R v Chibana
[2019] VCC 1286
•9 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication | |
Case No: CR-19-01117
| THE QUEEN |
| v |
| AKANE CHIBANA |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 August 2019 | |
DATE OF SENTENCE: | 9 August 2019 | |
CASE MAY BE CITED AS: | R v Chibana | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1286 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms V Hogarth | Office of Public Prosecutions (Cth) |
| For the Accused | Mr P Lawrie | Ainsworth Albright |
HER HONOUR:
Introduction
1 Akane Chibana, you have pleaded guilty to an indictment containing one charge of attempt to export native regulated specimens contrary to subsection 11.1 (1) of the Criminal Code (Cth) and subsection 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), which carries a maximum penalty of 10 years’ imprisonment or a fine of 1,000 penalty units or both.
2 The circumstances in which you came to commit that offence are set out in the Summary of Prosecution Opening dated 4 July 2019 which was read into evidence at your hearing (Exhibit A). The Prosecution also filed Submissions on Sentence with an annexed table of comparative cases (Exhibit B). I have had regard to those documents when determining the appropriate sentence in your case.
3 In addition to making oral submissions, your counsel relied on a written Outline of Submissions (Exhibit 1), a medical report (Exhibit 2) and a bundle of character references (Exhibit 3). I have also had regard to each of these documents in formulating my reasons for sentence.
Circumstances of the offending
4 You are a Japanese national and you speak very little English. In February 2019, you applied for and were granted an electronic travel authority visa, which is a tourist and business visa that allows multiple entries into Australia, with a maximum stay of three months for each entry. On 6 February 2019, you arrived at Melbourne International Airport. On your incoming passenger card, you indicated that you intended to stay in Fremantle, Western Australia. On 19 February 2019, you departed Australia through Melbourne International Airport. On 19 April 2019, you returned to Australia, this time arriving at Sydney International Airport, and then shortly afterwards you flew on to Adelaide.
5 That same day, the Australian Border Force received information from an overseas authority suggesting that you would depart Australia for Japan on 21 April 2019, that you would be carrying native lizards without an exemption or permit, and that you had an association with a known Japanese international wildlife smuggler, from whom you had previously received a money transfer.
6 On 21 April 2019, you flew on a domestic flight from Adelaide to Melbourne. At Melbourne airport you then checked into a flight to Tokyo. Your checked luggage comprised one large red suitcase, and you then passed through immigration.
7 Australian Border Force officers retrieved your suitcase for initial examination and they x-rayed the suitcase which demonstrated anomalies. The suitcase was then opened and amongst its contents were two large containers that had been covered with a white towel. Examination of those containers revealed that they contained a total of 19 live reptiles (17 shingle-back lizards and 2 blue-tongued lizards).
8 Shingle-back and blue-tongued lizards are regulated native specimens within the meaning of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The exportation of regulated native specimens is prohibited without a permit, and you did not have a permit to export a regulated native specimen.
9 I understand that officers observed that at least eight of the lizards had ticks, which indicated that the lizards had been removed from the wild.
10 You were then escorted to an interview room in the departures area, and you were questioned about the contents of your baggage. You confirmed that the red suitcase belonged to you, and that you had packed it yourself. When asked if the suitcase contained anything sharp or dangerous, you stated that, “There is a lizard”.
Arrest and interview
11 You then participated in a formal record of interview with the assistance of a Japanese English interpreter. During the interview you told investigators the following:
· You purchased the 19 lizards because they were cute and you liked them and you wanted them as pets or as souvenirs for friends.
· You did not know the person you bought the lizards from. He just had a store at the market in Chinatown Adelaide.
· The person who sold you the lizards was kind and told you how to pack the lizards in your suitcase and how to look after them. You were told that the lizards would not suffer.
· You thought you were buying around 15 lizards with “a few freebies”.
· You paid around $30 for the lizards in cash.
· The lizards were in a net.
· You then returned to your hotel with the lizards but you did not remove them from their net, because you had been told not to.
· You did not feed them or give them anything to drink, because the seller had told you that they would survive until you arrived in Japan.
· You packed the lizards in your suitcase in two containers.
· You did not know what type of lizards they were, but you were aware that they were only found in Australia.
· You did not have an export permit for the lizards.
· You did not know that you needed a permit and the person who sold you the lizards had told you that you did not need one.
12 You were then charged in relation to this offending, and were remanded into custody. Your counsel has accepted that, whilst you made full admissions, you instructed that the account that you gave to investigators was false and provided a false explanation for your involvement in the offending. I will reveal the true circumstances of your involvement when I turn to the topic of evaluating your role.
Plea of guilty
13 You were remanded into custody, as I have mentioned, and pleaded guilty to the proceeding charge at the committal mention hearing at the Melbourne Magistrates' Court on 5 June 2019. I accept and take into account in mitigation of penalty that you pleaded guilty at the earliest opportunity. I also accept that this plea reflects your remorse for your participation in the offending, your acceptance of responsibility, and a willingness to facilitate the course of justice.[1]
[1]Section 16A(2)(g) of the Crimes Act 1914 (Cth).
Personal circumstances
14 You are now 27 years of age. You were born in Okinawa in Japan, the eldest of five children born to loving parents who are still married. Your father is aged 65 and is a sugar cane farmer. Your mother is aged 58 and is a retail worker and surveyor for the local water board. They are hardworking people of very good character.
15 You completed high school and then left Okinawa to study environmental studies at the Ehime University on the island of Shikoku in Japan. I am told that you completed two and a half years of the four-year course.
16 You then worked in customer service at Jumenoya Honto for two years and one month, and then moved to Kaga with your fiancé and worked as an aesthetician while your fiancé worked at a travel agency.
17 In 2005, you moved to Osaka with your fiancé and successfully completed a course in hotel management. You then moved to Nara, and you and your fiancé worked as hotel managers for six months.
18 You then again moved to Shiga and worked for six months in an online resort and hotel marketing business, which I am told was not stable income for you.
19 You then moved to Tokyo in July 2016, and worked as a sales sub-agent for real estate and investment advisors while also working part-time as an event organiser, and also part-time as a waitress in a bar.
20 In June 2017, you commenced casual employment with a funds management company, Sukoya Company, as a receptionist and assisting with client interviews, and were promoted to full-time permanent work there in February 2018. You received a further promotion to the position of manager of client services for this company in May 2018.
21 I note and take into account as a reflection of your prior good character that, until February 2019, you had a long and consistent history of employment, which reflects your good work ethic.[2]
[2]Section 16A(2)(m) of the Crimes Act.
22 Unfortunately, in February of this year, you suffered what your counsel describes as a nervous breakdown, and you attended Tsukigi Mental Clinic as an outpatient on three occasions. This led to your eventual resignation from the Sukoya Company in March, and coincides with your first short visit to Australia in February 2019.
23 I have read and considered the contents of Exhibit 2 a medical report which diagnoses you as experiencing autonomic ataxia, which your counsel informs me involves symptoms of loss of muscle control, dizziness and fainting as a result of stress. You reported those symptoms emerging in October 2018, before you eventually sought treatment on 13 February 2019. The clinic instructed you to take time off work and recuperate at home, but you reported to the clinic that your work environment was stressful, and after quitting your job on 12 March, the stress subsided and your symptoms showed subsequent improvement. Your condition did not require prescription medication.
24 As I have mentioned, your counsel relied on a large bundle of character references provided by work colleagues and managers, friends, and former classmates and a teacher (Exhibit 3). All of which I have read and considered carefully.
25 Risako Fukumoto, who was one of your classmates at high school, describes you as a serious, motivated student who brought a positive approach, not only to your studies, but also to student counsel and club activities.
26 Your former classmate Yasunari Nakajima describes how you studied hard in a class of students with higher academic ability who aimed to advance to university, the special achievement class.
27 Toshimitsu Akigawa, your former employer at Yumenoya Honten, describes you as a very good employee, who valued heartfelt relations and who played an active role in the restaurant as an employee with leadership.
28 Your former colleague Yuka Ochi, describes you as a very hard worker, and that you were stronger than anyone in your desire to “Make our customers happy”.
29 Miyuki Hino indicates that you used to say that in the future you wanted to go back to Okinawa and run a guest house, and your counsel tells me that this is one of your eventual plans.
30 All of your referees describe you as kind-hearted and kind, very capable of looking after the people around you, and the sort of person who cares very much for her family and her hometown.
31 You have no previous criminal history and, given the high esteem in which all of your referees hold you, you are clearly a person of prior good character.[3] This is your first period in custody, and I infer that it will be of strong salutary effect upon you.
[3]Again I mention section 16A(2)(m) of the Crimes Act.
Objective seriousness of the offence
32 This offence was created to reflect Parliament's intent to promote the conservation of biodiversity in Australia and other countries, and to ensure that any commercial utilisation of Australian native wildlife for the purposes of export is managed in an ecological way and to promote the humane treatment of wildlife. One Member of Parliament noted that, on a global scale, the illegal trade in wildlife is horrific. In dollar terms it is likely to be second only to the illicit drug trade. Australian native species are also in demand by wildlife smugglers, and you were nearly those wildlife smugglers before you were caught.
33 I must take into account the nature and circumstances of the offence.
34 In Morgan v The Queen,[4] the Court of Criminal Appeal of New South Wales identified the following factors that may be relevant to assessing the objective seriousness of this type of offending.
[4][2007] NSWCCA 8 at [12].
(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; and
(g) the actual and/or potential harm or damage occasion to the environment.
35 The parties agreed that your role in this attempt to export the native regulated specimens can appropriately be described as that of courier. You travelled to Australia, collected the reptiles, and then sought to take them out of Australia in your suitcase. I was told by your counsel that the true circumstances of your involvement were that your airfares and travel had been paid for by the organisers of the scheme, and the cost of the lizards had also been covered, so that your role in the smuggling did not extend to the handling of money or any other managerial responsibilities. You expected to be paid approximately $1,400 as compensation for your time.
36 I accept the prosecution's submission that, like in the case of drug syndicates, syndicates involved in the illegal trade in wildlife depend on people who are willing and able to undertake roles such as courier. You assumed the risks associated with that role for financial reward. Though I note and take into account that the amount that you had expected to receive was far less than the market value of the lizards had you been successful in exporting them. In other words, someone else expected to profit from your exposure to danger and criminality.
37 It was fairly accepted by the Prosecution that, whilst there is a degree of sophistication inherent in the international smuggling of wildlife, the methodology that you used in this case was not particularly sophisticated. In essence, you played that role in an international wildlife smuggling syndicate, travelling to Australia for the specific purpose of collecting and attempting to export reptiles. Whilst I note that all of the 19 specimens that you had attempted to export are still alive and none of them needed to be euthanised and there was no evidence of any of them suffering any physical harm, I must conclude that your conduct involves a degree of animal cruelty involving, as it did, an attempt to take these animals from the wild and confine them in a suitcase without food or water available to them for a period of many hours.
38 I accept the evidence of Dr Belousoff, forensic veterinarian with the RSPCA,[5] that the reptiles would have been hypothermic, an unpleasant state of low core body temperature where their biological processes slow down and start shutting off. Additionally, they would have experienced an extreme amount of stress and suffering from their capture, restraint, confinement, lack of food, lack of water and inability to move and position themselves in the natural ways they are accustomed to.
[5]Brief of Evidence, pages 1-3.
39 Lastly, I note that, of the lizards that you attempted to export, neither of the species are especially rare or endangered. However, they are clearly of significant value in overseas markets, given the estimate that they may have had an overseas street value of up to US$10,000 each.
Relevant sentencing principles and current sentencing practices
40 I take into account the purposes for which sentence must be imposed. I must impose a sentence on each offence that is of a severity appropriate in all of the circumstances of the offence.[6] General deterrence, denunciation and just punishment are prominent sentencing considerations. However, as your counsel has submitted, I do not consider there to be a significant need to emphasise specific deterrence in the circumstances of this case. You have reached adulthood with no previous criminal history and a long history of work and positive relations with your peers and employers.[7], I trust that you have learned your lesson and your prospects for rehabilitation are clearly very good.
[6]Section 16A of the Crimes Act.
[7]Section 16A(2) of the Crimes Act.
41 Your counsel submitted in the Defence Plea Outline that I ought to take into account in mitigation of penalty the additional hardship that you face as a result of your imprisonment in a country foreign, given your lack of contact with friends and family and anyone who shares your native and only language. I am prepared to allow some very modest mitigation of sentence, for the fact that imprisonment in Australia weighs heavily upon you, given your language difficulties and isolation. However, the modesty which attaches to that factor must reflect the fact that you have come to Australia for the very purpose of your criminality and you now face the consequences of your own actions.[8]
[8]Tsai Yu v R [2016] NSW CCA 73 at [33].
42 You face the likelihood of deportation at the end of your sentence given that your visa has expired. Whilst I am satisfied of the significant and quantifiable risk that deportation will occur, your counsel did not urge me to find that you would encounter hardship as a result of your deportation. Accordingly, I do not take into account that possibility as a mitigating factor.[9]
[9]R v UE [2016] QCA 58 at [19]-[21].
43 I am obliged not to pass a sentence of imprisonment unless, having considered all other available sentences, I am satisfied no other sentence is appropriate in the circumstances. Your counsel conceded that a sentence of imprisonment should be imposed, and I am satisfied that no disposition other than imprisonment is appropriate.[10]
[10]Section 17A(2) of the Crimes Act.
44 Your counsel urged me to confine that sentence to time served, however I am unable to do that. I have had careful regard to the comparative cases provided by the prosecution, noting the importance of national consistency in the application of the relevant principles.
45 Madam, could you kindly stand up.
46 You are convicted and sentenced to 12 months’ imprisonment, with the order to commence on 9 August 2019, but I order that you be released after serving four months’ imprisonment, less time served, on a recognisance of $1,000 to be of good behaviour for a period of 18 months. In other words, if you are prepared to agree to that order I will release you after serving four months, less time served, on your promise to be of good behaviour. If you are of good behaviour, there will be no further consequences. If you are not, then that $1,000 is payable and you may need to come back to court.
47 Are you prepared to enter into that order, Madam? Thank you, please be seated. We will arrange for the order to be drafted and you can sign it.
48 But for the plea of guilty I would have imposed one year and six months imprisonment.
49 Pre-sentence detention excluding today, is how many days?
50 MS HOGRATH: One hundred and ten, Your Honour.
51 HER HONOUR: One hundred and ten. So can we draft the order. Mr Laurie of course you may wish to take the opportunity to explain to your client now that she will be released within a matter of days, if not weeks.
52 MR LAWRIE: Thank you, Your Honour.
53 HER HONOUR: And are there any consequential orders sought?
54 MS HOGRATH: No, Your Honour, and the draft RO is - well the RO is drafted.
55 HER HONOUR: Thank you very much. I will sign that and then I will stand down.
56 MR LAWRIE: If Your Honour pleases.
57 HER HONOUR: Thank you very much. Thank you, those orders are now signed, thank you very much to you. I'll stand down briefly before the next matter.
58 MS HOGRATH: If the court pleases.
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