R v Chong

[2019] NSWDC 752

District Court

New South Wales

Medium Neutral Citation:	R v Chong [2019] NSWDC 752
Hearing dates:	1/11/19, 14/11/19
Date of orders:	14 November 2019
Decision date:	14 November 2019
Jurisdiction:	Criminal
Before:	Bourke SC DCJ
Decision:	Sentenced to an aggregate sentence of imprisonment of 15 months. Pursuant to sections 19AC and 20(1)(b) of the Crimes Act (Cth) I order that the offender be released on a recognisance release order after serving 9 months, conditional on paying security of $100 and being of good behaviour for 6 months.
Catchwords:	Crime – Commonwealth – Sentence - Attempting to export regulated native specimens - lizards
Legislation Cited:	Crimes Act 1914 Environment Protection and Biodiversity Conservation Act 1999 Evidence Act
Category:	Sentence
Parties:	Commonwealth DPP – Prosecution King Chuen Chong - Offender
Representation:	Counsel: Mr H Williams for the Commonwealth DPP Mr H Dhanji SC for Offender     Solicitors:
File Number(s):	18/285242
Publication restriction:	None

Judgment

1. The offender is before the court for sentence on 8 offences of attempting to export regulated native specimens, an offence under section 303DD of the Environment Protection and Biodiversity Conservation Act 1999 (“EPBC Act”). The maximum penalty for each offence is 10 years imprisonment and/or a fine of $110,000.

2. The offender was arrested on 17 September 2018, and on 29 January 2019 entered pleas of guilty to all offences. I will give him the full benefit of those early guilty pleas, in so far as they are of utilitarian value in avoiding the cost and inconvenience of a trial. I will consider the quantum of that discount later in these reasons, when considering other matters which the offender is entitled to have taken into account in his favour.

3. In sentencing for these Commonwealth offences, the court is required to have regard to the matters set out in Part 1B of the Crimes Act 1914, and in particular the matters, in so far as they are relevant, in section 16A. I consider the following matters relevant.

The nature and circumstances of the offence – s16A(2)(a)

4. The circumstances of the offences are set out in an agreed statement of facts, and involve a series of actions, over a period of about five weeks, in which the offender attempted to send Australian native lizards to Hong Kong by post. However each of the consignments were intercepted by Australian Border Force (“ABF”) officials.

5. The first offence was committed on 8 August 2018, when the offender attended the post office at World Square, and, using false consignor details, lodged a package for postage to Hong Kong. That package was intercepted by ABF officers, and found to contain two Shingleback lizards. Each lizard had its legs taped with sticky tape, was wrapped in a pillowcase and placed inside a cereal box.

6. The second offence occurred on 21 August 2018, when the offender again attended the World Square post office, and lodged another package, with false consignor details, which was subsequently found to contain three Geckos, and one Eastern Pilbara spiny tail skink. Each of the lizards had its legs taped with brown fabric tape, and was wrapped in a paper towel and brown paper, which was inside a Coles brand potato chip tube. The package also contained plastic dinosaurs, other toys and a book.

7. The third offence occurred on 27 August 2018, when the offender attended Artarmon Post Office, and lodged another package using false consignor details. This package was found to contain five Eastern Bluetongue Lizards. Each lizard had its legs taped with fabric tape, was wrapped in paper towel and brown paper and had been inserted into a Coles brand potato chip tube. The consignment also contained unopened packets of biscuits, plastic dinosaurs, and other toys.

8. The fourth offence was committed on 28 August 2018, when the offender attended Newtown post office, where he lodged another consignment using false details, which was found to contain two Blue Tongue lizards. Again, each of the lizards had its legs taped with fabric tape, was wrapped in paper towel and brown paper and had been placed into a Coles brand potato chip tube.

9. The fifth offence occurred on 29 August 2018, when the offender attended Artarmon Post Office with another package containing false consignor details, in which there were later found 4 lizards, namely a Shingleback, two Blue Tongue lizards, and a Rough Knob-tailed Gecko. Each of the lizards legs were taped with fabric tape, and the lizards were wrapped in paper towel and placed inside a Coles brand potato chip tube.

10. The sixth offence involved two separate consignments, and was committed on 7 September 2018, again using false consignor details. Each of the consignments were found to contain 6 Gidgee Skinks. The 1st package was lodged by the offender at Roseville Post Office, and the 2nd package was lodged that same day at Artarmon Post office. Each of the Skinks had its legs taped with fabric tape, was wrapped in paper towel and brown paper and had been placed inside a Coles brand potato chip tube for the 1st consignment, and into an air hockey game box for the 2nd consignment. There were other items, such as packets of crisps and biscuits in each package.

11. The seventh offence was committed on 11 September 2018, and involved 3 separate consignments, which the offender lodged at the Chatswood, Haberfield and Broadway post offices. Again each of the packages involved false consignor details. The 1st package contained 2 Gidgee skinks, and 2 Shinglebacks. The 2nd package contained 3 Shinglebacks, and the 3rd package contained 3 Shinglebacks. Each of the lizards had its legs taped and had been wrapped either in paper or cloth, and placed into a cereal box. Each of the boxes also contained other, innocuous items, which, like the previous consignments, were obviously intended to make the packages appear innocent.

12. The eighth offence occurred on 17 September 2018, when the offender attended Chatswood post office and, again using false consignor details, lodged a package which was found to contain 5 Gidgee Skinks, and a Western Slender Blue Tongue. Each of the lizards were restrained in the manner I have previously described, and had been placed into a Coles brand chip tube. The package also contained plastic dinosaurs.

13. The offender was arrested as he attempted to leave the post office.

14. A search was conducted at the offender’s girlfriend’s residence, where there was found, among other things, 4 packets of Coles brand “stacked” chips, and 7 packs of Coles brand toys. A search at the offender’s mother’s residence located Coles brand stacked chip tubes, plastic toy dinosaurs, and brown fabric tape, along with other items.

15. Forensic analysis identified the offender’s fingerprints as being inside two of the consignments.

16. Evidence was obtained from an expert Veterinarian who examined photographs of the lizards and concluded that the packaging of them sould have subjected them to cruelty in the following ways. Firstly, that they had insufficient water, which could have resulted in dehydration, renal injury and death. Secondly, rough handling, in that the packages were not marked as containing live animals and would have been handled accordingly, with the risk of death by crushing. Thirdly, inappropriate climate control and oxygenation, arising from the fact that the packages were not labelled as containing live animals, creating the risk of cold stress, hypoxia and death. And fourthly, that the taping of the animals would prevent or restrict breathing, and taping of forelimbs preventing movement, would have caused significant pain and suffering, and the risk of death.

17. The Agreed Facts indicate that the value of the lizards, if sold in Hong Kong, is approximately as follows:-

• Velvet Gecko and Northern Velvet Gecko – US$250

• Blue Tongue – US$300

• Western Slender Blue Tongue – US$1,000

• Eastern Pilbara Spiny Tail – US$1800

• Shingleback – US$2500

• Eastern Blue Tongue – US$4500

• Gidgee Skink – US$5000

• Rough knob-tailed Gecko – US$5500 per pair

18. The agreed value of these animals in Hong Kong, is therefore in the order of US$152,500.

19. It is important, in sentencing the offender, that I have regard to his role in the offences. In doing so, any matters in aggravation must be proved beyond reasonable doubt, and any matters in mitigation, on the balance of probabilities.

20. In May 2019, the offender provided a version of the circumstances of the offences to a psychologist, Mr Borenstein, which is contained in a report of 15 May 2019. Given the possibility that further proceedings might be taken in respect of other persons, I will refer to that version in general terms only. According to that version, the offender met and became friends with two persons, one of whom asked him to assist in his “business” of exporting reptiles. The offender claimed that the two persons left Australia temporarily, and that one of them gave him a number of live lizards, which he was expected to export. The offender said that he asked around, unsuccessfully, to see if anyone else could perform the work, and agreed to do it because he felt threatened, as one of the persons had connections with others who could cause him harm. He said he would only be paid $100 for sending each box of lizards. He claimed he was given instructions via text message as to how to handle and package the reptiles. He told the psychologist further that he has had no contact with the 2 persons since his arrest. The offender provided a broadly similar version to a Community Corrections officer who interviewed him in May 2019.

21. In August 2019, the offender met with investigators of the Department of the Environment and Energy, and provided information which led to his signing a statement on 29 October 2019. That material became Exhibit 2 on sentence. In the statement, the offender provided a similar, although slightly different and slightly expanded version of his involvement in the offences. Again, given the nature of that material, I do not intend to refer to it in detail, as there is some potential that this might interfere with future investigations. Relevantly, he provided slightly more in terms of details, but claimed that he was promised to be paid $250 per box plus freight, and $150 for materials, being a total of $400 per box, and that this was paid in cash, by a man he could not identify. He also gave some information about another unidentified man who he claimed would deliver the reptiles to him, although this information was rather vague. The offender further said that he was given instructions about how to feed the reptiles, and how to wrap them. He also provided photographs of the person he claimed had recruited him, and of that person’s partner.

22. The Court has been provided with a letter (part of Exhibit 2 on sentence) from the Department which discusses the information provided by the offender, and attaches a copy of his statement of 29 October 2019. The letter indicates that the information provided by the offender has allowed investigators to identify an individual, although that person has not been located at this time. Although the information provided by the offender has not led to any further interceptions of packages containing reptiles, it has provided avenues of enquiry that might lead to further prosecutions in which the offender might be called on to give evidence. Overall, the Department assesses the assistance provided by the offender as being of low value, essentially because of its lack of detail. I will give this issue further consideration later in these reasons.

23. In assessing the offender’s role, I have had regard to the version given by him on arrest, as well as that provided to investigators more recently. On the evidence available, I am unable to reach precise findings as to exactly how the offender came to be involved, and to what extent he expected to benefit, or did in fact benefit. I am not however satisfied on the balance of probabilities as to his claim of having been threatened, and having taken on these activities only because he was prevailed upon. In my opinion, this is an implausible story, which was not backed up by evidence on oath, and was not supported by detail as to the identities of persons involved. Its credibility is also adversely affected by the fact that the offender withheld information when he was arrested, gave different versions about important matters such as how much he was to be paid, and carried out the offending on multiple occasions over a period of about 5 weeks.

24. This is not a case where the offences are the result of a momentary lapse in judgment. Rather, it was a course of conduct which involved premeditation and planning. The offender had to obtain access to the live lizards, store them, and feed them, and then prepare them for export. This involved purchasing items such as toys and snacks, which were clearly designed to make the packages appear innocent. He was also required to obtain the various potato chip tubes and other material which were used to package and restrain the unfortunate animals. His role also involved providing false consignor details, and using different post offices, actions which clearly were designed to avoid detection.

25. I am satisfied that the offender engaged in these offences as a willing participant, and for financial gain. Ordinarily, based on these facts, it would be difficult to avoid the conclusion that he was a principal behind each of the offences. However, given the concession made by the Crown, I do accept that this is not the case, and that he was a person low in a hierarchy which involved others more senior than him. Nonetheless, the role he performed was a crucial one, and offences of this kind could not be carried out if there were not people like him prepared to undertake this kind of activity.

26. In considering the circumstances of these offences, I give substantial weight to the fact that each offence involved acts of real cruelty. While it cannot be said that the subsequent deaths of any of these lizards was due directly to the offender’s actions, it is clear from the agreed facts that each of the lizards were subjected to treatment that was utterly callous, treatment which was carried out without concern for the pain inflicted, and without a care for whether the animals lived or died.

Any injury, loss or damage resulting from the offences – s.16A(2)(e)

27. I note the Crown’s concession that no actual harm was done to the environment in this instance, because the lizards were intercepted before being exported, and that the lizards in question are not ones that are threatened with extinction or might become so unless the trade in them is strictly controlled. And while I note that many of the lizards died, it is (somewhat generously) conceded by the Crown that it is not possible to infer that the offender’s actions caused or contributed to those deaths. Nonetheless, and as I have already observed, the offender’s actions did without doubt cause significant pain and suffering to these defenceless animals during their confinement, and this is a matter that I have taken into account in considering the circumstances and objective seriousness of the offences.

The degree to which the person has shown contrition for the offence – s.16A(2)(f)

28. In my view, the offender’s actions in entering pleas of guilty, and in providing some assistance to authorities is an indication of a degree of contrition and remorse. The level to which this can be regarded as true contrition is however, tempered by reason of the fact that the case against him was very strong, given that he was caught “red handed”. And so, his pleas of guilty must in my opinion be regarded to a large degree as an acceptance of the inevitable, in the face of a strong Crown case.

Plea of guilty – s.16A(2)(g)

29. The offender pleaded guilty at the earliest opportunity. As already noted, I do not regard his pleas of guilty as indicative of contrition to any great extent. However, I intend to apply a discount of 25 percent by reason of the utilitarian value of the pleas of guilty, which will be combined with that arising from his assistance to authorities.

Cooperation with authorities – s.16A(2)(h)

30. I have described the offender’s cooperation with authorities earlier in these reasons. The Department has described them as being a low level of assistance. In my view, his cooperation can be regarded as being at a slightly higher level than that. While his account is lacking in significant detail, it has enabled the Department to identify a particular individual, has provided additional avenues of inquiry, and there remains the possibility that some further prosecutorial action will be taken against another person/s. While the offender has not provided a formal undertaking to give evidence against any individual, it may remain open to the authorities to call him as a witness, if he is in Australia, and to rely on his statement to secure his evidence, by resort to s.38 of the Evidence Act, if necessary.

31. There is also perhaps some level of risk to the offender that arises from his cooperation, although in the circumstances of these offences, and the lack of specificity in the information provided, it is difficult to regard this as a high risk. There is also no evidence that he will be placed at greater risk if sentenced to fulltime imprisonment, or that any such imprisonment will be more onerous than usual. Taking all of these matters into account, it seems to me that the offender’s cooperation should be rewarded with a moderate discount, which should be combined with the discount on account of his early pleas of guilty.

Specific and general deterrence + Need for adequate punishment – s.16A(2)(j), (ja), (k)

32. The EPBC Act is the primary piece of Commonwealth legislation providing for the protection of the environment. Some of the objects of that Act are to ensure that Australia complies with its obligations under the Convention on International Trade in Endangered Species, to protect wildlife that may be adversely affected by trade, to promote the conservation of biodiversity in Australia and other countries, and to promote the humane treatment of wildlife. In introducing the legislation into Parliament, it was 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.” The appellate courts have recognised the seriousness of these offences, and it has been stated that general deterrence, denunciation and the protection of the community are critical principles in sentencing for offences of this kind. Personal deterrence of the individual offender is obviously also important. Ordinarily, offences of this kind will attract a full-time custodial sentence.

Character, antecedents, age, means and physical and mental condition – s.16A(2)(m)

33. The offender’s background is set out in the psychological report of Mr Borenstein. The offender is a relatively young man, currently aged 24, and was 23 at the time of the offences. He has no criminal record. He was born in Hong Kong, and came to Australia in 2012 when he was aged 17, partly so as to be reunited with his mother, and to pursue tertiary studies. His parents separated when he was aged about 10 years, and his father apparently still lives in Hong Kong. After coming to Australia, the offender completed an English course, and then commenced to study a certificate in business, but left after six months, as he struggled academically. He went on to complete a course at the University of New South Wales in 2014, and in 2015 he enrolled in a Diploma of Engineering, but was unsuccessful in his exams, and then enrolled in another business course in 2016.

34. He currently resides with his partner of 15 months, who he describes as a positive influence. I note however, that according to the psychological report, she has not been made aware of these offences. The offender currently works as a waiter.

33. According to the psychological report, the offender, while cognitively intact, is suffering extremely severe symptoms of depressed mood, and anxiety, as well as severe symptoms of stress. His intelligence is assessed as average to above average, however the psychologist noted that he is lacking in confidence. The offender reported that at the time of the offences he became acutely depressed and anxious and was uncertain as to what to do. I accept the opinion of the psychologist that the offender has battled with a recurrent depressive illness, and is currently affected by this, as well as significant stress and anxiety, and that he is in need of psychiatric and psychological treatment. He has also been described by his employer, and by a friend, as being immature, naive, and easily led. I have no doubt that a period of imprisonment will be very difficult for him, and I have taken this factor into account in determining the terms of the sentence, and the manner in which it should be served.

Prospects of rehabilitation – s.16A(2)(n)

36. In relation to prospects of rehabilitation, I note firstly that the sentencing assessment report concludes that the offender has demonstrated some insight into his offending, and that he said he felt it was wrong at the time. He claimed that he was not aware it was illegal. I pause to note that I do not accept this last suggestion, which is contradicted by the measures taken by the offender to disguise the lizards, and his actions in using false consignor details, and multiple post offices. The sentencing assessment report also states that the offender failed to recognise the broader impact that these offences may have on the community and the environment. He was assessed as being of medium to low risk of reoffending.

37. On the positive side, he comes from a pro social family, and still enjoys the support of his mother and girlfriend. Taking into account all of these matters, as well as his relatively young age, and prior good character, I consider that his prospects of rehabilitation are reasonably good.

Determination

38. I am satisfied, having considered all other alternatives, that the only appropriate sentence is one of imprisonment.

39. I intend to allow a combined discount of 40% for the pleas of guilty and assistance. In determining the combined discount in this matter, I am conscious of the need to ensure that the ultimate sentencing outcome is not so far out of touch with the circumstances of the offences and the offender that it would constitute an affront to community standards.

40. In sentencing the offender I have taken into account also the fact that he spent one day in custody after his arrest.

41. I will impose an aggregate sentence. The indicative sentences that I would have imposed, if I had not imposed an aggregate sentence, after applying the discount, are as follows:-

• Sequence 12 – 3m

• Sequence 13 – 4m

• Sequence 14 – 4m

• Sequence 15 – 3m

• Sequence 16 – 4m

• Sequence 17 – 7 m

• Sequence 18 – 8 m

• Sequence 19 – 4 m

42. Counsel for the offender conceded that the objective gravity in this matter is such that a sentence of imprisonment can be considered appropriate. However, he argued that the length of any such sentence would be within the range for which an Intensive Corrections Order would be available, and that a penalty of that kind would be appropriate. I have given careful consideration to that submission. However, in my view, the offences in this case, combined with the importance of both personal and general deterrence, are such that no penalty other than one involving actual full-time imprisonment would be adequate.

43. Given that this is the offender’s first time in custody however, and taking into account his relative youth, and other subjective circumstances, I will make some adjustment to the period of time that must be served prior to his eligibility for release.

44. Taking into account the need for some degree of accumulation, and principles of totality, I impose an aggregate sentence of imprisonment of 15 months. Pursuant to sections 19AC and 20(1)(b) of the Crimes Act (Cth) I order that the offender be released on a recognisance release order after serving 9 months, conditional on paying security of $100 and being of good behaviour for 6 months. That sentence is to date from today.

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Decision last updated: 13 December 2019