Qiu v The The King

[2022] NSWCCA 247

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Qiu v R [2022] NSWCCA 247

Hearing dates:

1 August 2022

Date of orders:

25 November 2022

Decision date:

25 November 2022

Before:

Gleeson JA at [1]
Wright J at [2]
Cavanagh J at [3]

Decision:

(1) Leave to appeal granted.

(2) The appeal is allowed.

(3) The sentence imposed in the District Court is quashed and in its place:

(a) Impose an aggregate sentence of imprisonment of 3 years and 10 months;

(b) Under s 19AB(1) of the Crimes Act 1914 (Cth) impose a non-parole period of 2 years; and

(c) The sentence and non-parole period to date from 17 February 2021.

Catchwords:

CRIME — appeals — appeal against sentence — federal offences — attempted exportation of regulated native specimens — possession of CITES-regulated specimens — manifest excess — sentence unreasonable or plainly unjust — resentenced

Legislation Cited:

Crimes Act 1914 (Cth)

Criminal Code (Cth)

Environment Protection and Biodiversity Conversation Act 1990 (Cth)

Cases Cited:

Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

Kirby v R [2021] NSWCCA162

Klein v The Queen (1989) 39 A Crim R 332

Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29

Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25

Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39

R v Kennedy (2019) 101 NSWLR 121; [2019] NSWCCA 242

R v Robison (1992) 62 A Crim R 374

Texts Cited:

Convention on International Trade in Endangered Species of Wild Fauna and Flora (Washington, 3 March 1973)

Category:

Principal judgment

Parties:

Zheyuan Qiu (Applicant)
Regina (Crown)

Representation:

Counsel:
S Kluss (Applicant)
D Staehli SC (Respondent)

Solicitors:
Ross Hill & Associates (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2020/23900

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

17 February 2021

Before:

Marien SC ADCJ

File Number(s):

2020/23900

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant sought leave to appeal from an aggregate sentence imposed upon him in the District Court following a plea of guilty in respect of 19 offences under the Environment Protection and Biodiversity Conversation Act 1990 (Cth) and ss 11.1(1) and 11.2A(1) of the Criminal Code (Cth).

The applicant was sentenced along with his co-offender (his partner) who was sentenced in respect of 14 offences, all being part of the same scheme. The applicant was sentenced to an aggregate sentence of 5 years’ imprisonment with a non-parole period of 2 years and 10 months.

The applicant appealed against the sentence on two grounds, being: (i) that the aggregate sentence was manifestly excessive; and (ii) that he had a justifiable sense of grievance having regard to the sentence imposed on the co-offender (parity).

The Court held (Cavanagh J, Gleeson JA and Wright J agreeing), allowing the appeal:

1. The sentence was manifestly excessive. It was unnecessary to consider the parity ground: [69].

2. The offending was serious but not at the level of seriousness as in R v Kennedy (2019) 101 NSWLR 121; [2019] NSWCCA 242 (“Kennedy”) which was referred to by both parties as intending to provide some guidance to sentencing Courts in respect of this type of offending: [68].

3. Other than one count, the offending all took place over a three month period involving the same conduct, that is, the applicant or the co-offender attended at post offices in Sydney with small parcels containing a small number of specimens (sometimes one or two specimens) providing false particulars and posting the parcels to addresses in Hong Kong or Taiwan: [68].

4. Unlike in Kennedy, the offending did not involve any attempt to import specimens into Australia and thus did not involve the same risk to Australia’s biodiversity as was referred to in Kennedy. The risk to Australia’s biodiversity is an important consideration in sentencing for this type of offending: [68].

5. In offending of this type, the number of specimens involved is important in determining the sentence. The number of specimens involved was approximate to the number involved in Kennedy and did not involve any attempt to import, yet the aggregate sentence imposed was higher than in Kennedy: [57], [68], [73].

6. The Court resentenced providing indicative sentences for each count and imposing a sentence of 3 years and 10 months’ imprisonment with a non-parole period of 2 years: [76], [77].

Judgment

1. GLEESON JA: I agree with Cavanagh J.

2. WRIGHT J: I agree with Cavanagh J.

3. CAVANAGH J: The applicant seeks leave to appeal from a sentence imposed upon him in the District Court of NSW by Acting Judge Marien SC on 17 February 2021 following a plea of guilty in respect of offences under the Environment Protection and Biodiversity Conversation Act 1990 (Cth) (the EPBC Act).

4. The applicant was sentenced in respect of attempting to export regulated native specimens and being in possession of specimens (found in his home). The applicant was sentenced at the same time as his partner, the co-accused, who was similarly sentenced in respect of a number of charges (a lesser amount) of attempting to export and being in possession of such specimens.

5. The applicant was sentenced to an aggregate sentence of imprisonment of 5 years with a non-parole period of 2 years and 10 months commencing 17 February 2021. I set out below a table setting out the offences, the maximum penalties and the indicative sentence for each of the offences, as well as the specimens the subject of each offence:

Sequence	Offence	Max Penalty	Indicative Sentence	Relevant Specimen(s)
40	Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth).	10 years	10 months	4 live Carpet Pythons
41	Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth).	10 years	11 months	6 live Shingleback Lizards, 4 live Saw-Shell Turtles, 1 deceased Saw-Shell Turtle
42	Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth).	10 years	9 months	2 live Shingleback Lizards
43	Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) of the Criminal Code (Cth).	10 years	18 months	1 live Red Bellied Black Snack, 1 live Shingleback Lizard
44	Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) of the Criminal Code (Cth).	10 years	10 months	3 live Eastern Long-Necked Turtles
45	Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth).	10 years	9 months	1 live Eastern Bearded Dragon
46	Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth).	10 years	9 months	2 live Common Blue Tongue Skinks
47	Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth).	10 years	9 months	2 live Eastern Water Dragons
48	Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth).	10 years	9 months	2 live Common Blue Tongue Skinks
49	Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth).	10 years	9 months	2 live Common Blue Tongue Skinks
50	Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth).	10 years	10 months	4 live Blotched Blue Tongue Skinks
51	Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth).	10 years	12 months	8 live Eastern Water Dragons
52	Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth).	10 years	10 months	2 live Diamond Pythons
53	Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth).	10 years	10 months	2 live Common Blue Tongue Skinks, 1 deceased Common Blue Tongue Skink
54	Possession of CITES specimens c/s 303GN(2) of the Environment Protection and Biodiversity Conservation Act 1999 and 11.2A(1) of the Criminal Code (Cth).	5 years	6 months	9 Turtles (various species)
55	Possession of CITES specimens c/s 303GN(2) of the Environment Protection and Biodiversity Conservation Act 1999 and 11.2A(1) of the Criminal Code (Cth).	5 years	8 months	12 Ball Pythons, 25 Tortoises (various species), 12 Turtles (various species)
56	Possession of CITES specimens c/s 303GN(2) of the Environment Protection and Biodiversity Conservation Act 1999 and 11.2A(1) of the Criminal Code (Cth).	5 years	6 months	6 Turtles (various species), 19 South American Horned Frogs
57	Possession of CITES specimens c/s 303GN(2) of the Environment Protection and Biodiversity Conservation Act 1999 and 11.2A(1) of the Criminal Code (Cth).	5 years	8 months	12 Snakes (various species), 8 Turtles (various species)
58	Possession of regulated live specimens in Part 2 of the list referred to s 303EB c/s 303GN(6) of the Environment Protection and Biodiversity Conservation Act 1999 and 11.2A(1) of the Criminal Code (Cth).	5 years	5 months	1 Milk Snake 1 Twist-Necked turtle

6. As can be seen from the table, the applicant pleaded guilty to 19 offences, 14 of which were attempt to export regulated native specimens contrary to s 303DD(1) of the EBPC Act and ss 11.1(1) and 11.2A(1) of the Criminal Code (Cth).

7. The maximum penalty in respect of each of those offences is 10 years. Each of the possession offences carries a maximum penalty of 5 years.

8. The applicant pursues two grounds of appeal, being:

1. The sentence is manifestly excessive.

2. The applicant has a justifiable sense of grievance when considered against the sentence imposed on the co-offender (parity).

Circumstances of offending

9. For the purposes of sentencing, there were agreed facts which the sentencing judge adopted.

10. In the period 20 November 2018 until 20 January 2020, the applicant attempted to export specimens to either Taiwan or Hong Kong by concealing the native specimens in parcels and lodging the parcels at a number of different post offices around Sydney. The applicant personally lodged 7 parcels. The co‑offender (on behalf of the applicant) lodged another 10 separate parcels at various post offices located around Sydney.

11. The methodology was generally the same on each occasion. Either the applicant or the co-offender on his behalf lodged one or more parcels at a post office. Each parcel contained false sender details and falsely stated that the parcel contained items such as ‘Home Decoration’, ‘Stereo’, ‘Microphone’ or ‘Speaker’.

12. Each of the parcels was intercepted by officers within the Australian Border Force (ABF) of the Sydney Gateway Facility (SGF). Each of the parcels contained specimens.

13. Specifically:

1. On 20 November 2018, the co-offender lodged two parcels bound for Taiwan at the Lidcombe Post Office. When intercepted, each parcel contained 2 live Carpet Pythons. The specimens were located in separate calico bags within a Tupperware container with newspaper.

2. On 28 October 2019, the co-offender lodged a parcel bound for Hong Kong at the Belfield Post Office. When intercepted, the parcel was found to contain 4 live Shingleback Lizards, 4 live Saw-Shell Turtles and 1 deceased Saw-Shell Turtle which were located within bookshelf speakers wrapped with bubble wrap.

3. On 28 October 2019, the applicant lodged a parcel bound for Hong Kong at the Belmore Post Office. When intercepted, the parcel was found to contain 2 live reptiles identified as Shingleback Lizards tied inside a pillowcase inside a speaker box in the parcel.

4. On 30 October 2019, the co-offender lodged a parcel bound for Taiwan at the Enfield Post Office. When intercepted, the parcel was found to contain 2 live Shingleback Lizards inside a calico bag and located within a brown speaker wrapped in bubble wrap and a foreign newspaper.

5. On 12 November 2019, the applicant lodged a parcel bound for Taiwan at the Campsie Post Office. When intercepted, the parcel contained 1 live reptile identified as a Red Bellied Black Snake inside a calico bag with the end tied, within a small computer brand speaker. Red Bellied Black Snakes are venomous and a bite to a person could cause serious harm with a potential risk of death.

6. On 12 November 2019, the applicant lodged a parcel bound for Hong Kong at the Campsie Post Office. When intercepted, the parcel contained 1 live reptile identified as a Shingleback Lizard tied inside a black stocking and taped to a piece of polystyrene within a speaker.

7. On 20 November 2019, the applicant lodged a parcel bound for Hong Kong at the Enfield South Post Office. When intercepted, the parcel contained 3 live reptiles identified as Eastern Long-Necked Turtles.

8. On 5 December 2019, the applicant lodged a parcel at the Belmore Post Office. When intercepted, the parcel contained 1 live reptile identified as an Eastern Bearded Dragon tied inside a black stocking and located inside a speaker in the parcel.

9. On 12 December 2019, the co-offender attended the Enfield South Post Office and lodged a parcel bound for Hong Kong. When intercepted, the parcel contained two live Common Blue Tongue Skinks tied inside a black stocking and located within a toy truck in the parcel.

10. On 16 December 2019, the co-offender attended the Granville Post Office and lodged a parcel bound for Taiwan. When intercepted the parcel contained 2 live Eastern Water Dragons located inside separate toy trucks with newspaper inside the parcel.

11. On 17 December 2019, the co-offender attended the Strathfield Post Office and lodged a parcel bound for Hong Kong. When intercepted, the parcel contained 2 live Common Blue Tongue Skinks located inside a black stocking with a knot tied to separate it and located within a speaker in the parcel.

12. On 18 December 2019, the co-offender attended the Burwood Post Office and lodged a parcel bound for Hong Kong. When intercepted, the parcel contained 2 live Common Blue Tongue Skinks, again tied inside a black stocking located within a speaker in the parcel.

13. On 6 January 2020, the applicant attended the Belmore Post Office and lodged a parcel bound for Hong Kong. When intercepted, the parcel contained 4 live reptiles identified as Blotched Blue Tongue Skinks tied in 2 black stockings inside 2 toy trucks.

14. On 7 January 2020, the co-offender attended the Cabramatta Post Office and lodged a parcel bound for Hong Kong. When intercepted, the parcel contained 8 live Eastern Bearded Dragons located inside 2 toy trucks.

15. On 17 January 2020, the applicant attended the Narwee Post Office and lodged a parcel bound for Taiwan. When intercepted the parcel contained 2 live diamond pythons tied in black stockings within a small speaker box.

16. On 20 January 2020, the co-offender attended the Enfield Post Office and lodged a parcel bound for Taiwan. When intercepted, the parcel contained 2 live and 1 deceased Common Blue Tongue Skinks located inside speakers and packaging inside the parcel.

14. It was agreed that each of the specimens seized in the parcels is defined as a regulated native specimen under s 303DA of the EPBC Act and that neither the applicant nor the co-offender had held any permits or exemptions allowing them to export regulated native specimens pursuant to the EPBC Act.

15. It was also agreed that, on two occasions, specimens were located in socks or stockings and taped to polystyrene. On two other occasions, deceased specimens were located in the parcels and there had been a failure to provide proper and sufficient water to the animals.

16. Further, the animals did not have appropriate ventilation to enable normal respiration and the animals’ forelimbs were taped to their bodies in 4 of the parcels. Placing anything around the chest like tape would prevent an animal from being able to breathe.

17. A search warrant was executed at the applicant’s residence on 23 January 2020. The co-offender was present at that time, although she did not answer the door. A locksmith was used to gain entry to the premises.

18. A large number of regulated native specimens and exotic specimens were located within the premises. The co-offender informed the officers that the specimens belonged to the applicant.

19. A total of 105 regulated native specimens and exotic specimens were found during the execution of the search warrant. They consisted of a large number of different varieties of turtles, tortoises and snakes. The applicant was subject to 5 separate possession charges, having regard to the differing classification of the specimens as set out in the Appendices to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (Washington, 3 March 1973) (CITES). Classification under CITES is based upon the degree of risk of extinction to the species posed by international trade, and different regulations apply depending on which Appendix the species is listed within. Australia implements CITES into its national legislation through the EPBC Act.

20. During the investigations into the offending, the applicant admitted to the offending and admitted to packing some of the parcels, posting them and intending to send them to Hong Kong and Taiwan. He admitted to providing false particulars and receiving offers for reptiles through Facebook. He also admitted that he was in possession of Australian native and exotic specimens and those specimens found at the premises were his collection.

21. The co-offender agreed that she completed and lodged the consignment forms with false particulars and that she occasionally cared for the specimens in her residence. However, she denied knowing the contents of the parcels and stated that she had never packed any. There was agreement that the co-offender’s role was to send some of the parcels on behalf of the applicant.

Remarks on sentence

22. After summarising the facts, the sentencing judge observed:

“Those facts disclose commission by each of the offenders of offences of great seriousness. That is clearly reflected in the maximum penalty for the attempt to export regulated native specimens offence being ten years’ imprisonment. General deterrence is a powerful consideration in sentencing for such offences – see Klein v The Queen (1989) 39 A Crime R 33.”

23. It is not clear whether his Honour was intending to make a finding that the offending conduct was offending “of great seriousness” or whether his Honour was merely observing that the offences themselves must be considered of great seriousness having regard to the maximum penalty.

24. The former view might be supported by the fact that his Honour did not go on and make any finding as to objective seriousness, merely referring to objective seriousness in a general way when stating his view that nothing other than a full-time custodial sentence was appropriate.

23. On the other hand, reading the paragraph of the sentencing judgment to which I have just referred as a whole tends to suggest that his Honour was making a general observation that this type of offending is of great seriousness. Having said that, it seems plain from the sentencing judgment as a whole that his Honour viewed all of the offending conduct as serious. There is no appeal from that finding and, in the context of this matter, there is no error in not making a specific finding as to where in the range of objective seriousness the offending might fall (see Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [29]).

24. His Honour also observed that general deterrence, denunciation and protection of the community are particularly relevant in cases under the EBPC Act which involve threats to biodiversity: see Klein v The Queen (1989) 39 A Crim R 332; R v Robison (1992) 62 A Crim R 374 at 378-379 (Marks, Beach and Coldrey JJ) (“Robison”); and R v Kennedy (2019) 101 NSWLR 121; [2019] NSWCCA 242 at [85] (Payne JA and Fullerton J, Adamson J agreeing) (“Kennedy”).

25. His Honour then turned to the subjective cases of the applicant and the co-offender, referring to the sentencing assessment report and the offender’s relationship with the co-offender. The applicant had no prior convictions and informed the author of the sentencing assessment report that he had never transgressed the criminal law in China. His Honour noted that the applicant initially denied knowing that what he was doing was illegal, although he ultimately conceded that he did know it was illegal.

26. The applicant maintained that he was on a low wage and that he needed to provide for his children and send money to his ailing father in China. He agreed that he committed acts of cruelty in attempting to export the animals and said he would be prepared to undergo counselling.

27. His Honour then had regard to a report of a forensic psychologist, Mr Jason Borkowski, dated 26 October 2020. The applicant informed Mr Borkowski that he was partly motivated by financial gain and that the money was to support his parents and pay for his father’s medical costs. The applicant informed Mr Borkowski that he felt that he had an obligation to care for his parents. The applicant stated that he did not receive any money directly, albeit he estimated that the buyer would be depositing several thousand dollars per consignment into his parents’ account.

28. His Honour had regard to Mr Borkowski’s opinion that the applicant presented with adjustment disorder with mixed disturbance of emotions and conduct.

29. The sentencing judge also referred to a letter from the applicant’s ex-wife to the effect that the applicant had taken on the important role of assisting with the care of the children and that the applicant was generally sorry and remorseful for what had happened. His Honour made no specific finding that that the applicant was remorseful and the applicant did not give evidence on the sentencing hearing.

30. His Honour observed that in sentencing the applicant he must comply with Part 1B of the Crimes Act 1914 (Cth) and further that, in determining the sentence to be passed, he must impose a sentence that is of a severity appropriate in all of the circumstances of the offence (s 16A).

31. His Honour turned to the matters referred to in s 16A and found that:

1. The applicant was the prime mover of the enterprise and the principal offender and the co-offender was at all relevant times acting under his direction;

2. Both offenders were motivated by financial gain;

3. The enterprise was planned and sophisticated, spanning a period of 14 months;

4. There was undue cruelty to specimens and some suffered harm and all suffered potential harm;

5. Both offenders were entirely indifferent to the risks to the safety and welfare of the specimens which they were posting;

6. Although there was no actual harm or damage occasioned to the environment because the specimens were intercepted, there was potential harm to the environment by the potential loss of biodiversity; and

7. Finally, his Honour had regard to the absence of any prior convictions and accepted that the applicant was at low risk of re-offending and had favourable prospects of rehabilitation.

34. In considering the appropriate sentence, his Honour had particular regard to this Court’s decision in Kennedy, setting out the facts and circumstances of that case and having regard to the Court’s suggestion that the sentence in Kennedy would have utility in providing guidance to sentencing courts in the future.

35. His Honour rejected the submission put on behalf of the applicant that in Kennedy the most substantial indicative sentences were for the import and attempt to import offences. Rather, his Honour observed that those offences related to a very large number of regulated live specimens. In his Honour’s view, there was nothing in the EPBC Act to suggest an import or attempt to import offence is inherently more serious than the offence of export or attempt to export. His Honour observed that both have the same maximum penalty.

36. His Honour rejected the submission of the applicant that any sentence imposed upon him should be served by way of an intensive correction order. His Honour then provided indicative sentences (which I have already set out at [5]) leading to the imposition of the aggregate sentence of 5 years with a non-parole period of 2 years and 10 months.

Ground 1 – Manifest excess

The applicant’s submissions

37. The applicant does not contend that there was any particular error in any factual finding of the sentencing judge but says that, having regard to his Honour’s findings, the sentence was manifestly excessive.

38. Whilst the applicant refers to statistics from the Commonwealth Sentencing Database and the JIRS Database for NSW, the applicant acknowledges that there are so few cases that little assistance is to be gained from the range of sentences referred to in the statistics.

39. However, the applicant seeks to distinguish this Court’s decision in Kennedy in suggesting that the sentence in Kennedy was very much influenced by the importation offences and the financial aspect of the offending. The applicant submits that it was these two particular features of the criminal conduct that resulted in this Court increasing the sentence in Kennedy. Further, the applicant submits that the absence of any finding as to objective seriousness and any threat to Australia’s biodiversity makes Kennedy an inappropriate comparator.

40. The applicant contends:

“That a lesser aggregate sentence was required in all the circumstances particularly given the lesser objective criminality, plea of guilty, and significant subject considerations that his Honour found.”

The Crown submissions

41. The Crown submits that Ground 1 should be rejected. The Crown refers to the sentencing judge’s characterisation of the offending as being of “great seriousness” as well as the sentencing judge’s reference to general deterrence and the cruelty involved in the offending. The Crown submits that the aggregate sentence imposed appropriately reflected the total criminality of the offending, particularly as the applicant engaged in 14 distinct attempts to export Australian fauna in circumstances in which he knew that his conduct was illegal and his motive was entirely financial.

42. The Crown submits that the applicant is incorrect as to the significance of the financial aspect of the offending in Kennedy. Further, the Crown submits that the principles enunciated in Kennedy pertain to sentencing offences under the EPBC Act that are general in nature and are not limited to the importation offences under the Act.

43. Further, the Crown says that the applicant did not give evidence on the sentence hearing and there was no finding that the applicant was remorseful or contrite. He appeared to have difficulty accepting his offending.

44. In the circumstances, the Crown submits that the applicant has not established that the sentence imposed was unreasonable or plainly unjust.

Determination

45. In Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 (“Dinsdale”), the Court (Gleeson CJ and Hayne J) said at [6]:

“Manifest inadequacy of sentence, like manifest excess, is a conclusion.  A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent.  It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive.  It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non‑custodial) or because the sentence imposed is manifestly too long or too short.  But to identify the type of error amounts to no more than a statement of the conclusion that has been reached.  It is not a statement of reasons for arriving at the conclusion.  A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain.  The degree of elaboration that is appropriate or possible will vary from case to case.”

46. Further, as Beech-Jones J (as his Honour then was) (Harrison and Cavanagh JJ agreeing) recently said in Kirby v R [2021] NSWCCA 162 at [45]:

“In the case of an appeal from an aggregate sentence, the indicative sentences are not appellable in their own right but they can be a guide to whether error is established in relation to the aggregate sentence (JM v R [2014] NSWCCA 297 at [40] per RA Hulme J with whom Hoeben CJ at CL and Adamson J agreed and cases cited thereat; ‘JM’) although, even if an indicative sentence is considered excessive, that is not determinative (PD v R [2012] NSWCCA 242 at [44], [82]; BJS v R [2013] NSWCCA 123 at [252]-[254]). The ultimate question will be ‘whether [or not] the aggregate sentence reflects the totality of the criminality involved’ (JM at [40]).”

47. The applicant must demonstrate that the sentence was “unreasonable or plainly unjust”: Dinsdale at [6]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ).

48. Further, it is not sufficient that this Court might have exercised the sentencing discretion in a manner different to the approach taken by the sentencing judge, even if that be so: see Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).

49. Other cases can be considered for the purposes of ensuring consistency in sentencing, but even though other cases might suggest a range, the sentence which might be imposed by a sentencing judge in the exercise of the sentencing discretion is not determined by that range (see Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [41] (French CJ, Hayne, Kiefel and Bell JJ)). Having said that, in circumstances in which this Court specifically suggested that the judgment in Kennedy should provide a guide to future sentencing courts, regard should be had to Kennedy (as the sentencing judge purported to do).

50. Both parties relied on Kennedy (in different ways) as supporting their position. In Kennedy, the Court observed at [90]:

“This is some of the most serious offending of its kind which has come before the courts. In making that finding, we are conscious that there is little effective guidance provided by decided cases. The list of comparative sentences provided by the Crown involved nearly all first instance decisions of District Courts around Australia. None of those cases was suggested to involve offending as serious as the present case. The few intermediate appellate court decisions on these sections involved much less serious offending. Morgan v R [2007] NSWCCA 8 involved an attempt to export 24 native bird eggs and hindering a Commonwealth official in the performance of his duties by breaking the eggs when he was questioned at the airport. Klein v R (1989) 39 A Crim R 332 involved the importation of seven birds and concealing from a quarantine officer certain goods, namely the birds. R v Robison (1992) 62 A Crim R 374 involved the attempted export of 47 native bird eggs.”

51. Further, in considering whether the residual discretion should be exercised, the Court said at [98]:

“The speed with which this appeal was brought, the seriousness of the criminal conduct represented not only by the individual breaches of the EPBC Act but by the range of regulated native specimens the respondent attempted to export and the range and type of regulated live specimens he imported or attempted to import, and the guidance the sentence provides as a principled approach to sentencing for offending of that kind, strongly suggests that the sentence in this case would have significant utility in providing guidance to sentencing courts in the future. We are satisfied that this is a case where the residual discretion should not be exercised.”

52. Neither party directed the Court to any more recent case in which sentences have been imposed in respect of offending under the EPBC Act.

53. In Kennedy, the offender was sentenced in respect of offences under the EPBC Act, being:

1. Two counts relating to attempts to export regulated native specimens contrary to s 303DD of the EPBC Act and s 11.1(1) of the Criminal Code (Cth);

2. Two counts relating to importations and attempted importations of regulated live specimens contrary to s 303EK(1) of the EPBC Act;

3. One count relating to possession of specimens which were non-native CITES-regulated specimens contrary to s 303GN(2) of the EPBC Act; and

4. One count of dealing with money less than $100,000 suspected of being proceeds of crime contrary to s 400.9(1A) of the Criminal Code (Cth).

54. The sentencing judge imposed an aggregate sentence of 3 years’ imprisonment to be served by way of an intensive correction order. The Crown successfully appealed. The sentence was increased to 4 years’ imprisonment with a non-parole period of 2 years and 6 months.

55. There are some similarities between Kennedy and this matter, particularly in relation to the attempt to export offences. There are also some differences, the two most significant being that the offender in Kennedy was also convicted of attempt to import offences and his offending was more sophisticated and involved more planning, including attending Thailand for the purposes of preparing and scoping his venture.

56. There are also some similarities in the subjective cases in that both the offender and the applicant were motivated by financial gain, both had no prior criminal convictions and both were found to have good prospects of rehabilitation and were not likely to reoffend. In Kennedy, there was a specific finding of remorse. Although the sentencing judge referred to the letter from the applicant’s ex-wife as to his remorse, the sentencing judge made no specific finding about remorse.

57. The methodology adopted by the offender in attempting to export native specimens in Kennedy was also somewhat similar. Both packaged parcels with the specimens hidden in other goods and arranged for other persons to attend at the post offices to post the parcels providing false sender details. Indeed, the total number of specimens which the applicant sought to export was a similar number to that which the offender sought to export in Kennedy, albeit in Kennedy the offender only sought to export on two separate occasions.

58. On the first occasion (26 July 2016), 4 packages were posted at Post Offices in Toongabbie and Greystanes by a third party. Each package was found to contain regulated native specimens. In total, 24 live Shingleback Lizards and 10 live native Turtles were found in cloth bags inside plastic containers (Sequence 83).

59. On the second occasion (12 October 2016), the offender packaged and posted two further packages, again addressed to an address in Sweden and each containing false sender details. There were 9 live Shingleback Lizards wrapped in cloth bags inside plastic containers (Sequence 84).

60. In respect of Sequence 83, the Court suggested an indicative sentence of 1 year and 9 months (34 specimens). In respect of Sequence 84, the Court suggested an indicative sentence of 1 year and 6 months (9 specimens). Again, like this matter, that was after the 25% discount for the plea of guilty.

61. Although the applicant adopted the same general methodology as the offender in Kennedy, he chose to send the specimens in much smaller numbers but, as is obvious from the number of offences, on more occasions.

62. The aggregate sentence in Kennedy was also reflective of the attempt to import offences. This offending involved travelling to Bangkok and planning to send a number of packages from Bangkok containing reptiles, fish and stingrays to Sydney. The offender completed false sender details and suggested that each of the packages contained a water filter. He deposited the packages at two separate FedEx offices in Thailand and paid $3,024 (AUD) in postage. Officers of the Department of Agriculture and Water Resources intercepted 16 of the parcels posted from Bangkok. They were found to include in total 23 live Chinese Softshell Turtles, 15 live Alligator Snapping Turtles, 10 live Snakehead Fish, 58 dead Snakehead Fish, 11 Neo-Tropical Stingrays, 2 live Sugar Gliders, 18 dead Sugar Gliders and 15 dead Veiled Chameleons. The live specimens were subject to one charge and the dead specimens were subject to another charge. All of the live specimens were destroyed. The Veiled Chameleons were listed in CITES Appendix II as species which could become extinct if trade is not regulated.

63. The Court found that the sentence imposed was manifestly inadequate and increased the sentence from 3 years’ imprisonment to be served by way of Intensive Correction Order to 4 years’ imprisonment. It identified a number of reasons for doing so at [86], including that:

1. The maximum penalty for both importation and exportation is an indication of the seriousness of threats to Australian fish, fauna and biodiversity.

2. Regard must be had to the potentially catastrophic consequences for the Australian ecosystem involved in the importation offences. Specifically, the Court identified that:

1. The Chinese Softshell turtles presented an inherent risk to the Australian fish population and other aquatic creatures;

2. The Alligator Snapping Turtles presented a potentially catastrophic ecological risk including to Australian fish and fauna;

3. The Snakehead Fish presented a significant risk to food, webs and ecosystems;

4. The Veiled Chameleons posed a significant threat to small mammals and native birds; and

5. Although the Sugar Gliders posed a low risk to biodiversity, they had the potential to carry pathogens that could be harmful to Australian marsupials.

3. The Court also had regard to the fact that this type of offending is notoriously difficult to detect, such that the principles of general deterrence, specific deterrence, punishment and denunciation must be given effect.

64. As the Court said, each of the offences warranted a sentence of imprisonment, again emphasising the risks associated with the attempt to import some of the animals. The Court provided indicative sentences for the import offences of 3 years’ imprisonment and 2 years and 6 months’ imprisonment.

65. On this appeal, the parties differ as to the significance of the attempt to import offending to the Court’s decision in Kennedy. The Crown adopts the reasoning of the sentencing judge to the effect that bearing in mind the export and import offences have the same maximum penalty (10 years), they have the same importance or significance in the total sentence.

66. On the other hand, the applicant submits that the aggregate sentence in Kennedy and the Court’s comments about the seriousness of the offending and the impact on Australia’s biodiversity were very much reflective of the attempt to import offences. On the applicant’s case, this is important as it might tend to suggest that the sentence imposed on the applicant is plainly unjust.

64. I have come to the conclusion that the aggregate sentence imposed upon the applicant was unreasonable and plainly unjust and thus Ground 1 has been established.

65. I have come to this conclusion for the following reasons:

1. The applicant’s offending did not involve any importation or attempt to import offences. Whilst any attempt to export Australia’s native specimens may potentially have an effect on Australia’s fish, fauna and biodiversity, the effects are not of the type referred to as potentially catastrophic arising from the importation offences in Kennedy. The offending of the applicant remains serious offending but it does not fall in the category identified in Kennedy as some of the most serious offending of its kind. It falls below the level of offending in Kennedy.

2. Contrary to what appears to have been the views of the sentencing judge, the Court in Kennedy emphasised and placed significance on the potentially catastrophic effects of the import offences rather than the attempt to export offences. It is correct to say that both carry the same maximum penalty and there is nothing in the legislation which, of itself, directs that an import offence should be treated more seriously than an export offence but, in the particular circumstances of this case, the concerns raised by the Court in Kennedy about the danger to the Australian ecosystem do not arise.

3. It is important to observe that there is no appeal from the indicative sentences but a comparison of the indicative sentences in this matter with the indicative sentences in Kennedy (involving approximately the same number of specimens) reveals that the indicative sentences in this matter add up to three times more than the indicative sentences for the export offences in Kennedy, although approximately the same number of specimens is involved. That may be reflective of the number of offences in this matter and provides a good example of why there is no appeal from the indicative sentences. However, the aggregate sentence must reflect the total criminality and an important factor in sentencing for these types of offences is the number of specimens. Further, each offence was committed as part of the same venture undertaken by the applicant.

4. The sentence in Kennedy was intended to be a guide to sentencing courts. The offending in Kennedy was described as some of the most serious coming before the Court, being very serious offending with potentially catastrophic effects on the Australian ecosystem. The total sentence of 4 years was obviously reflective of both the import and export offences. Yet, in respect of attempts to export somewhat similar specimens (including some different ones), without any attempt to import, the applicant has received a higher aggregate sentence, that is, of 5 years.

5. The offending in this matter did not involve the same level of sophistication or planning as in Kennedy. There was no international travel or scoping work. The applicant appears to have been responding to Facebook enquiries.

6. Whilst the number of offences is high, they are all of the same type and all involve a small number of specimens. Except for the first offence which occurred a year earlier, all of the offending took place over a three month period.

7. The applicant’s strong subjective case.

69. In the circumstances, I am satisfied that the sentence imposed was unreasonable or plainly unjust. The applicant succeeds on Ground 1 and thus it is necessary to re-sentence (see Kentwellv The Queen (2014) 252 CLR 601; [2014] HCA 37). It is not necessary to consider Ground 2.

Re-sentence

70. There is no dispute as to the facts and it is not necessary to restate them during resentencing. I have already referred to them in this judgment.

71. In my view, the offending was serious in that it involved an attempt to export a number of types of Australia’s native specimens over a period of 14 months. Further, I adopt the findings of the sentencing judge that in some respects the offending involved cruelty to the specimens. Having said that, other than in respect of Sequence 43, I consider that each of the offences fall below the mid-range of objective seriousness. Most of the offences involved an attempt to export a small number of specimens. For example, Sequences 42, 43, 46, 47, 48, 49, 52 and 53 each involved only 2 specimens, and Sequence 45 involved only 1 specimen.

72. I also adopt the finding of the sentencing judge that the attempt to export the Red Bellied Black Snake (Sequence 43) posed additional risks to the safety of persons because of its venom. That offending was more serious, albeit the actual offence only involved one specimen.

73. It is important in assessing the appropriate indicative sentences that the indicative sentences reflect only an appropriate sentence for the particular offence. This is particularly relevant to the possession offences. The aggregate sentence must reflect the total criminality but it is important that each individual indicative sentence reflect only the offending involved in that offence. The number of specimens is particularly important.

74. I adopt the findings of the sentencing judge in respect of the applicant’s subjective case. The applicant has good prospects of rehabilitation and is unlikely to reoffend. Although he relied on a letter from his ex-wife on the sentencing hearing in which she suggested he was remorseful, he did not give evidence on the sentencing hearing and I make no finding on remorse. The applicant has co-operated with the authorities leading to the discovery of specimens in his home. This is a relevant factor under s 16A of the Crimes Act. Further, the applicant is entitled to a 25% discount on account of the utilitarian value of his early guilty plea.

75. In resentencing the applicant, I apply the principles set out in s 16A Div 2 Pt 1B Crimes Act. General deterrence and denunciation are particularly important in sentencing for this type of offending. I am satisfied that no sentence other than a sentence of imprisonment would be appropriate.

76. I provide indicative sentences as follows:

Sequence	Offence	Max Penalty	Indicative Sentence
40	Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth).	10 years	6 months
41	Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth).	10 years	7 months
42	Attempt to export regulated native specimens c/s 303DD(1) fof the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth).	10 years	6 months
43	Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) of the Criminal Code (Cth).	10 years	12 months
44	Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) of the Criminal Code (Cth).	10 years	6 months
45	Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth).	10 years	6 months
46	Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth).	10 years	6 months
47	Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth).	10 years	7 months
48	Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth).	10 years	6 months
49	Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth).	10 years	6 months
50	Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth).	10 years	7 months
51	Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth).	10 years	7 months
52	Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth).	10 years	6 months
53	Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth).	10 years	6 months
54	Possession of CITES specimens c/s 303GN(2) of the Environment Protection and Biodiversity Conservation Act 1999 and 11.2A(1) of the Criminal Code (Cth).	5 years	3 months
55	Possession of CITES specimens c/s 303GN(2) of the Environment Protection and Biodiversity Conservation Act 1999 and 11.2A(1) of the Criminal Code (Cth).	5 years	4 months
56	Possession of CITES specimens c/s 303GN(2) of the Environment Protection and Biodiversity Conservation Act 1999 and 11.2A(1) of the Criminal Code (Cth).	5 years	3 months
57	Possession of CITES specimens c/s 303GN(2) of the Environment Protection and Biodiversity Conservation Act 1999 and 11.2A(1) of the Criminal Code (Cth).	5 years	4 months
58	Possession of regulated live specimens in Part 2 of the list referred to s 303EB c/s 303GN(6) of the Environment Protection and Biodiversity Conservation Act 1999 and 11.2A(1) of the Criminal Code (Cth).	5 years	3 months

77. I must have regard to the total criminality and have regard to the number of offences. Whilst the number of specimens sought to be exported on each occasion was only small, the applicant engaged in repetitive attempts to export. The sentence must necessarily reflect all of the offending. I impose an aggregate sentence of 3 years and 10 months years with a non-parole period of 2 years.

78. The applicant has been in custody since 17 February 2021. As such, his sentence will expire on 16 December 2024. He will be eligible for release on parole on 16 February 2023.

79. The orders I propose are:

1. Leave to appeal granted.

2. The appeal is allowed.

3. The sentence imposed in the District Court is quashed and in its place:

1. Impose an aggregate sentence of imprisonment of 3 years and 10 months;

2. Under s 19AB(1) of the Crimes Act 1914 (Cth) impose a non-parole period of 2 years; and

3. The sentence and non-parole period to date from 17 February 2021.

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Decision last updated: 25 November 2022