R (Cth) v Chin - [2021] NSWDC 176

District Court

New South Wales

Amendment notes

Medium Neutral Citation: R (Cth) v Chin [2021] NSWDC 176
Hearing dates: 05 March, 08 March 2021
Date of orders: 08 March 2021
Decision date: 08 March 2021
Jurisdiction: Criminal
Before: Neilson DCJ
Decision:
Aggregate Sentence. Imprisonment for 3 years 6 months. NPP 2 years 4 months.

Catchwords:
CRIME – SENTENCE – Cth Offence – 9 Counts of either attempting to export, aiding an abetting attempts to export or exporting regulated native animal species – Late guilty plea of great utilitarian value – 20% discount allowed – Malaysian born Chinese man who left school at age of 16 years to work in manual jobs. To Australia on a tourist visit but was working in Australia for a number of years – Consideration of what he did in the smuggling syndicate – Neither a principal or a mere courier – Motivated by desire for money – Married one week prior to arrest – No animals died or were injured.

Legislation Cited:
Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Cases Cited:
Imbornone v R [2017] NSWCCA 144
Morgan v R [2007] NSWCCA 8
R v Kennedy [2019] NSWCCA 242
R v Robinson (1992) 62 A Crim R 374

Category: Sentence
Parties: Crown – Regina (Cth)
Offender – Chek Wei Javill Chin
Representation: Crown – James (CDPP)
Offender – McMahon (instructed by Eliopoulos Lawyers)

File Number(s): 2019/00315295
Publication restriction: Nil.

Judgment

HIS HONOUR: Chek Wei Javill Chin stands for sentence as a consequence of pleading guilty to nine counts contained in an indictment dated 10 December 2020. Each count in the indictment is an offence against the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The offences are either an exporting or attempting to export, or aiding and abetting an attempted exporting of regulated native animals. Each offence carries a maximum term of imprisonment of ten years and or a fine of $210,000.
The offences occurred between 14 December 2017 and 17 August 2018 either in the Sydney Metropolitan Area or the Melbourne Metropolitan Area. The offender was arrested on 9 October 2019, that is, more than 14 months after the last crime he committed and has been in custody since that time.

Facts

On 14 December 2017 a person attended an address known as “Topcare House” in Burwood and lodged a package with an international courier for consignment to an address in Hong Kong. The consignor merely identified himself as “Tommy” but it will be apparent from further facts that I shall recite that this was frequently a name used by the offender. The consignment purported to contain a gift. When intercepted at the Sydney Mail Gateway Facility by the Australian Border Force (ABF) as suspicious, it was given to investigators from the Department of Environment and Taronga Zoo staff. The consignment was found to contain three shingleback lizards. The lizards were individually secured inside calico bags inside a shoebox with holes poked through the lid of the shoebox. There were four packets of…

Grounds of appeal

[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.

Continue reading R (Cth) v Chin

Details

AGLC: R (Cth) v Chin [2021] NSWDC 176
Case: [2021] NSWDC 176
Decision Date: 08 March 2021

CaseChat Overview and Summary

The Commonwealth brought a case against Chin, a Malaysian-born Chinese man who had overstayed his tourist visa and was working in Australia. He was charged with nine counts related to the attempted, aided and abetted, or actual exportation of regulated native animal species. Chin pleaded guilty shortly before his trial, resulting in a 20% reduction in his potential sentence. The offender had left school at 16 and worked manual jobs, and had been involved in a smuggling syndicate motivated by a desire for financial gain. He had married just a week before his arrest, and fortunately, no animals were harmed or died in the smuggling operation. The court had to determine the appropriate sentence for these offences.

The primary legal issue was the determination of the appropriate sentence for the nine counts of wildlife trafficking. The court considered the nature and circumstances of the offence, as well as the offender’s background and culpability. The court needed to balance the need for deterrence and retribution with the offender's personal circumstances, including his plea of guilty and the fact that he was not the mastermind or a mere courier in the syndicate. The court also considered the offender's motivation, his background, and the impact of the offence on the community and wildlife conservation efforts.

The court, after considering all the factors, found that Chin’s role in the smuggling syndicate, while not the most central, still involved significant culpability. The court acknowledged his late guilty plea and his otherwise clean criminal record, but also emphasised the seriousness of wildlife trafficking offences and their impact on conservation efforts. The court sentenced Chin to an aggregate term of imprisonment of 3 years and 6 months, with a non-parole period of 2 years and 4 months. This sentence was intended to reflect the seriousness of the crime while also taking into account the mitigating factors present in Chin's case.

Orders

Orders of the court

Aggregate Sentence. Imprisonment for 3 years 6 months. NPP 2 years 4 months.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R (Cth) v Chin [2021] NSWDC 176
Hearing dates:	05 March, 08 March 2021
Date of orders:	08 March 2021
Decision date:	08 March 2021
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	Aggregate Sentence. Imprisonment for 3 years 6 months. NPP 2 years 4 months.
Catchwords:	CRIME – SENTENCE – Cth Offence – 9 Counts of either attempting to export, aiding an abetting attempts to export or exporting regulated native animal species – Late guilty plea of great utilitarian value – 20% discount allowed – Malaysian born Chinese man who left school at age of 16 years to work in manual jobs. To Australia on a tourist visit but was working in Australia for a number of years – Consideration of what he did in the smuggling syndicate – Neither a principal or a mere courier – Motivated by desire for money – Married one week prior to arrest – No animals died or were injured.
Legislation Cited:	Environment Protection and Biodiversity Conservation Act 1999 (Cth)
Cases Cited:	Imbornone v R [2017] NSWCCA 144 Morgan v R [2007] NSWCCA 8 R v Kennedy [2019] NSWCCA 242 R v Robinson (1992) 62 A Crim R 374
Category:	Sentence
Parties:	Crown – Regina (Cth) Offender – Chek Wei Javill Chin
Representation:	Crown – James (CDPP) Offender – McMahon (instructed by Eliopoulos Lawyers)
File Number(s):	2019/00315295
Publication restriction:	Nil.