Goo v Office of Environment & Heritage - [2016] NSWLEC 27

No judgment structure available for this case.

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Goo v Office of Environment & Heritage [2016] NSWLEC 27
Hearing dates: 3 December 2015, 18 February and 1 March 2016
Date of orders: 24 March 2016
Decision date: 24 March 2016
Jurisdiction: Class 6
Before: Moore J
Decision:
At [87]

Catchwords: SENTENCE – possession and sale of protected fauna (3 offences in total) – appeal against sentence in Local Court – relevant objective and subjective factors – custodial sentence not appropriate – financial penalty appropriate – resentencing required – specific and general deterrence – appeal upheld and fine imposed
Legislation Cited: Crimes (Appeal and Review) Act 2001.
Crimes (Sentencing Procedure) Act 1999
Fines Act 1996
National Parks and Wildlife Act 1974
Cases Cited: R v Thompson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
Category: Principal judgment
Parties: Jerry Goo (Applicant)
Office of Environment & Heritage (Respondent)
Representation:
Counsel:
Mr E Bateman, solicitor (Respondent)
Solicitors:
Office of Environment & Heritage (Respondent)

File Number(s): 60578 of 2015
Publication restriction: No

TABLE OF CONTENTS

Judgment
The offending conduct
The charges
The Local Court proceedings
The statutory appeal processes
The Land and Environment Court proceedings
After the hearing
The relevant statutory framework
The Prosecutor's evidence
What I do not have
The NPW Act offences and their available penalties
NPW Act matters required to be considered
Extent of harm (s 194(1)(a))
Mitigation (s 194(1)(c))
Foreseeability of harm (s 194(1)(d))
Control over causes (s 194(1))
Commercial gain (s 194(1)(h))

The Sentencing Procedure Act
Specific deterrence
Conclusion on “serious offending”
General deterrence
Remorse
Is any discount for a guilty plea warranted?
Totality and aggregation
Penalty
The Local Court costs order
Orders
Annexure A

Judgment

The offending conduct

The Office of Environment & Heritage (OEH) is the organisation with the responsibility for administration of the National Parks and Wildlife Act1974 (the NPW Act). On 25 June 2014, an officer of OEH received a phone call from an OEH investigator advising him that he had been notified of an advertisement on the website known as “Gumtree” offering the Eastern Long-Necked Turtles for sale. Eastern Long-Necked Turtles are protected fauna under the NPW Act and a permit is required under that legislation to keep them in captivity or to possess and trade in them.
Contact was made by the officer with the person offering the turtles for sale. Subsequently, a transaction took place, whereby four of the turtles were purchased for $240. Mr Jerry Goo (the Defendant) was the vendor in that transaction. The transaction took place in a street in the inner-western Sydney suburb of Liberty Grove.
An inspection was subsequently undertaken, on 9 July 2014, of the apartment in which Mr Goo was residing. This apartment was on the sixth floor of a building in Liberty Grove. The inspection revealed that Mr Goo was holding approximately 53 Eastern Long-Necked Turtles in a temporary enclosure on the balcony of the apartment and had a further 10 of the turtles within the apartment itself. Inadequate provision had been made for the welfare of the animals, including provision of water for them.
The nature and sources of the evidence founding this brief description of the offending conduct is discussed in more detail later.

The charges

Mr Goo was subsequently charged by an authorised officer of the OEH with three offences against s 101(1) of the NPW Act. The charges were as follows:

Possession of up to approximately 53 Eastern Long-Necked Turtles (Chelodina longicollis) on a balcony of his residence, between 30 June and 9 July 2014;

Possession of 10 Eastern Long-Necked Turtles (Chelodina longicollis) in a tank inside his residence between about 9 July 2011 and 9 July 2014; and

Selling four Eastern Long-Necked Turtles (Chelodina longicollis) on or about 1 July 2014.

In addition, the RSPCA, being the body authorised to enforce protective legislation dealing with animal cruelty in New South Wales, also charged Mr Goo with a number of animal cruelty offences. For the purposes of this decision, it is sufficient to note that these charges were laid; it is not necessary to set out in detail their nature, nor the statutory provisions providing the basis for them.
All these charges were brought, together, in the jurisdiction of the Local Court.

The Local Court proceedings

All the matters came before Kennedy LCM in Burwood Local Court on 16 December 2014. On that occasion, Mr Goo pleaded not guilty to all charges under both statutory regimes. Mr Goo was not legally represented before her Honour.
After consideration of the evidentiary material before her, her Honour convicted Mr Goo of the offences as charged and stood the matter over for the preparation of a presentence report.
On 21 January 2015, the matter returned to Burwood Local Court for sentencing. The matter was listed before Still LCM. On this occasion, Mr Goo was legally represented by his solicitor, Mr Tsambas. Submissions were made on Mr Goo's behalf. The relevant portion (pages [7] to [11] of the transcript of those proceedings encompassed the submissions put on behalf of Mr Goo and the prehearing sentencing remarks of the learned Magistrate. Those pages are reproduced at the end of this decision.
His Honour reserved his decision. Subsequently, on 2 April 2015, Mr Goo appeared before his Honour for sentence; on this occasion, Mr Goo was not legally represented. Mr Goo was sentenced as follows:

HIS HONOUR: In relation to the sequences for which you were prosecuted by the RSPCA. They are sequences 1, 2, 3, 4, 6, 7, 9, 10, 11, 13, 15 and 16.
IN RELATION TO SEQUENCES 1, 2, 3, 4 AND 6 YOU ARE SENTENCED TO A TERM OF IMPRISONMENT OF 5 MONTHS TO COMMENCE TODAY, 2 APRIL, ELIGIBLE FOR RELEASE ON 1 SEPTEMBER.
IN RELATION TO SEQUENCES 7, 9, 10, 11, 13, 15 AND 16 YOU ARE SENTENCED TO A TERM OF IMPRISONMENT OF 8 MONTHS TO COMMENCE ON 2 APRIL 2015 AND EXPIRE ON 1 JANUARY NEXT YEAR. IN RELATION TO THAT MATTER I AM GOING TO SET A NON-PAROLE PERIOD OF 5 MONTHS, SO THAT WILL COMMENCE ON 2 SEPTEMBER 2015.
On your release you will be supervised on parole. There are two other charges of being in charge of an animal and fail to keep care.
IN RELATION TO THOSE MATTERS, I RECORD A CONVICTION, THEY ARE DEALT WITH WITHOUT PENALTY.
IN RELATION TO THE PROTECTED FAUNA AND SELL PROTECTED FAUNA COUNTS, YOU ARE SENTENCED TO A TERM OF IMPRISONMENT OF THREE MONTHS WITH THOSE SENTENCES TO COMMENCE 2 APRIL AND YOU WILL BE ELIGIBLE FOR RELEASE IN RELATION TO THOSE MATTERS ON 1 JULY. IN RELATION TO THE LAST MATTERS THERE IS AN APPLICATION FOR COSTS IN THE SUM OF $14,000. I MAKE THAT ORDER.
IN RELATION TO THE RSPCA THEY SEEK THE COSTS IN RELATION TO VETERINARY TREATMENT AND THE LIKE IN THE SUM OF $875.90 AND I MAKE THAT ORDER TODAY.
(Transcript 2 April 2015, page 4, line 44 to page 5, line 24).

The statutory appeal processes

Mr Goo’s legal representatives mistakenly concluded that the right of appeal against all sentences lay to the District Court (for both the sentences imposed for the animal cruelty offences and for the offences under the NPW Act). A combined appeal to the District Court was, thus, lodged on 2 April 2015.
Mr Goo's legal representatives subsequently discovered that the correct position was that, although an appeal against sentence did lie to the District Court on the animal cruelty charges, an appeal against sentence for the charges laid under the NPW Act lay to this Court rather than to the District Court. The consequence of the discovery of, and correction to, the appeal process for the NPW Act charges is discussed later.
On 20 July 2015, Mr Goo's appeal against his sentences on the animal cruelty charges was determined by the Chief Judge of the District Court, Price J. The outcome of those proceedings was that his Honour substituted a suspended custodial sentence and a good behaviour bond on Mr Goo instead of the full-time custodial sentence. The term of the suspended sentence and attendant good behaviour bond was eight months to expire on 20 March 2016.
The consequence of this resentencing by Price J was the disaggregation of the sentences imposed by Still LCM for the combination of the animal cruelty charges and the NPW Act charges. As a further consequence, in addition to the substituted sentence imposed by Price J for the animal cruelty charges, Mr Goo remained subject to a full-time custodial sentence of three months because of his conviction for the NPW Act charges.
Mr Goo continues to be on bail pending determination of his appeal to this Court against his sentences on the NPW Act charges.

The Land and Environment Court proceedings

Having realised their procedural error concerning the avenue for appeal against the sentences on the NPW Act charges, Mr Goo's legal advisers commenced an appeal in this Court against those sentences. As the time for commencing such appeal proceedings had, by then, expired, it was necessary for leave to be granted to commence the appeal out of time. On the first return date, 14 August 2015, the Prosecutor representing OEH did not oppose the granting of such leave and Pain J granted the necessary leave. Mr Goo’s appeals were set down for hearing on 3 December 2015.
On that date, Mr Goo was not legally represented but Mr Whitby, a solicitor, attended before me and advised that he anticipated being instructed to appear for Mr Goo on the appeal. In anticipation of receiving such instructions, an adjournment was requested and was granted. The matter was adjourned for hearing on 1 March 2016. Although Mr Whitby spoke during the brief hearing, Mr Goo was present in Court on that occasion.
Two weeks or so prior to the hearing scheduled for 1 March 2016, Mr Bateman, the Prosecutor’s solicitor, made contact with my Associate as he had been advised by Mr Whitby that he was not instructed in the matter and did not anticipate appearing at the hearing. Mr Bateman requested a mention of the matter in order to address this circumstance. I listed a mention of the matter on the morning of 18 February. The outcome of the mention was that Mr Bateman would, himself, endeavour to contact Mr Goo and remind him of the hearing and that he would contact Mr Whitby and request that he also remind Mr Goo of the scheduled hearing of his appeal.
When the matter came before me on 1 March 2016, neither Mr Goo nor Mr Whitby was present at the appointed commencing time of 10.00 am. I had the matter called, three times, outside the courtroom but there was no attendance by either of them. Mr Bateman advised that he had made the requested contacts to ensure Mr Goo was reminded of the hearing.
Given that the Prosecutor had conceded in the written submissions that had been filed that a financial penalty might be appropriate rather than sustaining the imposed full-time custodial sentence, the hearing proceeded as discussed below.

After the hearing

On the morning after the hearing, Mr Goo rang the Court and spoke to an officer in the Registry. The general terms of the conversation were relayed to me. The conversation was to the effect that Mr Goo was seeking to find out what had happened the day before as he had been unable to attend and he had expected Mr Whitby to be appearing on his behalf. As earlier noted, Mr Whitby had not, in fact, appeared.
I considered that it was appropriate to endeavour to contact Mr Goo to provide him with the opportunity to be heard, on a further occasion, including concerning why he had not appeared or been represented at the hearing. The only telephone number for Mr Goo available on the Court file was that set out a number of times in Mr Pupo’s affidavit. I had my associate contact the Prosecutor to confirm that that was the mobile phone number upon which contact had most recently been made with Mr Goo during the period shortly before the hearing and the Prosecutor confirmed that this was the case.
The hearing had taken place on a Tuesday with the contact made by Mr Goo being on the Wednesday morning. My associate called Mr Goo's mobile phone number twice on the Wednesday and then in the morning and late afternoon on the Thursday and once on the Friday. There was no answer from Mr Goo to any of these attempts. As a consequence, I am satisfied that reasonable steps have been made to make contact with Mr Goo to no avail.
I have therefore proceeded to determine Mr Goo’s appeal.

The relevant statutory framework

Mr Goo’s appeal is brought in Class 6 of the jurisdiction of the Land and Environment Court. It is brought pursuant to s 31 of the Crimes (Appeal and Review) Act 2001.
It appears now settled that s 37 of the Crimes (Appeal and Review) Act 2001 does not confine the appeal in this Court to the evidence that was adduced in the Local Court.
If I were to conclude (as I have and, as earlier noted, the Prosecutor implicitly conceded was appropriate) that Mr Goo should be resentenced, there are a number of matters that are mandated for consideration. These have two statutory bases, one of general applicability to sentencing in the Crimes (Sentencing Procedure) Act 1999, and the second arising by virtue of specific provisions of the NPW Act. The general provisions contained in the Crimes (Sentencing Procedure) Act 1999 are in the following terms:

21A Aggravating, mitigating and other factors in sentencing
(1)   General In determining the appropriate sentence for an offence, the court is to take into account the following matters:
(a)   the aggravating factors referred to in subsection (2) that are relevant and known to the court,
(b)   the mitigating factors referred to in subsection (3) that are relevant and known to the court,
(c)   any other objective or subjective factor that affects the relative seriousness of the offence.

The relevant matters arising from the provisions of the NPW Act are those contained in s 194 of the Act, a provision in the following terms:

194 Sentencing-matters to be considered in imposing penalty
(1)    In imposing a penalty for an offence under this Act or the regulations, the court is to take into consideration the following (so far as they are relevant):
(a)   the extent of the harm caused or likely to be caused by the commission of the offence,
(b)    the significance of the reserved land, Aboriginal object or place, threatened species or endangered species, population or ecological community (if any) that was harmed, or likely to be harmed, by the commission of the offence,
(c)    the practical measures that may be taken to prevent, control, abate or mitigate that harm,
(d)    the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the commission of the offence,
(e)    the extent to which the person who committed the offence had control over the causes that gave rise to the offence,
(f)    in relation to an offence concerning an Aboriginal object or place or an Aboriginal area - the views of Aboriginal persons who have an association with the object, place or area concerned,
(g)    whether, in committing the offence, the person was complying with an order or direction from an employer or supervising employee,
(h)    whether the offence was committed for commercial gain.

(2) The court may take into consideration other matters that it considers relevant.

The Prosecutor's evidence

The evidence adduced by the Prosecutor was contained in three affidavits that were read on the appeal, together with a number of exhibits that were tendered. The affidavits that were read were from:

Stephen James dated 9 November 2015;

Roberto Pupo of 4 November 2015; and

Cameron Templeton of 9 November 2015.

The material that was tendered by the Prosecutor comprised:

Exhibit 1 - three transcripts (16 December 2014, 21 January 2015 and 2 April 2015) when the combined animal cruelty and NPW Act charges had been before the Local Court;

Exhibit 2 - a Prosecutors bundle of documents discussed below;

Exhibit 3 – a compact disc containing the recording of an interview conducted with Mr Goo of some 26 minutes in length of which the first approximately 17 minutes were voluntary, whilst the remainder was a directed interview; and

Exhibit 4 - Mr Goo’s record produced pursuant to a subpoena served on NSW Police.

The material contained in the Prosecutor’s bundle (Exhibit 2) comprised:

Statement of Facts relied upon by Burwood Local Court;

Statement of Additional Facts relied upon by the Respondent;

Court Attendance Notice;

Transcript of Burwood Local Court dated 16 December 2014;

ICO Report dated 26 February 2015;

Transcript of Burwood Local Court dated 2 April 2015;

Prosecutor’s written submission tendered in Burwood Local Court;

Presentence Report dated 17 July 2015;

Criminal History of Jerry Goo relied upon by Burwood Local Court;

Criminal History of Jerry Goo produced on 16 November 2015; and

JIRS statistics – National Parks and Wildlife Act 1974 (NSW) s 101(1).

What I do not have

As a consequence of there being no appearance on 1 March 2016 by or on behalf of Mr Goo, there was no evidence led or tendered in his case on this sentence appeal.
Although that which was put before Still LCM on the day he sentenced Mr Goo was entirely submissions made by Mr Tsambas on Mr Goo's behalf without, as can be seen from the transcript reproduced in the end of this judgment, the provision of any evidentiary foundation for them, the tender of the transcript touches those submissions with the philosopher's stone, as it were, and transmutes them into evidence.
That evidence is, of course, entirely untested and is to be given only such weight as is appropriate under the circumstances.
Given the nature of those submissions (particularly the submissions concerning the reasons why Mr Goo was in possession of such a large number of turtles when contrasted with the uncontradicted evidence in the affidavit of Robert Pupo (at [8] to [24]) concerning the sale of the four turtles by Mr Goo and the availability of further turtles on a similar commercial basis if required) causes me to be satisfied that I should give very little weight to that which was put to the learned Magistrate on 21 January 2015.
Further, I do not have any evidence concerning Mr Goo's financial position, this being a potentially relevant matter to be taken into consideration as a consequence of s 6 of the Fines Act 1996 (NSW).
Therefore, when I come to my consideration of Mr Goo's subjective factors for the purposes of analysis and then, subsequently, the instinctive synthesis required to settle upon the individual sentences for each of the three offences and then, settling upon what should be the total sentence after determining those indicative individual sentences, I have no reliable information about Mr Goo's present subjective circumstances available to me.

The NPW Act offences and their available penalties

The associated maximum penalty for the three offences arising from the NPW Act with which Mr Goo has been charged (set out at [5] above) is 100 penalty units ($11,000) or imprisonment for six months or both.

NPW Act matters required to be considered

I have earlier set out the terms of s 194 of the NPW Act, a provision that mandates a range of matters required to be taken into account (if relevant) when imposing a penalty for an offence under that Act or the associated regulations. The matters contained in s 194(1)(b), (f) and (g) are not relevant for the purposes of this consideration. However, for the matters that do arise to be considered, my analysis of them is set out below. My analysis is undertaken on the basis of a global consideration of the facts and circumstances encompassing all three of the charges rather than seeking to analyse each of them separately.

Extent of harm (s 194(1)(a))

I turn, first, to the question of the extent of the harm caused or likely to be caused by the offences under the NPW Act for which Mr Goo was convicted. It is clear that 11 or so turtles were killed as a result of them falling from the balcony of the sixth-floor apartment in which Mr Goo was living. Although in his electronically recorded interview (the electronic interview) Mr Goo denies throwing the turtles from the balcony (at 5 min 41 sec), there is no doubt that some 11 turtles fell to their death.

In addition, the video in the electronic interview shows (at 23 min 38 sec) the improvised nature of the enclosure on the balcony within which more than 30 turtles were held. This enclosure is shown to have a gap along one of its edges at a joint between the elements that have been arranged to form the enclosure. It would appear from the video depicting this that it was more likely than not that other turtles could find their way through the gap and fall to their death.
As a consequence, I conclude that the actual and reasonably expected likelihood of harm being caused to these animals was not insignificant.

Mitigation (s 194(1)(c))

With respect to measures of mitigation, there is now no longer any likelihood of further harm to the animals as they have been removed by the responsible authorities. As a consequence, no adverse conclusion is to be drawn against Mr Goo against this head of consideration.

Foreseeability of harm (s 194(1)(d))

I now turn to the question of foreseeability of harm. There is no doubt that Mr Goo should have foreseen the harm that was actually occasioned to the turtles. This is reflected in the fact that, after a number of the animals had fallen to their death, Mr Goo constructed the (inadequate) structure on the balcony to house more than 30 turtles in an attempt to prevent future harm.
It is to be observed, however, that there was no water provided to these turtles (at 23 min 38 sec) when compared to the smaller number of turtles in water in a plastic container on the balcony (at 23 min 53 sec).
It is clear that, with respect to this head of consideration, Mr Goo could have foreseen the harm caused or likely to be caused to the animals and that his response, to the extent that he did respond, was woefully inadequate.

Control over causes (s 194(1))

There is no doubt that Mr Goo had total control over the causes that gave rise to the offence (at 9 min 45 sec).

Commercial gain (s 194(1)(h))

Finally, there is no doubt that Mr Goo committed the offences for the purposes of commercial gain. In reaching this conclusion, I expressly reject that which is contained in Mr Tsambas’ submissions to the learned Magistrate on 21 January 2015 describing Mr Goo's passion for turtles and his desire to find them a good home (Transcript 21 January 2015, page 7, lines 26 to 27).
Although it may well be that the turtles shown in a glass tank in Mr Goo's apartment throughout virtually all of the electronic interview might have been pets and been well looked after, the holding facilities for the remainder of the animals stand as mute testimony to them being held not as pets but as stock for a commercial enterprise.
Although, in the electronic interview (at 4 min 27 sec) Mr Goo said that he had only sold four of the turtles, this was his response to a question concerning material contained in Mr Pupo’s affidavit (Affidavit of Roberto Antonio Pupo, 4 November 2015, page 8, para 23) that Mr Goo had sold 130 turtles prior to his transaction with Mr Pupo and thus only had some 70 left of his original stock.
It was Mr Pupo’s uncontradicted affidavit evidence that Mr Goo had agreed to give Mr Pupo a $20 discount from the original total asking price of $280 (being $70 for each of the four turtles purchased) when Mr Pupo asked for this (Affidavit of Roberto Antonio Pupo, 4 November 2015, page 5, para 13).
Finally, in the electronic interview, Mr Goo acknowledged the fact (at 18 min 55 sec) that he had advertised turtles for sale on three separate occasions on the Gumtree website. The combination of this material causes me to be satisfied that, setting aside the turtles that may have been Mr Goo's personal pets, all other turtles that were in his possession were held for the sole purpose of commercial gain.

The Sentencing Procedure Act

As earlier noted, I am obliged to have regard to a number of matters that are set out in provisions contained within the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Procedure Act). Consideration of those matters is not excluded as a consequence of the necessity to consider the matters set out in s 194 of the NPW Act. This is because s 194(2) reads:

194 Sentencing-matters to be considered in imposing penalty
…
(2) The court may take into consideration other matters that it considers relevant.

Clearly, to the extent that matters arising under the various provisions of the Sentencing Procedure Act duplicate the intent of the provisions in the NPW Act dealt with above, it is not relevant to have regard to them a second time. However, to the extent that there may be other aggravating or mitigating factors called up by the Sentencing Procedure Act, it is necessary to have regard to them.
The relevant provisions in the Sentencing Procedure Act requiring my consideration are:

(2) Aggravating factors
The aggravating factors to be taken into account in determining the appropriate sentence for an offence are as follows:
…
(d)  the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences),
…
(j)  the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence,
…
(o)  the offence was committed for financial gain,
…

The three extracted provisions are the only ones within the list of potential aggravating factors that require to be considered in light of the facts of these proceedings.
Although there are three factors potentially called up, the third of them, whether the offence was committed for financial gain, has already been dealt with above in my discussion of the equivalent provision contained in s 194(1)(h) of the NPW Act.
It is a fact that Mr Goo has a prior record of offending. That record was, as previously noted, tendered by the Prosecutor, becoming Exhibit 4.
Mr Goo’s prior record can be summarised as comprising:

MR JERRY GOO - CRIMINAL HISTORY

OFFENCE DATE

OFFENCE

SENTENCE

29 January 1997-3 February 1997

Assault occasioning actual bodily harm – T2 (2 counts)

Fixed term imprisonment of 6 months.

Appealed against conviction. Conviction confirmed – periodic detention of 12 months in lieu of original sentence.

24 June 2004

Drive with low range PCA

Fine imposed of $400 and disqualified for 4 months.

Unlicensed for class C/R/LR/MR (first offence)

Fine imposed of $100.

21 September 2014

Drive while disqualified from holding a licence

Fine imposed of $750 and disqualified for 2 years.

4 April 2007

Drive while disqualified from holding a licence

Community service order imposed of 75 hours and disqualified for 2 years cumulative.

Driver/rider state false name/address

Fine imposed of $450.

27 December 2013

Affray – T1

S 10 good behaviour bond of 12 months.

21 January 2015

Possess identity information with intention to commit an indictable offence – T1 (2 counts)

Suspended sentence of 9 months imprisonment. 9 month good behaviour bond entered.

MR JERRY GOO - CRIMINAL HISTORY
29 January 1997-3 February 1997	Assault occasioning actual bodily harm – T2 (2 counts)	Fixed term imprisonment of 6 months. Appealed against conviction. Conviction confirmed – periodic detention of 12 months in lieu of original sentence.
24 June 2004	Drive with low range PCA	Fine imposed of $400 and disqualified for 4 months.
Unlicensed for class C/R/LR/MR (first offence)	Fine imposed of $100.
21 September 2014	Drive while disqualified from holding a licence	Fine imposed of $750 and disqualified for 2 years.
4 April 2007	Drive while disqualified from holding a licence	Community service order imposed of 75 hours and disqualified for 2 years cumulative.
Driver/rider state false name/address	Fine imposed of $450.
27 December 2013	Affray – T1	S 10 good behaviour bond of 12 months.
21 January 2015	Possess identity information with intention to commit an indictable offence – T1 (2 counts)	Suspended sentence of 9 months imprisonment. 9 month good behaviour bond entered.

On the occasion when Mr Goo was before Kennedy LCM in December 2014, her Honour observed that Mr Goo was, at the time of these offences, subject to a good behaviour bond and that that bond was required to be called up.
Although Mr Goo has a prior criminal record and was on a good behaviour bond at the time of his commission of the NPW Act offences and at the time of his conviction for them, the nature and timing of the past offences contributes, in my assessment, little to the requirement for consideration of appropriate penalties for these three NPW Act offences. In addition, I do not have any knowledge of the extent to which Price J may have had regard to these factors in his redetermination of the Animal Cruelty Act charges. It seems to me, therefore, to be prudent to place no weight on the prior offending for the purposes of my deriving an overall sentence for the NPW Act offences.

Specific deterrence

However, it is appropriate to note that his past record means that some specific deterrence is also warranted.

Conclusion on “serious offending”

It seems to me, therefore, that Mr Goo’s offending should be regarded as being toward the upper end of the range for those offences.

General deterrence

It is appropriate to have regard to the fact that it is desirable to provide public denunciation of Mr Goo's conduct to act as a reminder that possession of and trafficking in protected fauna is conduct to be regarded as entirely unacceptable.

Remorse

After sentencing on 2 April, Mr Goo said (Transcript page 6, lines 6 to 12):

ACCUSED: Yes. I just – I don’t think it’s fair because first of all my lawyer’s not here and I’m getting sentenced now and getting like in cusody, and I don’t think it’s fair, for turtles. I do feel sorry for the turtles yes I do, but I don’t think it’s fair what you’re doing to me. I did make a mistake but I didn’t deliberately, you know, and my lawyer’s not here and I’m getting sentenced and you know, going to gaol for it. I don’t think it’s a bit, you know, unfair for me. So what I’m asking just for one week adjournment so—

Although this might be seen as expressing an element of remorse, it is not done in any convincing fashion. As earlier noted, Mr Goo has not taken any part in those proceedings before me and I thus have no contemporary subjective information concerning him.

Is any discount for a guilty plea warranted?

As earlier noted, when the matter was before Kennedy LCM in December 2014 and Mr Goo was convicted, he was unrepresented. On 21 January 2015 when Mr Tsambas represented Mr Goo at the first of the sentencing hearings before Still LCM, Mr Tsambas indicated that Mr Goo did not seek to traverse the findings of guilt made in December. In fact, he indicated that Mr Goo accepted that he was guilty of the offences as charged (Transcript page 4, lines 33 to 46).
Although the adopting of this position arose after the December finding of guilt, the fact that, when legally represented, Mr Goo did not seek to reagitate matters of guilt in the circumstances where it is obvious from the transcript that the learned Magistrate was, as is the usual position in the Local Court, faced with a very busy list, there is some minor utilitarian benefit in the position then adopted on behalf of Mr Goo. Conventionally, the maximum discount given to recognise the utilitarian value of a guilty plea is 25% (see R v Thompson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383). The most generous assessment available of what has occurred in these proceedings could only give Mr Goo a discount of 10% of the final penalty I have determined is appropriate.

Totality and aggregation

For the reasons earlier set out, two separate strands of appeal arise with respect to the single aggregated sentence imposed by Still LCM for the animal cruelty offences and the NPW Act offences in combination.
It is clear from the transcript of the two occasions when the sentencing proceedings were before his Honour (21 January 2015 and 2 April 2015 – part of Exhibit 1) that his Honour regarded the animal cruelty offences as being of greater seriousness than those charged under the NPW Act (Transcript of 21 January 2015 at page 11, lines 8 to 12). A fair inference to be drawn from the exchanges between his Honour and Mr Tsambas in January 2015 is that the principal (but, I accept, not the sole) driver of his Honour's view that a full-time custodial sentence was required was Mr Goo's conviction on the animal cruelty charges.
Although, on the second of the sentencing occasions, there was no formal analysis by his Honour detailing the indicative sentences for each of the charged offences under the relevant piece of legislation, nor any discussion of how the aggregation of such sentences might be tempered to reflect the overall criminality of all the charges (being charges essentially arising out of the same course of conduct), such an approach is necessary in the resentencing process I am undertaking.
This process is rendered more complex by the fact that Price J has already dealt with and determined the appropriate outcome of the sentence appeals concerning the animal cruelty charges. Those outcomes are relevant to the task falling to me in these sentence appeal proceedings and, in this context, form part of what I am obliged to consider in arriving at a total sentence to reflect Mr Goo's overall criminality. I have no detail whatsoever of this process – merely its outcome.
It is neither open to nor appropriate for me to be seen to reflect, in any way, on Price J's sentence redetermination for the animal cruelty charges. His sentence redetermination has become an immutable element to which I must have regard in considering what I should conclude for these offences is appropriate to arrive at what will effectively be an aggregated sentencing outcome for Mr Goo, albeit an aggregated outcome that will now be derived from proceedings in two courts.

Penalty

I have earlier explained why I consider that Mr Goo’s transgressions fall at the upper end of the range of seriousness. It is in this context that I turn to the instinctive synthesis of all the factors available to me, both objective and subjective (to the very limited extent subjective matters arise), to determine what might be the appropriate monetary penalties to be imposed on Mr Goo.
As earlier noted, I have had the advantage of the material extracted from the Judicial Commission’s database by the Prosecutor showing the range of penalties imposed for such offences. However, such information needs to be approached with caution given that I have no evidence of the nature of the offending conduct underlying any of the imposed penalties reflected in this data.
Having said that, it is appropriate to note that there were only 26 instances shown in the Judicial Commission’s database for s 101(1) NPW Act offences, and, for the penalties imposed for them (17 instances), only two instances where penalties equal to or greater than $3,000 were imposed for such offences. In only one instance was a penalty of greater than $5,000 imposed. I do not have any information as to where, within the range from $5,000 and the maximum penalty for such offences ($11,000), the penalty fell.
It seems to me that, for the reasons earlier set out, the objective seriousness of Mr Goo’s offending is well within upper range and likely more serious than the conduct leading to the above penalties.
As a consequence, the result of my consideration of all the factors requiring synthesis is that the indicative penalty for each offence should be $6,000.
However, as these offences arose out of a single course of offending conduct, it is necessary to consider how these indicative sentences should be brought together to reflect the combined total criminality of this single incident of offending conduct.
Having so considered the extent to which there should be partial (but not complete) accumulation of the indicative penalties, I am satisfied that the appropriate total penalty to be imposed should be $14,000. For the reasons earlier briefly set out, I am satisfied that this accumulated penalty should be subject to a discount of 10% as a consequence of Mr Goo having confirmed, through Mr Tsambas in January 2015, that there was to be no traversing of the convictions and thus removing the necessity for officers of OEH to give evidence before the Local Court.
As a consequence, the resultant fine to be imposed on Mr Goo in substitution for the current standing full-time custodial sentence for the NPW Act offences is a total fine of $12,600.

The Local Court costs order

When Mr Goo was sentenced in the Local Court on 2 April 2015, the learned Magistrate made a costs order in favour of the RSPCA with respect to costs incurred by that organisation in investigating the animal cruelty charges.
Separately, a costs order was made in favour of OEH to compensate it for the costs of investigating the offences under the NPW Act and for the bringing the prosecution for those offences. This latter costs order was in the fixed sum of $14,000.
Although there have been a number of attendances before this Court because of Mr Goo's appeal against the offences under the NPW Act for which he has been convicted, the Prosecutor does not seek any additional costs above those ordered in the Local Court.
As a consequence, it is appropriate that the orders in these proceedings confirm the costs order made in favour of OEH in the Local Court without increasing the quantum of costs.

Orders

It follows from that which has earlier been set out, that the orders of the Court in this matter are:

The appeals against the sentence in the Local Court on 2 April 2015 imposed under the National Parks and Wildlife Act 1974 are upheld;

In lieu of the three (3) month full-time custodial sentence imposed on the Defendant for three (3) breaches of s 101(1) of the National Parks and Wildlife Act 1973, the Defendant is fined a total of $12,600;

The order of the Local Court of 2 April 2015 that the Defendant pay the Prosecutor’s costs in the nominated sum of $14,000 is confirmed; and

No order for costs of the proceedings in the Land and Environment Court.

**********

Annexure A

Transcript - 21 Jan 15 - pp 7-11 (199 KB, pdf)

Amendments

24 March 2016 - Date of orders and decision was incorrect. Date amended from 23 March 2016 to 24 March 2016.

Decision last updated: 24 March 2016

Actions

Download as PDF Download as Word Document

Citations

Goo v Office of Environment and Heritage [2016] NSWLEC 27

Cases Citing This Decision

0

Cases Cited

1

Statutory Material Cited

4

Morawski v State Rail Authority [2000] NSWCCA 309

Medium Neutral Citation:	Goo v Office of Environment & Heritage [2016] NSWLEC 27
Hearing dates:	3 December 2015, 18 February and 1 March 2016
Date of orders:	24 March 2016
Decision date:	24 March 2016
Jurisdiction:	Class 6
Before:	Moore J
Decision:	At [87]
Catchwords:	SENTENCE – possession and sale of protected fauna (3 offences in total) – appeal against sentence in Local Court – relevant objective and subjective factors – custodial sentence not appropriate – financial penalty appropriate – resentencing required – specific and general deterrence – appeal upheld and fine imposed
Legislation Cited:	Crimes (Appeal and Review) Act 2001. Crimes (Sentencing Procedure) Act 1999 Fines Act 1996 National Parks and Wildlife Act 1974
Cases Cited:	R v Thompson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
Category:	Principal judgment
Parties:	Jerry Goo (Applicant) Office of Environment & Heritage (Respondent)
Representation:	Counsel: Mr E Bateman, solicitor (Respondent) Solicitors: Office of Environment & Heritage (Respondent)
File Number(s):	60578 of 2015
Publication restriction:	No

MR JERRY GOO - CRIMINAL HISTORY
OFFENCE DATE	OFFENCE	SENTENCE
29 January 1997-3 February 1997	Assault occasioning actual bodily harm – T2 (2 counts)	Fixed term imprisonment of 6 months. Appealed against conviction. Conviction confirmed – periodic detention of 12 months in lieu of original sentence.
24 June 2004	Drive with low range PCA	Fine imposed of $400 and disqualified for 4 months.
24 June 2004	Unlicensed for class C/R/LR/MR (first offence)	Fine imposed of $100.
21 September 2014	Drive while disqualified from holding a licence	Fine imposed of $750 and disqualified for 2 years.
4 April 2007	Drive while disqualified from holding a licence	Community service order imposed of 75 hours and disqualified for 2 years cumulative.
4 April 2007	Driver/rider state false name/address	Fine imposed of $450.
27 December 2013	Affray – T1	S 10 good behaviour bond of 12 months.
21 January 2015	Possess identity information with intention to commit an indictable offence – T1 (2 counts)	Suspended sentence of 9 months imprisonment. 9 month good behaviour bond entered.