NEWCASTLE sailor Craig Lembke must have known about the cocaine packed into the hulls of a catamaran he skippered from Tahiti to Toronto before he reached Australian shores and should have been sentenced on the basis that he played a greater role in the massive importation plot.
That is, according to the Commonwealth DPP (CDPP), who on Monday in the Court of Criminal Appeal (CCA) launched an inadequacy appeal against the maximum nine-year jail term Lembke, now 50, received in April for his role in an international drug syndicate's plot to import 700 kilograms of cocaine into Lake Macquarie.
Or at least that was the CDPP's position for about half an hour of Monday's appeal before Jennifer Single, SC, conceded the first ground of appeal under heavy scrutiny from the three-judge bench of the CCA.
Lembke was found guilty of importing a commercial quantity of a border-controlled drug, which carries a maximum of life in jail, after a five-week trial in Newcastle District Court in 2019.
He had admitted to sailing the 13-metre Skarabej from Papeete to Toronto, but denied knowing about the illicit cargo on board.
Judge Jonathan Priestley's "fact-finding mission", the determination of when exactly Lembke knew about the cocaine on board the 13-metre catamaran that he sailed from Tahiti to Toronto, was the crucial factor in determining Lembke's sentence.
And when he found that Lembke hadn't known of the plot until after he had arrived in Lake Macquarie and that his role was limited to ferrying another drug syndicate member out to the moored yacht on the day of his arrest, Judge Priestley jailed Lembke for a maximum of nine years with a non-parole period of six years.
The jail term was much shorter than that handed to two other syndicate members - despite both receiving massive discounts for pleading guilty and giving evidence against Lembke at his trial - and almost immediately triggered an inadequacy appeal from the Commonwealth DPP.
The CDPP's appeal claimed Judge Priestley erred in his fact-finding task and failed to have regard to the circumstantial evidence as a whole when he found that Lembke's involvement in the cocaine importation plot was "minimal" and limited to the final 24 hours before his arrest.
The CDPP's ultimate submission was that Judge Priestley erred in making that crucial determination because "the only rational conclusion" was that Lembke knew about the cocaine on board the catamaran prior to his arrival in Australia.
But Lembke's defence, led by barrister Ken Averre and solicitor Mark Ramsland, said the difficulty with the CDPP's submission is that their case against Lembke at trial was essentially a have your cake and eat it approach, urging the jury that they need not be unanimous when determining precisely when Lembke knew about the cocaine plot.
The CCA had a similar problem with the CDPP's first ground of appeal, with Justice Lucy McCallum asking: "If it was open to the jury why wasn't it open to the sentencing judge on the same basis?"
Ultimately, after being told it could not succeed, Ms Single withdrew the first ground of appeal.
The Commonwealth DPP's second ground of appeal is that the sentence is "manifestly inadequate", a claim rejected by Lembke's defence, who say the jail term does not involve a miscarriage of justice and "is not so manifestly inadequate as to warrant appellate intervention".
"Minds may differ as to whether a more severe sentence should have been imposed, but this is an insufficient basis for finding the sentence was manifestly inadequate," Lembke's lawyers said in written submissions. "The appeal ought to be dismissed."
The CCA reserved its judgment on the second ground of appeal.
The inadequacy appeal relating to Lembke's sentence is the second appeal before the CCA relating to the massive cocaine importation and it might not be the last.
Last month, the Australian co-ordinator of the syndicate failed in his bid to have his maximum 19-year jail term reduced on appeal.
Again, that appeal was focused on precisely what role that syndicate member played in the importation plot.
Lembke, who maintains his innocence, has also lodged an appeal against the jury's guilty verdict.
