Johnson J at [1] Wright J at [171] Wilson J at [172]
Decision:
1. Grant leave to appeal against sentence.
2. Appeal against sentence dismissed.
Catchwords:
APPEAL – sentence – offence of possession of CITES specimens and regulated live specimens contrary to s.303GN(2) Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“EPBC Act”) – offence of engaging in conduct in capacity as a Commonwealth public official with the intention of dishonestly gaining a benefit contrary to s.142.2(1)(a)(iii) Criminal Code (Cth) – offence of dealing with money over $10,000 believed to be proceeds of crime contrary to s.400.6(1) Criminal Code (Cth) – further offences under s.303GN(2) EPBC Act and abuse of public office to gain advantage contrary to s.142.2(1)(a)(ii) Criminal Code (Cth) taken into account on sentence – Applicant employed as a Senior Biosecurity Officer by Commonwealth Department of Agriculture and Water Resources – Applicant used information obtained in course of employment to facilitate illegal importation of regulated specimens for sale – whether sentencing Judge erred in failing to consider alternatives to fulltime imprisonment in sentencing Applicant – error not demonstrated – whether sentencing Judge erred in failing to give full effect to “Ellis principle” – error not demonstrated – whether sentencing Judge erred in failing to give discount for Applicant’s assistance and offer to assist – error not demonstrated – whether sentencing Judge erred in relying upon Applicant’s employment to reduce mitigating factor of prior good character where his employment was already relied upon in proof of an element and had not been obtained for purpose of committing offences – error not demonstrated – whether aggregate sentence was manifestly excessive in all the circumstances – offences of considerable objective gravity – offences committed by public official occupying position of trust within Department administering EPBC Act – importance of general deterrence on sentence where public official uses inside information to abuse position of trust – sentence not manifestly excessive – appeal dismissed
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Lee v The Queen [2020] NSWCCA 307
Case
[2020] NSWCCA 307
Decision Date
CaseChat Overview and Summary
In the case of Lee v R, the appellant was convicted of multiple offences relating to the illegal importation and possession of specimens regulated under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and engaging in conduct as a Commonwealth public official with the intention of dishonestly gaining a benefit. The appellant, a Senior Biosecurity Officer, was found to have used information obtained through his employment to facilitate these illegal activities. The case was heard in the court of appeal, which was tasked with determining whether the original sentencing judge had erred in various aspects of the sentencing process.
The primary legal issues before the court were whether the sentencing judge had failed to consider alternatives to full-time imprisonment, whether there was an error in not giving full effect to the “Ellis principle,” whether the judge had erred in not discounting the sentence for the appellant's assistance and offer to assist, whether the judge had erred in relying upon the appellant's employment to reduce the mitigating factor of prior good character, and whether the aggregate sentence was manifestly excessive. The court considered the gravity of the offences, the appellant's position of trust, and the importance of general deterrence in its analysis.
The court found that no error was demonstrated in the sentencing judge's consideration of alternatives to imprisonment, the application of the “Ellis principle,” the discount for the appellant’s assistance, or the reliance on the appellant’s employment in reducing the mitigating factor of prior good character. The court emphasised that the offences were of considerable objective gravity, committed by a public official in a position of trust, and that general deterrence was an important consideration. Consequently, the court concluded that the aggregate sentence was not manifestly excessive and dismissed the appeal.
No specific orders were made by the court beyond dismissing the appeal, as the findings related to the adequacy of the original sentence and the court's determination that no significant sentencing errors had occurred.