Citation: R v Barkl; R v Dumbrell; R v Theobald [2022] NSWDC 760
Court: District Court of NSW
Date: 23 November 2022
Judge(s): Scotting DCJ
Background
Three offenders appeared for sentencing after pleading guilty in the Local Court to federal and state drug-related offences. All three were members of a Sydney-based criminal group that, between February and May 2019, attempted to take possession of a large commercial quantity of cocaine that had been imported from Mexico concealed inside hollowed-out aluminium ingots delivered to a Bankstown Aerodrome business. Two of the three offenders, Barkl and Dumbrell, also pleaded guilty to a separate federal offence of failing to comply with orders requiring them to provide passwords to encrypted devices seized at the time of their arrest in March 2021. Theobald additionally pleaded guilty to a state offence of supplying a prohibited drug (pseudoephedrine) arising from a separate December 2020 importation concealed in automotive side steps.
Australian Border Force detected the cocaine shipment in February 2019 before it reached the group. The AFP removed the drugs, repacked the consignment with listening devices installed, and allowed delivery to proceed. Police then recorded the offenders making repeated visits to the premises over several weeks in unsuccessful attempts to locate the cocaine-filled ingots.
Legal Issues
- What sentences were appropriate for each offender's role in the attempted possession of a commercial quantity of cocaine under s 307.5(1) of the Criminal Code 1995 (Cth)?
- What were the offenders' precise roles and levels of culpability within the drug syndicate, given conflicting accounts in the agreed facts and recorded conversations?
- What weight should be given to the offenders' subjective circumstances, including age, health, criminal history, and the impact of custody on their families?
- How should the court treat the approximately two-year delay between the offending and arrest, and the COVID-19 pandemic conditions, in fixing sentences?
- What discount applied for guilty pleas, and what non-parole periods were appropriate as federal offenders?
Decision
Role and culpability in the cocaine importation:
The court found it could not be satisfied beyond reasonable doubt that the offenders occupied significant positions in the Australian arm of the syndicate (at [152]). The sophisticated elements of the operation, including establishing dummy corporations, dry-run consignments, and concealing cocaine inside ingots, were arranged by others before the offenders became involved (at [133]). The court was satisfied that the offenders jointly participated in attending the premises to sort through the consignment and locate the cocaine-filled ingots, and that they expected to be paid for doing so (at [152]). Their participation was described as clumsy and unsophisticated, conducted in a manner likely to attract detection (at [150]).
Quantity and value of the drugs:
The total amount of cocaine was 149.3 kilograms pure, representing more than 74 times the commercial quantity, with a wholesale value estimated at between $35 million and $48 million (at [27], [153]). The court was satisfied the offenders knew the quantity and value were substantial, and Theobald was recorded in March 2019 as having actual knowledge that the drugs were worth $40 million (at [154]).
Theobald's separate supply offence:
Theobald collected the pseudoephedrine consignment, delivered it to the premises, and participated in cutting open the side steps to access the drug. The commercial quantity for pseudoephedrine is 1.25 kilograms; the quantity involved was approximately 51 kilograms, or roughly 40 times the commercial quantity (at [158], [159]).
Refusal to provide device passwords (Barkl and Dumbrell):
The court noted that the s 3LA offence targets persons who fail to assist authorities in accessing encrypted devices. However, it could not be satisfied beyond reasonable doubt that the devices seized at the time of arrest were the same devices used during the offences, or that they contained relevant information (at [156]).
Subjective circumstances and sentence moderation:
Each offender received a 25% discount for their guilty pleas (at [9]). The court considered age, health, family circumstances, criminal history, and remorse for each offender. Dumbrell, aged 74, was found to have declining physical and mental health including early dementia, which would make custody more onerous and reduce the risk of reoffending (at [110], [166]). Theobald's significant prior criminal history, including a previous serious drug offence, and his additional offence in December 2020 resulted in a heavier overall sentence (at [171]). The court also considered the impact of COVID-19 prison conditions, the two-year delay between offending and arrest, and the distressing circumstances of the early-morning arrests on family members (at [175], [185], [187]).
Co-offender comparison:
Co-offender Keen had been sentenced to a total effective term of 10 years with a non-parole period of 6 years. The court found the three offenders' culpability was broadly similar to Keen's, but imposed lower sentences reflecting their more favourable subjective circumstances, including age, health decline, and the absence (for Barkl and Dumbrell) of an aggravating parole consideration that applied to Keen (at [178]-[181]).
Orders Made
- Barkl: Convicted. 12 months imprisonment for the s 3LA offence (commencing 30 March 2021); 6 years imprisonment for the s 307.5(1) offence (commencing 30 June 2021). Total effective term: 6 years and 3 months, with a single non-parole period of 3 years and 3 months (eligible for parole 29 June 2024).
- Dumbrell: Convicted. 12 months imprisonment for the s 3LA offence (commencing 30 March 2021); 7 years imprisonment for the s 307.5(1) offence (commencing 30 June 2021). Total effective term: 7 years and 3 months, with a single non-parole period of 3 years and 6 months (eligible for parole 29 September 2024).
- Theobald: Convicted. 5 years imprisonment with a non-parole period of 3 years and 9 months for the state supply offence (commencing 30 March 2021); 7 years imprisonment for the s 307.5(1) offence (commencing 30 March 2022), with a non-parole period of 3 years and 6 months. Total effective term: 8 years, with a non-parole period of 4 years and 6 months (eligible for parole 29 September 2025).
Key Takeaways
- A sentencing court applying Part IB of the Crimes Act 1914 (Cth) must make adverse findings of fact to the criminal standard (beyond reasonable doubt) and favourable findings only to the civil standard (balance of probabilities), consistent with R v Olbrich (at [6]).
- Where the agreed facts do not permit complete findings about an offender's precise role in a drug syndicate, the District Court will limit findings to what the evidence establishes beyond reasonable doubt, and will not treat disputed claims of more senior involvement as proven (at [132], [152]).
- Guilty pleas entered in the Local Court attracted a 25% discount in this matter, reflecting the significant utilitarian value of avoiding a complex trial involving many witnesses (at [9]).
- A lengthy unexplained delay between offending and arrest, while not automatically a mitigating factor, can justify some moderation of sentence where the offenders did not cause the delay and were not aware they were under investigation (at [182], [185]).
- In fixing individual sentences within a group of co-offenders with broadly similar culpability, the District Court considered relative differences in age, health, criminal history, and personal circumstances, producing meaningfully different outcomes across the three offenders despite comparable roles in the offending.
Legislation and Cases Referenced
Legislation
- Crimes Act 1914
- Criminal Code 1995 (Cth)
Cases
- Bugmy v The Queen (1990) 169 CLR 525
- Deakin v The Queen (1984) 58 ALJR 367
- Hili v The Queen (2010) 242 CLR 520
- Johnson v The Queen (2004) 78 ALJR 616
- Power v The Queen (1974) 131 CLR 623
- R v El Karhani (1990) 21 NSWLR 370
- R v Nassir [2020] NSWCCA 88
- R v Nguyen (2010) 205 A Crim R 106
- R v Olbrich (1999) 199 CLR 270