District Court New South Wales Medium Neutral Citation: R (Cth) v Barnard; R (Cth) v Bishell [2021] NSWDC 400 Hearing dates: 12-15 July 2021 Date of orders: 15 July 2021 Decision date: 15 July 2021 Jurisdiction: Criminal Before: Neilson DCJ Decision: Offender (Barnard): head sentence 16 years 6 months NPP 11 years. Offender (Bishell): head sentence 7 years 6 months NPP 4 years 6 months. Catchwords: CRIME – SENTENCE – Attempting to import a commercial quantity of a border controlled drug, methamphetamine – Almost 1 tonne gross of drug, 792.1kg pure drug – Over 1,000 times the commercial quantity – Street value of drug was $495.96 Million – Barnard was master of a yacht and Bishell was the deckhand – At direction of a principal in Dubai offenders sailed yacht from Darwin to Mooloolaba and then to a rendezvous south of Norfolk Island with another yacht which carried the drug from Mexico – Drug then transported onto offenders' yacht – Yacht intercepted by NSW Police on a journey to Broken Bay where drug was to be landed – Different roles of offenders – Different personal circumstances. Legislation Cited: Crimes Act 1914 (Cth) Criminal Code (Cth) Cases Cited: 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 Category: Sentence Parties: Crown (Cth) – Regina Offender – Sebastian Seve Barnard Offender – Mark Robert Andrew Bishell Representation: Crown (Cth) – S. Duggan Offender (Barnard) – A. Conwell Offender (Bishell) – D. Barrow File Number(s): 2020/00116089 2020/00116093 Publication restriction: Nil. Sentence 1. HIS HONOUR: Sebastian Seve Barnard and Mark Robert Andrew Bishell stand for sentence. Each of the offenders has pleaded guilty to a charge that between 31 March 2020 and 18 April 2020 in the vicinity of Lake Macquarie in this State and elsewhere he attempted to import a substance, the substance being a border controlled drug, namely, methamphetamine, the quantity being a commercial quantity. That is an offence contrary to s 307.1(1) of the Criminal Code (Cth), acting in concert with s 11.1(1) of that Code. The maximum penalty is imprisonment for life and/or a fine of 7,500 penalty units. As will become evident during these sentencing remarks, neither of the offenders has any ability to pay any fine whatsoever. Facts 1. At the material time, which is the time of the arrest of the offenders, Mr Barnard was aged 34, and Mr Bishell was aged 33. The relevant facts can be gleaned from three sources: the first relevant facts are uncontentious autobiographical details of Mr Barnard; the second is the evidence given by Mr Barnard before me yesterday, which I have no hesitation in accepting; the third is the agreed facts. For a number of years prior to 2015, Barnard was working as a crew member of various yachts, including superyachts. Prior to 2015, he obtained many qualifications. His highest qualification was as a chief officer, or first officer, of a superyacht, the second in charge of such a vessel to its captain. Using naval terms, he was a qualified first mate. In 2015 he obtained an appointment as a captain of a yacht owned by a billionaire resident in Dubai. The vessel in question was not a superyacht, but a yacht that was 27 metres in length, or 92 foot. He gave this evidence: "When I went to go for an interview, the premise was that it was his first yacht, and he wanted to upgrade later on. So, the handshake promise was that I'd work for him for two, three years, and then after that, he would then purchase a 50 metre plus vessel which I was then to commandeer [sic, scil. command]. I would help him pick the vessel out." Unfortunately, that did not come to pass, and after five years working for the billionaire, Mr Barnard resigned that job in April 2019. He was then placed on a retainer of $1,000 per month, in order to be called back to assist the new captain with his task on board that 27 metre yacht. However, the retainer was only paid for a relatively short period. 1. Barnard stayed living in Dubai. He could not reside, obviously, on the yacht of which he had been the captain. He gave this evidence: "I carried on drinking with some people, and unfortunately, we were gambling amongst ourselves... daily.. from 8am in the morning until 6pm at night, Monday to Friday, and then occasionally on the weekends, as I tried to spend time with my partner on the weekends. This racked up a bill, and I was indebted to an individual who was quite happy to front me the money on the understanding that I pay him back at a later stage when I was able to work. The money racked up quite quickly, especially with the gambling that we had; card games, dice games, things like that. Maybe UFC, boxing matches, basically almost anything that was available. We also started taking quite a bit of codeine as... this person in the group was given codeine for a medical reason, and [it] was then dished out quite a bit while we were drinking. So, this was just a recipe for disaster. At one stage, this person called upon me and said that the... time to pay had come, and that I needed to pay the money in a short time." The debt owed by Barnard was A$115,000 (Transcript p118.02). Barnard looked to obtain other sources of money to repay his debt. He looked to his family, his friends, his former employer, and to his financial institution, but was unsuccessful. Eventually, Barnard had to tell his creditor that he could not obtain assistance from anyone else to repay the debt. 1. His creditor then asked him to do some work for him. This creditor was, in fact, the principal of the organisation or a principal in the organisation which arranged for the importation of the methamphetamine, which is the substance which each of the men before me sought to import. A little later in his evidence, Mr Barnard told me that he had no assets that he could, for example, sell to pay back the debt. The principal told him that the way out of the debt was for Barnard to use his professional services to sail a yacht. He was told initially to sail a boat for a Rolex Cup Race to be held in Phuket in Thailand. The vessel in question was a boat known as the La Fayette which was in Australia. 2. On 8th October 2019 Barnard arrived in Melbourne on a flight from Dubai. He stated in his Incoming Passenger Card that his main reason for travelling to Australia was to visit friends or relatives with his intended address being in Victoria. He described his occupation as being a "captain." However, the real purpose of the visit was not to meet up with friends or relatives but to take command of the La Fayette and eventually attempt to take it to Phuket. 3. On 14th October 2019 an in water inspection and sea trial was conducted on the La Fayette at the Versace Marina on Seaworld Drive, Main Beach in Queensland. Barnard and another man were recorded as being present during the inspection. On 17th October 2019 a hard stand inspection was conducted on the La Fayette at Runaway Bay Marina in Queensland. 4. The agreed facts contain a short description of the vessel but one of the documents in exhibit 1 is a Vessel Survey Inspection Report following upon the sea trial and dry dock inspection to which I have referred. The La Fayette is described as a 2007 Bavaria 50 Sloop. The 50 refers to the length of the vessel but in feet, that is that it is 50 foot long. Its length is actually 15.24 metres. Its beam is 4.26 metres and its draft is 2.07 metres. The name of the owner contained on the vessel survey inspection report is Phillip Waybourne of Palm Jumeelam, Dubai. According to the agreed facts its owner was Phillip Weybourne of Flat 8 Chapel Place, Royal Tunbridge Wells, England. The vessel survey inspection report describes the vessel in this fashion: "The vessel is a fibreglass production built 2007 Bavaria 50 sloop powered by a single sail driven Volvo Penta D2 75, four cylinder turbo diesel motor rated at 75 horsepower. The vessel is a four cabin version with three heads/showers, diesel Paguro 5000 generator, air conditioning, modern electronics and solar panels. The vessel presents visually in satisfactory condition for her age, and has some minor items that were detected which are outlined in the report below." 1. On 2 November 2019, the La Fayette sailed into Cairns and was moored at the Cairns Marlin Marina. Barnard was recorded as being a member of the crew. On the following day, it departed Cairns and on 12 November 2019 sailed into Darwin and was moored at the Cullen Bay Marina. Barnard was again recorded as being a member of the crew. On 15 November 2019, the La Fayette departed Darwin and was at sea for approximately 24 days. This was the attempt made by Barnard, as skipper, to take the vessel to the race at Phuket. He said that en route to Phuket he and his crewman, an Englishman, experienced quite a few difficulties; the generator stopped working so that they could not charge the batteries, and a lot of the electrical systems became inoperative. The water maker stopped working so they could not produce fresh water from the desalinator. There were some other problems. He explained those problems, presumably to the principal, and was told to stop the voyage north and to call into Benoa Bay, which is in Bali. He stopped there for three days, and was then told to return to Darwin so that all of the faults which had developed could be fixed under warranty. The principal did not want to spend any more money than had already been spent on the vessel. Hence they returned to the Cullen Bay Marina at Darwin. 2. The La Fayette was sailed into Darwin on 9 December 2019. Records show that the vessel was then under the command of Barnard. A control permit was issued to Barnard identifying him as the master of the vessel. Between 10 December 2019 and 31 January 2020, Barnard organised for maintenance and repairs to take place on the La Fayette when it was moored at the Cullen Bay Marina. On 12 December 2019, Barnard left Australia on an Emirates flight to Dubai; that flight left from Perth, but one must assume that he had flown on a domestic service from Darwin to Perth. That flight was paid for by the principal. 3. In the meantime, on 26 November 2019, Matthew Carter, a British citizen, Charles Glenny, also a British citizen, and Michael Mitchell, a United States citizen, arrived in Mexico City on a flight from Madrid. On 12 January 2020, Carter, Mitchell and Glenny arrived for a second time in Mexico City from Madrid. That clearly was their second visit to Mexico City. A foot note in the agreed facts tells me that Mexican authorities do not maintain records of departing passengers, hence their leaving Mexico is not officially recorded. Carter, Mitchell and Glenny were to become the crew of another vessel known as the Mo'Chuisle. The provenance and pronunciation of that name are unknown, as is its meaning. It is difficult to articulate, and I shall seek to avoid doing so by referring to it as "the other vessel". 4. Back in Dubai, Barnard had further interaction with his creditor/the principal. He gave this evidence: "I got back into Dubai, and then when attempting to make plans to go see family in South Africa, the principal then approached me, and said that I had one more task to do, and, then my debt would be cleared. This was to take the vessel, La Fayette, go and pick up some items, and then sail it back, just above Sydney which is, I believe, Broken Bay... and, then drop the vessel off, and then walk away." He was told that what he was to pick up was methamphetamine. He was not told by the principal how much of that drug he was to pick up. The principal told him it was better that he did not know the amount. This evidence was then given: "Q. You realised it wouldn't be an insignificant amount, if you're taking a boat to meet another boat, at sea? A. No. I didn't realise it was going to be that staggering amount. I mean, I've seen what it's done to people in gaol, and I've been in a cell with people using it, so I understand the devastating effect it has on people. But, I didn't expect it to be that much. My thought was that, it was just another way to try and get into the country, but I was not - I couldn't have fathomed it would be that amount. It was flabbergasting." 1. The gross weight of the drug was almost one tonne. Clearly the witness was deposing to the fact that he did not expect the amount of the drug to be so great, but in so doing, he did not actually answer the question asked of him. Unsurprisingly, Mr Crown revisited the issue in cross-examination. This evidence was given: "Q. Mr Barnard, your evidence is that you didn't know the exact quantity of the drug to be imported? A. Correct. Q. But you knew that the purpose of the voyage was to import drugs? A. Correct. Q. And you also gave some evidence that you were the chief officer on Super Yachts? A. Correct. Q. And can I suggest as part of that job, part of your role in making sure that you plan everything for a trip to make sure nothing went wrong? A. Correct. Q. And can I suggest to you that you understood that whilst you didn't know the quantity of the drug that it would have been a substantial amount that you were picking up? A. It would be a lot. HIS HONOUR: Q. You knew we were talking about multiple, multiple kilos? A. Multiple, multiple kilos, yes." Clearly the offender Barnard knew that this was to be a large amount of methamphetamine but how much he did not appreciate. 1. I should point out that the commercial quantity of methamphetamine is 750 grams or 0.75 kilograms. The amount of actual pure methamphetamine was over 1,000 times that amount. The amount of pure methamphetamine was 792.1 kilograms. The net weight of the product was 991.9 kilograms. It was in the form of methamphetamine hydrochloride. Pure methamphetamine hydrochloride contains 80.3% of methamphetamine. The remaining 19.7% represents the hydrochloride salt component. The range of purities for the methamphetamine which these offenders sought to import was between 79.8% and 80.1%, that is it was almost pure methamphetamine hydrochloride. 2. Back in Dubai Barnard was instructed to return to Darwin to pick up the La Fayette and to sail it to Mooloolaba in Queensland. It would appear as far as I can work out that Barnard knew from his instructions in Dubai that he was to sail the La Fayette from Darwin to Mooloolaba and there to await further instructions. However, it appears that he knew from the beginning that he was to make a rendezvous with the other vessel, although he probably did not know its identity, somewhere south of Lord Howe Island. Then, after having collected the cargo, he was to transport the cargo into Broken Bay and presumably dropping off at a marina in Pittwater. He knew that he was collecting methamphetamine but did know the quantum of the cargo but expected it to be well in excess of the legal limit for a commercial quantity of methamphetamine, 0.75 kilograms. 3. Whilst in Dubai, the offender Barnard was with the principal when the principal telephoned a number and told Barnard to take the phone from him and to say hello to the person on the phone and to introduce himself. He was told by the principal that the name of the person to whom he was to speak was Mark. He gave this evidence: "...[he] gave me a phone and said, 'say hello', to someone, 'and introduce yourself'. I say, 'Hello, my name is Sebastian',...and I just said, 'What have you been doing?'...'Do you have any work? What's going on with you?' And he said, 'Nothing much', and that's kind of where we ended the conversation...'Do you want to go for a sail?', 'Do you want to go for some work?', and that was it." The presumption is that the answer given by Mark was "yes". The person to whom he was speaking was Barnard's co-offender, Mark Robert Andrew Bishell. 1. Agreed fact [20] is this: "On 23 January 2020, Barnard contacted a New Zealand citizen, Bishell, via WhatsApp. In Barnard's phone his own phone number was saved under the name 'Boat', and Bishell's number was saved under the name 'Deck'. Barnard asked Bishell to delete 'that other number, and only contact through this'. Barnard told Bishell he would wait for Bishell to send him a 'picture ID of your mate'. Barnard told Bishell that Barnard was 'flying out tonight'." 1. Although Bishell had previously been in Dubai, Barnard and Bishell had not met there. In fact, the first time that they spoke was in this telephone conversation; the first time that they met was in Darwin. I do know that when he did work in Dubai, Bishell had left a CV and sought work on yachts, and had in fact sailed on behalf of somebody a yacht from Darwin to Bali. Perhaps that is how he became known to the principal. It was the principal who selected Bishell, not Barnard. I accept that to be the case from Mr Barnard's evidence. However, what Mr Barnard needed was somebody with some experience of being a deckhand on a yacht. Bishell had experience as a deckhand on fishing vessels and also on the yacht trip from Darwin to Bali. He accordingly had the expertise to work as a deckhand for Barnard as the master of the La Fayette. 2. On the following day, 24 January 2020, Barnard arrived in Brisbane on a flight from Dubai. He was granted entry pursuant to a tourist visa, which was to expire on 24 April 2020. Barnard stated on his incoming passenger card that his main reason for travel was to holiday, with his intended address being the Cullen Bay Marina in Darwin. Barnard recorded his occupation as being a "trader". Clearly he had told, on his incoming passenger card, that he intended to take control of the vessel, La Fayette, and sail it from Darwin Harbour, that would indicate that he was coming into Australia to work, and he would have been denied entry. It is also apparent to me that he described himself as a "trader" on this occasion, lest the concatenation of a marina address and his occupation as a "captain" excited some interest from the Australian Border Force. 3. On 25 January 2020, Barnard sent a message to Bishell advising him that he was flying to his last destination, and then he would go straight to Western Union. By that stage, we know he was in Brisbane. His "last destination" was Darwin, and the reason for going to Western Union was to transmit funds that could be accessed by Bishell so that Bishell could buy airline tickets to take him from where he then was in Wellington, New Zealand, to Darwin. For some reason, Bishell could not use Western Union, but engaged a lady friend of his to do so. The money was transmitted via Western Union to her, and she gave it to Bishell, and Bishell bought himself airline tickets to take him from Wellington to Darwin via Sydney. 4. It has been submitted on behalf of the Crown that the circumstances of sending cash via Western Union to Bishell, and Bishell's only obtaining access to it through a third party friend, was a part of disguising what was going on. The evidence of Mr Barnard persuades me, however, that it was merely the easiest way of arranging to get Bishell from Wellington to Darwin, to give him the money to organise the flights himself, rather than Barnard's trying to do it, not knowing the circumstances of Bishell, where exactly he was in Wellington, where the closest airport was, what the time differences were, what flights would need to be chosen and the like. Clearly, it was easier for Mr Bishell to do that than for Mr Barnard to try to do it. Equally, I cannot assign any significance to the fact that Bishell did not have recourse to Western Union himself. When I come to discuss his personal circumstances, his personal circumstances were such that he may have had dealings with Western Union in the past and had not had a happy relationship with that institution, and may have been banned from seeking to use it. There is nothing, in my view, suspicious about what happened as far as the funding of Bishell's fares to Darwin were concerned. 5. On 26 January, Bishell paid cash for a flight to Darwin from Auckland via Sydney. He arrived in Sydney and was given a special visa as a New Zealand citizen. Bishell stated on his Incoming Passenger Card that his main reason for travel to Australia was to visit friends and relatives and taking a holiday and that his intended address was the "Darwin Hilton" and that his occupation was "sales/marketing." He had in the past been engaged in sales and marketing, in particular when he was in Dubai. At the time that he came to Australia on this occasion he was unemployed. He was going to reside temporarily in the Darwin Hilton Hotel. Why he said that his reason for coming to Australia was to visit friends and relatives and to take a holiday is unclear. Again, the Crown submits that this was part of an effort to conceal what was going on but it may represent a long distant memory of Mr Bishell that one needed a permit to obtain work in Australia, albeit that that requirement has evaporated in relatively recent times for New Zealand citizens. Again, I do not assign any particular sinister connotation to the Incoming Passenger Card filled in by Bishell. 6. At 8.30pm on 26 January 2020 Bishell boarded a flight at Sydney Airport to take him to Darwin. He was met at Darwin Airport by Barnard and they proceeded to the Hilton Hotel where Barnard had arranged accommodation. Barnard had been instructed by the principal that if Bishell agreed to go on a voyage on the La Fayette with Barnard that Barnard was to obtain from Bishell Bishell's mobile telephone and that he was to destroy it. It is clear that the reason for doing that was so that there was only one possible source of communication from the La Fayette. That communication was to be controlled by Barnard so that Bishell would be dependent upon Barnard for communication and that there could not be any person, for example, phoning authorities on the Australian mainland. According to Barnard he did ask Bishell for his phone, it was given to him and he destroyed it in front of Bishell by twisting it and snapping it, taking out the battery and throwing the remnants into a trap in the gutter while on a short walk from the Hilton Hotel to a nearby bar where they were to take liquid refreshment, probably in the form usually enjoyed in that city. 7. On 28 January and 31 January 2020 Barnard obtained two invoices for maintenance and repairs on the La Fayette from Wheelhouse Marine Pty Ltd. The total of those bills was $8,186.75. Barnard had brought with him from Dubai nearly $10,000 in Australian cash although it had been given to him in Dubai dirham and he paid part of that repair bill with cash and the other part he put on his credit card. The inference I drew from his evidence is that the credit card payments was being reimbursed by the principal. 8. On 3 February 2020, the La Fayette departed the Cullen Bay Marina with Barnard at the helm and Bishell as his deckhand. They sailed into the Mooloolaba River on 21 February 2020, expecting to be there for only a few days before Barnard's obtaining further instructions from the principal. Barnard had been provided with an iPad tablet, which was his means of communication with the principal, and was eventually to be his means of communication with the other vessel. The tablet was thrown overboard some three days after the cargo was unloaded from the other vessel into the La Fayette on 10 or 11 April 2020. There is a suggestion in the evidence that there was a call into Cairns on the way to Mooloolaba, but if there were, it is of no significance. 9. On 24 January 2020, Barnard and Bishell entered a supermarket at Mooloolaba and purchased groceries to the value of $392; they were paid for in cash. Although the agreed facts say that the Crown does not know who provided the cash, from the evidence given by Mr Barnard I infer that he was paying the cash out of moneys that had been advanced to him in cash by the principal in Dubai. 10. The other vessel was clearly designed to be the carrier of the methamphetamine from Mexico to a rendezvous with the La Fayette and then the La Fayette was to bring the methamphetamine into Broken Bay. Agreed fact [35] is this: "On 24 March 2020, the Mo'Chuisle, which had departed Mexico several weeks earlier, sailed in a westerly direction from a location south west of the Cook Islands towards the Australian east coast, based on GPS data subsequently obtained by police." 1. As I have already mentioned, Barnard expected only to be in Mooloolaba for a few days prior to receiving instructions to proceed further. In fact, he and Bishell were in Mooloolaba for almost five weeks; they were not to depart Mooloolaba until 31 March 2020. The reason for the delay was because the other vessel was running late. It also appears to have had a number of difficulties on its voyage towards Australia. In the agreed facts is a photograph (image 10) of the other vessel docked in Noumea in New Caledonia. It was sailed there after the transfer of the methamphetamine from it to the La Fayette by its crew. 2. When in Mooloolaba it is clear from the evidence of Barnard that he and Bishell were killing time. They sought to do so positively. Barnard had been told by the principal that Bishell had a history of previously using narcotics, and of being addicted to alcohol, and had been advised by the principal to limit Bishell's access to alcohol to only occasional usage. 30 March 2020 was Bishell's 33rd birthday. In cross examination by learned counsel for Bishell, Mr Barrow, Mr Barnard said that his instructions were not to tell Bishell what or how much "we were collecting". He went on to say this: "Q. You didn't tell him that the trip involved - you never told him that the trip involved meeting the boat to take receipt of drugs? A. We only got to pick something up. Q. Had to pick something up? A. Correct, but I did not say narcotics to him. I did not say - yep. Q. The instructions that you were given not to disclose what you were actually doing made sense, didn't they, because of operational security, if you like? A. Yes." In other words, the evidence of Barnard strongly suggests that he had merely told Bishell that the object of their sailing was to pick something up. 1. Later, this evidence was given: "Q. I want to suggest to you that information about going to meet anybody, pick up anybody, or pick up something from anybody, was not something that you discussed with him at an early point in his involvement with you? A. No, I would say that I did discuss it, not in full detail and not at length, but I would have mentioned it because it would have popped up what we were doing here for so long? We have to wait, we have to wait until the tablet tells us. We have to move, why aren't we moving? We were supposed to move earlier. I completely understand that. We're late because the other party that we're supposed to meet hasn't come, they haven't arrived, they have known the correct location. They're late because they said they hit bad weather. Q. Did you, at one stage, explain to him that the boat that you needed to meet needed resupplies because it was short of food and water? A. Correct, yes. Q. But, you were going to go to a point, at that stage, that you understood to be near Lord Howe Island, and that was the reason for going? A. No, I did not tell him about the location of Lord Howe Island. I expressly said, 'I can't tell you where it is, but we're going to meet some people out in the ocean, and we do have to give them food.' I have been told that they are lacking supplies. They are a month late. They don't have any fishing gear themselves, which we did, so they had no means of catching fish or sustaining themselves." This points to the fact that there was more discussion whilst the pair, that is Barnard and Bishell, were in Mooloolaba waiting, as to why they were waiting and of the need to take further supplies with them to hand over to the crew of the other vessel. However, it does not mean that Bishell did not know from an earlier point in time that the purpose of the voyage was to pick something up. 1. Questioning then went to the circumstances of Mr Bishell's 33rd birthday. The pair was sitting on a beach at Mooloolaba, drinking beer. This evidence was then given: "Q. He directly put it to you then, didn't he, that he asked you this isn't a drug delivery? A. I don't recall that express question. Q. Did he say something like this to you: 'If this has got anything to do with drugs we're fucked'? A. No, I don't recall that. Q. Did you look at him and say: 'it's got nothing to do with drugs, it's delivering food'? A. No, I don't recall that. I would have said yes we have to deliver food but it's nothing to do with narcotics. I would have said no it's got nothing to do with narcotics. I would not have said this is not to do with drugs. HIS HONOUR: Q. Sorry you said? A. I would not have said this has got nothing to do with drugs. Yeah, I couldn't lie to him straight up and say listen this is not drugs when it was in fact drugs." I accept Mr Barnard's evidence in that regard. Clearly there was no discussion about drugs being involved when they were sitting on the beach celebrating Bishell's 33rd birthday. Mr Barnard made it clear that, although he was instructed not to tell Bishell what was involved, he could not lie to him. 1. This whole issue comes about because the only substantive issue tendered to me for factual determination is what was the extent of the knowledge of Bishell when he became involved in the enterprise which led to the attempted importation of the methamphetamine. Stood over to Thursday 15 July 2021. 1. At the end of yesterday, I pointed out that the sole contested fact on sentence for me to determine was the dispute between the Crown and Bishell as to his state of mind prior to his departure on the La Fayette, and whilst he was onboard that vessel. It is convenient to discuss that issue at this time. Bishell's state of mind 1. When I come to outline Bishell's personal circumstances, it will become clear that his life was on a downward spiral. That downward spiral was caused by his addiction to alcohol and illicit drugs. Exhibit 11 is an affidavit sworn by Mr Andrew Leonard Bishell, Bishell's father, on 8 July 2021. Commencing at [36], the offender's father said this: "Mark contacted us from Melbourne in 2019. He was down and out and stated that until he was well, he was unemployable. He had a contact and friend from Capri days, Denise Cloughley, a recovering alcoholic and was facilitating New Zealanders and Australians towards rehab in Chang Mai, Thailand. We initially resisted but after talking to Denise, who is in her 50s and now successfully sober for many years and creditable with her proposal for Mark, so we agreed on the proviso that if Mark did not commit our last help to him financially would be a return ticket to New Zealand and he would be on his own and not welcome at home. Mark did commit to rehab with sincerity and desire. We visited him and hoped that he had turned the corner. When his rehab finished, and he was in aftercare with Denise, he became uncooperative and his situation deteriorated. We paid for Mark to return to New Zealand and in December 2019/January 2020 he was at a halfway house on unemployment benefit in Wellington. He pleaded to come home for Christmas and we refused and told him he needed to take responsibility for himself and [his] actions. He had no resources or money other than 'the dole'. We did however maintain contact and advice when asked and reassured our continued love for him." I should point out that the reference to "Capri" is the reference not to an island off the coast of Italy, but to a rehabilitation facility in New Zealand. 1. In a letter to me, which is exhibit 22, the offender Bishell says of his position at that time this: "I put the work in [in Chang Mai] got clean. My parents came out to see me. But despite my efforts, I fell off the wagon again and then things spiralled out of control very quickly. My parents got me out of Thailand, and back to Wellington. But I was told I was not welcome home, not even for Christmas. I struggled to stay sober all the while attending AA. I was broke, homeless and slept a few nights on the street before I got a bed in a halfway house. It was rife with drugs and booze but at least it was a bed. It was at this point I received a call from a UAE number." The offender goes on in his letter to say that that call was from Barnard, but there may well have been another call. 1. It is clear from what Barnard said in evidence, that the principal was aware of the circumstances of Bishell at this time. Bishell clearly knew that there was a principal behind Barnard. Clear evidence for that is an early communication from Bishell to Barnard. On 23 January 2020, that is whilst Bishell was still in Wellington, he sent this message to Barnard: "Also mate can you ask skip if he has an old iPhone he could bring me? Or if he could pick me up a cheap second hand one in Dubai[.] My phone I have is fucked." Although "skip" is nautical shorthand for "skipper", which itself is cant for the captain of a vessel, it was clearly not a reference to Barnard, as Barnard made clear. It was a reference to the principal. Hence one must deduce that Bishell knew the principal or knew of him, at least. 1. Furthermore, there is no evidence of any discussion between Barnard and Bishell as to what Bishell was to be paid for the work that he was to perform on the La Fayette. Indeed, Mr Barnard was cross examined by learned counsel for Bishell, and not one question was addressed by learned counsel to Barnard about any such conversation. In other words, the question of remuneration was not discussed with Barnard. It may have been directly discussed between the principal and Bishell prior to the principal arranging for Barnard to introduce himself to Bishell over the telephone. 2. One can readily imagine that given Bishell's circumstances, he would readily grasp at an offer to work on a seagoing vessel. When I come to discuss his personal circumstances, it is clear that he liked going to sea because it kept him off alcohol and drugs. They were not available, for example, when he was working in fishing trawlers off the coast of New Zealand. One would infer that they were not readily available when Bishell was doing other deckhand or sailing work. In a Whatsapp message to Barnard on 25 January 2020, Bishell said: "Fuck I can't wait to get on the big blue again bro it's been so long." 1. It is also clear from messages that are in evidence that the offender Bishell was expecting to come into money shortly. I cannot accept that Bishell took on the role of the deckhand on the La Fayette merely because it was providing him with food and accommodation, and some form of distraction. He clearly was doing it in the expectation of monetary reward. Everything points in that direction when one looks at the various messages that he sent to family and friends. The question of remuneration must therefore have been discussed by Bishell with the man he identifies as "skip" before the commencement of communications between Barnard and Bishell. 2. What that promised remuneration might be, the evidence does not disclose. However, one would not think that that promise of remuneration was greater than what was promised to Barnard. If a greater promise were made to Bishell that was made to Barnard and Barnard found out, there may have been some serious upset. Furthermore, it is clear that the principal knew that both Barnard and Bishell were down on their luck, to use the vernacular, meaning that each was in dire personal straits at the time that they were recruited to man the La Fayette. One would not need to offer a great deal of money to entice Bishell to take on the job. He may have been offered something similar to what Barnard was offered, something in the vicinity of about A$100,000. However, it might only have been half that sum. 3. The Crown relied on a number of internet searches made by Bishell whilst the La Fayette was moored in Mooloolaba to suggest that it might be a considerable sum of money. Some of these searches were: "what's the best Mercedes to buy" 3 March "rent a Lamborghini in Melbourne" 6 March "business class flights on Emirates" 8 March "wine near Fitzroy" 11 March "Melbourne luxury car hire" 15 March "party hotel Phuket" 20 March "Thailand boards" 21 March "paddle board Thailand" 21 March "flights from Melbourne to Phuket" 21 March "bars for sale Melbourne" 23 March "backpackers for sale in Phuket" 23 March "buy a beachfront road hotel in Pa Tong" 23 March "bars for sale Wellington" 23 March "pubs and bars for sale Wellington City" 23 March "Bars and Nightclubs Businesses for sale in Melbourne" 24 March "St Kilda VIC Chapel St Bar" 24 March "Cheap Flights from Sydney to Thailand" 24 March "bars for sale Melbourne" 25 March "Melbourne cbd luxury wine bar" 27 March "Bentley/New and Used cars, vans and utes" 27 March "Range Rover [ditto]" 27 March various expensive watches 27 March "2016 Mercedes Benz C63S Executive 2 for sale $103,800" 28 March 1. On the other hand, there is evidence to suggest that Bishell could be described as a "dreamer" or even a "fantasist". His birth mother, Ms Tania Churchman, said this in her reference (exhibit 13): "The sober Mark I know and love is truly a great person. But his addictions and delusions would frequently cause damage to his relationships and himself. An example of this is when we last saw Mark (approximately 3 years ago) and he was looking to purchase a fish and chip shop in Mooloolaba in Queensland. We did not understand how he would fund such an acquisition however he continued to meet with the owners on several occasions… Nothing ever came of the proposed acquisition and this was obviously as a result of him not being in a financial position to acquire the fish and chip store." Bishell's father said in [39] of his affidavit (exhibit 11): "Drugs and alcohol have distorted Mark's view and judgment on relationships, employment and his own worth and position. His continued attitude of unrealistic expectations, reckless behaviour and grandiosity are not a true reflection of the son that I know." In these circumstances his internet searches can be seen in a light other than that urged upon me by the Crown. 1. When Bishell arrived in Darwin and was met by Barnard, there was the conversation deposed to by Barnard, and the subsequent action of taking his phone and destroying it. If Bishell did not realise by that time that he was involved in something suspicious, or to use, perhaps, an inappropriate pun in the vernacular, "fishy", he would not be a normal person. From his background, he has some native intelligence, and for example, at one stage, was working in Dubai promoting New Zealand produce. One does not obtain such a job without both intellectual and people skills. He may have been affected by drugs and alcohol, but there is nothing to suggest that he was completely lost to understanding of what was going on around him, especially when it involved him. 2. He knew, from what he was told by Barnard, that they were going on a voyage, and the purpose of the voyage was to pick something up. He may not have known what he was to pick up, however when he was told, when they were on route to Mooloolaba, that that was their destination, he knew that he was heading east and then south. He was not heading north or west, which were directions which might be taken for those involved in people smuggling. What was he to pick up? The only conclusion, based upon common experience of people living in Australia and New Zealand, is that it was to collect illegal drugs. 3. My finding is that he knew that he was involved in some criminal enterprise. The probability is that he knew he was involved in going to collect drugs. He was, in fact, reckless. He must have turned his mind to what was involved, but the fact that it was never raised by him with Barnard indicates that he had a good idea in his mind as to why the pair were on the La Fayette heading into the Pacific Ocean. He was reckless as to what he was to collect. He must have realised that it could be drugs, and if so, he must have known that it would not be some minor amount. 4. My finding in that regard is reinforced by the protestations deposed to by Barnard that Bishell made on ascertaining that the cargo was a large amount of methamphetamine. The protest was about its being methamphetamine, not about its being drugs. There are a number of drugs commonly smuggled into Australia. They include heroin, cocaine and methamphetamine. It is common experience that methamphetamine is the most detrimental of those drugs, a fact which would have been well known to Bishell as a drug user. He clearly on the evidence of Barnard was very upset that what they were collecting was methamphetamine. In other words, there was no protestation about collecting illicit drugs but the protestation was about the collection of methamphetamine. Facts, continued 1. As I pointed out yesterday, the La Fayette stayed in Mooloolaba for almost five weeks. They reached there on 21 February 2020 and were not to depart until 31 March 2020. Paragraph [36] of agreed facts refers to the use by Barnard of his mobile phone to receive a direction to use the iPad tablet provided to him by the principal to go onto a certain application which would enable satellite telecommunications with, inter alia, the other vessel. On 31 March 2020, the La Fayette departed Mooloolaba. 2. At this stage the agreed facts tell me that the Automated Identification System (AIS) tracking system was enabled on the La Fayette and was used to track its movements. Barnard knew how to turn that off but did not do so because the principal was tracking the path of La Fayette and probably also the other vessel using that system. It is clear from Barnard's evidence that he was told from time to time where to steer the La Fayette by the principal using the tablet device and that the principal knew exactly where the La Fayette was. One of the things that excited the Crown's curiosity is differences between the course taken by the La Fayette according to the AIS and a different route recorded in the vessel's log book. However, as Barnard pointed out, because of bad weather, keeping the log book was sometimes very difficult and he knew that the true path could be ascertained from the AIS. He knew how to turn it off. If he wanted to hide the route of the La Fayette he could have done so but he did not do so because his route was being tracked by the principal. The difference between the log book and the AIS loses the significance that the Crown wishes to place upon it. 3. When the La Fayette left Mooloolaba it adopted a course heading, according to Barnard, towards Lord Howe Island. However, that route needed to be changed when it was ascertained that the other vessel was nowhere near Lord Howe Island. Exhibit 1 contains a statement by Inspector G J Clifford of the Australian Border Force. That annexes a screenshot of Google Earth depicting the tracked movements of the vessel La Fayette between its leaving Mooloolaba and its approach to the New South Wales coast prior to its interception by the New South Wales Police boat Nemesis. One can see that there was a course heading south but then that changed to heading east southeast when, according to Barnard, they found out the real position and circumstances of the other vessel. The other vessel was not only delayed but its crew were in dire straits having run out of food and perhaps water. 4. On 9 April 2020 the La Fayette reached a location north of Phillip Island, which is in the vicinity of Norfolk Island. At about 10pm on that day the other vessel met with the La Fayette at sea at a location southwest of Norfolk Island. Upon the rendezvous the first thing that Barnard and Bishell did was to supply food and water to the crew of the other vessel. According to Barnard they were skeletal and had reached the stage of being able to excrete liquid. Having refreshed themselves, all five men, that is the crew of each of the vessels, transferred the methamphetamine from the other vessel to the La Fayette. That was done by hand. Neither vessel was equipped with cranes, or other machinery to facilitate the transfer. It was, as Barnard said in evidence, a question of all hands on deck to transfer the almost 1 tonne of gross drug from the other vessel to the La Fayette. 5. The agreed facts tell me that about midnight on 10 April, the two vessels separated from each other, but continued sailing in a south westerly direction. According to the log of the La Fayette, the first entry for 10 April was at 7.05am, giving its latitude and longitude, with the comment next to it, "Home time!" then an emoji indicating joy, a smiley face, because the vessel was on its route back to port. On instructions from the principal, Barnard told the crew of the other vessel that they were to return to Fiji. That was the firm instruction that he had from the principal. After the drugs had been transferred onto the La Fayette, a further provisioning of the other vessel was undertaken; further food and drink were provided to the crew of the other vessel. However, they disregarded the instruction, and sailed for New Caledonia. Hence, the agreed facts show an image of the other vessel docked in Noumea. From there they appeared to have flown to the Solomon Islands, and then to Brisbane, where they were arrested by the authorities on 24 July 2020. Each of Carter, Glenny and Mitchell has been charged with his involvement in this attempted importation. I am told that the proceedings against them are still at the committal stage in the Brisbane Magistrates Court. If they be committed for sentence or trial, that will be to the Supreme Court of Queensland, as the District Court of Queensland does not have the same jurisdiction as this Court. 6. On 10 April 2020, a waypoint in the vicinity of Broken Bay was manually entered into the GPS system, located on the La Fayette. On the voyage towards New South Wales, the La Fayette encountered a storm which Barnard described as a "hurricane". No entries were made in the log book between 4.19 "local time" on Saturday 11 April and 9.47am on Monday 13 April. The entry for Sunday 12 April is "Storm/hand steer", covering the left page of the log book. On the right page is this matter: "Heavy storm with winds of 40 knots, and swell up to 15 metres. On deck all day and all night. Heavy ingress of water into bilges and loss of tender from foredeck, causing damage on bow railings and hull. No way of obtaining sight or position of tender." Barnard described this storm as the worst experience he has had at sea in his sailing career. This just proves that both Barnard and Bishell probably did not realise, when they took on this job, that they would be risking their life at sea, as well as risking their liberty when they got near shore. 7. At 4.29am on 18 April 2020, the New South Wales Police vessel, Nemesis, intercepted the La Fayette in Australian waters, approximately 50 nautical miles east of Lake Macquarie. Both Barnard and Bishell were arrested, after a large quantity of packages suspected to contain border controlled drugs were identified, unconcealed throughout the cabin of the vessel. The photograph evidence shows, quite clearly, that no attempt had been made to hide the drugs in the La Fayette, nor was any attempt made to disguise what were clearly drugs in packages. At the time of his arrest, Barnard informed the NSW Police that the packages had been picked up "just under Norfolk Island", and that he had been onboard the vessel for a week. Barnard told police that he owned the La Fayette, that he had purchased it in Australia, and he had subsequently changed the vessel's registration to Delaware in the USA. I am not aware of any of that being true. Barnard also told the police that he did not know what was in the packages, which was clearly untrue. He knew before he even set foot on the La Fayette in Darwin in January/February 2020 that he was to collect methamphetamine. The Nemesis towing the La Fayette arrived at the NSW Police Marine Area Command at 2.05pm on 18 April 2020. The La Fayette was then moored at the New South Wales Police Marine Area Command which is in Balmain. 8. Police obtained a search warrant for the search of the La Fayette. They found 998 packages suspected of containing the border controlled drug which was, in fact, methamphetamine. They found one encrypted BQ Aquaris mobile phone. What it was to be used for has been deposed to by Barnard in his evidence, but the police have not been able to overcome the encryption. I infer that from the fact that there is no evidence from it before me. 9. I mentioned yesterday that the net weight of the clear crystalline material was 991.9 kilograms. Its purity was between 79.8 and 80.1%. The total weight of pure methamphetamine was 792.1 kilograms. Paragraphs [54] and [55] of the agreed facts are this: "Among other things, the purity of the drug, the quantity being sold, and the relationship between buyer and seller can impact the sale price of methamphetamine. At the time the drugs were intended to be imported, the price for methamphetamine in New South Wales was between: (a) $80,000 and $100,000 per kilogram; (b) $200 and $400 per gram; and (c) $50 per point (a street deal of 0.1 grams). If sold in kilograms, the wholesale value of the methamphetamine is estimated at between $79.35 million and $99.19 million. If sold in grams, the wholesale value of the methamphetamine is estimated to be between $198.38 million and $396.77 million." If one converts that into "points", the street value of the methamphetamine was $495.96 million. That is almost half a billion dollars. 1. Paragraph [57] of the agreed facts is this: "It is accepted that there is insufficient evidence in the brief to establish beyond reasonable doubt that Barnard or Bishell knew the particular type of border controlled drug that was to be imported (ie that it was methamphetamine), or its precise purity or quantity." However, it is clear from the evidence that Barnard gave that he knew at all material times that the drug was methamphetamine. He knew that there would be a large amount of it, but was overwhelmed by the extent of the importation. However, clearly he knew that it was methamphetamine, and the amount would have easily exceed 0.75 kilograms. As I said, Bishell was reckless. He must have known that he was involved in an illegal enterprise. He was out on the ocean to collect something, to pick something up, and the probabilities were that that was an illegal drug. When he saw it, he ascertained, by feel, that it was methamphetamine, and he also was overwhelmed by the quantity of it. But, one would not expect such an importation to be of some minor amount of an illicit drug. A commercial quantity must always have been postulated because, in essence, this voyage was a commercial enterprise. Principles 1. The principles for sentencing offenders for drug importation offences were summarised by Johnson J in R v Nguyen; R v Pham [2010] NSWCCA 238 at [72], (2010) 205 A Crim R 106. The judgment of Johnson J was agreed by Macfarlan JA and R A Hulme J. His Honour set out 15 principles. The first 11 principles are relevant to the current case: "(a) The criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation; R v Lee at [27]; (b) Problems may emerge when a sentence in Court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the Court; R v Olbrich [1992] HCA 54; 199 CLR 270 at 279 [19]; R v Lee at [25]; (c) It is the criminality involved in the importation which must be identified the fact that another person may be characterised as the 'mastermind' does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility: R v Lee at [26]; (d) Although the weight of the drug imported is not the principal factor to be considered when affixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported: Wong v The Queen; Leung v The Queen at 607 608 [64]; R v Lee at [23] [24]; (e) In statements by the High Court in Wong v The Queen; Leung v The Queen, it does not suggest that in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence, in the extent of assessing that a particular offence is in the worst category of its type. In many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar: R v Nguyen [2005] NSWCCA 367; 157 A Crim R 80 at 102 [110]; Sukkar v The Queen (No 2) [2008] WASCA 2; 178 A Crim R 433 at 447 446 [46]; (f) As a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit: R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 at 297 [104]; R v Lee at [32]; (g) The difficulty of detecting importation offences, and the great social consequences that follow, suggests that deterrence is to be given great eight on sentence and that stern punishment will be warranted in almost every case: Wong v The Queen; Leung v The Queen at 607 608 [64]; (h) The sentence to be imposed for a drug importation offence must signal to would be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment: R v Chen & Ors [2002] NSWCCA 174; 130 A Crim R 300 at 382 383 [286]; R v Stanbouli [2003] NSWCCA 355; 141 A Crim R 531 at 552 553 [114]; (i) Involvement at any level in a drug importation offence must necessarily attract a significant sentence, otherwise the interests of general deterrence are not served: R v Pang [1999] NSWCCA 4; 105 A Crim R 474 at 476 [6]; (j) The prior good character of a person involved in drug importation offence is generally to be given less weight as a mitigating factor on sentence: R v Barrientos [1999] NSWCCA 1 at [52] [57]; R v Paliwala [2005] NSWCCA 221; 153 A Crim R 451 at 456 457 [20] [25]; R v Lee at [14]; good character is not an unusual characteristic of persons involved in drug importation; Okafor v The Queen [2007] NSWCCA 147 at [47]; Onuorah v The Queen [2009] NSWCCA 238; 234 FLR 377 at [49]; (k) Where offenders are not young (Mr Nguyen was 42 years old and Ms Pham was 32 years old), the immaturity of youth cannot be claimed as a fact bearing upon their transgressions: Tyler v The Queen; R v Chalmers [2007] NSWCCA 247; 173 A Crim R 458 at 474 [98]..." 1. Both Barnard and Bishell would probably be alarmed to hear that they are not categorised by the law as young offenders, but they must have realised now from their exposure to the New South Wales prison system that most prisoners are under 30 years of age, and indeed most offenders are under 25 years of age. 2. The principles that I have cited concerning prior good character are usually important when the drugs are being smuggled by passengers on either ships or aircraft in their personal luggage. It is easier to get through Customs if one has a clean record than if one is a person with a criminal history. The principle does not necessarily apply to those in charge of a vessel that contains a large quantity of illicit import. The par (g) which I have cited is also relevant when, for example, drugs have been stored in hidden cavities in things such as shipping containers or in baggage. There was lesser difficulty in detecting this importation than many others because it involved a vessel approaching the Australian coast which could be easily tracked. It could have been tracked from when it left Mooloolaba to its position in the Pacific Ocean and on its return to the coast, with no apparent reason for being in those positions. The authorities would be able to detect a rendezvous at sea with another vessel. Modern satellite communications and surveillance indicate that tracking a course of a vessel such as the La Fayette, and of the other vessel, is much easier than one would expect. It would be different, if, for example, the drugs had been secreted in a container, and the container had been loaded onto a large ship to be transported, for example, from Mexico to Australia, or from some other port in South America. What the offenders did 1. I am required to consider what each of the offenders did. The offending of Barnard is clearly greater than that of Bishell. Barnard knew from the beginning that he was setting out on a voyage, to collect the prohibited drug methamphetamine. He must have realised that it was going to involve a commercial quantity, because this was a commercial venture. He had to have known that it was not under a kilogram of drug. He may have been taken aback by the extent of the importation, but he knew from the beginning that this was to be the importation of a large amount of methamphetamine. He was trusted enough by the principal to take charge of the vessel, and obey directions given to him by the principal. He was in charge of the vessel which was to collect the drugs which had been taken across the Pacific by the other vessel, and then was to bring them into Broken Bay, to take them to a marina, obviously, in Pittwater, whence the drugs, if not detected by the authorities, would have found their way into the community. 2. The devastation that methamphetamine plays in our community is now well known to Barnard, as his evidence tells me. He may not have been aware of the extent of the problem antecedent to being detained in custody. He now knows its devastating effect on the community. Without a person in Barnard's position, this importation could not have been effected. The principal needed an experienced mariner to sail a yacht in open water, into the Pacific Ocean, to rendezvous with another relatively small vessel, to ship the cargo nearly a tonne of it from one ship to the other, and then to safely deliver it to port. He needed somebody who was a competent mariner, and that competence was shown by the fact that the offender Barnard was able to skipper the La Fayette through the storm which caused grave difficulty to him and Bishell on the way from the vicinity of Norfolk Island to the New South Wales coast. Indeed, the evidence of Barnard establishes that there were difficulties with bad weather on the trip from Mooloolaba towards Norfolk Island, in any event, although the storm at sea after collection of the drugs was much greater. In other words, the offender used his expertise to successfully attempt to land the drugs in New South Wales. He was doing this for the forgiveness of a debt of $115,000. The authorities make it clear that, for example, trafficking in drugs for the relief of debt is no less criminal than trafficking in drugs for the making of pure profit. 3. Bishell was recruited, essentially, to assist Barnard in sailing this vessel. He was the deckhand. It is clear from the evidence of Barnard that although one man might be able to crew the La Fayette over a relatively short distance, when going to sea, in essence, at least two people were required, especially so if the automatic pilot system failed to work. Furthermore, the vagaries of ocean sailing are such that a deckhand would be necessary, almost always. Bishell agreed to perform that task, reckless as to what he was to collect, but probably knowing that it was drugs. He must have known that he was involved in an illegal enterprise. The probabilities are that he knew it was drugs. He was overwhelmed when he found both the extent of the importation, and the type of drug involved; namely, methamphetamine. To participate in the voyage, Bishell had to accept the invitation to become involved, accept the money to take him from Wellington to Darwin, and to accept what might be thought to be "hospitality" extended by the principal through Barnard, to him. He was prepared to take a risk, and that risk backfired. He was prepared to undertake the perils of the sea, for whatever remuneration was offered to him. 4. Another task undertaken by Barnard, was his involvement in getting the vessel repaired, under instructions from the principal - and taking part in the recruiting of Bishell for this enterprise. 5. To describe their roles further would merely be stating the obvious, what comes through loud and clear from the description in the agreed facts. Whilst neither Barnard nor Bishell was a principal, that is, an organiser of this attempted importation, the role of Barnard was essential, and critical. The role taken by Bishell was equally necessary, albeit many could have undertaken the role that he played. Personal circumstances - Barnard 1. Barnard was born in Johannesburg, South Africa. His father was a South African, and his mother was born in the United Kingdom. Hence, he has dual nationality, his South African nationality, and the nationality he acquired from his mother - that of being a British citizen. However, in essence, Barnard is a South African. He was aged 18 months when his parents were involved in a serious motor vehicle accident. His father was driving the family car when it collided with a vehicle being driven by a drunken driver. The offender was a passenger on the back seat with his mother and sustained what appears to be probably minor injury. However, his mother was thrown out of the car and sustained fatal injuries. 2. The offender is accordingly the only child of his parents. The offender lived with his father up until the age of seven, and then went to live with his paternal aunt and her husband, and his cousins. He lived with his paternal aunt for three months, and then went to live with his paternal grandmother for 12 months. His father then remarried and he went to live with his father and stepmother when he was eight years old. He regards his stepmother as his mother. She has been very kind to him. She brought to her marriage with the offender's father her three children. He grew up with them. He looks upon them as his younger siblings. When interviewed by a psychologist, Mr Sam Borenstein, the offender said that his stepmother was very kind to him. She loved him unconditionally, and she still does that. 3. The offender attended at least four different primary schools. Given his early history, that is understandable. He attended one high school, which I understand to have been called a Gymnasium, in the German tradition. I assume, therefore, that it is likely to have been a private school. 4. Mr Borenstein's history indicates that there was some conflict between the offender and his father, the offender's father being concerned about what he thought was the offender's lack of direction. The offender described his relationship with his father as being not "so good". 5. When the offender left school, his first job was in the construction industry for about three months. He then worked in deliveries and as a waiter. However, he undertook a sailing course which he had enjoyed. He then, at the age of 19, took a job as a deckhand, sailing a yacht from Cape Town to an island in the British Virgin Islands, a voyage which took 36 days. According to Mr Borenstein's history, the offender said, "I learned a lot on the job. When we arrived, funds was an issue then. I made friends with other people in the industry". According to Mr Borenstein's history, the offender then worked on super yachts in Antigua, the United Kingdom, in the Baltic Sea, in Croatia, in France, Holland, Italy, the Mediterranean, the Caribbean, and the United States of America, until taking his job as a captain on the vessel in Dubai in 2015, as I pointed out yesterday. That lead to that period of employment for the wealthy man in Dubai, and then the period of dissolute life which caused the running up of the debt, which put him into the hands of the principal in this attempted importation. 6. It is clear from the testimonial evidence that the offender was very good at his job and got on well with all those with whom he had to work. There is, in evidence, a reference from his father and stepmother speaking about his background and telling me of the deep regret that the offender has for his foolish lack of judgment in committing this crime. According to his parents, he has apologised for the hurt and disappointment he has caused all his family and friends. They are all shocked. The offender has no criminal history of any moment anywhere. 7. There is, in evidence, a reference from Ms Jeanne Sophie Niard whom I understand to be the lady Sophie with whom the offender had a romantic relationship that appears to have commenced soon after the pair met in October 2016, but, the relationship failed during the period that the offender was living a rather dissolute life in Dubai after quitting his job as a captain in April 2019. Her reference says this: "Sebastian was a respectful boyfriend, he was good at looking after a home. Both of us have always been successful and dedicated to our careers, respecting each other's ambition. Sebastian was a supportive boyfriend who attended numerous work functions at the companies I have been working at over the years. I have been doing business development at international law firms for over a decade now, an environment Sebastian was unfamiliar with. Yet, his great character, sense of humour, and adaptability have always been praised. I've also met most of the crews Sebastian has worked with, and he was a well-respected colleague and friend within the yachting community." The letter goes on to speak about the assistance that the offender gave Sophie and her father when her father was diagnosed with a serious condition in June 2017. Sophie's reference also refers to the offender's remorse for the crime that he has committed which has led to his arrest and incarceration. She asks that the offender be transferred to a prison where he could study after he is sentenced. The Court has no control over that, that is a matter for Corrective Services. 1. There are references from persons with whom the offender has worked, all speaking to his professionalism and good character, good nature and strength of character and of personality. A number of those people also refer to this offence being out of character. One former crew member refers to the offender as "a wonderful friend and stand up gentleman". I have a reference from another sea captain who says this: "It is difficult to even imagine that Sebastian has been involved in something like this, as this is totally out of character for the man that I knew." I accept that this was out of character, that it occurred because the offender had run up a debt that he could not repay, the only way to repay the debt was to do work for the principal. Unfortunately that work has landed the offender before me this week for sentence and will no doubt detain him in incarceration for many further years. 1. However, he is entitled to the benefit of his prior good character. He is entitled to the benefit of his remorse. I accept that he is unlikely to offend again. I accept that the prospects of rehabilitation are excellent. I accept that this was abhorrent behaviour on his part and that his experience will clearly prevent that from happening again. 2. Another thing which I take into account positively is this. There are records before me from documents produced on subpoena by Corrective Services. One is a note made by Mr Wayne Bywater. It says this: "Inmate Barnard has been working as my clerk for approximately one year. It is a trusted position and I have never doubted his honesty towards me. He is an excellent worker as he has always completed any work request without concern and is a great role model to other inmates. Barnard has never caused staff or myself any issues and always conducts himself in a polite and courteous manner. I have no hesitation in recommending him for future employment." Mr Bywater is the Manager of Industries at the MRRC at Silverwater. The Manager of Industries has been described by Mr Barnard as the third in charge of the gaol. His official title is MOI Clerk. In addition to that the offender is a member of the Hygiene Team at the MRRC and is training to be a forensic cleaner and is called upon, for example, to work on areas that need forensic cleaning, that is usually now associated with places where person are suspected to have had COVID 19 or where COVID 19 contamination is detected. Another note indicates that as a member of the Hygiene Team the offender demonstrated initiative, enthusiasm and worked to a high standard. The records also tell me that he has been working as a buy up sweeper in addition to his job as the MOI Clerk and a major part of his job as the buy up sweeper is the distribution of grocery buy ups to all pods at the MRRC. He does that work also extremely well. 1. Even unsentenced, the offender has been able to obtain a Certificate III in Cleaning Operations and also has participated in an addiction support program. Once sentenced the offender may be permitted to perform other courses but his intelligence is such that he should probably apply to do a university degree from a remote location, namely a gaol, and that will be the best way of keeping himself occupied and advancing his position when he is released from custody. The positive assistance that the offender has given to Corrective Services may be motivated by his need to keep himself occupied and amused but the assistance is of benefit to the Crown, it is of benefit to the community, to the gaol system and is something to be taken positively into account in his sentence. Personal circumstances - Bishell 1. Mr Bishell was born in Christchurch in 1987. His birth mother is named Tania, and his birth father, Jason. They were both teenagers. His mother was 16 years old when he was born. In her letter in support of the offender she said this: "As a 16 year old I could not emotionally be a good mother, so after two weeks of having Mark home with me, I had to make a hard decision to adopt him out. The day we left each other was very traumatic. But I had comfort in knowing I chose the most two beautiful people to be his parents." Those who are the offender's effective parents are Mr Andrew Leonard Bishell and his wife Mrs Christine Marie Bishell. There is in the evidence an affidavit from Mr Andrew Bishell deposing to the offender's background and life. It is clear that they, that is Mr and Mrs Bishell, are both keenly concerned about the fate of their son. So is the offender's birth mother. Both of them have been listening into this sentencing hearing; his parents from New Zealand, his birth mother from elsewhere in Australia, to where she moved some time ago. 1. It is clear that the adoption of the offender by Mr and Mrs Bishell was a "open" one - that is, the offender always knew, from when he could first perceive the fact, that Mr and Mrs Bishell were his adoptive parents. The offender first met his natural parents when he was a child. He saw his birth parents intermittently during his teenage years. His mother had moved to Australia, and she has two daughters, who are the offender's two half siblings. 2. The offender has been interviewed by Ms Anita Duffy, a psychologist. Her report contains this: "Mr Bishell said that although his adopted parents showed him love and affection, particularly his mother, he never felt accepted or that he really belonged in the [wider] family. There were always questions in his mind about the reasons for his adoption, as each of the birth parents and the adopted parents offered a slightly different version of events. He knew that his mother Tania was 16 when he was born, and that although he understood at an intellectual level that she was too young to look after him, he nevertheless suffered feelings of abandonment. His birth father Jason had also been a teenager when he was born, and Mr Bishell spent time with him in Christchurch when in his early 20s. His father has severe alcohol dependence problems and Mr Bishell has inherited this predisposition. Both his adopted parents also drank alcohol and Mr Bishell grew up with regular exposure to alcohol use. Mr Bishell reported a more loving relationship with his adopted mother. His father was very strict and rigid and saw the world in 'black and white'. They had disagreements over such issues as his taste in music and even the clothes he wore. Although Mr Bishell was aware that his father was trying to do the best for him, he thought that his father held high expectations of him that he could not meet. To avoid conflict with his father, Mr Bishell would tell him what he wanted to hear but did what he wanted. His father had wanted him to participate in triathlons and go to university whereas after leaving school, Mr Bishell had different ideas and did not follow these options. He always believed that his father was disappointed in him and disapproved of his life, no matter what he did." 1. Adding to the offender's sense of not belonging to the Bishell family, is some unfortunate interaction with a member of the wider Bishell family when the offender was aged between either five and nine, or six and ten. The offender was sexually molested by an older male relative over a period of some five years. Fortunately, that did not amount to penetration, but the relative justified his behaviour in part by saying that it was okay for that activity to be carried on because the offender "was not really part of the family". That caused the offender to not tell anybody in the family about this molestation. The offender had difficulty telling Ms Duffy about that problem. The offender has now told his parents in New Zealand. 2. That molestation led to some considerable distress on the part of the offender when he reached his teenage years. He resorted to the use of prostitutes and telephone sex. Somewhat wryly perhaps, Ms Duffy reported this: "Sex, drugs and alcohol were his means of feeling good, to escape problems, and he was 'caught up in this cycle' for some 20 years". The wryness, of course, is that many young people find "sex, drugs and alcohol" to be a means of enjoyment, but that is only societal and not pathological. What Ms Duffy is hinting at is that the problems caused by the molestation led to pathological involvement with sex, drugs and alcohol. 3. The offender also related to Ms Duffy episodes of depression throughout his life, and on at least two occasions in the past, the offender has attempted suicide. The first attempt was after a very serious relationship breakdown. He overdosed and was taken by his parents to hospital when they found him unconscious. Another attempt occurred when he was in Thailand. He was about to jump off a precipice when distraught. He called his parents and turned to them for help and support, which they gave him, thereby thwarting the attempt. 4. The offender attended a Catholic primary school, and his father says this about his preschool years: "As a preschooler and during his primary school years, Mark showed different talents. He was confident on stage and we promoted this talent. He was successful with his roles in children's musical theatre, carrying off leading roles with success. Mark also showed interest in sport between the ages of seven and 12. He was a competitive, successful swimmer, which set a platform for other sports in his teenage years. He also learned karate at this time, and was successfully graded to a green belt." Mr Bishell senior also coached his son in the New Zealand national sport, rugby, between the ages of five and 12. 1. As I understand it, the offender attended, initially, the Marlborough Boys High School at the commencement of his secondary education. The father's affidavit tells me this: "At the age of 13, Mark progressed from primary school to high school... He enjoyed success in swimming/cross country running and triathlons, and was the school champion in these sports. He continued his interest in drama, and was involved in the first year (third form) school drama production, and was also his class representative in this year. As this first year progressed, Mark's behaviour in class deteriorated, and his academic performance was dropping behind. We hoped his focus on sporting access would transfer to the classroom. It was suggested that he was suffering from ADHD, and sadly, we did not explore that avenue at that time. We were also assured that it was just a moment and he would get through it. His fourth form year continued academically poor, and class disruption was ramped up. He gravitated towards friends that were involved in trouble with the school and was easily led in these areas in spite of consequences, both at school and at home. He was dismissed from the drama production at this time." Because of concerns about the offenders rebellious, perhaps, behaviour at home and at school in his early teenage years, his parents moved him to a Catholic college in the neighbouring town of Nelson. He was boarding there. This was to be a fresh start, and it was hoped that it would enable the offender to focus on his academic work. His father's affidavit continues thus: "He excelled in his sporting talents and was school champion once again and represented at national level. Sadly, inside the class, he continued his class clown role, which came with consequences within the system. As the year progressed, we gave Mark an ultimatum, an attitude change to his behaviour or it would return to Marlborough Boys College for his 16th year (sixth form). Mark did not adjust and returned home at the end of his fifth form year." The offender was to finish his schooling at Marlborough Boys High, but he, in fact, spent a lot of time wagging school, and was not behaving as was expected by either his school or his parents. His father became aware that in his final year of schooling, he was smoking and "experimenting with cannabis". 1. According to the history obtained by Ms Duffy, after he left school, the offender stopped training for sports and the like, and instead frequented hotels and bars. He worked initially in construction, in fact working with his father in the father's plumbing business, and then other jobs until he worked on fishing trawlers. He earned good money working on trawlers and he enjoyed being at sea for much of the time as it "kept him out of trouble". At one stage he worked on a prawn trawler working out of Mooloolaba for six months and then sold raffle tickets in Brisbane for eight or nine months before he returned to New Zealand. He then lived in Wellington and sold insurance and made appraisals for an insurance company. However, he lost that job due to drug and alcohol use. 2. Eventually he attended the Capri rehabilitation hospital in 2015 and then worked for New Zealand media selling advertising for a year. He then sold medical software in Auckland and was offered a chance to sell Manuka honey and other products in the United Arab Emirates and Oman. That led him to Dubai. In 2018 he broke his leg when he was in Bali and returned to New Zealand for treatment and recuperation. He then went travelling in Bali and Vietnam and Australia but was regularly using alcohol and drugs. That led to his going to a rehabilitation centre in Thailand to recover from his drug addiction, but we know unfortunately what subsequently occurred. 3. Bishell had started drinking at the age of 13. By the time he was in the Capri rehabilitation hospital a note was made that he could spend $1,000 a night consuming beer and then rounds of spirits with friends at a hotel. When he stopped drinking he had withdrawal symptoms and his memory was often affected by blackouts. He experimented with party drugs, ecstasy and cannabis, from about the age of 18, then started snorting amphetamine. He tried methamphetamine and cocaine commencing at the age of 21 or 22 and had a habit of drinking alcohol and taking methamphetamine or cocaine for several years to enable him to "party without sleeping" and to enable him to drink more alcohol. The alcohol and drug habits were well entrenched by the time he was at the Capri rehabilitation hospital in 2015. Up until his incarceration he was unable to shake his alcohol and drug addictions. 4. He formed a meaningful relationship with a girl called Atlanta. She has provided a reference. Unfortunately their relationship broke up because of the offender's drug and alcohol problems. However, she clearly was very fond of the offender and speaks about his conduct in this way: "Mark is arguably the most personable person I have come across. He is very kind, caring, and incredibly outgoing. His 'gift of the gab' nature would cause him to be very likeable and very easy to be around. Hearing about Mark's charges came with a severe shock. Mark is one to care so much about the people around him. During the times we were together he would be sure to do anything to keep me happy and go to huge lengths to make sure I was okay, he would bend over backwards. He always valued the people which were very close to him and would do anything for them. Mark and I got a little Pomeranian puppy together called Norma Jean, which he loved so much. He would take her everywhere, even though she was a little ball of fluff and, more so a 'handbag dog'." The offender has spoken with Atlanta and since his incarceration she said this: "I have spoken with Mark since he has been arrested and there are no words to describe how sorry and upset he is about where he is now. He has had a lot of time to reflect on his behaviour and characteristics yet he has managed to maintain his loveable personality despite being locked away somewhere he never imagined being." 1. There are a large number of other references in support of Bishell. Perhaps the best way of describing his personality is to use one of the words used by one of the persons providing the references: he is a charismatic personality whom everybody likes but whose life has been blighted by his drug and alcohol addiction. 2. When Ms Duffy interviewed Bishell, she administered a number of tests. They showed elevations on measures of Dependent, Self-Defeating, Anti-social, and Depressive characteristics. She went on to say this: "54. His profile reflects an individual with variable and often intense mood swings, from euphoria to depression and irritability. Although these behaviours may create significant interpersonal difficulties, he may be extremely concerned with maintaining the care and emotional support of others, and react strongly to fears of abandonment. Underlying many behaviours is an extremely poorly developed sense of identity, which, under stress, may give way to feelings of emptiness and disorganised thoughts. 55. The Self-Defeating aspect of his profile highlights low self-esteem, and a tendency to engage in self-sabotaging cycles of behaviour, and undermine achievements, which then reinforces his low self-image. Such behaviours can include dropping out of school or sporting achievements, regressing after a period of progress in rehabilitation, and destroying a good relationship. 56. The impulsivity and emotional instability indicated by his profile often occurs in reaction to external stressors, such that the basic dysphoric mood is disrupted by periods of anger, panic or despair. He displays impulsivity in potentially self-damaging areas, such as substance abuse, and may display recurrent suicidal gestures. These self-destructive acts are triggered by threats of separation or rejection, or by expectations of assuming increased responsibility. 57. Elevations on clinical scales outlining current symptoms that may require treatment include Bipolar: Manic, Anxiety, Dysthymia (persistent depression), Drug and Alcohol Dependence, and Post-Traumatic Stress Disorder. On scales tapping more severe clinical syndromes, he showed a highly significant result on Major Depression. 58. The bipolar: Manic result shows a strong propensity to have mood swings that range from elation to depression. When elated, he can be distractible, restless, have an exaggerated sense of enthusiasm and self-worth along with unrealistic goals. There will be reduced need for sleep, erratic mood shifts and flightive ideas. 59. The Anxiety elevation reflects current tension, difficulty relaxing and apprehensiveness. There may be a highly sensitive startle response, hyper alertness, and fearfulness. Physiological complaints related to arousal can include insomnia, headaches, nausea, cold sweats and palpitations. 60. The Dysthymia and Major Depression results indicate a history of depression with episodes of hopelessness, suicidal ideation, pessimism, rumination, and fear of the future. Somatic symptoms can include insomnia, appetite disturbance, psychomotor slowing, or agitation and fatigue. 61. The drug dependence score results in recurring history of difficulty is with substance misuse as well as traits such as impulsivity, difficulty controlling behaviour and hedonism. The substance abuse has caused significant impairment in social, family, and occupational domains." 1. Ms Duffy goes on to diagnose ADHD as an adult, tying in with the diagnosis offered at one stage in his childhood of the possibility of his suffering from ADHD, which was not proceeded with at that time. Ms Duffy diagnoses a number of psychiatric conditions. They are Persistent Depressive Disorder with anxious distress, a Substance Abuse Disorder for both alcohol and stimulant drugs which is in sustained remission in a controlled environment, namely gaol, as well as ADHD. She also thought there might be a Borderline Personality Disorder, but that, in my view, is problematic. 2. Further in her report, Ms Duffy said this: "76. It is considered that prior to the offence, he was suffering depression, perceived his situation as hopeless, and that he was 'abandoned' by those close to him. He had no money, had resumed using drugs and alcohol, and felt he could not request any further help from his parents. 77. He 'didn't care' what the job offered to him entailed, as long as it got him away from the half way house. The lack of consideration of what was required of him, and acceptance of [the] offer without due thought, are consistent with impulsivity, endemic in ADHD, as well as the difficulty in emotional and behavioural regulation, as indicated by border line personality characteristics. He was reckless as to the nature of the boat trip, its destination, what he had to do. It was only when they met with the other boat and loaded the packages into their vessel that he realised that they were in deep trouble and 'in over their heads'." 1. I agree that the offender's acceptance of the offer to be a deckhand on the La Fayette was reckless. However, I do not believe that the psychiatric condition for which he suffered was solely responsible for that recklessness. He was being exploited because of his vulnerability. He went along with that exploitation because, firstly, it relieved him from his immediate problems in the half-way house in Wellington, but also it offered him something in the future, and some income, some expectation of monetary gain which would help him extricate himself from the position in which he found himself. The role of his psychiatric illness, and which led to his drug and alcohol addiction, was to make him vulnerable to the exploitation which actually occurred. It is not a direct consequence, but put him in the position where it led to his participation in the crime. It increased his vulnerability, it decreased his ability to resist the temptation to avoid joining in this unlawful criminal enterprise. 2. Clearly the offender is in need of treatment for his underlying psychiatric vulnerability. He needs treatment and that may be available to him in custody but would be more readily available in the community. What custody does offer him is the ability to overcome his addictions. When released from gaol he will need psychological and/or psychiatric care to deal with his underlying psychiatric issues. He needs to reconcile his position and realise that, instead of being rejected by two families, he has been embraced by two families. 3. It is not surprising to me that Ms Duffy would have found an elevated level of anxiety reflecting his then tension and difficulty relaxing and his apprehensiveness. That proves that he is a normal human being. Anyone in custody awaiting sentence with the possibility of a life sentence being passed upon him would be anxious and depressed. That proves that he is a relatively normal man. However, because of his underlying psychiatric illness, his moral culpability is to an extent attenuated because his psychiatric illness led to his alcohol and drug addiction that put him in the vulnerable position which enabled him to be exploited. I use it in that fashion when formulating the sentence to be passed upon him. 4. There is evidence before me in the form of an affidavit from Bishell's solicitor about his experiences in custody. That evidence persuades me that the offender is experiencing incarceration much more acutely than others. On 1 December 2020 the offender completed a request form asking that he go into non-association due to issues that he was experiencing in areas 5 and 6D of the correctional institution where he was then incarcerated. Further documentation indicates that the offender had heard he might get "jumped", and that there had been "previous issues" in the correctional institution, where he was then incarcerated. Apparently, the offender was being "stood over for money". That is somewhat extraordinary, as the offender had no money to speak of in any event, but perhaps because he was involved in what was thought to be a major drug importation, other inmates in the gaol suspected that he did have money. The risk was assessed to be "very high", and there a decision was made to change his location. 5. On 16 January 2021, the offender was at the Long Bay Hospital. This note was made: "This morning there was a letter left in the mailbox stating that if Bishell and his cellmate Restuccia stayed in the yard, they would be stabbed. Bishell and Restuccia were removed from yard and locked in cell number 48." On 26 February 2021, the offender made a further request. He wished to have non-association orders made with three nominated individuals, and with a member of an outlaw motorcycle gang. He was moved to Bathurst. On 6 April 2021, he was seriously assaulted at 10.10am. He was taken to the Bathurst Base Hospital. The discharge summary says this: "He presented following alleged assault. Bloods unremarkable. Chest X-ray no abnormality detected. CT scan head and facial bones. No acute intra- or extra-axial bleeds. Comminuted fracture right nasal bone up to nasal bridge, left to maxilla. Comminuted fracture left maxillary sinus anterior wall, post and medial wall. Left orbital floor [fracture] left medial wall orbit [fracture]. Soft tissue swelling." 1. The doctors at the Bathurst Base Hospital discussed Bishell's case with the maxillo-facial surgeons at the Westmead Hospital, and it was decided to treat him non-operatively at that stage, and arrangements were made for the offender to be followed up at the Westmead Clinic in a weeks' time. At the Bathurst Base Hospital, superior facial lacerations were cleaned and sutured, and an upper limb laceration was also stitched after an anaesthetic block. When arrangements were made to transfer Bishell to the MRRC or to Parklea CC so he could be followed up at Westmead Hospital. He was too ill to continue the journey that commenced from the Bathurst Gaol. There are some further hospital records, but they do not tell me the outcome of the consultations at Westmead, if any were managed to be held. 2. An internal investigation report from Bathurst Gaol indicates that a weapon in the form of a can inside a sock may have been involved in the assault on the offender. He is being kept, as I understand it, in protective custody since that time at the MRRC. A memorandum of 25 May 2021 tells me that the offender believes that he may be assaulted again and has fears about his being perceived as rolling over or giving up information on others, or to use gaol vernacular, being a dog, and that his family might face serious consequences if that is perceived to be the case. It would appear then that the offender has been kept in protective custody, and that of course means that his experience of gaol is not good, that he has limited ability to move in the prison, and limited access to things such as programs. I accept, therefore, that the offender is experiencing a much more rigorous regime in custody than is usual, and that calls for some remediation of the sentence to be passed upon him. Barnard – psychological evidence 1. Mr Borenstein's interaction with Barnard was limited. The assessment was to be by AVL on 6 July 2021, but the visual link did not work, and Mr Borenstein could only talk with Mr Barnard without actually seeing him. He administered a personality assessment screening by asking questions orally and recording his responses. According to Mr Borenstein, the offender scored 28 which indicated moderate potential for emotional and/or behavioural problems of clinical significance. He went on to say that the only significant elevation of note was the potential to act impulsively when subject to stress. Mr Borenstein said that that was the case when leading up to the period of offending. However, one must be extremely guarded in the circumstances in accepting such an opinion. On the final page of his report Mr Borenstein said this: "Mr Barnard was, in my opinion, suffering a degree of mental health impairment leading to temporary and ongoing disturbance of thought, mood, volition and perception, regarded as significant for clinical diagnostic purposes leading up to and during the offending period, which impaired his emotional wellbeing, judgment and behavioural choices." That, to me, is very much an ispe dixit. One would need to know what the diagnosis was at the time. One can understand that when interviewed by Mr Borenstein, when about to stand for sentence for this significant crime, Mr Barnard would be suffering from levels of anxiety and depression. If he were not, he would not be normal. Mr Borenstein does not tell me what the mental health impairment was nor does he tell me how it is linked to the decision that the offender made. 1. The decision that he made was to go along with the principal's method of cancelling his debt by working for the principal for the forgiveness of that debt. The first part of the working was not concerned with any criminal activity, but the second leg was. He was advised of the second leg of the work back in Dubai in December 2019. He then persisted with that course of action loyally until he was arrested. His persistence with the enterprise does not suggest some "temporary and ongoing disturbance of thought". I accept that the offender had put himself in a vulnerable position but the choice he made was a rational, deliberate one, a poor choice in the end but a rational and deliberate choice unaffected by any mental impairment. I am confident that Mr Barnard would agree that he was not mentally impaired at the time that he made the decision. He may have not been looking too far forward to appreciate the full consequences of undertaking the role that he did in the criminal activity but hindsight is always good at filling in the detail. Crimes Act 1914 (Cth) s 16A(2) 1. Section 16A(2) of the Crimes Act 1914 (Cth) provides me with a checklist of matters which I must take into account in imposing a sentence. The first matter to be considered is the nature and the circumstances of the offence. I have already done that. The second is to consider other offences, if any, that are required or permitted to be taken into account. There are none. The third is, if the offence formed part of a course of conduct consisting of a series of criminal acts of the same or similar character, that course of conduct. There is no evidence of either of the present offenders having been previously involved in any similar criminal conduct. I am required by par (d) to take into account the personal circumstances of any victim of the offence. Fortunately there is no actual victim. The potential victims were the many people in Australia who would have consumed the drug methamphetamine had it been successfully landed in Australia. Paragraph (e) directs me to the same issue and is therefore irrelevant. Paragraph (ea) is again dealing with the effect upon individual victims. There is none. 2. Paragraph (f) requires me to take into account the degree in which the person has shown contrition for the offence by taking action to make reparation for any injury, loss or damage or in any other manner. I accept that each of the offenders has shown contrition and remorse, however, that is not apparent in any actual activity undertaken by either of them nor, in the circumstances of this case, would there seem to be any such action that could be taken. Paragraph (fa) is irrelevant. 3. Paragraph (g) is currently this: "if the person has pleaded guilty to the charge in respect of the offence: (i) that fact; and (ii) the timing of the plea; and (iii) the degree to which that fact and the timing of the plea resulted in any benefit to the community, or any victim of, or witness to the offence;" That version of para (g) resulted from the decision of the New South Wales Court of Appeal in Xiao v R [2018] NSWCCA 4. I am now entitled to take into account the utilitarian value of the plea. It is accepted by the Crown, in right of the Commonwealth, that each offender pleaded guilty, at an early opportunity in the Local Court before being committed for sentence. They are entitled to a utilitarian discount for the value of that plea. There is no statutory scheme in the Commonwealth legislation, concerning the discount to be applied. Considering that the common law position was discussed by the New South Wales Court of Appeal, in R v Thomson (2000) 49 NSWLR 383; 115 A Crim R 104. I believe that I should abide by that outline, when sentencing an offender for a Commonwealth criminal offence. The utilitarian value of a plea in the criminal justice system is generally assessed to be in the range of between 10 and 25%. The top of the range would be expected to be restricted to pleas at the earliest possible opportunity, and should not be given, save in an exceptional case, after a matter has been set down for trial. Here, the matter was never committed for trial. In the circumstances, I have prepared to allow a discount to each of the offenders of 25%, of the sentence properly to be passed upon him. 1. Paragraph (h) requires me to take into the account the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence, or of other offences. There is really no evidence of any such cooperation. However, I note, and this must be taken into account, that the evidence given by Mr Barnard establishes more against himself than the Crown was able to do. That is something to be considered favourably in fixing the sentence. 2. Paragraphs (j) and (ja) refer to both specific and general deterrence. I am confident that neither of the men currently in the dock will offend again. Their experience thus far, and in the future, will certainly dissuade them from doing anything of the like nature. However, as the case law which I stated earlier clearly shows, general deterrence plays a very big role. The sentences that I pass upon the two men in the dock today must tell others who are tempted to go along the same path, that they will receive hefty sentences of imprisonment if they do so. 3. Paragraph (k) requires me to take into account the need to ensure the person is adequately punished for the offence which he has committed. I am seeking to do so. Paragraph (m) requires me to take into account the character, antecedents, age, means and physical and mental condition of the person being sentenced. I have sought to do so. Paragraph (n) requires me to take into account the prospect of rehabilitation of the person. The prospects of the rehabilitation of Barnard are excellent. The prospects of rehabilitation of Bishell are very good. Provided he takes the opportunity incarceration will give him of staying away from drugs and alcohol, and undergoing rehabilitation, and then on his discharge from custody, seeking the necessary psychiatric or psychological treatment, I accept that he will not reoffend. 4. Paragraph (p) requires me to take into account the probable effect that any sentence or order under consideration would have on any of the person's family or dependents. I can only make very limited use of that. It is not as if either of the offenders has any dependents, and in particular, no young children that need their father's care and support. That completes the list of matters that I am required to consider under s 16A. Effect of sentence 1. There is one other relevant consideration, and that is this: the sentences to be passed upon each offender must not been seen to be "crushing". For example, the Crown urges upon me severe sentences. The Crown has provided me with authorities which suggest that, for example, a life sentence or a heavy sentence should be passed upon Barnard. A very lengthy sentence is one that Barnard would find crushing. He is now 35 years old, shortly to turn 36. A head sentence of say 30 years would mean he would not be free of the custodial system until he is well into his mid-50s, and probably deny him the prospect of marrying and having a family before he becomes too old to do so. 2. There are like circumstances to be considered for Bishell who clearly is a bit younger than Barnard, but his crime is not as significant as is Barnard's. Again, the Court should not impose a sentence which is designed to crush the offenders, to take away their motivation to continue to improve whilst in custody, and give them hope that when they are released from custody, they can return to a normal life, and seek a life partner and commence a family. Consideration 1. I accept that each offender is truly remorseful. The Crown also makes that concession. This is not at all an easy sentencing exercise. As a man, I feel some sympathy for both of the offenders. They each were exploited when vulnerable. They took a gamble and lost. It is clear to me that Barnard, when he took the risk, took the risk with his eyes wide open. He knew that he was getting involved in a commercial drug importation. He knew what the prohibited substance was. He went ahead, however, with the project. 2. As I have said, the offender Bishell was reckless in embarking on this undertaking, but he must have known it was for an illegal purpose. The likelihood is he knew that it was an illegal drug, rather than some other illegal substance or other illegal import. And, he is now burdened with its consequences. 3. The comparable cases which I have been provided cover a great range. The range argued by the Crown is of sentences that are extremely lengthy. On the other hand, the sentences referred to me by counsel for the offenders are cases such as R v Jackson [2020] NSWCCA 230; R v Lembke [2020] NSWCCA 293; R v Aryton [2020] NSWDC 45; and R v Pirello, Spero & Tobin [2018] NSWSC 1843; and an unreported decision of Maiden DCJ in R v Toa Toa (unreported, 22 February 2019). 4. In the case of Barnard I start the sentencing exercise with a head sentence of 22 years' imprisonment. I reduce that by 25% for the utilitarian value of his plea of guilty. That reduces the head sentence to 16 years and 6 months. There is no statutory norm in Commonwealth law between the head sentence and the non-parole period. Having considered the matter, and doing the best I can, I believe that the appropriate non-parole period is 11 years' imprisonment. The offenders have been in custody since their arrest on 18 April 2020. That is a period of one year and three months to date. A non-parole period of 11 years would indicate that there is less than a further decade for Mr Barnard to serve in custody. When released he will be 45 years old, provided that the Attorney-General of the Commonwealth permits him to be released at the expiration of the non-parole period. This sentence will clearly be backdated to 18 April 2020. 5. In Bishell's case I reach the view that the starting sentence should be ten years' imprisonment. I reduce that by 25% to account for the offender's plea of guilty at the earliest available opportunity. That causes the head sentence to be seven years and six months' imprisonment. Bearing in mind what he has been experiencing in custody to date, I believe the appropriate non-parole period should be four years and six months. 6. Sebastian Seve Barnard, on the charge that between 31 March 2020 and 18 April 2020 in the vicinity of a Lake Macquarie in this State and elsewhere you attempted to import a substance, the substance being a border-controlled drug, namely, methamphetamine, and the quantity being a commercial quantity, you are convicted. I sentence you to imprisonment for 16 years and six months, commencing on 18 April 2020. I set a non-parole period of 11 years, expiring on 17 April 2031. 7. Mark Robert Andrew Bishell, on the charge that between 31 March 2020 and 18 April 2020 in the vicinity of a Lake Macquarie in this State and elsewhere you attempted to import a substance, the substance being a border-controlled drug, namely, methamphetamine, and the quantity being a commercial quantity, you are convicted. I sentence you to imprisonment for a period of seven years and six months, commencing on 18 April 2020. I set a non-parole period of four years and six months, expiring on 17 October 2024. 8. Any further orders sought? DUGGAN: No, your Honour. SATHAR: No, your Honour. HIS HONOUR: You don't want a drug destruction order or - not needed? DUGGAN: I don't think it's needed, your Honour. HIS HONOUR: Right, thank you. Mr Barnard and Mr Bishell, I do wish you both well. I really do. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 August 2021