Hill v Hsu

[2014] QDC 228

DISTRICT COURT OF QUEENSLAND

CITATION:

Hill v Hsu [2014] QDC 228

PARTIES:

DAVID JOHN HILL
(appellant)
v
KELLY HSU
(respondent)

FILE NO:

1904 of 2014

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

Judgment delivered ex tempore 29 September 2014

DELIVERED AT:

Brisbane

HEARING DATE:

29 September 2014

JUDGE:

Everson DCJ

ORDER:

1.   Allow the appeal and resentence the respondent.

2.   The respondent is convicted and fined $800. 

CATCHWORDS:

CRIMINAL LAW – APPEAL FROM THE MAGISTRATES COURT – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the respondent plead guilty to possession of a CITES specimen while reckless to the fact that it was a CITES specimen – where the respondent was sentenced to release without conviction upon entering into a recognisance in the sum of $500, conditioned that she be of good character for 12 months – where the respondent conceded the Magistrate took into account irrelevant considerations – whether the character and antecedents of the respondent make it inexpedient to impose a fine and that it is expedient for her to be released on probation.

Crimes Act 1914 (Cth) ss 16A, 19B.

Criminal Code Act 1995 (Cth) s 5.4.

Environmental Protection and Biodiversity Conversation Act 1999 (Cth) s 303GN(2).

Tuncks v Chief Executive Officer of Customs [2005] SASC 408, 227 ALR 122.

COUNSEL:

S R Hunter for the appellant

CFC Wilson for the respondent   

SOLICITORS:

Office of the Director of Public Prosecutions for the appellant
HopgoodGanim for the respondent

1. This is an appeal pursuant to section 222 of the Justices Act of 1886.

1. On 8 May 2014, the respondent was sentenced in the Magistrates Court at Brisbane following her plea of guilty on the preceding day for possession of a CITES specimen while reckless to the fact that it was a CITES specimen, pursuant to section 303GN(2) of the Environmental Protection and Biodiversity Conservation Act of 1999 (“EPBC Act”).  The specimen was an asian arowana fish.  She was sentenced to release without conviction upon entering into a recognisance in the sum of $500, conditioned that she be of good character for 12 months. 

1. The appellant appealed on the basis that the sentence was manifestly inadequate.  The respondent conceded that the magistrate, in sentencing the respondent, took into account irrelevant considerations and that the appeal must be allowed and the respondent sentenced again.  I, therefore, formally allow the appeal and resentence the respondent.

1. Pursuant to section 16A of the Crimes Act 1914 (Cth), a number of matters must be taken into account by the Court in the exercise of its sentencing discretion. Relevantly, these include the nature and circumstances of the offence, whether or not the defendant has pleaded guilty, the degree to which the defendant has cooperated with law enforcement agencies in the investigation of the offence, the deterrent that any sentence or order under consideration may have, the need to ensure that the person is adequately punished for the offence, the character, antecedents, age, means and physical and mental condition for the defendant, together with the prospect of rehabilitation for the defendant.

1. The circumstances surrounding the offence, which carries a maximum penalty of 12 months imprisonment or a fine of $6600 on summary determination, are that the appellant’s officers became aware of an asian arowana fish being offered for sale and contacted the respondent who was the aquarium manager of Pet City Mt Gravatt.  The asian arowana is a species included in appendix 1 to the Convention on International Trade in Endangered Species, giving rise to the acronym CITES.  It is a fish that is native to South East Asia and, since July 1975, it has been listed in appendix 1 of CITES on the basis that it is threatened with extinction. Trade in the species is prohibited except in exceptional circumstances.

1. Pursuant to section 303GN of the EPBC Act, a person is guilty of an offence if the person has in their possession a specimen which is a CITES specimen.  However, it is not an offence if the specimen was lawfully imported or the specimen is the progeny of a lawfully imported specimen.  When approached by an investigator from the appellant’s office, the respondent was asked how the fish could have been bred in Australia.  The respondent replied that she obtained the fish from a supplier and that she was assured that this person did not import it and she assumed that it must have been bred in Australia.  Despite claiming a very good knowledge of the fish and aquarium fish industry, the respondent conceded that she was not aware of any fish of this type being bred in captivity in Australia.

1. She produced a scanning device and told investigators she could not find a microchip in the fish at the time it was purchased.  A microchip is present in all of these fish which have been farmed overseas.  Investigators ordered that the fish be placed in quarantine and, on 16 November 2011, a veterinary officer attempted to detect a microchip in the fish by scanning and was unable to do so.  Eventually, the fish was euthanased and such a chip was detected. 

1. It was the respondent, in her capacity as the manager of the aquarium, who claimed to have been responsible for sourcing the fish.  She stated that she had purchased it for $5000 from a regular customer named Justin Smith, whom she knew from internet forums.  Justin Smith did not exist.  Justin Smith was the name used by a fish breeder who, when finally identified, refused to cooperate with investigatiors.  It was, in fact, the respondent’s employer who purchased the fish despite the transaction having been apparently arranged by the respondent on behalf of her employer.  There is no evidence that the respondent received any financial benefit from this transaction, however. 

1. The respondent’s employer and the supplier of the fish have not been prosecuted by the appellant for any offences arising out of dealings with the fish in question. 

1. I take into account, in the respondent’s favour, her plea of guilty. Although the plea of guilty was entered on the eve of trial, it was entered following legal advice that a defence that apparently was open to her was not actually open to her in circumstances where her conduct was classified as being reckless pursuant to section 5.4 of the Criminal Code Act 1995 (Cth). I, therefore, accept it as a timely plea.

1. The respondent is a woman in her mid-30s who is an American citizen.  She holds Bachelors degrees in Arts and Science from the University of Kansas.  She has no criminal history.  Since arriving in Australia, she has frequently done voluntary work in the arts, principally assisting with the Brisbane International Film Festival, although she has also undertaken voluntary work on behalf of the Brisbane Council of Arts, QPAC and GOMA. 

1. She came to Australia in 2005 on a skilled migrant visa. She has a history of working in pet shops and aquariums in particular, since the age of 15. I have before me, as exhibit 2, a number of character references deposing to her hard work and good personal qualities together with her considerable experience in the industry in which she works. She is currently employed by a company called Vetafarm and I have a favourable reference from her current employer dated 9 July 2014 within exhibit 2.

1. The offence, whilst not overly serious, is far from trivial. I accept that the respondent not only entered a timely plea of guilty but also cooperated with law enforcement agencies in the investigation of the offence and made frank admissions to the investigators from the appellant’s office. It remains the case, however, that a deterrent sentence is required in circumstances where people are detected committing offences involving the commercial trade in endangered wildlife, and it is necessary to balance the need for a deterrent sentence with the character, antecedents and age of the respondent. I also need to consider the effect that a conviction may have on the respondent’s prospects of finding and maintaining employment in the future, particularly in the industry in which she works.

1. The nature of the offending is such that her prospects of rehabilitation do not loom large as I consider whatever the penalty is imposed, it is most unlikely the respondent will commit an offence of this type in the future. Whilst it is submitted by the appellant that a fine is an appropriate penalty and I have been provided with a schedule of fines for possession of unlawfully imported specimens which records fines ranging from $250 to $4000 in various magistrates courts, the respondent submits that her circumstances justify an order pursuant to section 19B of the Crimes Act, which relevantly provides:

“(1) Where:

(a) a person is charged before a Court with a federal offence or federal offences;  and
(b) the Court is satisfied, in respect of that charge or more than one of those charges, that if the charge is proved, but is of the opinion, having regard to

(i) the character, antecedents, age, health or mental condition of the person;

…
that is inexpedient to inflict any punishment, or to inflict any punishment other than a nominal punishment, or that it is expedient to release the offender on probation;

the Court may, by order:

…

(d) discharge the person, without proceeding to conviction in respect of any charge referred to in paragraph (c), upon his or his giving security, with or without sureties, by recognisance, or otherwise to the satisfaction of the Court, that he or she will comply with the following conditions: …”

1. On behalf of the respondent it is submitted that her character, antecedents and age warrant a recognisance order without conviction of the type imposed by the magistrate below. The approach of a legal officer to section 19B was the subject of the observations by White J in Tuncks v Chief Executive Officer of Customs [2005] SASC 408, 227 ALR 122 at [13] in the following terms:

“It has been held that consideration of the application for s19B involved a two-stage process:  the first is the identification of a factor or factors of the kind referred to in subparas (i) …:   the second is the determination that having regard to the fact or factors identified, it is “is inexpedient to inflict any punishment” or to reach the other conclusions for which the paragraph provides.”

It was subsequently observed that although subsection (1)(b) lists a number of matters to which regard is to be had, regard may be had to a wide variety of matters in determining whether or not it is inexpedient to inflict any punishment or to impose any of the other consequences contemplated by the subsection.

1. On behalf of the respondent, it is submitted that the character and antecedents of the respondent make it inexpedient to impose a fine and that it is expedient for her to be released on probation. Whilst the respondent has no criminal history and whilst the imposition of a fine will inevitably involve the recording of a conviction, I am of the view that in circumstances where the respondent was an experienced employee with a high level of education and, apparently, a knowledgeable person in terms of the obligations pursuant to the EPBC Act, the need for a deterrent sentence is a significant factor in the exercise of my sentencing discretion.

1. The respondent is no longer what may be classified as a young person. She clearly has a good employment history in relevant occupations. Whilst I accept that there is a possibility that being convicted for an offence of this type may result in some detriment to her prospects of finding employment in the future, I am not of the view the potential detrimental impacts to the respondent, when viewed in the context of her otherwise good character, are such that the imposition of a fine is inexpedient. It does not appear to me to be the type of offending that makes it expedient for her to be released on probation applying the converse test set out in section 19B(1)(b).

1. Taking into account all of the relevant considerations, both pursuant to section 16A and section 19B, the respondent is convicted and fined $800.