Citation: R (Cth) v Barnard; R (Cth) v Bishell [2021] NSWDC 400
Court: District Court of New South Wales
Date: 15 July 2021
Judge: Neilson DCJ
Background
The two offenders were the master and deckhand of a 50-foot sailing yacht called the La Fayette. Between 31 March and 18 April 2020, they sailed the vessel to a rendezvous point south of Norfolk Island, where they transferred a large consignment of methamphetamine from a second yacht that had carried the drug from Mexico. They then sailed toward Broken Bay on the NSW coast, where the drug was to be landed.
NSW Police intercepted the yacht before it reached shore. The drug seized had a gross weight of almost one tonne, with a pure weight of 792.1 kilograms of methamphetamine. That quantity was more than 1,000 times the commercial quantity threshold, and the drug carried an estimated street value of approximately $495.96 million.
The master, Barnard, had been recruited into the scheme by a principal based in Dubai, to whom he owed a gambling debt of A$115,000 incurred after losing his employment as a superyacht captain. Bishell was the deckhand and occupied a clearly subordinate role. Both men pleaded guilty to attempting to import a commercial quantity of a border controlled drug, contrary to s 307.1(1) of the Criminal Code (Cth).
Legal Issues
- What was the appropriate head sentence for each offender, having regard to the objective gravity of the offence and each offender's individual role and culpability?
- What discount, if any, should be applied to reflect each offender's plea of guilty?
- What non-parole period was appropriate for each offender, given there is no statutory norm governing that ratio under Commonwealth law?
- How should the court weigh mitigating personal circumstances, including financial coercion, cooperation, and conduct in custody?
Decision
Neilson DCJ characterised the offending as objectively extremely serious. The quantity of pure drug was vast, the commercial value enormous, and the operation was sophisticated, involving international coordination across multiple countries over several months. The judge identified the principal in Dubai as directing the enterprise, with Barnard occupying a significant operational role as master of the vessel and Bishell in a lesser, subordinate role throughout.
For Barnard, the court set a starting sentence of 22 years' imprisonment. A 25% discount was applied for his early guilty plea, reducing the head sentence to 16 years and 6 months. The court then set a non-parole period of 11 years, noting the absence of a statutory norm under Commonwealth law and exercising a discretionary judgment as to the appropriate proportion.
For Bishell, the court set a starting sentence of 10 years, also reduced by 25% for his early guilty plea, producing a head sentence of 7 years and 6 months. The court fixed a non-parole period of 4 years and 6 months, taking into account his subordinate role and particular experiences during custody.
Both sentences were backdated to 18 April 2020, the date each offender was taken into custody.
Orders Made
- Barnard convicted and sentenced to imprisonment for 16 years and 6 months, commencing 18 April 2020, with a non-parole period of 11 years expiring 17 April 2031.
- Bishell convicted and sentenced to imprisonment for 7 years and 6 months, commencing 18 April 2020, with a non-parole period of 4 years and 6 months expiring 17 October 2024.
Key Takeaways
- The District Court treated the extreme quantity of drug (over 1,000 times the commercial quantity threshold) as a powerful indicator of the objective seriousness of the offence, even where the offenders were not at the top of the criminal organisation.
- A 25% discount for an early guilty plea was applied consistently to both offenders, reflecting the utilitarian value of that plea under Commonwealth sentencing principles.
- Differences in role were given real weight: Barnard's position as master, with primary operational responsibility, resulted in a starting sentence more than twice that of Bishell, whose subordinate status as deckhand was treated as a significant mitigating factor.
- Financial coercion through a pre-existing debt was accepted as part of the background context for Barnard's recruitment, though this did not displace the seriousness of the offending.
- Under Commonwealth law, no statutory ratio governs the relationship between head sentence and non-parole period, leaving the court to exercise discretion in fixing that proportion for each offender individually.
Legislation and Cases Referenced
Legislation
- Criminal Code (Cth), ss 307.1(1), 11.1(1)
- Crimes Act 1914 (Cth)
Cases
- R v Aryton [2020] NSWDC 45
- R v Jackson [2020] NSWCCA 230
- R v Lembke [2020] NSWCCA 293
- R v Nguyen; R v Pham [2010] NSWCCA 238
- R v Pirello, Spero & Tobin [2018] NSWSC 1843
- R v Thomson (2000) 49 NSWLR 383
- R v Toa Toa (District Court of NSW, Maiden DCJ, 22 February 2019)
- Xiao v R [2018] NSWCCA 4