R v Evan Alexander Petersen

[2009] NSWDC 282

CITATION:	R v Evan Alexander PETERSEN [2009] NSWDC 282
HEARING DATE(S):	28 August 2009.
EX TEMPORE JUDGMENT DATE:	28 August 2009
JURISDICTION:	DC Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The offender is sentenced to imprisonment for eighteen months. I order that he is to be released at the expiration of twelve months upon him entering into a recognizance pursuant to s 21B of the Crimes Act in the sum of $1,000 to be of good behaviour for a period of six months from the release date and to appear to receive sentence if called upon to do so at any time in respect of any breach within that period. I order that that sentence of imprisonment be served by way of periodic detention.
CATCHWORDS:	Criminal law - Sentence - Courier - Attempt to export reptiles
LEGISLATION CITED:	Crimes Act 1914 (Cth) Environment Protection and Biodiversity Act
CASES CITED:	R v Morgan [2007] NSWCCA 8
PARTIES:	The Crown Evan Alexander Petersen
FILE NUMBER(S):	DC 2009/11/0455
COUNSEL:	T. Anderson - The Crown P Boulten SC - Offender
SOLICITORS:	Commonwealth DPP Murphy's Lawyers - Offender

SENTENCE

1 HIS HONOUR: Evan Petersen developed an interest in reptiles at a young age. This led to him working voluntarily at a local pet shop and later, when he was old enough being employed there. It also brought him into contact with others with interests in reptiles including a man I will describe as Mr X. I will call him Mr X because I do not know his name.

2 Mr Petersen had a girlfriend who, although she lived in Shanghai, would visit Phuket in Thailand regularly. It was something of a long distance relationship but the offender flew to Phuket to meet up with his girlfriend when he could. On one occasion, Mr X approached Mr Petersen and made him an offer. The offer was this: If he flew to Bangkok smuggling some reptiles out of the country, Mr X would pay for his holiday and give him some spending money as well.

3 Mr Petersen agreed. He decided that he would commit the serious criminal offence of exporting reptiles from Australia simply for money. He wanted to meet up with his girlfriend. He wanted to have a holiday in Thailand. It was going to cost him money to go there and do that but he could get it for free if he agreed to what Mr X proposed and that is what he did.

4 One day he put some of his clothes into a bag and provided that bag to Mr X. He then later picked up the bag from Mr X and went to Sydney Airport. He checked in at the Thai Airways counter. After he had done that he thought he was scot free. The plan was that he would not even have to collect the bags once he got to Bangkok and that he would simply walk out of the airport with carry on luggage. Apparently someone else was going to pick up the bags from the airport and he was prepared to lose the clothes that he had packed into the bag earlier.

5 Fortunately however his bags were x-rayed before the flight took off. The x-ray revealed the presence of forty-four reptiles secreted in the bags. Police were called, they went onto the aircraft and removed him from it. The offender was then interviewed by police. He told them at that stage a lot of lies. He suggested that he knew nothing about the reptiles packed in his bag and suggested that what may have happened is that when he left his bags unattended, someone had slipped the reptiles in.

6 Fortunately he did not persist with such a fanciful story. He pleaded guilty at a relatively early stage to the offence of attempting to export the forty-four reptiles discovered in his bag. That is an offence under s 303DD(1) of the Environment Protection and Biodiversity ConservationAct and carries a maximum penalty of ten years imprisonment.

7 The offender is a man of otherwise good character. He is a well regarded electrician. Evidence today both written and oral attests to his otherwise good character and indeed the Crown concedes it.

8 Mr Boulten who appeared for the offender made no attempt to suggest that the offence was other than serious. I sentenced a man called Morgan a couple of years ago now and when doing so, I explained why it was that offences of this kind were as serious as they are and why in the appropriate case no other sentence than one of full-time custody is appropriate. The Court of Criminal Appeal agreed with some of what I said (see R v Morgan [2007] NSWCCA8). It said most importantly for the purposes of the sentencing exercise before me, that offences of this kind would normally attract a full-time custodial sentence.

9 During the course of submissions, attention was focussed on a number of matters that Buddin J suggested it were very important in informing the sentencing exercise. The first was the nature and extent of the offender’s role. In this case the offender was a courier. As I have explained, it was the plan that he would not even pick up the bags in Bangkok and that his criminal activities in effect ended once he had checked the bags in. However, the fact that the offender was a mere courier does not mean that he should be dealt with leniently. The courts seek to discourage the drug trade as well as the trade in native animals by imposing harsh sentences on couriers. If couriers can be deterred from criminal activities then the drug trade and the native animal trade suffer accordingly.

10 Buddin J next suggested I should look at the motivation of the offender for committing the offence. As I have said, the offender did this simply for money.

11 Next I look at the level of sophistication which the offender was involved. This was not a sophisticated activity. There was no attempt to use corsets or other devices to conceal the reptiles, indeed they were simply put in socks in the bags. On the other hand there must be a level of sophistication at some level. Mr X must have had some arrangement that would enable him or someone else to obtain possession of the bags whilst they were still on the conveyer belt at Bangkok airport.

12 The next matter I should look at concerns whether there were aggravating features such as undue cruelty. In this case some of the animals died. Others survived but were detrimentally affected by the experience. Clearly there was a significant risk to the reptiles. When asked about this in the witness box the offender said that the risk to the reptiles simply slipped his mind. I say quite clearly that I do not accept that. The offender, given his background in looking after reptiles, both his own and in the pet shop where he worked, simply could not have failed to appreciate the risks to the animals. I do not accept that he forgot that they may suffer.

13 There were forty-four animals involved but there is no evidence to suggest that the animals were rare. Indeed the material tendered by the Crown suggests that there is a retail trade in the animals such that they can be valued, that a monetary value can be put on them. One of them may be rare because it had a high monetary value but it is not the case that there is any evidence to suggest that the animals were endangered or rare in the wild or indeed that they even came from the wild.

14 I have mentioned the actual harm to the particular animals and the Crown concedes that there was no harm to the environment through the spread of disease for example. Of course we do not know what would have happened once the reptiles got to Thailand. We do not know whether the introduction of a species that would have been transported to Bangkok would have any harm to the Thai environment but I do say and recognise that the potential is one of the reasons for offences such as this being treated as seriously as they are.

15 The offender now says that he is remorseful. I do rather get the impression that his remorse is firstly for his parents, secondly for himself and only belatedly for the actual wrongfulness of his conduct but there is a concrete way that he has demonstrated his remorse and that relates to the identity of Mr X. In the witness box he indicated that he did not wish to name him because of fears, apparently genuine. However after being given the opportunity of speaking to Mr Boulten he has approached investigating officers and provided them with information about Mr X including his name. Of course as if that occurred only less than an hour ago, the value of that information is not made known to me but I do take into account that the offender has demonstrated his remorse by doing what he did and that this is likely to have been of assistance to the authorities.

16 Given the fact that the Court of Criminal Appeal decision in R v Morgan is the most recent and it contains statements of principle (and also the fact that I was the one who sentenced Mr Morgan), attention has been paid to a comparison between Mr Morgan’s case and this one. Mr Morgan was transporting eggs which he deliberately destroyed upon being detected. His decision to deliberately destroy the eggs led to a further offence but it is also relevant to the question as to the harm which the offender caused. Mr Morgan was not of prior good character, he had priors for cultivating cannabis and told, I was clearly satisfied, lies in court.

17 The Crown and Mr Boulten are some distance apart, as is often the case, as to the sentence which should be imposed upon the offender. The Crown says that nothing less than full-time custody is required. Mr Boulten says that I should firstly impose a community service order or if I feel that a sentence of imprisonment is required it should be suspended. I do not consider that either of those options is appropriate. A community service order or a suspended sentence of imprisonment would be insufficient to deter others who may be tempted to make money through the trade in native animals.

18 Mr Petersen, the offender’s father, gave evidence saying that sending his son to gaol would do him no good at all, that his son has already appreciated the wrongfulness of his conduct and that there is no benefit to him in locking him up. That may well be right but my task is to look not only at the offender. My task is much broader than that and it is as the Crown reminds me, it is important that I consider general deterrence when I formulate the appropriate sentence to impose upon this offender.

19 Parliament, in introducing this offence, suggested that the trade in endangered species and native animals were second only to the drug trade in terms of the money that can be made. It is therefore necessary that I bear firmly in mind the need to send a message to those who might be tempted to do what Mr Petersen has done that if they are caught they cannot expect leniency and can indeed expect a harsh punishment.

20 Mr Boulten acknowledges that his client is within a whisker of going to gaol full-time. Had there been any evidence that any of these reptiles was endangered, then his client would be spending tonight in Silverwater serving a full time custodial sentence. However, I consider that this is a matter where a full-time custodial sentence is not required. The offender is, as the Crown conceded, a man of otherwise good character. He has good prospects of rehabilitation. He pleaded guilty at a relatively early opportunity and has assisted the authorities in the way I identified earlier. He has much to offer in the future.

21 The offender is sentenced to imprisonment for eighteen months. I order that he is to be released at the expiration of twelve months upon him entering into a recognizance pursuant to s 21B of the Crimes Act in the sum of $1,000 to be of good behaviour for a period of six months from the release date and to appear to receive sentence if called upon to do so at any time in respect of any breach within that period. I order that that sentence of imprisonment be served by way of periodic detention. The offender is therefore to report to the Silverwater Periodic Detention Centre at 8.30am on 13 September 2009 in order to commence serving his sentence.

22 His Honour explained the sentence to the offender.

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