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District Court 3 May 2024

R v Campbell

[2024] NSWDC 147

Drugs
CRIME SENTENCE CONTROLLED DRUG

Citation: R v Campbell [2024] NSWDC 147
Court: District Court of New South Wales
Date: 3 May 2024
Judge: Mahony SC DCJ

Background

The offender was charged on two counts relating to a large cocaine importation. Count 1 alleged a conspiracy to import a commercial quantity of cocaine between January and October 2017. Count 2 alleged a conspiracy to possess a commercial quantity of unlawfully imported cocaine between late December 2017 and 16 January 2018. Following a jury trial on 1 August 2023, the offender was acquitted on Count 1 but convicted on Count 2.

The offence arose from AFP interception of a shipping container at Port Botany in April 2017, which concealed 2,576 blocks of cocaine with a purity of up to 82.5% and a street value estimated at up to $1.536 billion. After the container was located in October 2017, the offender played an active role in efforts to recover the drugs, including travelling to New Zealand to meet undercover operatives (UCOs), using encrypted communications, and acting as a lookout at a hotel in Belgrade on 16 January 2018. He was arrested in Serbia and found in possession of a firearm, for which he served six months imprisonment before being extradited to Australia.

Two co-offenders were also relevant to sentencing. Rohan Peter Arnold had pleaded guilty to the Count 1 conspiracy (import) and was sentenced in February 2020. Co-offender Waters had pleaded guilty to Count 2 and was sentenced by the same judge in April 2024, making the parity principle directly relevant.

  • What sentence was appropriate for the offender's role in a conspiracy to possess a commercial quantity of unlawfully imported cocaine, carrying a maximum penalty of life imprisonment?
  • What weight should be given to subjective matters including the offender's background, the onerous conditions of his incarceration in Serbia and Australia, the impact of COVID-19 on the prison population, and non-exculpatory duress?
  • How should the parity principle apply given that co-offenders Arnold and Waters received sentences following guilty pleas, whereas the offender was convicted after a contested jury trial?
  • What non-parole period was appropriate under s 19AB(1) of the Crimes Act 1914 (Cth), noting the absence of a prescribed percentage for Commonwealth offences?

Decision

His Honour took a starting point of 22 years imprisonment, reflecting the serious objective gravity of the offence. The drug quantity was enormous, the street value was in the hundreds of millions to over a billion dollars, and the offender's conduct was active and sustained: he used encrypted communications, travelled internationally, sought a firearm, and indicated a willingness to use violence to retrieve the cocaine.

The court reduced that starting point to 18 years, taking into account several subjective factors. These included the offender's difficult childhood, his record of legitimate employment and army service, the harsh conditions of his detention in Serbia, the impact of COVID-19 on prison conditions, delays in the proceedings caused by factors outside his control, and the fact that duress, while not exculpatory, had some mitigating weight.

The parity principle was addressed in light of the sentences imposed on Arnold and Waters, both of whom had pleaded guilty. His Honour acknowledged the relevance of parity but noted the offender had contested the charges and was sentenced following conviction at trial, which affects how comparisons are drawn.

The court was satisfied that no sentence other than full-time imprisonment was appropriate and imposed a total term of 18 years, with a non-parole period of 10 years and 6 months, commencing from the date of arrest on 16 January 2018.

Orders Made

  • The offender was convicted of Count 2: conspiracy to possess a commercial quantity of unlawfully imported cocaine (border-controlled drug) between 26 December 2017 and 16 January 2018, contrary to ss 307.5(1) and 11.5(1) of the Criminal Code Act 1995 (Cth).
  • Sentenced to imprisonment with a non-parole period of 10 years and 6 months, commencing 16 January 2018 and terminating 15 July 2028.
  • Balance of term: 7 years and 6 months, commencing 16 July 2028 and terminating 15 January 2036.
  • Parole eligibility date: 15 July 2028.

Key Takeaways

  • A conviction for conspiracy to possess a commercial quantity of a border-controlled drug under ss 307.5(1) and 11.5(1) of the Criminal Code Act 1995 (Cth) carries a maximum penalty of life imprisonment, reflecting the extreme seriousness with which Commonwealth law treats large-scale drug offending.
  • The District Court applied the parity principle when sentencing a co-offender convicted after trial, even though the other co-offenders had been sentenced following guilty pleas, indicating the principle applies across different procedural pathways to conviction.
  • Non-exculpatory duress, while insufficient to negate criminal liability, was recognised as capable of reducing the sentence imposed, consistent with established NSW sentencing authority.
  • Under Commonwealth sentencing law, there is no prescribed percentage relationship between the head sentence and the non-parole period fixed under s 19AB(1) of the Crimes Act 1914 (Cth); the court exercises a broader discretion than applies under some State sentencing regimes.
  • Onerous pre-sentence custody conditions, including harsh overseas detention and the effects of COVID-19 on Australian prisons, were treated as legitimate mitigating factors reducing the sentence from the starting point.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 307.5(1), 11.5(1)
- Crimes Act 1914 (Cth), s 19AB(1)

Cases
- AB v R [2013] NSWCCA 273
- Amiri v R [2017] NSWCCA 157
- Bugmy v The Queen (2013) 249 CLR 571
- El-Ghourani v R [2009] NSWCCA 140
- Elias v The Queen (2013) 248 CLR 483
- Eyeson v R [2024] NSWCCA 52
- Green v The Queen (2011) 244 CLR 462
- Hili v The Queen (2010) 242 CLR 520
- Milenkovski v The State of Western Australia [2014] WASCA 48
- Moodie v R [2020] NSWCCA 160
- R (Cth) v Cheung; R (Cth) v Choi [2010] NSWCCA 244
- R v DW [2012] NSWCCA 66
- R v Falls [2004] NSWCCA 335
- R v Nguyen; R v Pham [2010] NSWCCA 238
- R v Pham (2015) 256 CLR 550
- Taysavang v R; Lee v R [2017] NSWCCA 146
- Tepania v R [2018] NSWCCA 247
- Tiknius v R [2011] NSWCCA 215
- Totaan v R (2022) 108 NSWLR 17
- Tyler v the Queen; R v Chalmers [2007] NSWCCA 247