Morgan v R
[2007] NSWCCA 8
•24 January 2007
New South Wales
Court of Criminal Appeal
CITATION: Henri Robert Morgan v R [2007] NSWCCA 8 HEARING DATE(S): 24 January 2007
JUDGMENT DATE:
24 January 2007JUDGMENT OF: Beazley JA at 28; Buddin J at 1; Hislop J at 29 DECISION: 1 Grant leave to appeal. 2 In respect of the hindering offence, quash the sentence imposed in the District Court and in lieu thereof impose a sentence of 12 months imprisonment to commence on 20 April 2006. 3 In respect of the offence of attempting to export native specimens, confirm the sentence of 2 years imposed in the District Court but order that it commence on 20 July 2006 and expire on 19 July 2008. 4 Quash the order made in the District Court concerning the applicant’s release and in lieu thereof order that the applicant is to be released on 19 July 2007 upon condition that he enters into a recognisance pursuant to s20(1)(b) of the Crimes Act in the sum of $1,000 to be of good behaviour for a period of 12 months from the release date and to appear to receive sentence if called upon to do so at any time in respect of any breach which may be committed within that period. CATCHWORDS: Sentencing - offences of attempting to export native birds' eggs and hindering a Commonwealth official in performance of his functions - objects of leglislation - strong subjective case - whether manifestly excessive LEGISLATION CITED: Crimes Act 1914 (C’th)
Criminal Code Act 1995 (C’th)
Environment Protection and Biodiversity Conservation Act 1999 (C’th)CASES CITED: R v Bugeja [2001] NSWCCA 196
R v Klein (1989) 39 A Crim R 332
R v Robinson (1992) 62 A Crim R 374
R v Selig (NSWCCA unreported, 4 April 1990)
R v Simon (2003) 142 A Crim R 166
R v Thomson & Houlton (2000) 49 NSWLR 383PARTIES: Henri Robert Morgan (Applicant)
Regina (Respondent)FILE NUMBER(S): CCA 2006/2577 COUNSEL: M Thangaraj (Applicant)
M Buscombe (Respondent)SOLICITORS: Nyman Gibson Stewart Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)
LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 05/11/0535 LOWER COURT JUDICIAL OFFICER: Berman DCJ LOWER COURT DATE OF DECISION: 20 April 2006
2006/2577
WEDNESDAY 24 JANUARY 2007BEAZLEY JA
BUDDIN J
HISLOP J
Introduction
1 BUDDIN J: The applicant seeks leave to appeal against sentences imposed upon him in the District Court following his pleas of guilty, originally entered in the Local Court, to two offences. The first offence to which he pleaded guilty was an attempt to export from Australia regulated native specimens (namely 24 native birds’ eggs) without a permit in contravention of s 303 DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 (C’th). The specimens which the applicant attempted to export consisted of 9 Major Mitchell Cockatoo eggs, 8 Sulphur Crested Cockatoo eggs and 7 Galah eggs. That offence attracts a maximum penalty of 10 years imprisonment and/or a fine of $110,000. The applicant also pleaded guilty to hindering a Commonwealth official in the performance of his functions in contravention of s 149.1 of the Criminal Code Act 1995 (C’th). The maximum penalty for that offence is 2 years imprisonment and/or a fine of $13,200.
2 The applicant received a sentence of 18 months imprisonment for the hindering offence. A sentence of 2 years was imposed upon him in respect of the attempted export of the native birds’ eggs. That sentence was ordered to commence six months after the commencement of the sentence for the hindering offence. The effective overall head sentence was thus one of 2½ years imprisonment. The sentencing judge made an order that the applicant be released on a recognisance pursuant to s 20(1)(b) of the Crimes Act 1914 (C’th) after he had served 18 months of the sentence.
The evidence
3 The applicant attended Sydney Kingsford Smith airport on 16 October 2004 with the intention of flying to South Africa. He had in his possession a first class return ticket to Johannesburg which provided for his return to Australia on 23 October 2004. He was approached by customs officers and his luggage was searched. He was then informed that he was to be the subject of a frisk search and was given a card which provided information about such a search. The applicant placed the card on the table and struck himself about four times in the abdominal region. He stopped hitting himself when requested to do so by the officers.
4 When customs officers searched him, they discovered that he was wearing a form of cummerbund and a vest under his clothing. The vest contained the 24 eggs to which reference was made earlier. All but 2 of the eggs had been crushed. The applicant’s actions in crushing the eggs gave rise to the hindering offence. The species of the various eggs was discovered only when they were subsequently subjected to DNA analysis.
5 The applicant was interviewed by Customs officers and made admissions to them which were sufficient to ensure his conviction of both offences.
6 The applicant gave evidence before the sentencing judge concerning the circumstances in which he came to commit the offences. He said that a neighbour of his, a man whom he referred to as “Mal”, on a number of occasions had approached him to export native bird eggs. On each such occasion he said that he had declined to do so. The applicant maintained that he had agreed to do so on this occasion because he was in the process of setting up a helicopter bungy jumping business in South Africa and that “Mal’s” offer to pay him $5,000 as well as providing him with a first class return air ticket for carrying the eggs would enable him to facilitate that venture.
7 The sentencing judge was not prepared to accept the applicant’s evidence that he intended travelling to South Africa for the purpose of establishing a business there. Although his Honour characterised the applicant’s role as being that of a courier, he concluded that his sole purpose in undertaking the trip was to smuggle the eggs out of Australia for profit.
8 The sentencing judge found that the applicant was aware that what he was doing threatened the viability of native Australian birds. His Honour noted that the particular birds, whose eggs were the subject of the charge of attempting to export, are listed in appendix 2 to the Convention on International Trade and Endangered Species [CITES] as species, which although not presently threatened with extinction, might become so unless trading in them is strictly controlled and monitored.
9 His Honour had before him material concerning the objectives which the Parliament had in mind when it introduced the relevant legislation. It was in that context that his Honour made the following observations, which I would endorse. His Honour said:
- The maximum penalty of ten years imprisonment is a significant one and reflects the seriousness with which Parliament views such conduct. When the Environment Protection and Biodiversity Conservation Act was introduced the second reading speech set out a number of matters indicating why it is that Parliament regarded conduct such as [the applicant’s] as being of such importance. Those matters included the safeguard of the planet’s biodiversity, to prevent illegal trade in Australian native species (which according to the second reading speech in dollar terms is likely to be second only to the illicit drug trade). Australia also has international obligations as a party to the Convention on International Trade and Endangered Species. Conduct such as [the applicant’s] also has the potential to harm the environment of countries where the native fauna is taken. Introducing non native species into a country where there may be no natural predators or natural means of controlling the population of the introduced species causes problems with which those of us here in Australia are only all too aware.
10 A little later his Honour said:
- The Crown provided me with a number of cases concerning sentencing in wild life offences. There is no rule apparently that those who involve themselves in commercial gain, by committing wild life export or import offences must go to full time custody. It was thought before the passage of the Environment Protection and Biodiversity Conservation Act that export offences are less serious than import offences, because of the absence in an export offence of the risk to Australian wildlife and domestic birdlife through the import of diseases and pests. However, the passage of the Environmental Protection and Biodiversity Conservation Act, I am satisfied indicates that the Parliament considers that Australia has an obligation to other countries to prevent as much as it can the export of its native species which may cause problems in those other countries.
11 Given the clear legislative purpose which has been identified, the expectation must be that offences of the present kind would normally attract a full-time custodial sentence. See also R v Klein (1989) 39 A Crim R 332; R v Selig (NSWCCA unreported, 4 April 1990); R v Robinson (1992) 62 A Crim R 374.
12 The objective gravity of a particular instance of this kind of offence will depend upon an assessment of a number of factors. Apart from the factors identified in s 16A of the Crimes Act (C’th), the following list of matters, which is not intended to be exhaustive, may inform the sentencing exercise:
- (a) the nature and extent of the offender’s role;
- (b) the offender’s motivation for committing the offence;
- (c) the level of sophistication of the enterprise in which the offender was involved;
- (d) whether the offender’s conduct revealed any particular aggravating features such as undue cruelty;
- (e) the number, value and/or rarity of the specimens involved;
- (f) the actual harm and/or potential harm occasioned to the particular specimens;
- (g) the actual and/or potential harm or damage occasioned to the environment including, for example, the spread of disease.
13 Naturally enough the subjective features of any particular case may ameliorate the otherwise appropriate penalty.
14 In all the circumstances the sentencing judge was fully justified in taking a serious view of the offence of attempting to export the eggs. Counsel who appeared on behalf of the applicant realistically conceded as much and accordingly did not seek to challenge the head sentence which was imposed in respect of that offence.
15 The applicant is now aged 61. He was 58 at the time of the offences. He was born in Melbourne. After having spent most of his childhood in New Zealand he returned to live in Australia at the age of 21. He is divorced from his first wife. They have two daughters who have now reached adulthood. Several years ago the applicant remarried. He has a commendable work record and for 30 years has been engaged in building and fitting garden sheds. He has also been involved in conducting adventure tours around the world. There was also evidence before the sentencing judge of the applicant’s participation in community activities.
16 The applicant has a short criminal history. In September 2001 he was sentenced in the District Court to perform 400 hours of community service for offences of cultivating and supplying a prohibited drug. Later the same year he was fined $200 in respect of an offence of goods in custody.
17 The sentencing judge specifically took into account the fact that the applicant had pleaded guilty at “an early stage”. His Honour also noted that the applicant had approached police in the early stages of the investigation and had expressed a willingness to provide assistance to them. He was not however prepared to give evidence against “Mal” or any other person involved in the offence out of fear of the consequences of doing so. Moreover, the information which he provided was information that, in the main, was already known to the authorities. Nevertheless his Honour found that the applicant had demonstrated “to a significant degree his contrition and remorse for these offences” in offering assistance.
18 The sentencing judge also had regard to evidence concerning the applicant’s state of health: s 16A(2)(m) of the Crimes Act (C’th). The evidence demonstrated that the applicant suffered from a number of medical conditions. His Honour accepted that he had lost one kidney many years earlier and that he had a cyst on the remaining kidney which required that he be subjected to careful monitoring of not only his diet and fluid intake, but also his blood pressure and cholesterol levels. His Honour observed that “there is a risk that the function of his remaining kidney will get worse with obvious consequences for his ongoing health”. The applicant also suffers from gastric ulcers as well as from significant back pain which is caused by a degenerative lumbar disc. Nevertheless his Honour observed that the applicant was still able to continue to operate his building business, albeit with assistance from his wife.
19 The sentencing judge also accepted evidence from the applicant, which was corroborated by his ex-wife, that he performed an important role in assisting his older daughter in her endeavours to overcome her dependency on heroin. The evidence revealed that he provided both emotional and practical support to his daughter who, at the time, was participating in a treatment program. He also looked after his granddaughter whilst his daughter was in treatment. His Honour found however that whilst it would be difficult, it would not be impossible for alternative arrangements to be made to ensure that that support could continue in the event that the applicant could no longer provide it. Nevertheless his Honour had regard to the fact that a sentence of imprisonment for the applicant would have significant consequences both for his daughter and for his wife: s 16A(2)(p) of the Crimes Act (C’th).
The application
20 The applicant’s principal complaint is that the sentence imposed in respect of the hindering offence was manifestly excessive. The submission put simply is that a sentence of 18 months bespeaks error particularly in respect of an offence in which the maximum penalty is one of 2 years imprisonment.
21 A significant feature of the strong subjective case which the applicant presented was his early plea of guilty. Although the range of discount for the utilitarian aspect of the plea of guilty identified in R v Thomson & Houlton (2000) 49 NSWLR 383 was expressly confined to State offences, this Court has held that it is “a reasonable range to adopt” in the sentencing of Commonwealth offenders: see R v Bugeja [2001] NSWCCA 196; R v Simon (2003) 142 A Crim R 166. Although the sentencing judge did not quantify the discount which he allowed for the early plea, there is no reason to suppose in all the circumstances, that a discount at, or at least approaching the top of, the range identified in Thomson (supra) was not appropriate.
22 There were, as I have said, other aspects of the applicant’s subjective case which also had to be brought into account. I will not repeat them all but included amongst them was the contrition which the applicant had displayed as well as his compromised health which would make his time in custody more burdensome than would otherwise be the case.
23 His Honour was clearly correct in treating the hindering offence as a serious example of its type. The applicant’s conduct in smashing the eggs was intended to make, and did in fact make, it more difficult for the contents of the eggs to be identified and thus for the principal offence to be established. His actions were tantamount to destroying evidence. His conduct also resulted in the loss of 22 otherwise viable specimens. Although the offences were clearly linked to one another, the offence of hindering nevertheless constituted a separate act of criminality. For that reason I reject the submission made on the applicant’s behalf that “the offences were effectively part of one episode of criminality such that both sentences should have been made totally concurrent”. In my view, a degree of accumulation was called for.
24 Notwithstanding the seriousness of the offence, I am nonetheless of the view that the applicant’s complaint about the length of the sentence for the hindering offence has been made out. Indeed I am unable to discern how his Honour was able to give appropriate weight to each of the various subjective matters upon which the applicant was able to rely and yet still arrive at a sentence which fell just short of the maximum penalty. It is also to be observed that his Honour did not make a finding that the applicant’s conduct fell into the worst category of case.
25 In oral argument, counsel submitted that the sentencing judge had erred in treating the damage which the applicant had caused to the eggs as an aggravating factor when that conduct constituted the offence itself. Having considered the passages to which the Court’s attention was drawn I must say that I am not immediately attracted to that argument. Nevertheless it is unnecessary to consider this issue any further in light of the view which I have already expressed concerning the fate of the application.
26 Given the way in which the sentences were originally structured, I am of the view that both the commencement date for the sentence imposed in respect of the attempted export offence and the pre-release period should also be adjusted, albeit to only a modest degree, in order to give practical effect to the reduction in the sentence which I propose in relation to the hindering offence.
27 Accordingly I propose the following orders:
1 Grant leave to appeal.
2 In respect of the hindering offence, quash the sentence imposed in the District Court and in lieu thereof impose a sentence of 12 months imprisonment to commence on 20 April 2006.
4 Quash the order made in the District Court concerning the applicant’s release and in lieu thereof order that the applicant is to be released on 19 July 2007 upon condition that he enters into a recognisance pursuant to s20(1)(b) of the Crimes Act in the sum of $1,000 to be of good behaviour for a period of 12 months from the release date and to appear to receive sentence if called upon to do so at any time in respect of any breach which may be committed within that period.3 In respect of the offence of attempting to export native specimens, confirm the sentence of 2 years imposed in the District Court but order that it commence on 20 July 2006 and expire on 19 July 2008.
28 BEAZLEY J: I agree.
29 HISLOP J: I also agree.
30 BEAZLEY JA: The orders of the Court are those proposed by Buddin J.
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