Newcastle sailor and convicted cocaine smuggler Craig Lembke will not spend any additional time behind bars after the Court of Criminal Appeal on Friday dismissed an appeal questioning the "manifest inadequacy" of his maximum nine-year jail term.
Lembke, now 50, was found guilty of importing 700 kilograms of cocaine on board a catamaran he sailed from Tahiti into Lake Macquarie 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 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 appeal had two grounds; that Judge Priestley had erred in making the crucial determination of when exactly Lembke knew about the cocaine onboard and that the sentence was 'manifestly inadequate', although the CDPP withdrew the first ground of appeal under heavy scrutiny from the three-judge bench of the CCA at a hearing in October.
As for the second ground, the CCA said on Friday that while the sentence appeared to be "lenient", they were not persuaded that it was manifestly inadequate.
"I am unable to conclude, as urged by the [CDPP], that the sentencing judge's assessment of the objective seriousness of the respondent's involvement in the conspiracy, and his conduct, was erroneous," Justice Peter Garling said in a judgment on Friday. "Had the findings of fact made by the sentencing judge been different, particularly if the sentencing judge had been satisfied beyond reasonable doubt that the respondent was involved with knowledge as a co-conspirator when he flew to Tahiti to bring the yacht back, then a finding of a much higher level of objective seriousness would be warranted."
The CCA's ruling means Lembke's sentence remains and he will be eligible for parole in November, 2023.