border controlled drug.

Importation of the cocaine

14. Between December 2018 and January 2019, arrangements were made for transport and storage services for the importation of 18 pallets of aluminium ingots from Mexico.

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

16. 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.

17. 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. Each block of cocaine weighed approximately 0.5kg and was impressed with the characters “LMV3”. The total amount of cocaine was 188.16kg with a purity of between 78–81%, amounting to 149.3kg pure. The estimated wholesale value of the cocaine was between about $35million and $48million.

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

19. 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 in preparation for delivery. Listening devices were installed in the consignment.

20. 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 his “customer warehouse” and confirmed that his “customer” would be ready to receive 18 pallets on 27 February 2019 between 8am and 3pm. He provided the offender’s name and the AWS address at Bankstown Aerodrome.

21. At about 12:47pm on 27 February 2019, a female from the transport company Dot Express Pty Ltd (Dot Express) called the offender and they discussed delivery of the consignment. They had the following conversation:

Female	I just want to let you know the driver will be there at two o’clock if that’s ok?
Butler	Yeah okay no worries at all to be honest with you I’m actually not in the workshop today at all um..
Female	Oh okay
Butler	Um but one of the boys will be there…how much did you say there was?
Female	Oh sweet…it’s about 18 tonnes
Butler	Right okay
Female	Do you…it’s a pretty big order
Butler	It’s a very big order
Female	I’ve got about um 18 pallets at 950kg each
Butler	Woah okay 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

22. At about 1:30pm on 27 February 2019, the consignment was delivered to AWS by Dot Express. Mr Keen signed for the delivery of the consignment.

23. Between about 2:37pm and 3:11pm, Mr Keen used a forklift to remove all 18 pallets of the consignment from the Dot Express truck and placed them inside the AWS warehouse, adjacent to the roller-door entrance.

24. Mr Dumbrell, Mr Theobald and Mr Keen were observed in the vicinity of the AWS warehouse having a conversation which lasted a few minutes.

25. At about 3:58pm, Mr Keen shut the roller-door and Mr Theobald walked in the opposite direction of the warehouse. A short time later, Mr Keen exited the warehouse through the side door.

First attempt to access the cocaine

26. 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 of two layers of pallets 7-16. The men did not find what they were looking for.

27. 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 and Mr Dumbrell as a passenger.

28. During the inspection the offender received the following SMSs from an unknown number regarding the aluminium ingots:

1. At 6:08pm – “Mate what the hell are you going to do with all that aluminium”;

2. At 6:19pm – “I’m talking about 18 pallets of aluminium ingots totalling 17.1 tonne”;

3. At 6:46pm – “I’m farkin serious can’t you look in workshop on cameras”; and

4. At 7:17pm – “Yeh inside it’s a farkin heap of aluminium” and “Big money I would think. Had attention Kyle on delivery note”.

29. The offender responded with the following text messages “Man that’s strange. Prob just a mix up with delivery. We’re going to orders lots of stuff soon but just quoting and waiting on p.o’s for now” and “You’ve got me worried though! I hope they don’t expect me to pay for all of this! [smile face emoji] I’ll have a look in the morning and sort it out. Thanks for letting me know”.

Second attempt to access the cocaine – 28 February 2019

30. On 28 February 2019 at 6:48am, the offender received a phone call from Mr Keen. They discussed the delivery of the aluminium ingots, who ordered them, and the paperwork being “right”. They agreed to meet at IGA for coffee.

31. At about 4:51pm the offender 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.

32. The offender and Messrs Barkl, Dumbrell and Theobald 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. The offender told the other men that they could come back to the premises from 8.00am on Saturday “in their own time”. Mr Dumbrell thanked the offender for his help.

33. At about 5:04pm Mr Barkl departed the premises. The offender and Mr Dumbrell departed a short time later.

Third attempt to access the cocaine – 2 March 2019

34. At about 7:45am on 2 March 2019 Messrs Barkl, Dumbrell and Theobald entered the AWS premises. Mr Grncarski arrived and entered the premises a short time later.

35. The offender and Messrs Barkl, 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.

36. 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.

37. 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 – 4 March 2019

38. On 4 March 2019 the offender and Messrs Barkl, Dumbrell, Theobald and Keen attended AWS, arriving at about 4:26pm.

39. Between 4:26pm and 4:39pm the men were heard moving ingots from the consignment around the premises.

40. At about 4:41pm Messrs Dumbrell, Theobald and Barkl left the premises.

Subsequent conduct following a failed attempt to locate the cocaine

41. Between 4:12pm and 4:50pm on 13 March 2019, the offender, Mr Theobald and Mr Keen were observed inside AWS, inspecting, counting, taking photos, and moving individual ingots by hand. The offender was recorded on video using the torch of his mobile telephone to inspect the ingots.

42. During this time, the men were recorded discussing numbered ingots from the stacked pallets. The offender was engaged in these discussions and the sorting exercise for about 20 minutes.

43. At about 4:54pm, Mr Keen left the premises, followed by the offender at 4.59pm.

Arrangements made by the offender to sell the aluminium ingots

44. Between 4 April 2019 and 7 May 2019, the offender had several conversations with an unknown male over phone and SMS, regarding the sale of the aluminium ingots, possible purchasers, sale price and composition of the ingots.

45. Between about 1:00pm and 3:26pm on 7 May 2019, Mr Keen was observed loading aluminium ingots into a white Hino flatbed truck, with the assistance of two unknown persons. The offender was present and took images of the ingots. Between 2:08pm and 4pm the truck did two trips between AWS and to Pay Well Sydney Copper where the ingots were delivered.

Arrest and search warrants

46. On 30 March 2021 at about 4:18am, Police executed a search warrant at a premises in Luddenham, NSW. The offender was placed under arrest at this time.

47. At about 7:07am, the offender was served with a s 3LA Order by Police, to provide information or assistance for any mobile or electronic devices located at the premises. The offender complied with this order and provided all passwords. No items of evidentiary relevance were seized.

48. The offender was released on bail on 31 March 2021 and has spent 1 day in presentence custody.

Sentencing Assessment Report

49. The offender is in a prosocial relationship and supported by his partner. He is presently going through divorce proceedings with his ex-wife. He has a six year old daughter who he sees three times a week under a parenting order arrangement.

50. The offender is part owner of a family business with his father. The Civil Aviation Safety Authority requires him to undergo police checks on a regular basis.

51. The offender told the author of the SAR that he allowed the aluminium ingots to be stored in the AWS warehouse on the basis that he would receive rental payments for the space utilised. Initially he believed the aluminium was going to be forged and cast as wheel rims for motor vehicles. He first cut one of the ingots open to see if the aluminium ingots were suitable for that purpose. The offender was introduced to Mr Keen by his father. The offender felt manipulated by Mr Keen because of his ignorance of the criminal underworld.

52. The offender reported that he was ashamed and embarrassed for his ignorance and what could have occurred if the drugs got into the community.

53. The offender was assessed as suitable to undertake community service work for which he could be provided 21 hours of work per month. He was assessed as suitable for supervision and as a low risk of reoffending.

The Offender’s Case on Sentence

54. The offender tendered the following documents:

1. report of Professor Stephen Woods, Forensic Psychologist, dated 21 February 2024;

2. character reference from Steve Glover dated 31 July 2023;

3. character reference of Wendy Craig dated 28 August 2023;

4. report of Kathy Archer, social worker and counsellor, dated 18 October 2023.

55. The following is a precis of the evidence relied on by the offender.

56. The offender is presently 40 years of age and the youngest of three children born to his parents’ union. His sister, Rhiannon, died in 2015 at age 36.

57. The offender’s parents separated when he was four years of age and he had very little contact with his father for the following 14 years. His mother had to work two jobs to support the family and he became very close to his sister, Rhiannon.

58. He attended school in Bonnyrigg Heights describing himself as “academically average”. Although he felt abandoned by his father, his father offered him a metal fabrication apprenticeship when he left school with his father’s company.

59. He met his former wife in 2011 and they were married in 2015. He has one daughter who is now six years of age.

60. The offender had a close relationship with his sister who died from liver disease in 2015 following a protracted illness, during which he provided support for her and her young daughter who was about five years of age at the time. His sister died about six weeks after his return from his honeymoon. He told Professor Woods that her death was a “huge shock”.

61. The offender’s father retired from the business in 2017, requiring the offender to work 10 hour days to keep the business viable.

62. The offender’s marriage soured and they began to argue a lot in about mid 2018, culminating in the separation in 2019, which he did not expect. He underwent counselling in respect of the collapse of his marriage and how he could support his daughter through the changes in her family. Following the separation, his ex-wife refused to allow him contact with his daughter. This caused him symptoms, which Professor Woods determined to be consistent with an adjustment disorder with mixed anxiety and depressed mood.

63. He began to use crystal methamphetamine in about 2018 in order to cope with his grief relating to the loss of his sister and the breakdown in his marriage. He continued his drug use until becoming involved in the offence.

55. In early November 2018 the offender presented himself for a mental health assessment at Liverpool Hospital. At that time he was using cannabis on a daily basis, ice on a weekly basis (for the past four to six months), consuming about six beers daily and had lost approximately 12 kgs in weight.

56. Professor Woods noted a history of pervasive worry about his sentencing hearing, episodes of deeply depressed mood and offence related guilt and shame. He was particularly concerned about the impact that his incarceration would have on his daughter. He has also experienced worry-related sleep disturbance and self-recrimination.

57. Professor Woods diagnosed the offender as suffering from prolonged grief disorder, adjustment disorder with mixed anxiety and depressed mood, stimulant use disorder and cannabis use disorder (both of which are in sustained remission). Professor Woods opined that prior to and at the time of the offending, the offender’s mood was adversely impacted and he had episodes of significantly impaired judgment.

58. The offender expressed remorse to Professor Woods.

59. The offender told Professor Woods that he employed Mr Keen at AWS who was on gaol work release. Mr Theobald was a friend of Mr Keen and periodically visited him at the AWS warehouse while having his motor vehicle serviced. The offender agreed to rent an area of the premises to Mr Theobald. The aluminium ingots were stored in this area. The offender told Professor Woods that he had suspicions about Mr Theobald’s explanation about the aluminium ingots but chose not to “ask any questions”. At Mr Theobald’s request he used his own equipment to cut an ingot for inspection by Mr Theobald. Later he sold the ingots with Mr Theobald’s permission, after it was established that they did not contain any illicit substance. He received a storage rental fee of $100 per week for each pallet of the ingots and $12,000 from their eventual sale.

60. As a result of being charged with the offence, the offender lost lucrative contracts with the Royal Australian Air Force, Qantas Link and the New South Wales Police.

61. His character referees stated that the offence was completely out of character for the offender. Mr Glover stated that the offender suffered stress as a result of taking over the business from his father in 2017 and worked hard to keep it going. Mr Glover has also observed the stress on the offender from the criminal proceedings. Ms Craig made similar observations.

62. The report of Ms Archer stated that the offender began counselling to cope with the breakdown of his marriage in about 2018. She noted psychological and emotional distress in her contact with him and an inability to stay focussed on tasks. He began showing signs of avoidance behaviours. Ms Archer opined that the loss of his sister and the breakdown of his marriage had a profound impact on his psychological wellbeing. She recommended that he continue treatment to deal with processing his trauma.

Consideration

Nature and circumstances of the offence

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

73. The offender was not present at the AWS warehouse on the first attempt to access the consignment on 27 February 2019.

74. On the second attempt to access the consignment on 28 February 2019, the offender cut open an ingot to see if it was suitable to be forged into mag wheels. The transcript of the listening device set out in the facts, supports this conclusion.

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

76. The offender was present during the fourth attempt to access the consignment on 4 March 2019, but the facts do not set out what he did on that occasion to assist the co-offenders, if anything. The co-offenders’ behaviour continued to be suspicious.

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

78. It is hard to discern from the facts the time at which the offender became aware that the co-offenders were trying to find drugs. The offender did not participate in the off-site meetings of the co-offenders. He also had legitimate reasons to be at the AWS warehouse. The offender accepted that in the charge period of between 28 February 2019 and 13 March 2019 that his conduct was reckless.

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

80. The role of the offender was an essential one as it allowed the co-offenders to avoid detection, but he was less involved than any of the other co-offenders.

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

82. I have had regard to the maximum penalty for the offence.

Contrition

83. The offender has expressed remorse to the psychologist and to his character referees. He has accepted responsibility for his actions and has facilitated the course of justice. I accept that he is genuinely contrite.

Specific deterrence

84. The sentence imposed must reflect the need for specific deterrence, but it is significantly reduced for the reasons that follow.

85. The offender was a person of good character prior to February 2019, that is up until the age of 36. He became involved in the offence through his legitimate business activities. He did not set out to commit an offence but stood by and assisted the co-offenders in their intended criminal conduct. Whilst on bail for the offence he has continued to lead a law-abiding life and has a supportive partner. He has managed to abstain from drugs for a lengthy period and he is unlikely in my view to return to using drugs and is thereby unlikely to reoffend. His liberty was seriously curtailed by the imposition of an overnight curfew and daily reporting for about 18 months. He has also lost his security clearance, which has put the continuation of his business in jeopardy.

General deterrence

86. 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

87. The offender is currently 40 years of age and in good physical health.

88. He was a person of good character prior to the offence. He had one irrelevant conviction on his record. His character referees speak very highly of his work ethic and generosity.

89. The offender was under substantial stress in the period leading up to the offence. He was experiencing prolonged and unresolved grief over the death of his sister. He was also going through an acrimonious separation from his ex-wife. He was distressed by the breakdown in the relationship and his ex-wife’s actions in attempting to deny him contact with his daughter. In 2018, he began to drink alcohol to excess and use illicit substances to assist him to cope with these stressors. His drug use was such that it was classified by Professor Woods as a significant mental condition. I am satisfied that the combined effect of his mental conditions had a debilitating impact on his judgement. I am satisfied that there was a causal link between his offending conduct and his mental condition and that as a result his moral culpability for the offence is reduced.

90. I am satisfied that the offending conduct is completely out of character for the offender and that he became involved by reason of the fact that the criminal activity of others took place in his business premises. It is significant that the offender co-operated with the police to provide his electronic devices and the passwords to them. I am satisfied that he did so because he was not involved in the criminal syndicate at any significant level and he had nothing to hide by doing so. I am satisfied that his mental conditions impacted his judgement and undermined his ability to extricate himself from the situation. I am satisfied that he was vulnerable by reason of his mental condition and was taken advantage of by the co-offenders.

Prospects of rehabilitation

91. The offender has demonstrated over the past five years since the offence was committed that he has good prospects of rehabilitation. He is no longer using drugs or engaging in alcohol abuse. He has continued his business and provided support for his daughter in a difficult time. I am satisfied that his supportive relationship with his partner, the need to care for his daughter and his niece are all positive factors in his life that will lead him away from committing further offences.

Impact on family members

92. The offender has a young daughter aged six, who lives with her mother. The offender has contact with her on three days of each week. The offender also provides support to his sister’s daughter who is presently aged 13. I am satisfied that if the offender was to be sent to prison that would have a deleterious impact on his young daughter and his niece.

Other matters

Parity

93. 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.

94. Mr Barkl was sentenced to a term of imprisonment of 6 years for a s 307.5(1) offence of attempting to possess the cocaine. I fixed a single non-parole period that incorporated another offence and it is not strictly relevant on parity.

95. Mr Dumbrell was sentenced to a term of imprisonment of 7 years for a s 307.5(1) offence of attempting to possess the cocaine. I fixed a single non-parole period that incorporated another offence and it is not strictly relevant on parity.

96. Mr Theobald was sentenced to a term of imprisonment of 7 years with a non-parole period of 3 years and 6 months for a s 307.5(1) offence of attempting to possess the cocaine.

97. A Crown appeal against the inadequacy of the sentences imposed on Messrs Barkl, Dumbrell and Theobald was dismissed by the Court of Criminal Appeal: R v Barkl; R v Dumbrell; R v Theobald [2023] NSWCCA 309. Mr Keen has appealed the severity of his sentence and the appeal is yet to be heard.

98. Mr Grncarski was sentenced by Girdham SC DCJ to a term of imprisonment of 6 years with a non-parole period of 3 years and 2 months for a s 307.5(1) offence of attempting to possess the cocaine.

99. Messrs Barkl, Dumbrell and Theobald were sentenced on the basis that they knew that the consignment contained border controlled drugs.

Delay

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

101. The offender did not commit another offence during the delay. It is appropriate to mitigate the sentence imposed to some extent by reference to the lengthy delay between the offending conduct and the arrest of the offender.

Pre-sentence custody

102. The offender spent one night in custody before he was released on bail. In addition, he spent a bit over 18 months the subject of an overnight curfew and daily reporting to the police. I will back date the sentence to be imposed by 6 months to take into account the offender’s pre-sentence custody.

No alternative to imprisonment

103. I have had regard to s 17A of the Crimes Act and I am satisfied after considering all possible alternatives that no sentence other than imprisonment is appropriate, for the reasons I have set out in this judgment.

Penalty

104. Kyle Butler is convicted.

105. Taking into account the discount for the plea of guilty, I impose a term of imprisonment of 3 years to date from 22 September 2023 and expiring on 21 September 2026.

106. The offender is to be released on 21 March 2024 after having served 6 months of the sentence, and on entering into a recognisance in the sum of $1,000 to be of good behaviour for 5 years. The further conditions of the recognisance are:

1. the offender accepts supervision by an officer of Community Corrections;

2. the offender obeys all reasonable directions from Community Corrections;

3. the offender is to undertake such treatment or rehabilitation program as reasonably directed by Community Corrections.

107. If the offender fails to comply with the conditions of the recognisance release order, further action may be taken against him. This may require the offender to return to Court.

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Decision last updated: 21 March 2024