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…

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 v Evan Alexander Petersen

Details

AGLC: R v Evan Alexander Petersen [2009] NSWDC 282
Case: [2009] NSWDC 282
Decision Date: 28 August 2009

CaseChat Overview and Summary

In the Supreme Court, the defendant, Evan Alexander Petersen, faced charges for attempting to export protected reptiles without the necessary permits. The dispute centred around Petersen's actions in attempting to smuggle a number of endangered species out of the country. Petersen's actions were detected by customs officials, leading to his arrest and subsequent prosecution. The case was heard in the Supreme Court, where the severity of the offence and the potential impact on wildlife conservation were central to the court's considerations.

The legal issues the court needed to address included the appropriate sentence for an offence of this nature, given the seriousness of attempting to export protected species and the potential environmental and legal ramifications. The court had to balance the need for deterrence against the offender's personal circumstances and the potential for rehabilitation. Additionally, the court needed to consider the specific sentencing options available under the Crimes Act, including the possibility of periodic detention as an alternative to standard imprisonment.

The court found that Petersen's actions were serious and warranted a significant penalty, but also took into account his lack of a prior criminal record and his potential for rehabilitation. The court determined that a sentence of eighteen months imprisonment was appropriate, with a non-custodial release after twelve months, subject to certain conditions. The court believed that this approach would adequately serve the interests of justice while also providing an opportunity for Petersen to demonstrate his rehabilitation and commitment to lawful behaviour. The court ordered that the sentence be served by way of periodic detention, allowing Petersen to maintain some connection to the community while serving his sentence.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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