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Court of Criminal Appeal 1 December 2023

R v Barkl; R v Dumbrell; R v Theobald

[2023] NSWCCA 309

Drugs
WHETHER MANIFEST INADEQUACY WHERE CO OFFENDER RECEIVED HIGHER SENTENCE WHETHER CO SUBJECTIVE CASES

Citation: R v Barkl; R v Dumbrell; R v Theobald [2023] NSWCCA 309
Court: NSW Court of Criminal Appeal
Date: 1 December 2023
Judge(s): Mitchelmore JA; Fagan J; R A Hulme AJ

Background

Three respondents pleaded guilty to attempting to possess a commercial quantity of unlawfully imported cocaine (188.16 kg gross, 149.3 kg pure) contrary to the Criminal Code Act 1995 (Cth). The cocaine had been concealed in hollowed-out aluminium ingots imported from Mexico and delivered to an aviation welding business in Sydney. The respondents were identified as Sydney-based members of an international criminal group and made multiple attempts to access the drugs at the premises in February and March 2019.

Two of the respondents also pleaded guilty to failing to provide device passwords when ordered to do so under the Crimes Act 1914 (Cth) following their arrests. The third respondent separately pleaded guilty to a state offence of knowingly supplying a commercial quantity of pseudoephedrine in December 2020, involving a consignment of Toyota side steps containing over 51 kg of the drug.

In November 2022, the sentencing judge in the District Court imposed sentences ranging from 6 years 3 months (non-parole period 3 years 3 months) to 8 years (non-parole period 4 years 6 months). The Crown appealed all three sentences on the ground of manifest inadequacy.

  • Whether the sentencing judge failed to properly determine the objective seriousness of the cocaine importation offending
  • Whether an unexplained and erroneous disparity existed between the respondents' sentences and the higher sentence imposed on a co-offender (an employee of the premises where the drugs were to be accessed)
  • Whether the sentences were outside the range established by comparable cases, indicating error
  • Whether the sentencing judge gave proper weight to general and specific deterrence, and properly treated guilty pleas, delay, and subjective circumstances
  • Whether the total effective sentences and non-parole periods were manifestly inadequate because the sentences for additional offences were made almost entirely concurrent with the principal sentences

Decision

On Ground 1 (manifest inadequacy of the Code Offence sentences), the Court dismissed the appeal. The sentencing judge's reasons clearly demonstrated that he regarded the offending as objectively serious, as shown by his detailed findings about the nature and extent of the conduct and each respondent's role in the criminal enterprise. The Court held it was not necessary for the sentencing judge to use the express phrase "this is serious" provided the substance of that assessment was evident from the reasons.

The Court also rejected the Crown's submission that the co-offender (an AWS employee named Mr Keen) received a higher sentence that was inexplicably inconsistent with the lower sentences for the respondents. The sentencing judge had described the culpability of Mr Keen and the respondents as "similar" and was entitled to treat differences in their subjective circumstances as justifying the sentencing outcome. The fact that Mr Keen was employed at the premises and received directions from some of the respondents did not, in the Court's view, establish that any respondent held a position of power or authority over him sufficient to undermine the sentencing judge's assessment.

On the comparative cases raised by the Crown, the Court found that none of them demonstrated that the sentencing judge had departed from proper sentencing principle or produced sentences outside the available range. Questions of weight given to deterrence, guilty pleas, delay, and subjective features were matters falling within the proper exercise of the sentencing discretion, and the Court of Criminal Appeal is not entitled to substitute its own view merely because it would have exercised that discretion differently.

On Ground 2 (manifest inadequacy of the total effective sentences), the Court again dismissed the appeal. While it accepted that the additional offences involved separate criminal conduct occurring at different times, the Crown had not articulated why the sentencing judge's approach to concurrence produced a total sentence that was unreasonable or plainly unjust. This difficulty affected the Crown's submissions regarding all three respondents equally.

Orders Made

  • Appeals dismissed (in each of the three matters)

Key Takeaways

  • A sentencing judge is not required to use express language such as "this offending is serious" provided the reasons, taken as a whole, make clear that objective seriousness was genuinely considered and weighed.
  • Sentencing disparity between co-offenders does not automatically indicate error. Where the sentencing judge has identified significant differences in subjective circumstances, those distinctions can justify materially different outcomes even where objective culpability is assessed as similar.
  • In dismissing the Crown appeals, the Court of Criminal Appeal reaffirmed that it must not substitute its own view of the appropriate sentence simply because it might have weighed relevant factors differently. The threshold of manifest inadequacy requires more than a disagreement with the result.
  • Comparative cases from other jurisdictions or prior decisions do not establish error unless they demonstrate that the impugned sentences fall outside the range consistent with proper sentencing principle.
  • Where a Crown appeal challenges the totality of a sentence on the basis that concurrent sentences fail to capture the full criminality, the Crown must do more than assert that the additional offences involved separate conduct. The submissions must explain why the specific approach to concurrence produced a result that was unreasonable or plainly unjust.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), ss 11.1(1), 307.5(1)
- Crimes Act 1914 (Cth), s 3LA, Part 1B
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A

Key Cases:
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Hili v R; Jones v R (2010) 242 CLR 520; [2010] HCA 45
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Pham v The Queen (2015) 256 CLR 550; [2015] HCA 9
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Sara [2020] NSWCCA 119
- DH v The Queen [2022] NSWCCA 200
- R v FF [2023] NSWCCA 186
- R v Lembke [2020] NSWCCA 293
- Jaafar v R [2022] NSWCCA 254
- Lau v R [2014] NSWCCA 179
- Lai v R [2021] NSWCCA 217
- Chen v R [2018] NSWCCA 158
- R v Kassir [2020] NSWCCA 88
- R v Doff [2005] NSWCCA 119
- R v Gu [2006] NSWCCA 104
- Huckstadt v R [2016] NSWCCA 22
- Chamon v R [2020] NSWCCA 112
- R v Mereb; R v Younan [2014] NSWCCA 149