R v Sadik
[2025] SASCA 46
•8 May 2025
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
R v SADIK & ANOR
[2025] SASCA 46
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Justice David)
8 May 2025
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - TRAFFICKING, TRADING, SELLING, SUPPLYING OR DISTRIBUTING - INVOLVING COCAINE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - POSSESSION
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - SENTENCE - IMPORT-EXPORT OFFENCES
This is an application by the Commonwealth Director of Public Prosecutions, seeking permission to appeal the sentences imposed on the respondents for attempting to possess a commercial quantity of an unlawfully imported border-controlled drug, contrary to ss 11.1(1) and 307.5(1) of the Criminal Code Act 1995 (Cth), on the ground that the sentences were manifestly inadequate.
Each respondent pleaded guilty to attempting to possess 114.76 kg of unlawfully imported cocaine. Due to the significant quantity of cocaine, the applicable maximum penalty for the offence was imprisonment for life or a fine of $2.347 million.
For each respondent, following appropriate reductions, the judge imposed a sentence of imprisonment for three years and one day, with a non-parole period of 18 months, backdated to commence on 3 February 2024 when the respondents first entered custody.
Held, (per the Court), granting the Director permission to appeal, allowing the appeal, setting aside the sentences imposed and re-sentencing the respondents:
1.Having regard to the seriousness of the offending, the respondents’ essential albeit menial role in the criminal enterprise, their youth and their favourable personal circumstances, the sentences were manifestly inadequate.
2.The length of the sentences was so disproportionately low as to amount to an error of principle that undermines public confidence in the administration of justice and makes this Court’s principled intervention necessary.
3.The respondents are each re-sentenced to nine years’ imprisonment, reduced for their guilty pleas by 25 per cent to six years and nine months, with a non-parole period of four years, backdated to 3 February 2024.
Criminal Code Act 1995 (Cth) sch 1, ss 11.1(1), 307.5(1); Criminal Code Regulations 2019 (Cth) reg 14, sch 2, cl 1; Criminal Procedure Act 1921 (SA) s 157(1)(iii), referred to.
Awraham v R (Cth) [2021] NSWCCA 241; Azzopardi v The Queen (2011) 35 VR 43; Barbaro v The Queen (2014) 253 CLR 58; Bugmy v The Queen (2013) 249 CLR 571; Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; Chan, Lo and Nguyen v R [2010] NSWCCA 153; Dao v R [2011] NSWCCA 183; Director of Public Prosecutions (Cth) v Thomas; Director of Public Prosecutions (Cth) v Wu (2016) 53 VR 546; Everett v The Queen (1994) 181 CLR 295; Griffiths v The Queen (1977) 137 CLR 293; Hili v The Queen (2010) 242 CLR 520; Hurkmans v R [2024] NSWCCA 126; Keen v R [2024] NSWCCA 157; Malvaso v The Queen (1989) 168 CLR 227; Matthews v The Queen [2014] VSCA 291; Munda v Western Australia (2013) 249 CLR 600; R v Ametovic [2024] SASCA 153; R v Barkl; R v Dumbrell; R v Theobold [2023] NSWCCA 309; R v Beaumont [2023] SASCA 128; R v Boimah [2017] QCA 50; R v Brand (a pseudonym) [2025] SASCA 17; R v Butler [2024] NSWCCA 133; R v Constant (2016) 126 SASR 1; R v Farquhar [2023] SASCA 98; R v Henderson (2023) 142 SASR 507; R v Kong (2013) 115 SASR 425; R v Mangelsdorf (1995) 66 SASR 60; R v Nemer (2003) 87 SASR 168; R v Nguyen; R v Pham (2010) 205 A Crim R 106; R v Olbrich (1999) 199 CLR 270; R v Osenkowski (1982) 30 SASR 212; R v Ostrowski; Ex parte Director of Public Prosecutions (Cth) [2018] QCA 62; R v Phelps; R v Zalapa [2018] NSWCCA 191; R v Pokoina [2024] SASCA 132; R v Scott [2017] SASCFC 96; R v Siozios (2004) 236 LSJS 88; R v Wilton (1981) 28 SASR 362; Shakhanov v The Queen [2019] VSCA 38; Wong v R (2001) 207 CLR 584; Yin v R [2019] NSWCCA 217; Yu v R [2016] NSWCCA 73, considered.
R v SADIK & ANOR
[2025] SASCA 46Court of Appeal – Criminal: Livesey P, S Doyle & David JJA
THE COURT:
Introduction
This is an application for permission to appeal against sentence. The Director of Public Prosecutions (Cth) (the Director) contends that the respondents’ sentences are manifestly inadequate.
The application concerns two sentences imposed in the District Court on 29 January 2025, for two offences of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, contrary to ss 11.1(1) and 307.5(1) of the Criminal Code (Cth) (the Code), for which the maximum penalty was imprisonment for life or a fine of $2,347,500.[1]
[1] The maximum fine was 7,500 penalty units and at the time of the offending each penalty unit was $313.
In the case of each respondent (Sadik and Al-Asadi), the sentencing judge commenced with a starting point of a sentence of imprisonment for four years, reduced by 25 per cent on account of the guilty pleas entered by each respondent, to a sentence of three years and one day. The sentencing judge imposed a non‑parole period of 18 months in each case. These sentences were backdated to commence on 3 February 2024 when the respondents were first taken into custody.
Each respondent will be eligible for parole in August this year.
For the following reasons, permission to appeal should be granted and the appeals allowed. The respondents must be re-sentenced.
The circumstances of the offending – the findings made
On 28 January 2024, Australian Border Force (ABF) officers searched 13 buses on a cargo vessel docked in Fremantle. In four of these, the ABF found 139 brick-shaped packages wrapped in black plastic and concealed within the buses. Inside the packages were substances weighing a total of 139.04 kg, containing 114.76 kg of pure cocaine. If sold at street level, the cocaine had a value of approximately $17.1 million.
The Australian Federal Police (AFP) removed the packages and replaced them with substitutes containing an inert substance. The buses were then placed under surveillance.
The following day, the cargo vessel left Fremantle and docked at Port Adelaide. On 1 February 2024, the buses were offloaded at the Adelaide Container Terminal. Between 2 and 3 February 2024, they were driven to a holding area in Mansfield Park adjacent to the Mansfield Park Hotel. It was intended that the buses would later be driven to Melbourne. All buses were secured by 12.30 am on 3 February 2024.
The respondents resided in Victoria. However, both had travelled to Perth between 28 and 30 January 2024. This obviously coincided with the arrival of the buses in Fremantle. It was the prosecution case that the presence of the respondents was connected with the importation of the cocaine found in the buses. They then returned to Victoria.
During the early hours of 2 February 2024, the respondents drove from Melbourne to Adelaide. On arrival, they went to a Bunnings store and bought tools and equipment, including a screwdriver set, a spanner set, pliers, gloves and safety glasses. This equipment was later used to break into the buses and remove some of the packages.
On 3 February 2024, the respondents left a hotel in Port Adelaide and drove to the holding area in Mansfield Park. They broke into two of the buses and removed some packages. A listening device located inside the buses captured male voices reciting a series of numbers. The prosecution accepted that the respondents were receiving directions over the phone, explaining where they might find the packages. Whilst this was happening, a member of the public spoke to the respondents. The respondents left the holding area, driving at some speed.
Less than one hour later, the respondent, Sadik, removed two white bags from the boot of the car and placed them underneath bushes in Port Adelaide near a brewery. Sadik was seen in the area for the next 45 minutes. Later, the AFP found 38 of the packages in those bags under the bushes where Sadik had left them.
Between 3.45 am and 4.00 am, the respondent, Al-Asadi, went to the carpark of the hotel, adjacent the holding area in Mansfield Park. When approached by AFP and ABF members, he produced identification. He said he had come to Adelaide from Melbourne and was staying at a hotel in Port Adelaide. He then left in an Uber.
Half an hour later, Al-Asadi returned and, when approached by ABF and AFP members, said that he had lost his hotel room key and was looking for it in the carpark. He again left in an Uber, returning to the hotel in Port Adelaide.
Between 4.23 am and 4.26 am, Al-Asadi collected Sadik from near the brewery and returned to where the packages had been left. They then returned to the hotel where they were arrested shortly before 6.00 am. Al-Asadi had $2,095 in cash.
Examination of the four buses with the packages revealed that two of them remained untouched. In a third bus, 15 of 29 packages had been removed. In a fourth bus, 28 of 29 packages had been removed. 43 packages in all were removed. A further five were located in the boot of the car in which the respondents had travelled, together with three white bags and the various equipment.
The prosecution case was that the respondents performed an essential role in attempting to collect the unlawfully imported cocaine. This was achieved by travelling by vehicle from Melbourne to Adelaide, purchasing the equipment, gaining entry to two of the four buses containing the packages, receiving instructions from others in connection with the criminal enterprise and locating and removing 43 of the packages.
Nonetheless, the prosecution accepted that the respondents were “low-level participants” in the organisation, though this did not necessarily entitle them to any significant degree of leniency. The prosecution case was without the participation of “low-level participants” the trade in illicit drugs would collapse.
During sentencing submissions, there was a dispute about precisely when the respondents realised that they were embarking on offending of the magnitude involved. The respondents contended that it was only after they broke into the buses and started removing packages that they recognised the true extent and magnitude of the offending. The prosecution contended that it was for the respondents to establish their lack of knowledge on the balance of probabilities, but that the issue could be resolved on the papers and without either respondent giving evidence and, in any event, the resolution of the issue would not materially change the sentences to be imposed.
In connection with determining the basis upon which the respondents would be sentenced, the prosecution submitted that the following matters revealed that the respondents were aware, prior to breaking into the buses, of the true nature and magnitude of the criminal enterprise in which they had agreed to participate:
1.both respondents were reasonably intelligent young men;
2.both respondents said that they had accrued drug debts and had been asked by their drug dealers to engage in what they admittedly knew would be illegal activity which might concern drugs;
3.the criminal enterprise required interstate travel from Victoria to Western Australia, back to Victoria and ultimately to South Australia;
4.the car driven by the respondents to the holding area was loaded with a number of plastic bags suggesting that they must have contemplated that the criminal enterprise required them to carry material sufficiently large in quantity to require a number of bags; and
5.the respondents spent around half an hour breaking into the buses and after Sadik had deposited two bags containing 38 packages under bushes each respondent continued to execute the criminal enterprise.
The sentencing judge was satisfied on the balance of probabilities that, whilst each respondent believed that he was being tasked to do something criminal, neither knew the nature or gravity of the task they had agreed to perform. She found that the nature and gravity of the task only became clear once they were inside the buses and realised what was in the packages and the number of them.
The prosecution does not now challenge that finding on appeal.
The sentencing judge went on to accept that though each respondent chose to continue with the criminal enterprise once they learnt the magnitude of their offending, those choices were made under pressure, and this was relevant to their moral culpability. The sentencing judge considered that the moral culpability of the respondents would have been greater if they had known exactly what they were going to do sufficiently in advance so that they had an opportunity to weigh up the risks and consequences before they decided to proceed.
The prosecution does not now challenge these findings on appeal, either.
The personal circumstances of the offenders – the respondent Sadik
Sadik was 19 at the time of offending and 20 at the time of sentence. He has no prior convictions.
Sadik is the second youngest of four children born to Iraqi parents in Melbourne. His father was a violent alcoholic who was unfaithful to Sadik’s mother. Sadik commenced binge drinking and experimenting with cannabis at around 12 or 13 years. He soon became a daily cannabis user. Sadik stole money from his parents to buy cannabis and was expelled from the Penola Catholic College for fighting.
Sadik commenced using “ice” at the age of 14 years. Though he completed year 10, by year 11 he had fully disengaged from study and was encouraged to leave school. By then he was ingratiated with older drug using peers.
During his later teens, Sadik obtained employment as a cabinetmaker. He had stopped working because of drug use by the end of 2022. He developed a cocaine addiction and, by mid-2022, he was using up to 3.5 grams each day. Though Sadik ceased using drugs and returned to work in 2023, he relapsed at Christmas 2023 and accrued a drug debt of several thousand dollars. The drug dealers to whom Sadik owed his debt gave him the ultimatum that he must repay his debt or do something for them. Sadik chose to do something for the drug dealers.
Sadik claimed that whilst he understood that doing something for his drug dealers would involve doing something illegal, he did not countenance that it would involve offending of the magnitude involved. Sadik initially understood that he was going to get cocaine and a few thousand dollars to pay off his debts in return for his assistance.
Since his remand in custody, Sadik has used suboxone supplied by fellow prisoners to assist with anxiety, racing thoughts and sleep disturbance.
Dr Luke Armstrong, Consultant Psychologist, diagnosed a Borderline Personality Disorder, a Stimulant Use Disorder and Anxiolytic Use Disorder. He assessed Sadik’s prospects of rehabilitation as promising.
Sadik retains the support of his family in Victoria. Whilst his mother and some family members have visited, the cost prevents regular visits.
The personal circumstances of the offenders – the respondent Al-Asadi
Al-Asadi was 22 at the time of offending and 23 years at the time of sentence. He has no prior convictions.
Al-Asadi in an Australian-born Muslim of mixed Iraqi and Lebanese ancestry. He has three older sisters. He enjoyed a loving relationship with his mother. His father had been a soldier in the Iraqi war and suffered post-traumatic stress disorder, schizophrenia and depression. His father abused alcohol and drugs. As with Sadik, the marriage of Al-Asadi’s parents was marred by his father’s violence and abuse toward his mother.
Al-Asadi, his mother and siblings moved to Sydney between 2007 and 2008 following his father’s threats to kill them all. Later, they relocated back to Melbourne. Al-Asadi’s father continued to stalk and harass his family until an intervention order was made in 2015. That prohibited Al-Asadi’s father from making direct contact with his mother on an indefinite basis.
Nonetheless, Al-Asadi kept in touch with his father out of a sense of guilt after his father became homeless and at times lived on the streets or in a car with Al-Asadi. Al-Asadi gave his father his savings so that he could buy a car and other items when he was allocated a Housing Trust unit in the period 2020 to 2021.
Whilst at school, Al-Asadi was bullied because of his stutter, and this required intensive speech therapy. During schooling he gravitated towards a group of antisocial peers who introduced him to cannabis. He graduated with a Victorian Certificate of Applied Learning. Al-Asadi then obtained an electrical apprenticeship which he failed to complete. He worked as an intrastate truck jockey or offsider for Toll. He later worked as a driver for Harvey Norman and JB HiFi and then as a furniture removalist.
Al-Asadi stopped working as a removalist in the middle of 2023. He remained unemployed until his offending. His relationship with a young woman whom he was to marry broke down as a result of his father’s poor behaviour. Al‑Asadi’s father had, in return for his support of Al-Asadi’s marriage, insisted that Al-Asadi disown his mother and sisters.
After the breakdown in his relationship, Al-Asadi abandoned his family and turned to illicit drugs, being cannabis, cocaine and amphetamines. He also accumulated a drug debt which he could not repay. His drug dealers also offered him a deal which was to do a job for them and, in return, be paid money and drugs.
Dr Lim, Psychologist, diagnosed Al-Asadi with a Persistent Depressive Disorder with symptoms of anxious distress and a Polysubstance Use Disorder. She found that Al-Asadi had developed a Persistent Depressive Disorder from an early age as a result of his abusive and dysfunctional upbringing. She suspected that his severe stutter was a maladaptive psychosomatic response to the emotional and physical abuse he witnessed and suffered at the hands of his father. These problems contributed to his gravitation towards a negative peer group and a Polysubstance Use Disorder.
Dr Lim was of the opinion that Al-Asadi had developed a greater level of emotional maturity since arrest and incarceration and that he was motivated and committed to engaging in therapy. Nonetheless, he remained vulnerable and he still suffered from trauma and mental health difficulties.
Dr Lim thought Al-Asadi was in the “low” range regarding the risk of reoffending and that his prospects of rehabilitation would be relatively positive if he were prepared to commit to an extended course of personal and psychological rehabilitation whilst in custody and on parole. Al-Asadi enjoys the ongoing support his mother and sisters but their residence in Victoria makes it difficult for them to visit him in prison in South Australia.
The remarks of the sentencing judge
The sentencing judge recognised the serious nature of the offending:[2]
Objectively viewed the offending is extremely serious. The total street value of the cocaine was astronomical. The quantity attempted to be possessed was over 50 times the weight threshold for this category of offence. The potential harm to be caused from such an amount of cocaine being distributed into the community is hard to measure. The potential profit to those who masterminded this enterprise was enormous.
Unsurprisingly neither defence counsel suggested that anything other than a period of imprisonment exceeding three years, with a non‑parole period fixed was appropriate.
[2] Sentencing remarks, AB 288.
The sentencing judge said that she had regard to the general principles concerning sentencing for drug importation outlined in R v Nguyen; R v Pham.[3]
[3] R v Nguyen; R v Pham (2010) 205 A Crim R 106.
The sentencing judge recognised that general deterrence required significant emphasis and would generally outweigh subjective circumstances. Her Honour also recognised that the penalties imposed must be significant enough to “disincentivise, discourage and deter would‑be offenders”, regardless of where they sat in the hierarchy of involvement.
As to the role each respondent performed in relation to the criminal enterprise, the sentencing judge said:[4]
While I accept that each of you performed an essential role by collecting the unlawfully imported drugs, or what you thought were the unlawfully imported drugs, anyone who found themselves in similarly difficult circumstances could have been importuned to become involved in the same way that you were. In other words, there was nothing particular or unique about either of you that singled you out as candidates for this aspect of the enterprise. As Mr Edwardson KC frankly put it you were both “muppets”.
Both of you were involved at one of the lowest levels of participation, and you were plainly dispensable and intended to be dispensable should anything go wrong.
[4] Sentencing remarks, AB 289.
As mentioned earlier, in relation to the factual dispute concerning the respondents’ knowledge of the ‘nature, magnitude and extent of the crime’ in which they were involved, the sentencing judge found:
Having considered the material before me I am satisfied on the balance of probabilities that, whilst each of you believed that you were being tasked to do something criminal, neither of you knew the nature of gravity of the task you were being asked to perform. I accept this only became clear to the two of you when you were in the buses and realised what was in the packages and the number of them.
The sentencing judge regarded it as “entirely plausible” that those who instructed the respondents did not reveal the scale or nature of the enterprise because that had the capacity to compromise the operation or lead the respondents to withdraw from it. Her Honour thought that the nature and content of the instructions given to the respondents, together with the material in the prosecution brief, gave rise to the “irresistible inference” that the less each respondent knew, the better:[5]
In my view it is simplistic and unrealistic to suggest that once you knew the enormity of the crime in which you were involved you could have easily desisted and walked away. I reject the contention that because you did not it makes no difference whether you discovered the nature of the crime to be committed four seconds or four days before.
I accept that you each felt trapped once you realised what you were involved in, particularly as you were in phone communication with those who were clearly much higher up in the hierarchy.
Each of you made a choice at the moment in time you learnt of the enormity of the crime, but that was a choice made under pressure, and when you each felt that the die was cast. I consider that to be a relevant circumstance in assessing your moral culpability. Your moral culpability would be greater had you known exactly what it was you were going to be doing sufficiently in advance to weigh up the risks and consequences before deciding to proceed.
[5] Sentencing remarks, AB 289.
As to the respondents’ motivation for the offending, her Honour found:
Whilst I accept that each of you had a financial motivation to become involved, that is to be contrasted with the financial reward the masterminds of this enterprise must have contemplated for themselves.
Extinguishing a drug debt is not a mitigating factor, but it is a circumstance relevant to sentence.
The sentencing judge referred to the youth of the respondents before emphasising what were described in argument as the “Bugmy factors”:[6]
I have taken into account your respective ages, together with the other circumstances of your offending, and your personal circumstances in weighing your moral culpability. Not only were you both immature and impressionable by virtue of your age, but each of you have suffered considerably as a result of your upbringing, and each of you were particularly vulnerable and easy targets for the masterminds of this enterprise.
In my view, notwithstanding the seriousness of the offence, your moral culpability, your youth and your respective compelling personal circumstances allow me to place less emphasis upon general deterrence than would otherwise be appropriate were you both older offenders with less disadvantaged backgrounds.
[6] Bugmy v The Queen (2013) 249 CLR 571.
The sentencing judge then expressed her satisfaction that the effect of arrest and incarceration had had a salutary and deterring effect on the respondents. They had both had the opportunity to cease drug use and reflect upon their behaviour.
The sentencing judge found that both respondents were genuinely remorseful, and that incarceration would be more burdensome because they were separated from their friends and families.
Notwithstanding the slight difference in age, the sentencing judge held that there should be “parity in sentencing”.
As earlier outlined, the sentencing judge commenced with sentences of imprisonment for four years, reduced by 25 per cent for the pleas of guilty. These were entered at an early opportunity and genuinely indicated remorse and contrition. The judge arrived at sentences of three years and one day and in each case set non‑parole periods of 18 months. These were backdated to commence from the date when the respondents were arrested, 3 February 2024. They will each be liable for parole on 3 August 2025.
The contentions of the Director
The Director commenced with the proposition that an important factor in determining the criminality of an offender’s conduct is the nature and extent of involvement in effecting the importation. Whilst involvement at any level should attract a significant sentence, the Director accepted that the determination would be informed by an understanding of where the offender sits within a hierarchy of co-offenders.
The Director accepted that the respondents were at a low level of the known hierarchy but that this should not obscure a reasoned assessment of their actual involvement, nor mean that a significant sentence is not appropriate.
The Director described the respondents as performing an essential role in connection with a significant importation of cocaine.
The Director emphasised that the quantity of pure cocaine and its value were very substantial, having the potential to do significant harm in the community. The Director submitted that the quantity and value of the cocaine underscored the need for a very strong sentencing response in order to deter potential like-minded offenders.[7]
[7] R v Pokoina [2024] SASCA 132, [56] (Lovell, S Doyle JJA and Stein AJA).
It was submitted that both respondents committed their offending for financial gain and the fact that they were motivated by the repayment of drug debts was not mitigatory.[8] That others, “further up the chain”, might have made significantly more money if the importation had succeeded did not mitigate the offending by the respondents. It was merely a reflection of the significant size of the importation.
[8] Awraham v R (Cth) [2021] NSWCCA 241, [103].
Whilst the Director accepted that neither respondent had any prior criminal convictions, it was well established that with offending of this kind, prior good character is generally given less weight because an absence of prior convictions is not an unusual characteristic of persons involved in drug importation.[9]
[9] R v Nguyen & Pham (2010) 205 A Crim R 106, [72].
The Director submitted that the offending by the respondents needed to be assessed having regard to the well-known criteria summarised in a number of intermediate appellate decisions.[10] As is often done in cases such as these, the Director relied on the structure of the Code concerning the way in which offences, weight thresholds and maximum penalties were laid out:[11]
[10] R v Scott [2017] SASCFC 96, [43]-[45] (Lovell J, with whom Stanley and Parker JJ agreed), citing R v Nguyen & Pham (2010) 205 A Crim R 106, [70]-[72]; R v Constant (2016) 126 SASR 1, [33]-[34] (Nicholson, Lovell and Hinton JJ).
[11] Criminal Code Regulations 2019 (Cth), reg 14, sch 2, cl 1.
Offence Weight threshold for cocaine[12] Maximum penalty Possessing commercial quantities of unlawfully imported border controlled drugs, contrary to s 307.5(1) 2 kilograms or more Life imprisonment and/or 7,500 penalty units Possessing marketable quantities of unlawfully imported border controlled drugs, contrary to s 307.6(1) 2 grams or more (i.e. between 2 and 1,999 grams) 25 years’ imprisonment and/or 5,000 penalty units Possessing unlawfully imported border controlled drugs, contrary to s 307.7(1) No threshold (i.e. less than 2 grams) 10 years’ imprisonment and/or 400 penalty units [12] Criminal Code Regulations 2019 (Cth) reg 14, sch 2, cl 1, item 43.
(Citation in original.)
The maximum penalty for the offending provided an indication of the seriousness with which Parliament regarded the offending and represented an important yardstick guiding the sentencing of offenders. This must be done in the context of a structured sentencing regime under Part 9.1 of the Code which contains scaled penalties, and the need to maintain relativity in the spread of sentences both within and between the categories.[13]
[13] R v Pokoina [2024] SASCA 132, [55] (Lovell, S Doyle JJA and Stein AJA), citing R v Constant (2016) 126 SASR 1, [34]-[36] (Nicholson, Lovell and Hinton JJ); R v Kong (2013) 115 SASR 425, [86] (Kourakis CJ, Sulan and David JJ).
In the course of her sentencing submissions, the Director provided the sentencing judge with a table of comparable sentences. This Court has been provided with the same table.
The Director submitted that it is appropriate to have regard to these sentences when considering more or less comparable cases, notwithstanding that each case turns on its own facts and there are limits to which comparative sentencing can assist. The Director accepted that relative consistency is not achieved by mere mathematical or numerical equivalence.[14]
[14] Wong v R (2001) 207 CLR 584, [72], [76]-[78]; Hili v The Queen (2010) 242 CLR 520, [18].
The overarching submission made by the Director was that whilst other cases may do no more than indicate a pattern or range of sentences, and thereby provide a yardstick against which to examine a sentence,[15] an analysis of similar cases demonstrated that the notional starting points and ultimate sentences imposed by the sentencing judge in this case were erroneously low.[16]
[15] Hili v The Queen (2010) 242 CLR 520, [53]-[54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Barbaro v The Queen (2014) 253 CLR 58, [41] (French CJ, Hayne, Kiefel and Bell JJ).
[16] R v Farquhar [2023] SASCA 98, [44] (Lovell, David JJA and Nicholson AJA).
The Director emphasised that, for Commonwealth offending, the comparison must also reflect the need for consistency throughout the various states and territories of Australia and that it was necessary to have regard to the sentencing decisions of other intermediate appellate courts unless there was some compelling reason not to do so.[17]
[17] Hili v The Queen (2010) 242 CLR 520, [57] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); R v Pham (2015) 256 CLR 550, [18], [24], [28]-[29] (French CJ, Keane and Nettle JJ); R v Pokoina [2024] SASCA 132, [53] (Lovell, S Doyle JJA and Stein AJA).
The Director submitted that the circumstances of the offending in one of the cases on its schedule, Hurkmans v R,[18] were generally comparable to the present case. In that case, the appellant pleaded guilty and was sentenced for the offences of possess a commercial quantity of border controlled drug, contrary to s 307.5(1) of the Code and engaging in conduct in relation to the proceeds of general crime, contrary to s 400.4(2A) of the Code. The possession offending concerned 199 bricks of cocaine weighing 199.1 kg and containing 155.1 kg of pure cocaine. At first instance, the appellant had received an indicative sentence for the possession offending of 10 years’ imprisonment (after a reduction of 25 per cent for his guilty plea).[19]
[18] Hurkmans v R [2024] NSWCCA 126 (Davies, N Adams JJ and Hulme AJ).
[19] Hurkmans v R [2024] NSWCCA 126, [3] (Davies J, with whom N Adams J agreed).
The New South Wales Court of Criminal Appeal considered that the appellant played an essential but confined role. The weight to be given to general deterrence was nonetheless reduced by reason of the appellant’s mental health conditions at the time of his offending. He was otherwise of good character and positive findings were made regarding remorse, rehabilitation and the unlikelihood of reoffending. These findings made specific deterrence of less significance. The appellant’s moral culpability was regarded as reduced by reason of him being under duress at the time of his offending.
The Court of Criminal Appeal allowed the appellant’s appeal and re‑sentenced him to an indicative sentence for the possession offending of 12 years’ imprisonment, which when reduced by 25 per cent for the guilty plea, became 9 years.[20] The Director submitted that, though no tariff applies, this result starkly illustrated the manifest inadequacy of the sentence imposed on the respondents in this case.
[20] Hurkmans v R [2024] NSWCCA 126, [50] (Davies J, with whom N Adams J agreed).
The Director also relied on the successful Crown appeal against sentence in R v Pokoina.[21] The Director accepted that the respondent in that case pleaded guilty to a different offence, importing a commercial quantity of a border controlled drug contrary to s 307.1(1) of the Code, but that the maximum penalty was also life imprisonment and, as was recognised in R v Nguyen,[22] offences of attempting to possess imported drugs are not in a less serious category to offences of importing the drugs.
[21] R v Pokoina [2024] SASCA 132 (Lovell, S Doyle JJA and Stein AJA).
[22] R v Nguyen; Pham (2010) 205 A Crim R 106, [70]-[72].
The respondent’s offending in R v Pokoina involved him agreeing with his co-accused to use his employer’s address for the receipt of a consignment of illicit drugs. He also obtained his manager’s consent to use a business email address for communications regarding the consignment.
After emails were sent by the skipper of the consignment, the respondent used his mobile phone to research the conversion of Euros to Australian dollars and received a payment into his bank account which he subsequently transferred to the company responsible for shipping the consignment from Greece. The respondent confirmed with the import agency responsible for the consignment that he was the intended recipient, and he provided his personal email address. After the consignment arrived in Adelaide, and it was moved to the Bonded Customs approved warehouse, the respondent advised his superior that he would be resigning from his employment. This was done because he was embarrassed about his involvement in the importation.
Nonetheless, a few days later the respondent emailed a director of a local logistics company responsible for arranging the payment of fees and the subsequent delivery of the consignment, advising that he would arrange transportation to collect the consignment once it had cleared. The ABF conducted an examination of the consignment and identified nine packages of white powder hidden within two welding machines and seized those packages.
After the seizure, the respondent continued to engage in conduct designed to secure delivery of the consignment. He paid Customs’ fees, he liaised with the import agency about collection and paid some additional fees. He advised the import agency that he needed welders for upcoming projects and, at their request, he provided a trading application form, giving his home address and identifying himself as the owner of the business.
Finally, the respondent attended the Bonded Customs approved warehouse seeking to collect the assignment but was told it had been seized. He reattended the following day in order to question why it had been seized and he followed his visit up with numerous emails over the course of about a week. At the end of that week, the respondent was arrested at his home.
The importation offence committed in Pokoina concerned 14.3 kg of pure cocaine, with a street value of between $5.2 and $6.3 million. The court allowed the prosecution appeal and re-sentenced the respondent to a starting sentence of 12 years. After appropriate reductions, the respondent was sentenced to a term of imprisonment for 8 years, 10 months and 15 days with a non-parole period of 4 years, 10 months and 15 days.
Again, the Director submitted that the outcome of this case tended to demonstrate that the starting point adopted by the sentencing judge was “patently inadequate”.
It was submitted that it was apparent that the sentencing judge had allowed the personal circumstances of the respondents to overwhelm the sentencing exercise at the expense of achieving an appropriate level of general deterrence. Accordingly, the sentences failed to appropriately reflect the gravity of the offending and uphold consistency in sentencing.
The Director concluded with the contention that this Court should intervene because the sentences were not only manifestly inadequate but so far below the permissible range as to require intervention to maintain adequate standards of sentencing for federal drug importation offending. The sentences were so inadequate as to undermine public confidence in the administration of justice. The Director submitted that there should be a grant of permission to appeal, and the appeals should be allowed.
There was, it was submitted, no scope for double jeopardy considerations at the re-sentencing stage if permission were granted.[23]
[23] Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638, [13]-[14] (French CJ, Gummow, Hayne, Kiefel and Bell JJ); R v Brand (a pseudonym) [2025] SASCA 17, [55]-[56], [70], [73] (Lovell, Bleby and David JJA).
The contentions of the respondents
The respondents adopted their respective submissions. They submitted that in all the circumstances of this case, the prosecution claim of manifest inadequacy must fail and the sentence was not out of the range of sentences that could have been imposed. They submitted that the sentencing remarks revealed a careful balancing of the competing considerations including the importance of general deterrence.
Moreover, the respondents emphasised the need to preserve the “vital importance” of the exercise of a broad sentencing discretion. Particular attention was given to the moral culpability of the respondents, their favourable personal circumstances, including their youth and the conditions of their custodial term. They submitted that because their families were based in Victoria that limited their capacity to visit, and this comprised a real hardship for young men incarcerated for the first time.
The respondents also addressed the comparable cases which the prosecution provided to the sentencing judge, and the prosecution concessions about their role and that the findings made by the sentencing judge which were not the subject of appeal.
In support of the proposition that permission to appeal should be refused, the respondents contended that the Director should be held to the approach she took before the sentencing judge. They pointed to written submissions made by the Director which contained the following:[24]
The Crown’s ultimate submission is the [only] appropriate sentence is imprisonment for a period exceeding three years, with a non-parole period fixed. The Crown submits any other sentence or order would not be of an appropriate severity and is beyond the proper exercise of the Court’s discretion.
[24] Written submissions of the Crown for hearing before her Honour Judge Fuller on 20 December 2024, paragraph 3, AB 44.
Accordingly, it was contended that the Director had effectively submitted that any sentence in excess of three years was appropriate and, where the sentencing judge had imposed that sentence, she could not now complain on appeal and seek a higher sentence.
The respondents submitted that even if the sentences were manifestly inadequate, permission to appeal should be refused.
The determination of the application for permission to appeal
The principles concerning permission to appeal
The requirement for permission to appeal sentence in s 157(1)(iii) of the Criminal Procedure Act 1921 (SA) applies to federal sentences,[25] and the principle of double jeopardy applies at the permission stage, and only at that stage.[26] That principle underpins the long-established approach when considering a grant of leave on a prosecution appeal, namely, that it will only be granted in a “rare and exceptional case”.[27]
[25] Judiciary Act 1903 (Cth), s 68.
[26] R v Brand (a pseudonym) [2025] SASCA 17, [73].
[27] Griffiths v The Queen (1977) 137 CLR 293; R v Osenkowski (1982) 30 SASR 212, 212-213 (King CJ); Everett v The Queen (1994) 181 CLR 295, 299-300 (Brennan, Deane, Dawson and Gaudron JJ); R v Nemer (2003) 87 SASR 168, [24] (Doyle CJ); R v Henderson (2023) 142 SASR 507, [34]-[46] (Livesey P, David JA & Nicholson AJA); R v Ametovic [2024] SASCA 153, [60]-[64] (S Doyle, Bleby JJA and B Doyle AJA).
This Court has recognised that there is inevitably a tension between recognising the interest the community has in ensuring the imposition and maintenance of proper sentencing standards, and recognising the interest the defendant has in avoiding being twice vexed.[28]
[28] R v Henderson (2023) 142 SASR 507, [37] (Livesey P, David JA and Nicholson AJA), and the cases there cited.
In addition, determining whether permission should be granted because the sentence is so manifestly inadequate as to amount to an error of principle, necessarily involves a question of degree.[29] That is to say, it is necessary for this Court to evaluate the extent to which the sentence is affected by error, being the extent to which the sentence is manifestly inadequate. In undertaking an evaluation of the sentence as a whole, permission to appeal will be reserved for those cases where it is necessary for this Court to intervene because the sentence is so disproportionate to the seriousness of the offending that it has the capacity to undermine public confidence in the administration of justice.[30]
[29] R v Nemer (2003) 87 SASR 168, [24] (Doyle CJ).
[30] Rather than whether the sentence would “shock the public conscience”, see R v Siozios (2004) 236 LSJS 88, [20]-[21] (Perry J with whom Doyle CJ agreed).
When a sentence is adjudged by this Court to be so disproportionate to the seriousness of the offending and the circumstances of the offender that it undermines public confidence in the administration of justice, permission is granted so as to ensure that appropriate standards of penalty are imposed and that public confidence in the administration of justice is maintained.[31]
[31] R v Nemer (2003) 87 SASR 168, [24] (Doyle CJ).
That will often represent a conclusion that the principled intervention of this Court is necessary because “to decline to intervene would have been to perpetuate a manifest injustice”.[32]
The Director’s conduct before the sentencing judge
[32] Munda v Western Australia (2013) 249 CLR 600, [76] (French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ).
It is necessary to address the contention that the Director is bound by her conduct at the sentencing hearing, and that she cannot now take an approach to sentence which is different to that taken before the sentencing judge. It is well‑recognised that if there is a change from the approach taken by the prosecution before the sentencing judge, that is a factor relevant to whether permission to appeal sentence should be granted.[33]
[33] R v Wilton (1981) 28 SASR 362, 368 (King CJ); Malvaso v The Queen (1989) 168 CLR 227, 233 (Mason CJ, Brennan and Gaudron JJ), 240 (Deane and McHugh JJ); Everett v The Queen (1994) 181 CLR 295, 302 (Brennan, Deane, Dawson and Gaudron JJ); R v Beaumont [2023] SASCA 128, [23]‑[32], [69] (Livesey P, Lovell and Bleby JJA).
There is nothing in this point. There has been no change in approach. It is necessary to consider all of the Director’s written and oral submissions at the sentencing hearing, as well as the way in which the sentencing hearing was conducted by the parties. Following the paragraph on which the respondents have relied in this Court, there appear the following written submissions under the heading “Setting the Sentence”:[34]
37.The Crown submits a sentence of immediate imprisonment is the only appropriate sentencing option in this Case.[35]
38.Where the sentence of imprisonment imposed is more than three years, the Court must fix a single non‑parole period.[36] A recognizance release order cannot be made where the total period of federal imprisonment exceeds three years. There is no power to “suspend” such a sentence.[37]
(Citations in original.)
[34] Written submissions of the Crown for hearing before her Honour Judge Fuller on 20 December 2024, paragraphs 37 to 38, AB 48-49.
[35] Crimes Act, s 17A(1).
[36] Crimes Act, s 19AB(1).
[37] Crimes Act, ss 19AB(1) and 19AC(1).
During the course of sentencing submissions, the Director relied upon a schedule of past cases. It will be necessary to return to that schedule. Those cases were relied on as providing guidance regarding the application of relevant sentencing principles, together with a range of sentences against which to examine the proposed sentences. It was submitted that where past cases were factually comparable, they may be used as yardsticks that may serve to illustrate but not define the potential range of available sentences.[38] The use of that schedule shows that the Director was not contending that any sentence over three years was appropriate.
[38] Citing R v Pham (2015) 256 CLR 550, [29], [47], AB 48.
The misconception regarding the effect of the Director’s written submissions may have emerged at the sentencing hearing, during the course of the following exchange between the sentencing judge and senior counsel for Al‑Asadi:[39]
[39] AB 245-247.
Counsel: … Your Honour, can I refer you to a decision of Azzopardi v R, which is a well-known Victorian case, reported at 219 A Criminal R 369.[40] And we cite this … authority, because of the significance of youth …
[40] Azzopardi v The Queen (2011) 35 VR 43.
… para. 37:
… “It is helpful to briefly examine how these considerations are affected where the crimes have been particularly serious or persistent. In the case of R v Mills, this Court stated the following general propositions about sentencing youthful offenders as correct:
i.Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.
ii.In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)
iii.A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified.”
I temper that observation with this concession, your Honour. We do not ask for the equivalent of a suspended sentence or release because of the seriousness of the offending despite him being at such a low level and the last thing we want to do is expose him to an appeal. But what I can say, is that whilst the prosecution [goes] about as close to…Barbaro as it gets ...[41]
[41] Referring to Barbaro v The Queen (2014) 253 CLR 58.
Her Honour: This is no less than three years?
Counsel: Exactly.
Her Honour: Yes.
Counsel: Exactly.
Her Honour: I did wonder about that.
Counsel: Exactly, but –
Her Honour: It’s not precise.
Counsel:No, it’s not precise. But having said that, it’s about the mark. That’s a bit cheeky, so I probably should retract that.
What I can say, is that if you go to the various cases that are cited in the helpful summary that the Crown provide, … and you actually look at the sentences that are dealt with there, the offending of very similar quantities, in some cases not dissimilar conduct, ... we can certainly … distinguish the extent of our criminal and moral culpability as being significantly less than the cases that are cited in that schedule …
In the course of his reply submissions before the sentencing judge, counsel for the Director referred to the cases in the schedule, before submitting that two of them involved less culpable offending and considerably less participation than the participation of the respondents.[42]
[42] AB 264.
Contrary to the submissions made during the sentencing hearing, and on appeal, the Director’s submissions were directed to the appropriate structure and type of sentence, not the appropriate range for sentence.
That was proper and in accord with Barbaro v The Queen, where a majority of the High Court held that the Crown should not be asked to make and should not make submissions about the bounds of the available range of sentences, as distinct from the structure of the sentence.[43] That is an aspect of the common law duty of the prosecution to assist the Court to avoid appealable error.[44] Namely, that it is appropriate for the Director to make submissions about the appropriate type and structure of sentence. The Director in this case did not make submissions in favour of a particular sentence or sentence range. This would, in any event, have been “irrelevant”.[45]
[43] Barbaro v The Queen (2014) 253 CLR 58 (French CJ, Hayne, Kiefel and Bell JJ; Gageler J dissenting). See also Matthews v The Queen [2014] VSCA 291 (Warren CJ, Nettle, Redlich, Priest JJA and Lasry AJA).
[44] R v Wilton (1981) 28 SASR 362, 363-364 (King CJ), 368: Everett v The Queen (1994) 181 CLR 295, 302; R v Mangelsdorf (1995) 66 SASR 60, 76 (Doyle CJ); R v Nemer (2003) 87 SASR 168, 173 [28] (Doyle CJ).
[45] See the observations of Gageler J in dissent in Barbaro v The Queen (2014) 253 CLR 58, [58], citing R v Malvaso (1989) 50 SASR 503, 509 (King CJ).
Accordingly, this submission may be put to one side and the Director is not constrained by her conduct at the sentencing hearing.
The Director’s schedule of cases
Perhaps unusually, the schedule of past cases relied on by the Director before the sentencing judge was relatively limited. Obviously enough, the purpose of a schedule is to assist, and the sentencing court is in no way constrained by what is, or is not, on the schedule. For example, this Court has relatively recently reviewed a number of importation cases in Pokoina and that review is of some assistance when evaluating the sentences imposed in this case.[46] The Court has also considered a number of other cases.[47]
[46] R v Pokoina [2024] SASCA 132, [60]-[70] (Lovell, S Doyle JJA and Stein AJA).
[47] The following cases lie in the range of imprisonment for 4 years and 6 months to 16 years after allowance for any necessary reductions and before any non-parole period was imposed: Yin v R [2019] NSWCCA 217; Shakhanov v The Queen [2019] VSCA 38; R v Ostrowski; Ex parte Director of Public Prosecutions (Cth) [2018] QCA 62; R v Phelps; R v Zalapa [2018] NSWCCA 191; R v Boimah [2017] QCA 50; Director of Public Prosecutions (Cth) v Thomas; Director of Public Prosecutions (Cth) v Wu (2016) 53 VR 546; Yu v R [2016] NSWCCA 73; Dao v R [2011] NSWCCA 183; Chan, Lo and Nguyen v R [2010] NSWCCA 153.
In Director of Public Prosecutions (Cth) v Thomas,[48] the Victorian Court of Appeal gave the following advice and warning regarding the production of schedules or tables of cases:[49]
Every sentence is of course the product of the intuitive synthesis of all factors relevant to the particular case, including the circumstances of the offender and the offence, and the aggravating and mitigating features. For that reason it is sometimes emphasised that sentences passed in other cases are not precedents which must be followed unless they are capable of being distinguished.[50] But that said, past sentences do provide guidance to sentencing judges, and to appellate courts. As the joint judgment stated in Hili, Barbaro v The Queen[51] and Pham, those comparable cases, whilst not marking the outer bounds of the sentencing discretion, may well establish a range of sentences which have been imposed.[52]
…
Something then should be said about the production of schedules or tables of cases on a plea, particularly by the prosecution. The joint judgment in Barbaro stated that ‘[i]f a sentencing judge is properly informed about … the relevant sentencing principles and comparable sentences, the judge will have all the information which is necessary to decide what sentence should be passed without any need for the prosecution to proffer its view about available range.[53] Conversely, if the judge is not sufficiently informed about such matters the judge will not have been assisted in carrying out the sentencing task in accordance with proper principle.[54] In Matthews v The Queen, Warren CJ, Nettle and Redlich JJA confirmed that nothing said in Barbaro changed any pre-existing duty of the prosecutor to assist the court by the making of submissions as to comparable and relevant cases.[55]Similarly in R v Ogden, the Queensland Court of Appeal said it was part of the prosecutor’s duty to assist the sentencing judge by supplying comparable sentencing decisions in order that the sentencing judge take them into account for guidance or as a ‘yardstick’ against which to examine the proposed sentence.[56]
The identification of ‘like’ or comparable cases, and their importance to the instinctive synthesis, is clear enough, but if a table or schedule is to be employed to that end, it is essential that the content of the table or schedule offer considerably more than numerical information about those sentences in past cases. The point being made by the joint judgment in Hili is that numerical equivalence has no utility when it says nothing about why sentences were fixed as they were. Quoting De La Rosa, which in turn cited Wong, the joint judgment further said that a table recording sentences imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal.[57]
(Citations in original.)
[48] Director of Public Prosecutions (Cth) v Thomas (2016) 53 VR 546 (Redlich, Santamaria and McLeish JJA).
[49] Director of Public Prosecutions (Cth) v Thomas (2016) 53 VR 546, [176], [178]-[179] (Redlich, Santamaria and McLeish JJA).
[50] See, eg, DPP v Zhuang [2015] VSCA 96 [30] (Redlich, Priest and Beach JJA).
[51] (2014) 253 CLR 58 (‘Barbaro’).
[52] Nam Son Nguyen [2016] VSCA 198 [71] (Redlich JA).
[53] (2014) 253 CLR 58, 73 [38] (French CJ, Hayne, Kiefel and Bell JJ).
[54] Ibid.
[55] (2014) 44 VR 280, 292 [27]–[28] (citations omitted).
[56] [2014] QCA 89 [7] (Fraser JA, Gotterson and Morrison JJA agreeing).
[57] (2010) 242 CLR 520, 537 [54] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), quoting De La Rosa (2010) 79 NSWLR 1, 71 [304].
The cases referred to in the Director’s schedule provided to the sentencing judge and this Court were:
-Hurkmans v R;[58]
-R v Barkl; R v Dumbrell; R v Theobold;[59]
-Keen v R;[60] and
-R v Butler.[61]
[58] Hurkmans v R [2024] NSWCCA 126, discussed earlier in these reasons.
[59] R v Barkl; R v Dumbrell; R v Theobold [2023] NSWCCA 309.
[60] Keen v R [2024] NSWCCA 157.
[61] R v Butler [2024] NSWCCA 133.
The common feature in all of these cases was that the offending involved extremely large quantities of cocaine, and the last three cases all concerned co‑offenders and the same shipment. As has been seen, Hurkmans v R concerned in excess of 155 kilograms of cocaine. In R v Barkl; R v Dumbrell; R v Theobold, a quantity in excess of 149 kilograms of cocaine was involved. Keen v R and R v Butler concerned co‑offenders in the same shipment.
In R v Barkl; R v Dumbrell; R v Theobold, in early 2019, the AFP commenced an investigation into what was believed to be an international criminal group importing border controlled drugs into Australia. The three respondents were identified as part of the Sydney‑based members of that group. The prosecution case was that between February and March 2019 they attempted to take possession of a commercial quantity of cocaine at a warehouse in Bankstown Aerodrome.
Between June and November 2018, arrangements were made to establish a company, identify a warehouse for the storage of aluminium and steel ingots and, in September, a “dry run consignment’ of 12 aluminium ingots packed in six wooden boxes was delivered from Mexico but never collected. In November, another consignment arrived at Port Botany with 1,890 aluminium ingots. It was not collected. Finally, in December 2018, arrangements were made for the transport and storage of a consignment from Mexico comprising 1,890 aluminium ingots packed onto 18 pallets. The arrangements continued into January and February 2019.
After the consignment arrived in February 2019, ABF officers inspected it and found a white substance concealed in 188 ingots, which was believed to be cocaine. The white substance weighed over 188 kg and when tested, just over 149 kg was found to be pure cocaine. The estimated wholesale value was between $34 million and $48.5 million.
AFP seized the 188 ingots that contained cocaine and repacked the remaining ingots in a similar formation. By late February 2019, the pallets had been delivered to the warehouse at Bankstown Aerodrome. Keen signed for the delivery and used a forklift to unload the pallets inside the warehouse. Whilst he was doing that, Dumbrell and Theobold were seen in the vicinity. The respondents Barkl, Dumbrell and Theobold made four attempts to access the cocaine in the warehouse. These attempts were made during late February and early March 2019. During these attempts they were overheard speaking about their frustration in failing to find what was believed to be $40 million in cocaine.
In late March, Barkl and Dumbrell flew to Bangkok, and then in early April to Singapore. At around the same time Theobold met with a male in Sydney and discussed meeting with the son of the cocaine supply cartel. The method of concealment in the ingots and future imports were discussed. It was not until 30 March 2021 that the respondents were arrested. Theobold was also charged with offending involving pseudoephedrine in December 2020.
Barkl was sentenced to imprisonment for six years and three months, with a non‑parole period of three years and three months. Dumbrell was sentenced to imprisonment for seven years and three months with a non‑parole period of three years and six months, and Theobold was sentenced to imprisonment for eight years with a non‑parole period of four years and six months. In each case, reductions of 25 per cent for early guilty pleas were made.
The Crown’s appeal against sentence was dismissed in circumstances where the offending conduct was viewed as objectively serious. Each of the respondents was aged in excess of 60 years, and one in excess of 74 years. Each offender had a number of health conditions.
The Court of Criminal Appeal regarded the complaints made regarding general and specific deterrence as matters of weight which were well within the scope of the sentencing discretion of the judge.[62] Apart from the reductions for their early guilty pleas, the sentencing judge took into account the impact of the conditions imposed in prisons by reason of the pandemic.
[62] R v Barkl; R v Dumbrell; R v Theobold [2023] NSWCCA 309, [102], [108].
Later, the appeal of a co-offender was upheld by the Court of Criminal Appeal, Keen v R.[63] Keen had been sentenced for aiding and abetting an attempt to possess a commercial quantity of a border controlled drug, cocaine, and given an indicative sentence of nine years’ imprisonment with a non‑parole period of five years. After allowance was made for a further count of knowingly taking part in the supply of a commercial quantity of pseudoephedrine, and a reduction of 25 per cent was made for his early guilty pleas, Keen was sentenced to imprisonment for 10 years with a non‑parole period of six years.
[63] Keen v R [2024] NSWCCA 157.
On appeal, Keen was re‑sentenced for the cocaine offending to imprisonment for seven years with a non‑parole period of three years and six months. The indicative sentence for the pseudoephedrine offending was confirmed and the overall sentence became a reduced sentence of imprisonment for eight years, with a non‑parole period of four years and six months. The Court of Criminal Appeal took into account what it regarded as the marked disparity in the sentences imposed on Keen’s co-offenders, together with his acceptance of responsibility for his actions and his positive prospects of rehabilitation.[64]
[64] Keen v R [2024] NSWCCA 157, [161]-[179].
As has been seen, Keen had signed for the delivery of various pallets and then used a forklift to remove them into a warehouse. On a later date, he again used a forklift to move a number of pallets to a different part of the warehouse. On that occasion his co‑offenders were present. The sentencing judge found that Keen acted as directed and his conduct involved some pre-meditation and planning. He was aged 50 years at the time of sentence and was in better physical and mental health than his co‑offenders. He had a prior conviction for being involved in the manufacture of a large commercial quantity of a prohibited drug, and was on parole at the time of the offending. He was in a stable relationship with good social supports and had embarked on genuine rehabilitation, demonstrating remorse.
The final case relied on by the Director was R v Butler,[65] another co‑offender in the same criminal enterprise. Butler had facilitated the offending by making the relevant warehouse premises available. Initially he rented it to one of the co‑offenders on a legitimate basis but, at some stage, he learned that the co‑offenders were involved with drugs. He was present for the final inspection of the ingots in which the drugs were believed to be concealed and he overheard Theobold saying that they were looking for $40 million in drugs.
[65] R v Butler [2024] NSWCCA 133.
Whilst Butler’s role was essential, he was less involved than his co‑offenders. He was aged 36 years at the time of offending and in good health. The offending was regarded as “completely out of character”. The sentencing judge imposed a sentence of imprisonment of three years, backdated by six months to take account of 18 months spent on onerous bail conditions. The effect was that upon serving six months Butler was released on a recognisance to be of good behaviour for five years.
The Crown appeal against sentence, principally concerning a complaint about the structure of the sentence, was dismissed. The Court of Criminal Appeal accepted that it was not open to the sentencing judge to conclude that the stricter conditions of bail amounted to quasi‑custody, justifying the back‑dating of the sentence by six months. Nonetheless, the Court was persuaded that the residual discretion should be exercised and that it should decline to intervene.[66]
[66] R v Butler [2024] NSWCCA 133, [1] (Ward P); [44]-[61] (Campbell J).
Conclusions on manifest inadequacy and permission to appeal
Whilst this Court ought never lose sight of the importance of the breadth of the sentencing discretion reposed in a sentencing judge, as was recognised in the well-known case of R v Osenkowski,[67] a prosecution appeal against sentence must in appropriate circumstances be allowed so as to establish and maintain adequate standards of punishment for crime, to correct idiosyncratic views of individual judges and to correct a sentence which is so disproportionate to the seriousness of the crime that it undermines public confidence in the administration of justice.[68]
[67] R v Osenkowski (1982) 30 SASR 212.
[68] R v Ozenkowski (1982) 30 SASR 212, 213 (King CJ).
It is a remarkable feature of the sentences imposed in this case that they are out of step with the sentences relied on and the subject of submissions before the sentencing judge. When one takes into account the sentences in the schedule relied on before the sentencing judge, and the sentences considered in this appeal, it is clear that the sentences imposed in this case are too low.
Having regard to the maximum penalty of life imprisonment, the essential role undertaken by each respondent in attempting to possess a vast and valuable quantity of cocaine worth millions of dollars, and notwithstanding the sentencing judge’s findings about the reduced moral culpability of each respondent and their favourable personal circumstances, the sentences imposed were plainly manifestly inadequate.
They are so manifestly inadequate as to amount to an error of principle. Sentences such as these undermine public confidence in the administration of justice. Indeed, having regard to the circumstances of the offending and the circumstances of the offenders, the sentences in this case are so disproportionately low that this Court’s principled intervention is necessary. Permission to appeal should be granted and the appeal allowed. It is necessary to set aside the sentences and proceed to re‑sentence.
Re‑sentencing the respondents
There is no issue about the proper approach to be taken to sentencing for offending of this kind.[69]
[69] R v Nguyen; R v Pham (2010) 205 A Crim R 106, [72] (Johnson J, with whom MacFarlan JA and RA Hulme J agreed).
When considering the circumstances of this case, there were a number of findings made by the sentencing judge which were not challenged but which could have been questioned, especially where the sentencing judge consistently drew inferences favourable to the respondents in the absence of evidence. As mentioned earlier, the sentencing judge found that neither knew the “gravity of the task” they were asked to undertake nor “what was in the packages and the number of them”. This appears unlikely given the respondents had already travelled from Melbourne to Perth and back, and then from Melbourne to Adelaide, whereupon they purchased tools to break into the buses. They had a number of plastic bags for transporting the cocaine. In addition, they were taking instructions from persons they knew to be involved in the distribution of illicit drugs.
Moreover, nothing is known about precisely what the respondents were told when they commenced their involvement, nor about exactly what they expected to find inside the buses and what they were expected to do with what they found. As well, the sentencing judge made something out of what she described as the pressure the respondents were under when they continued with their involvement once they realised the magnitude of the criminal enterprise. There was no evidence or material before the sentencing judge to justify findings such as these.
Notwithstanding their strained nature, this Court does not go behind the findings made by the sentencing judge which were not challenged on appeal. It is, nonetheless, important to emphasise what the respondents did, in the context of offending that carried a life sentence:[70]
Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a “courier” or a “principal” must not obscure the assessment of what the offender did.
…
Whether others stood to gain from the respondent's conduct does not, it seems to us, affect what sentence should have been passed on him. That depended on what he had done and who he was, not on what others may have hoped to gain from his activity. But even if this were thought to be a useful inquiry, it was one that could not be pursued in this matter because there was no evidence about it.
(Emphasis in original.)
[70] R v Olbrich (1999) 199 CLR 270, [19], [21] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
This is a case of attempting to possess, and while there was no dispute that the respondents were doing the bidding of others who stood to gain a great deal more than the respondents from this criminal enterprise, they also stood to profit from their role and their motivation was largely financial. Their involvement was not fleeting, it continued over several days.
While the vast quantity and value of the drugs is of less relevance in circumstances where the sentencing judge found that the respondents only belatedly realised how much cocaine was involved in their offending, they remained relevant features of their offending.
It is not necessary to repeat the circumstances of each offender. It is, however, necessary to take into account their favourable personal circumstances, and the reports and very favourable personal references provided for each respondent.
This is a case where the relevant sentencing considerations for serious drug offending do not point in the same direction. Whilst one may commence with the disadvantaged background, youth and rehabilitation prospects of each respondent, it was also necessary to bring into account the seriousness of their offending, their essential though menial role in the criminal enterprise and their recognition, however belated, that they were involved in illegal drug offending of a very considerable magnitude.
Before that, it must have been obvious to each respondent over the days in which they were involved travelling backwards and forwards across the country, from the nature of the requests made of them, and the equipment and the bags which it was necessary for them to procure, that they had agreed to embark on a course of criminal wrongdoing.
It may be accepted that there will be hardship associated with the incarceration of each respondent because their friends and families reside interstate.
Each respondent should be sentenced in a way that ensures parity.
It is appropriate to commence with a sentence of nine years’ imprisonment for each respondent.
After a reduction of 25 per cent on account of their early guilty pleas, the sentence in each case should be six years and nine months. Having regard to the personal circumstances of each respondent, and their reasonable prospects of rehabilitation if they abstain from drug taking, the non‑parole period in each case should be four years, backdated to 3 February 2024.
Conclusion
In each case the prosecution will be granted permission to appeal, the appeal will be allowed and the respondents re‑sentenced as indicated.
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