R v Kennedy

Case •

[2019] NSWCCA 242

•

18 October 2019

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: R v Kennedy [2019] NSWCCA 242
Hearing dates: 27 September 2019
Date of orders: 18 October 2019
Decision date: 18 October 2019
Before: Payne JA and Fullerton J at [1]; Adamson J at [100]
Decision:

(1)   Appeal allowed;
(2)   Set aside the sentence imposed by Grant DCJ on 7 June 2019 and in its place:
(a)   impose an aggregate sentence of imprisonment of 4 years;
(b) under s 19AB(2) of the Crimes Act 1914 (Cth) impose a non-parole period of 2 years and 6 months;
(c)   the sentence and non-parole period to date from 18 October 2019.

Catchwords:

CRIME – appeals – appeal against sentence – manifest inadequacy – whether 3 years imprisonment served by way of intensive correction order was manifestly inadequate – sentence did not reflect overall gravity of offending and importance of general deterrence and accountability – manifestly inadequate – resentenced

CRIME – federal offences – attempted exportation of regulated native specimens – importation and attempted importation of regulated live specimens – possession of non-native CITES-regulated specimens – dealing with proceeds of crime
Legislation Cited: Crimes Act 1914 (Cth), ss 16A, 19AB, 20AB
Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 5, ss 66, 68
Criminal Appeal Act 1912 (NSW), s 5D
Criminal Code (Cth), ss 11.1, 400.9
Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss 303CA, 303DA, 303DD, 303EK, 303GN
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Carroll v The Queen [2009] HCA 13; 83 ALJR 579 Casella v R [2019] NSWCCA 201
CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
DL v The Queen [2018] HCA 32; 92 ALJR 764
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
JM v R [2014] NSWCCA 297; 246 A Crim R 528
Jones v R [2009] NSWCCA 169
Klein v R (1989) 39 A Crim R 332
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
Morgan v R [2007] NSWCCA 8
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Parente v R [2017] NSWCCA 284
R v Cahill [2015] NSWCCA 53
R v Fangaloka [2019] NSWCCA 173
R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49
R v Pham (2015) 256 CLR 550; [2015] HCA 39
R v Pullen [2018] NSWCCA 264
R v Robison (1992) 62 A Crim R 374
R v Wong [2018] NSWCCA 20
R v Zamagias [2002] NSWCCA 17
Category:Principal judgment
Parties: Regina (Appellant)
Martin Brian Kennedy (Respondent)
Representation:

Counsel:
D Staehli SC / P Boncardo (Appellant)
G James QC (Respondent)

  Solicitors:
Commonwealth Director of Public Prosecutions (Appellant)
Murphy’s Lawyers Inc (Respondent)
File Number(s): 2017/00067968
Publication restriction: Nil
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Crime
Citation:
[2019] NSWDC 283
Date of Decision:
07 June 2019
Before:
Grant DCJ
File Number(s):
2017/00067968

HEADNOTE

[This headnote is not to be read as part of the judgment]

The respondent, Martin Kennedy, pleaded guilty to six Commonwealth offences committed in July and October 2016 and March 2017. Two of the counts related to attempts to export “regulated native specimens” contrary to s 303DD of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“EPBC Act”) and s 11.1(1) of the Criminal Code (Cth). Two of the counts related to importations and attempted importations of “regulated live specimens” contrary to s 303EK(1) of the EPBC Act. One of the counts related to possession of non-native CITES-regulated specimens contrary to 303GN(2) of the EPBC Act. The final count related to dealing with money less than $100,000 which is reasonable to suspect is proceeds of crime contrary to s 400.9(1A) of the Criminal Code. The maximum term of imprisonment was 10 years for the exportation and importation offences, 5 years for the possession offence and 2 years for the proceeds offence.

On 7 June 2019, the respondent was sentenced to an aggregate sentence of 3 years imprisonment to be served by way of Intensive Correction Order. The sentencing judge described the exportation and importation offences as “objectively serious”. The sentencing judge described the objective seriousness of the possession offence as “low” and the proceeds offence as “well below the middle range” and “towards the low end”. The sentencing judge found that the respondent had excellent prospects of rehabilitation. The Commonwealth Director of Public Prosecutions appealed the sentence on the ground of manifest inadequacy.

The Court (Payne JA and Fullerton J, Adamson J agreeing) held, allowing the appeal:

Whilst an appellate court considering a ground of manifest inadequacy is not bound by the sentencing judge’s assessment of the proper weight to be given to, for example, objective seriousness, limits upon appellate review nonetheless apply. The issue is not whether the aggregate sentence imposed failed to reflect the objective seriousness of the offences; it is whether it was open to the sentencing judge to impose that sentence, including in this case whether it was open to him to order that the sentence be served under supervision in the community: [80].

CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9 applied.

The sentence of 3 years imprisonment to be served by way of Intensive Correction Order was manifestly inadequate. The sentence imposed did not reflect the overall gravity of the offending or satisfy the principles of sentencing which, in the circumstances of this case, elevated the importance of general deterrence and accountability over and above the sentencing objective of rehabilitation. The legislature has conveyed the degree of seriousness of these offences by fixing a maximum term of imprisonment of 10 years for the importation and exportation offences, 5 years for the possession offence and 2 years for the proceeds offence. Those maximum penalties speak for themselves in identifying the view of the Commonwealth Parliament about the seriousness of threats to Australian fish, fauna and biodiversity. The importation offences in this case had potentially catastrophic consequences for the Australian ecosystem. Each of the actual and attempted importation and exportation offences warranted a sentence of imprisonment: [86]-[87].

Dinsdalev The Queen (2000) 202 CLR 321; [2000] HCA 54; R v Pham (2015) 256 CLR 550; [2015] HCA 39; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 applied.

This is a case where the residual discretion should not be exercised. The speed with which this appeal was brought, the seriousness of the criminal conduct represented not only by the individual breaches of the EPBC Act but by the range of regulated native specimens the respondent attempted to export and the range and type of regulated live specimens he imported or attempted to import, and the guidance the sentence provides as a principled approach to sentencing for offending of that kind, strongly suggests that the sentence in this case would have significant utility in providing guidance to sentencing courts in the future: [98].

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 applied.

Per Adamson J:

Were the residual discretion to be exercised, there would be a substantial risk that the community which the sentence for such offences is designed to influence would fail to appreciate the seriousness with which the Court regards the respondent’s offending and deprive the present case of any real potency in terms of general deterrence: [101].

An aggregate sentence of 4 years full-time imprisonment with a non-parole period of 2 years and 6 months was imposed: [92], [100].

Judgment

  1. PAYNE JA AND FULLERTON J: On 7 June 2019, Grant DCJ sentenced the respondent, Martin Kennedy, following a plea of guilty to six Commonwealth offences relating to the illegal importation, exportation and possession of wildlife and dealing with property reasonably suspected of being proceeds of crime: R v Kennedy [2019] NSWDC 283.

  2. The details of the offences were as follows:

  1. two of the counts related to attempts to export “regulated native specimens” contrary to s 303DD of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“EPBC Act”) and s 11.1(1) of the Criminal Code (Cth). The maximum penalty was 10 years imprisonment, a fine of 1,000 penalty units, or both;

  2. two of the counts related to importations and attempted importations of “regulated live specimens” contrary to s 303EK(1) of the EPBC Act. The maximum penalty was 10 years imprisonment, a fine of 1,000 penalty units, or both;

  3. one of the counts related to possession of specimens which were CITES [1] specimens and the person was reckless as to the fact that the specimens were CITES specimens and the specimens did not belong to a native species contrary to 303GN(2) of the EPBC Act. The maximum penalty was 5 years imprisonment, a fine of 1,000 penalty units, or both;

  4. the final count was dealing with money less than $100,000 which is reasonable to suspect is proceeds of crime contrary to s 400.9(1A) of the Criminal Code. The maximum penalty was 2 years imprisonment, a fine of 120 penalty units, or both.

    1. Convention on International Trade in Endangered Species of Wild Fauna and Flora (Washington, 3 March 1973) [1976] ATS 29.

  1. The sentencing judge imposed an aggregate sentence of 3 years imprisonment. His Honour ordered that the sentence was to be served by Intensive Correction Order (“ICO”). The ICO was subject to the following conditions: (1) the offender must not commit any offence; (2) the offender must perform 700 hours of community service work; (3) the offender is to abstain from using illicit drugs; (4) the offender must submit to the supervision by a community corrections officer; and (5) the offender is to report to the City Community Corrections office within five days.

  2. On 3 July 2019, the Commonwealth Director of Public Prosecutions filed a notice of appeal under s 5D of the Criminal Appeal Act 1912 (NSW). The sole ground of appeal was that the sentence was manifestly inadequate.

Relevant facts

Sequence 83 – attempt to export regulated native specimens on or about 26 July 2016

  1. On 27 July 2016, four international mail items bound for export to Sweden were intercepted by officers with Australian Border Force and Australia Post at the Sydney Mail Gateway Facility after anomalies were detected in an x-ray examination. Each package was addressed to an address in Sweden and each contained false sender details. The packages were posted on 26 July 2016 by Reece Elson, who had been recruited and paid by the respondent to post the packages on his behalf at post offices in Toongabbie and Greystanes.

  2. Each package was opened and found to contain regulated native specimens. In total, 24 live shingleback lizards and 10 live native turtles were found in cloth bags inside plastic “Sistema Klip It” containers. The turtles were Chelodina steindachneri, commonly known as dinner-plate turtles. The lizards were Tiliqua rugosa, commonly known as shingleback or bobtail lizards. Both species are Australian native reptiles and are defined as regulated native specimens under s 303DA of the EPBC Act. The respondent did not have permission to export any of the specimens.

  3. As noted at the outset the sentencing judge imposed an aggregate sentence. The indicative sentence nominated by the sentencing judge for this offence was 9 months imprisonment. But for the 25% discount for the respondent’s early plea of guilty the indicative sentence would have been 12 months.

Sequence 84 – attempt to export regulated native specimens on or about 12 October 2016

  1. On 12 October 2016, two further international mail items bound for export to Sweden were intercepted by officers with Australian Border Force and Australia Post at the Sydney Mail Gateway Facility after anomalies were detected in an x-ray examination.

  2. Each package was addressed to an address in Sweden and each contained false sender details. The names and addresses of the persons to whom the packages were addressed had been recorded in notes made by the respondent in his mobile phone on 27 September 2016. The packages were deposited at two separate post offices by Mathew Ferguson, who was recruited and paid $500 by the respondent. The respondent filled out the postage forms which he provided to Mr Ferguson to provide to post office staff and drove Mr Ferguson to the post offices with the parcels for posting. A total of $192.85 was paid in postage.

  3. Each package was opened and found to contain regulated native specimens. In total, nine live shingleback lizards were wrapped in cloth bags inside plastic containers. The lizards were Tiliqua rugosa, commonly known as shingleback or bobtail lizards, which is a native reptile and defined as a regulated native specimen under s 303DA of the EPBC Act. The respondent did not have permission to export any of the specimens.

  4. The indicative sentence nominated by the sentencing judge for this offence was 7 months and 15 days imprisonment. But for the 25% discount for an early plea of guilty the indicative sentence would have been 10 months.

Sequences 85 and 86 – import and attempt to import regulated live specimens on or about 19 October 2016

  1. On 13 October 2016, the respondent departed Australia for Bangkok, Thailand. On 15 October 2016, the respondent made a note on his mobile phone about quantities of reptiles and fish, as well as prices and freight. On 16 and 17 October 2016, the respondent conducted internet searches, including for FedEx locations in Thailand and hotels in Sydney.

  2. On 17 October 2016, the respondent posted a number of packages from Bangkok containing reptiles, fish and stingrays. He used false senders’ details and addressed the packages to persons named “Brian Turner”, “Ben Williams” and “Stephen James” at hotels in Sydney. The respondent completed Air Waybill forms stating that each of the packages contained a water filter. He also completed commercial invoices stating that the export of the water filters was for the purpose of a “gift”. The respondent deposited the packages at two separate FedEx offices in Thailand and paid approximately $3,024 (AUD) in postage. On 17 October, the respondent made a note on his mobile phone recording names next to a number of the hotels in Sydney where the parcels had been sent.

  3. On 18 October 2016, the respondent returned to Australia from Bangkok. Upon his arrival in Australia, he was subjected to an examination by officers with the Australian Border Force. The respondent initially refused to unlock his mobile phone and deleted material from it. The examination included a digital examination and download of his mobile phone.

  4. On 19 October 2016, officers with the Department of Agriculture and Water Resources intercepted 16 of the parcels posted by the respondent from Bangkok via the FedEx service at Matraville. The packages were found to include, in total, 23 live Chinese soft-shelled turtles, 15 live alligator snapping turtles, 10 live snakehead fish, 58 dead snakehead fish, 11 neo-tropical stringrays, two live sugar gliders, 18 dead sugar gliders and 15 dead veiled chameleons. The turtles were packaged inside plastic tubs, the snakehead fish and stingrays inside “Kordon” brand breather bags, the sugar gliders inside small cages and the veiled chameleons in white calico bags. All packages were placed inside black plastic aquarium filters.

  5. The live specimens were the subject of sequence 85. The dead specimens were the subject of sequence 86. All live specimens were destroyed. The veiled chameleons are listed in CITES Appendix II. Appendix II lists species not currently threatened with extinction but which could become so if trade is not regulated. The alligator snapping turtles are listed in CITES Appendix III. Appendix III lists specific populations of species or species threatened only in a specific country.

  6. The indicative sentence nominated by the sentencing judge for each offence was 2 years imprisonment. But for the 25% discount for an early plea of guilty the sentence would have been 32 months.

Sequence 87 – possess non-native CITES-regulated specimens on or about 3 March 2017

  1. On 3 March 2017, a search warrant was executed at the respondent’s residence. During the execution of the search warrant, two live pythons, later identified as belonging to the Python Molurus group, were located inside “Sistema” brand containers in the hallway. The respondent admitted that he was the owner of the reptiles and that he knew the snakes were not Australian natives and that it was illegal to possess them. The pythons were seized. One of the pythons died shortly after being seized. The other python was destroyed. Pythons are defined as CITES specimens pursuant to s 303CA of the EPBC Act. The two pythons seized are listed in CITES Appendix II.

  2. The indicative sentence nominated by the sentencing judge for this offence was 1 month and 15 days imprisonment. But for the 25% discount the sentence would have been 2 months.

Sequence 88 – possess suspected proceeds, money less than $100,000 on or about 3 March 2017

  1. On 3 March 2017, during the execution of the search warrant, $43,550 in cash was also located. The respondent admitted that the money was his. The money was seized.

  2. The indicative sentence nominated by the sentencing judge for this offence was 2 months and 7 days imprisonment. But for the 25% discount the sentence would have been 3 months.

Proceedings on sentence

  1. The sentencing judge identified the applicable maximum penalties for each offence and took into account each of the matters required by s 16A of the Crimes Act 1914 (Cth). His Honour recorded that he was imposing a sentence that is of severity appropriate in all the circumstances of the offence as required by s 16A(1) of the Crimes Act. The sentencing judge then reproduced material from the statement of agreed facts which we have summarised above.

Section 16A(2)(a) – the nature and circumstances of the offence

  1. In considering the nature and circumstances of the offence pursuant to s 16A(2)(a) of the Crimes Act, his Honour stated:

“[82] Offences of the kind that the offender faces sentence are serious offences. The maximum penalty of ten years for four of the offences provides guidance as to the seriousness parliament views such offences.

[83] In Henri Robert Morgan v R [2007] NSWCCA 8 the Court of Criminal Appeal noted at [12]:

“The objective gravity of a particular instance of this kind of offence will depend upon an assessment of a number of factors. Apart from the factors identified in s 16A of the Crimes Act (Commonwealth) the following list of matters, which is not intended to be exhaustive, may inform the sentencing exercise:

(a) the nature 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;

(g) the actual and/or potential harm or damage occasioned to the environment including for example the spread of disease.”

[84] The Crown relied upon Kline [sic] 39 A Crim R 332 at 335, adopted in Robison (1992) 62 A Crim R 374, 378-379, that those who engaged in the importation or export of specimens “that gaol will be the usual result...”

[85] However it was observed in Robison that:

‘Notwithstanding the submissions as to general deterrence the Courts have more often than not declined to impose custodial sentences for offences of the present kind against the Act.’ (see headnote 3 and p 380)

[86] Neither case is a guideline judgment. Kline was delivered in 1989 and Robison was decided in 1992. To say that gaol will be the usual result is incompatible with the judicial sentencing discretion: Parente v R [2017] NSWCCA 285. It is a prescriptive statement of what ought to be. The administration of the criminal law involves individualised justice. I accept that the major sentencing consideration is general deterrence:

‘Although general deterrence is important, it can never be allowed to dictate a sentence which is not proportionate to the offence committed or appropriate to punish the particular offender before the Court.”: R v Moon [2000] NSWCCA 534 Howie J at [81].’”

  1. His Honour took into account the expert reports of Ms Bending, Mr Low and Associate Professor Spencer, tendered by the Crown, in relation to wildlife trading in assessing the objective seriousness of the offending: at [69], [87]-[91]. His Honour determined that the statements of Dr White and Dr Rowley were admissible but raised questions of the weight which he should attach to them: at [98]-[99].

  2. His Honour then considered each of the factors set out in Morgan v R [2007] NSWCCA 8. In relation to sequences 83 and 84, the attempts to export regulated native specimens, his Honour found:

  1. The respondent alone attempted to export the specimens and he engaged others to minimise the risk of detection: at [100];

  2. The respondent’s motivation was financial. It did not matter that he intended to use his financial gain for living expenses or to repay a debt. The fact that the respondent was motivated to repay a debt did not reduce his moral culpability: at [101];

  3. The use of false sender details and engagement of third parties in using the postal system was not particularly sophisticated but it did demonstrate that the respondent knew that his activities were illegal: at [102];

  4. The means of transporting the regulated native specimens did not involve any undue cruelty or other aggravating circumstances. Undue cruelty must be something more than a risk of death upon transportation. There were no deaths of the regulated native specimens occasioned by the respondent’s attempted exports: at [104]-[105];

  5. The first attempted export involved 24 shingleback lizards and 10 live native turtles and the second attempt involved nine shingleback lizards. Neither species was rare or endangered: at [106].

  6. The creatures were alive and well when intercepted by authorities: at [107];

  7. Any actual or potential harm or damage occasioned to the environment was not applicable to the facts of the exportation offences: at [108].

  1. His Honour concluded in relation to the exportation offences:

“[109] The Crown submitted that “the offending falls at the high end of the spectrum of seriousness”. I do not accept that characterisation. However, the offences were objectively serious.

[110] The appointment of objective seriousness, referable to a notional point on a spectrum of culpability (although convenient as a shorthand descriptor) is not a necessary component of the sentencing task and to express objective seriousness in that way is rarely definitive of that part of the sentencing exercise, that requires the sentencing judge to make an evaluative assessment of the gravity of the particular offending or the culpability of the offender: Yeung v R [2018] NSWCCA 52 at [19]-[30]; R v DP [2019] NSWCCA 55 at [42].

[111] The Crown conceded in its written submissions that in relation to sequence 84 the offending is of slightly lesser gravity than sequence 83 by reason of the smaller number of specimens involved.”

  1. In relation to sequences 85 and 86, the import and attempt to import regulated live specimens offences, the sentencing judge found:

  1. The respondent made two trips to Thailand, the first of which was a scoping exercise. The respondent was solely responsible for all aspects of the movement of the specimens to Australia: at [113].

  2. The respondent’s motivation was financial and there must have been a reasonable degree of anticipation of reward to expend moneys on the scoping trip to Thailand: at [114];

  3. There was a degree of pre-planning. The use of false sender details and the sending of packages to various hotel addresses to avoid detection demonstrated some degree of sophistication but not overly so: at [115];

  4. The sugar gliders were placed in cages and the veiled chameleons in cloth inside water filters. The respondent’s conduct was not excessive and the method of transporting the specimens was not disproportionate. There was no undue cruelty on the part of the respondent: at [116];

  5. In sequence 85 there were 23 Chinese soft-shelled turtles, 15 alligator snapping turtles, 10 snakehead fish, 11 stingrays and two sugar gliders. In sequence 86 there were 58 snakehead fish, 18 sugar gliders and 15 chameleons. Those numbers were taken into account when assessing objective seriousness. None of the specimens were rare and it would appear in Thailand that little value was placed upon them: at [117];

  6. All of the veiled chameleons died as did 18 sugar gliders and 58 of the fish: at [118].

  7. The sentencing judge at [119]-[121] accepted evidence that:

  1. soft-shelled turtles present an inherent risk to Australian fish populations and other aquatic creatures;

  2. alligator snapping turtles present a risk to Australian fish and fauna;

  3. snakehead fish present a significant risk to food, webs and ecosystems and host parasites;

  4. neo-tropical stingrays seldom form invasive species and the risk of establishment is low;

  5. sugar gliders pose a low risk to Australian biodiversity however they have the potential to carry pathogens; and

  6. alligator snapping turtles and veiled chameleons are listed in CITES Appendices III and II respectively.

  1. His Honour concluded in relation to the import and attempt to import regulated live specimens offences:

“[122] The Crown acknowledges that the offences on 19 October 2016 were part of a course of conduct for the purposes of s 16A(2)(c) and that there is an interrelationship between the legal and factual elements of the offences.

[123] I must ensure that the offender is not punished twice for what is essentially the same criminality: Roger v Western Australia [2009] WASCA 139 at [22].

[124] The offending conduct was objectively serious, the offender had a scoping trip to Thailand. It was his criminal enterprise. It involved a large number of specimens and death to a large number of specimens. The conduct posed a biodiversity risk to Australia.

[125] The conduct in sequences 85 and 86 is objectively more serious than the conduct in sequences 83 and 84. I do not accept the Crown’s characterisation that the charges were of the utmost seriousness and at the end of the spectrum.”

  1. In relation to sequence 87, the sentencing judge noted the evidence of the dangers in dealing with pythons: at [69]. His Honour found that the keeping of the pythons was consistent with the respondent’s lifelong interest in reptiles. The pythons are listed in CITES Appendix II and are species that are presently not threatened with extinction. His Honour found that it was highly unlikely that the snakes would escape and cause any risk or disruption to the ecosystem. His Honour held that the objective seriousness was low: at [126].

  2. In relation to sequence 88, his Honour found that the objective seriousness of the offending was well below the middle range and was towards the low end: at [129].

Section 16A(2)(m) – the character, antecedents, age, means and physical and mental condition of the person

  1. The sentencing judge made the following findings on these topics at [143]-[151]. The respondent was born in Lismore in 1989. He is in a de facto relationship and there are two children of that relationship. He received an academic bursary to attend a private school. At that school he was a prefect and one of the school captains. He played rugby and rugby league. The respondent played representative football and captained the NSW schools’ team. He was academically talented and excelled at sports. In year 12 he received a contract to play for the Sydney Roosters. The respondent declined an ADFA scholarship to pursue that opportunity.

  2. In 2007, the respondent enrolled at the University of New South Wales in a Health and Exercise Science course. He deferred after the first semester to concentrate on rugby league. His rugby league career was marred with injuries, including broken ankles, torn hamstrings and fractures of the face. He sought supplements to assist his recovery time.

  3. An ASADA investigation commenced against the respondent in 2013 in relation to performance-enhancing supplements. On 18 March 2015 he was issued with a notice by the NRL detailing alleged anti-doping policy breaches. On 19 March 2015 he accepted a voluntary provisional suspension from playing rugby league. He has not played rugby league since that date. The sentencing judge accepted that the respondent was a person of prior good character although noting that, while a professional rugby league player, he sought to obtain banned performance-enhancing substances on three occasions and in the course of an investigation by ASADA wiped data from his mobile phone.

  4. The sentencing judge found that the impact upon the respondent of the loss of his professional sporting career was substantial. The primary judge accepted evidence from Professor Woods that the end of the respondent’s professional sporting career led to a rapid deterioration in his mental health, and that the respondent suffered from:

  1. a loss of interest in life with nihilistic ruminations and suicidal ideations;

  2. emotional and social withdrawal, including periods where he refused to leave his bedroom for days; and

  3. an acutely depressed mood amounting to a major depressive disorder.

  1. Hundreds of thousands of dollars in legal costs were incurred by the respondent in relation to the ASADA investigation and related NRL anti-doping proceedings.

  2. The respondent started a business breeding reptiles for sale. He also started a separate business importing Japanese fishing tackle. Once the respondent’s ASADA and NRL ruling became public, he closed the reptile breeding business. Before that occurred, one of his volunteers broke into the storage area overnight and stole a large number of reptiles. The respondent lost funds invested in the business and remained in debt to a Mr Simpson. The Japanese fishing tackle business was also a failure.

  3. The sentencing judge resolved the conflicting evidence given by Mr Simpson and the respondent about that debt in favour of the respondent: at [48]-[58]. His Honour accepted the respondent’s evidence that he believed he was under pressure to repay the loan. However his Honour noted that the respondent made it clear in his evidence that it was his decision alone to make money by the import and export of fauna.

  4. The sentencing judge found that in the context of the failure of his businesses and his banning from rugby league, the respondent determined to export native fauna to raise money. It was he, solely, who made that decision.

  5. The sentencing judge did not accept that the need for general deterrence was ameliorated due to his mental state at the time of the offending. His Honour found at [142]: “I accept that his decision making abilities were impaired at the time of the offending conduct, but there is no causal relation between the offender’s depressive disorder and the offending behaviour, the offender well knew his conduct was unlawful.”

Section 16A(2)(e) – any injury, loss or damage resulting from the offence

  1. The sentencing judge stated at [130]: “In assessing the objective seriousness of the offending I have taken into account the death of the specimens”.

Section 16A(2)(f) – contrition

  1. The sentencing judge accepted that the respondent was genuinely remorseful and contrite in relation to his part of his offences: at [134].

Section 16A(2)(g) – plea of guilty

  1. The sentencing judge accepted the respondent’s submission that his plea was an early plea and should attract a 25% discount: at [138].

Section 16A(2)(h) – the degree of cooperation with law enforcement agencies

  1. The sentencing judge found that initially the respondent was reluctant to make admissions and his later assistance related to matters already within the knowledge of the AFP. His Honour did not give a discount for assistance to the authorities: at [139].

Sections 16A(2)(j) and 16A(2)(ja) – the deterrent effect that any sentence may have on the person and on other persons

  1. The sentencing judge found that the sentence to be imposed must reflect a strong element of deterrence: at [141]. The offences are difficult to detect. There is potential to realise substantial amounts of money from trading in the various species and the incentive to do so must be removed. Those who consider engaging in such conduct should be deterred from taking risks which have the potential to cause substantial and permanent harm to ecosystems, both in Australia and overseas.

  2. The sentencing judge stated at [140]: “The sentences I propose to impose have a degree of specific deterrence aimed at the offender.”

Section 16A(2)(k) – the need to ensure that the person is adequately punished

  1. The sentencing judge expressly referred to the matters he was required to take into account and repeated the remarks about general deterrence.

Section 16A(2)(n) – the prospect of rehabilitation of the person

  1. The sentencing judge made the following findings on this topic at [152] and [154]. Shortly after his arrest, the respondent obtained employment as a traffic controller. He now realises “that it is his lot in life and the grandiose dreams of being a successful businessman were nothing more than dreams”. He is working hard, up to 70 hours a week, and the work references tendered speak very highly of him. He has employment and a stable family life. The glitter of professional rugby league has well passed. He intends to do the best he can to provide for his wife and young family. The sentence assessment report has assessed him as a low risk of reoffending. It is Professor Woods’ opinion that he is highly likely not to reoffend in any way. According to Professor Woods, he currently has stable mental health and is not suffering from active symptoms of mental disorders he says he suffered at the time of the offending.

  2. The sentencing judge found that the respondent had excellent prospects of rehabilitation for the following reasons:

  1. the respondent has put his past life behind him;

  2. arrest, charging and prosecution have been salutary lessons to him;

  3. the respondent has a stable and happy family life;

  4. the respondent is in full-time employment;

  5. the respondent has insight into his offending and the potential danger to the ecosystem as a result of his conduct; and

  6. the respondent’s mental state is stable and his past demons have been resolved.

  1. The sentencing judge found that:

“[155] It is open to impose a sentence that assists the offender to avoid offending in the future to ensure the protection of the community. I am cognisant of the fact that the subjective circumstances of the offender should not overshadow the objective gravity of the crime for which sentence is to be passed: R v Dood [1991] 57 A Crim R 349 at 354.

[156] The sentence I intend to impose will not be overshadowed by the subjective circumstances of the offender.”

Section 16A(2)(p) – the probable effect on the person’s family

  1. The sentencing judge held that there was no exceptional hardship to the respondent’s family: at [157].

Sentence imposed

  1. Having considered in particular the objective seriousness of the offending and the need for the sentence to reflect a strong element of deterrence, the sentencing judge formed the view that a sentence of imprisonment was warranted: at [161]. His Honour took into account the principle of totality: at [163]. His Honour then indicated the sentences for each offence which are set out above in addressing the facts and imposed an aggregate sentence of 3 years.

  2. In considering whether the sentence should be served by means other than imprisonment at [167]-[172], his Honour set out the purposes of the amendments to the Crimes (Sentencing Procedure) Act 1999 (NSW) on 24 September 2018, and quoted the Attorney General’s second reading speech and this Court’s decision of R v Pullen [2018] NSWCCA 264 per Harrison J at [84] and [89]. His Honour concluded that the aggregate sentence would be served by way of ICO.

Notice of appeal

  1. The Crown appeals against sentence on the sole ground that the total effective sentence of 3 years imprisonment to be served by way of ICO is manifestly inadequate. The Crown provided two particulars of this ground as follows:

  1. the total effective sentence imposed does not adequately reflect the nature and circumstances of the overall offending, including the maximum penalties prescribed for the offences; and

  2. the total effective sentence imposed does not adequately reflect the principles of general deterrence, specific deterrence, punishment and denunciation.

Evidence on appeal

  1. The respondent read the affidavit of Bryan Wrench affirmed on 19 September 2019. This evidence is relevant to the exercise of the residual discretion and, in the event the Court comes to resentence, that resentence. Mr Wrench, a solicitor for the respondent, stated that, since the imposition of his sentence on 7 June 2019, the respondent has completed approximately 500 hours of community service work, assisted his partner in caring for his young children and attended further psychological treatment. Annexed to the affidavit was a letter dated 13 September 2019 by Ms Byrne of the City Community Corrections Office, a reference dated 12 September 2019 by Ms Norris, retail manager of St Vincent de Paul Society at Waverley where the respondent is undertaking his community service work, a letter dated 13 September 2019 by Ms Chan, the respondent’s partner, and a supplementary report dated 17 September 2019 by Professor Woods, a forensic psychologist who has been treating the respondent since 12 April 2018.

Submissions on appeal

Crown submissions

  1. The Crown submitted that a combination of leniency in respect of the indicative sentences imposed for the offences, the aggregate sentence and the imposition of an ICO have resulted in a total effective sentence which is manifestly inadequate. It was submitted that the respondent should be sentenced to a term of imprisonment involving full-time custody.

  2. The Crown submitted that the primary task of the sentencing judge was to impose a sentence or make an order that was of a severity that was appropriate in all the circumstances of the offence. It was submitted that the sentencing judge failed to pay sufficient account to matters required to be taken into account in determining the sentences which his Honour indicated would lead to the imposition of an aggregate sentence. In particular, his Honour failed to pay sufficient account to those matters referred to in s 16A(2)(j)-(k) of the Crimes Act, being: (j) the deterrent effect that any sentence or order under consideration may have on the person; (ja) the deterrent effect that any sentence or order under consideration may have on other persons; and (k) the need to ensure that the person is adequately punished for the offence(s).

  3. The Crown submitted that his Honour’s reference to Morgan v R [2007] NSWCCA 8 did not include this Court’s confirmation that, given the clear legislative purpose of the offences and the penalties attached to the offences in question, “the expectation must be that offences of the present kind would normally attract a full-time custodial sentence”.

  4. The Crown submitted that a sentence of full-time imprisonment was consistent with the sentences referred to in the Crown’s schedule of matters provided on sentence. While the circumstances and numbers of creatures involved in the importation and exportation offences referred to in those cases are different, as would be expected, it would be concluded that the respondent’s offences were worse than many of the offences the subject of those other cases in which a sentence involving full-time custody was imposed.

  1. The Crown submitted that, in relation to the importation offences, his Honour found that the offending conduct was “objectively serious” and more serious than the exportation offences. It was submitted that his Honour resisted the Crown’s submission that the offences were of the utmost seriousness and at the “end of the spectrum” but did not identify anything else about where the offences might fall compared to any other behaviour, whether referred to in the comparative sentences or otherwise. Although it is not necessary that a specific label (or a notional point on a scale) be attached to objective seriousness, it was submitted that there should be transparency permitting an understanding of how the sentencing judge determined where in the scale of criminality the offences lay.

  2. While the Crown acknowledged that the assessment of objective seriousness is quintessentially an evaluative exercise to be undertaken by the sentencing judge and the Court will be slow to intervene, it was submitted that the Court should intervene in this case.

  3. The Crown submitted that the aggregate sentence of 3 years was infected by error by reason of the indicative sentences for the importation, exportation and possession offences being themselves inadequate. It follows that if a greater aggregate sentence than 3 years had been imposed, as it should have been, then an ICO could not have been made: Crimes (Sentencing Procedure) Act, s 68.

  4. The Crown submitted that the sentencing judge, by his reference at [169]-[171] to R v Pullen, implicitly treated the amendments to Part 5 of the Crimes (Sentencing Procedure) Act “as qualifying the need to have regard to the general purposes of sentencing”: R v Fangaloka [2019] NSWCCA 173 at [45]. It was submitted that the additional leniency represented by an ICO of itself, in the circumstances of the case, or alternatively together with the other matters raised by the Crown, has given rise to a sentence which is manifestly inadequate.

  5. The Crown submitted that given the speed with which this appeal has been brought on, the seriousness of the offences committed by the respondent and the importance of providing guidance to sentencing judges by allowing the appeal in this case, the residual discretion not to intervene should not be exercised.

Respondent’s submissions

  1. The respondent submitted that it is noteworthy that, aside from the extent of the notional accumulation in the aggregate sentence and the ultimate sentence imposed, the Crown was unable to point to any specific feature of the sentencing judge’s reasoning that was infected by error. It was submitted that this is unsurprising, since the sentencing judge gave careful and detailed consideration to each aspect of the case, both objective and subjective, before arriving at the sentence.

  2. The respondent submitted that the real question is whether the sentence is manifestly inadequate, rather than whether sufficient weight was given to individual aspects of the sentencing exercise.

  3. The respondent submitted that there is no substance to the Crown’s criticism of the sentencing judge’s characterisation of Klein v R and R v Robison as being “prescriptive” or the Crown’s submission that “his Honour’s focus on ‘prescription’ and ‘dictation’ of penalty has obscured the importance of general deterrence in a way which is reflected in the process and in particular, the result which followed”. This is so in light of the sentencing judge’s comment at [86]: “I accept that the major sentencing consideration is general deterrence.” It was submitted that the sentencing judge’s reference to Parente v R [2017] NSWCCA 284 was entirely consistent with prior authority and simply recognised the fact that neither Klein v R nor R v Robison dictated any particular outcome in the present case.

  4. The respondent submitted that the sentencing judge paid close attention to the principles to be derived from Morgan v R. His Honour noted at [83] the various factors this Court had found bore upon the objective gravity of offences contrary to the EPBC Act. His Honour then analysed at [100]-[125] each factor in detail as it applied to the present offence.

  5. The sentencing judge concluded at [154] that the respondent had excellent prospects of rehabilitation, having heard evidence from the respondent as well as extensive cross-examination of him and having accepted the respondent’s evidence. The respondent submitted that the subjective material tendered on the respondent’s behalf was not the subject of challenge and was supportive of the Court’s findings concerning his prospects of rehabilitation. It was submitted that all of those matters meant that, while general deterrence was a significant factor, it was of diminished importance given the respondent’s steps toward rehabilitation.

  6. The respondent submitted that there is no obligation upon a sentencing judge to compare the particular offending behaviour with offending behaviour in other cases or to some other standard. The respondent submitted that there can be no doubt that the sentencing judge identified, fully, all facts, matters and circumstances, which were relevant.

  7. The respondent submitted that while the Crown criticised the sentencing judge’s findings as to the objective seriousness of the offences, no ground of appeal asserting patent error is pleaded. This Court’s reasoning in Mulato v R [2006] NSWCCA 282 at [37] applies to this contention.

  8. The respondent submitted that, for all the reasons identified by the sentencing judge, the sentence of 3 years was well within range for the present offences. It was submitted that although the Crown submitted that the aggregate sentence of 3 years imprisonment was mandated, the Crown’s schedule of comparative cases before the sentencing judge only identified one case which involved a sentence in excess of 3 years imprisonment. In any event, “consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form”: R v Pham (2015) 256 CLR 550; [2015] HCA 39 at [28].

  9. The respondent submitted that the order that the sentence of imprisonment be served in the community by way of ICO did not render the aggregate sentence manifestly inadequate. The imposition of the additional conditions, in particular the community service work condition of 700 hours, added significantly to the nature of the order.

  10. The respondent submitted that the Crown’s submissions based upon the decision of R v Fangaloka [2019] NSWCCA 173 must be assessed in the light of the more recent decision of Casella v R [2019] NSWCCA 201. The respondent submitted that there is no basis for concluding that, as the Crown submitted, the sentencing judge “implicitly treated the amendments to Part 5 of the Crimes (Sentencing Procedure) Act as qualifying the need to have regard to the general purposes of sentencing” particularly bearing in mind his Honour’s comment at [86], “that the major sentencing consideration is general deterrence”.

  11. The respondent submitted that, accordingly, there has been no misapplication of principle in the sentencing judge’s determination that the sentence ought to be served in the community. On the contrary, there was positive evidence that the respondent had undertaken significant steps toward rehabilitation and posed a low risk of reoffending: at [152].

  12. The respondent submitted that even if the Court were to conclude that the sentence imposed was manifestly inadequate, it remains for the Crown to persuade the Court that the Court should not exercise the residual discretion to dismiss the appeal. The respondent submitted that a substantial period of time has lapsed since sentence was imposed and the respondent has completed almost the entirety of his community service work condition. It was submitted that this is a significant fact which militates against allowing the Crown appeal.

  13. The respondent submitted that the material read on the appeal on behalf of the respondent demonstrates that he has continued on the path to rehabilitation. Accordingly, were the respondent now to be sentenced to a term of imprisonment to be served by way of full-time incarceration, this process would be stifled. It was submitted that this would have deleterious effects, not only on the respondent, but also on the community more generally.

Consideration

  1. In R v JW (2010) 77 NSWLR 7; [2010] NSWCCA 49 at [27] Spigelman CJ explained that the notice of appeal “should be regarded as a formal document which contains within itself the issues to be determined on the appeal”. An appeal limited to a contention of manifest inadequacy must necessarily focus on the sentence imposed, rather than the reasons given by the sentencing court for that sentence.

  2. Where an appeal is brought against an aggregate sentence, as is the case here, the focus must be on the sentence imposed and not on the indicative sentences although an indicative sentence may act as a guide as to whether error in the aggregate sentence is established. In JM v R [2014] NSWCCA 297; 246 A Crim R 528 at [40] R A Hulme J stated:

“[40] ...

13. A [principal] focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved ... This Court is not in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures.”

  1. In Carroll v The Queen [2009] HCA 13; 83 ALJR 579 at [24], the plurality explained that in the absence of any challenge to the primary judge’s findings of fact, it was not open to the Court of Criminal Appeal to evaluate the adequacy of the sentence by discarding reference to facts upon which the offender was sentenced.

  2. Whilst an appellate court considering a ground of manifest inadequacy is not bound by the sentencing judge’s assessment of the proper weight to be given to, for example, objective seriousness, limits upon appellate review nonetheless apply. The issue is not whether the aggregate sentence imposed failed to reflect the objective seriousness of the offences; it is whether it was open to the sentencing judge to impose that sentence, including in this case whether it was open to him to order that the sentence be served under supervision in the community: CMB v Attorney-General for the State of New South Wales (2015) 256 CLR 346; [2015] HCA 9 at [78].

  3. In imposing an ICO, the reference by the sentencing judge to the decision of this Court in R v Pullen [2018] NSWCCA 264 necessitates a brief reference. We do not regard R v Fangaloka [2019] NSWCCA 173 as overruling the decision of this Court in Pullen. What Fangaloka itself decides may be open to doubt: Casella v R [2019] NSWCCA 201. We do not regard the reference of the sentencing judge to Pullen, by which he was bound, in and of itself, as an error. It must also be borne in mind that this is a case in federal jurisdiction and the ICO is a sentencing option made available by s 20AB of the Crimes Act 1914 (Cth). The question of construction of the provisions permitting an ICO and consistency in federal sentencing should await a case which directly raises the issue.

  4. The real question is whether the sentence of 3 years imprisonment to be served by way of ICO was manifestly inadequate for the six offences committed by the respondent, bearing in mind the different legislative guideposts of 10 years, 5 years and 2 years respectively as well as other sentencing principles correctly identified by his Honour. In Dinsdalev The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], Gleeson CJ and Hayne J stated:

“Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.”

  1. In R v Pham (2015) 256 CLR 550; [2015] HCA 39 at [28], French CJ, Keane and Nettle JJ stated:

“[28] ...

(7) Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.”

  1. A sentence will be manifestly inadequate if it is “unreasonable or plainly unjust” or “below the range of sentences that could be justly imposed for the offence consistently with sentencing standards”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]; Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 at [24].

  2. Turning to the central issue, in our view 3 years imprisonment to be served by way of ICO was a manifestly inadequate sentence for these offences. General deterrence, denunciation and the protection of the community are critical principles of sentencing relevant to cases under the EPBC Act involving threats to Australian fish, fauna and biodiversity. Offending which threatens native species and Australia’s biodiversity warrants stern punishment. The imposition of a 3 year ICO in this case does not adequately reflect the nature and circumstances of the offending, including the maximum penalties for the importation, exportation and possession offences and the principles of general deterrence, specific deterrence, punishment and denunciation.

  3. Having regard to all of the circumstances of this case, we have concluded that the sentence imposed was manifestly inadequate. The sentence imposed fell outside the discretion available to the sentencing judge. We say that for the following reasons:

  1. First, the maximum penalty for the importation and exportation offences was 10 years imprisonment. The legislature has conveyed the degree of seriousness of these offences by fixing a maximum term of imprisonment of 10 years for the importation and exportation offences, 5 years for the possession offence and 2 years for the proceeds offence. Those maximum penalties speak for themselves in identifying the view of the Commonwealth Parliament about the seriousness of threats to Australian fish, fauna and biodiversity;

  2. Secondly, the importation offences in this case had potentially catastrophic consequences for the Australian ecosystem:

  1. The soft-shelled turtles, the subject of the importation offence committed in October 2016, presented an inherent risk to Australian fish populations and other aquatic creatures. In 2013 the Philippines Department of Environment and Natural Resources launched an investigation into the turtles which were then threatening Central Luzon’s local fish populations and other aquatic animals. The turtles could also introduce new pathogens into Australia. The US Fish and Wildlife Service lists a range of diseases associated with these turtles. Australian native turtle species in parts of Australia have in the past faced threats of extinction from introduced viruses. Any diseases introduced by these turtles to Australia pose a risk of very serious ecological impacts;

  2. The alligator snapping turtles, the subject of the same importation offence, presented a potentially catastrophic ecological risk including to Australian fish and fauna. The turtles are large voracious predators. The turtles can grow up to 80kg. They also pose a risk to human populations. Children have been injured by the turtles and the turtles have been demonstrated as capable of biting off the fingers of people who approach too closely. The risk of them escaping is very high. The Japanese Environment Ministry has banned their import and breeding after the turtles became prevalent in the Chiba area. It was reported that “by the time an increase in the population of snapping turtles is noticed, there is likely to have been considerable damage to the ecosystem already”;

  3. The snakehead fish, also imported in October 2016, presented a significant risk to food, webs and ecosystems and hosted parasites. The snakehead is a predator which has devastated native fish populations in Madagascar where it was introduced. The snakehead fish has had a major impact on the Papua New Guinea barramundi population. The risk these creatures pose to biodiversity has resulted in them being banned in several US States on the basis that their establishment in North America could drastically disrupt food webs and ecological conditions, thus forever changing native aquatic systems by modifying the array of native species. The risk of snakeheads escaping and becoming established as a wild population in Australia is high;

  4. The veiled chameleons, also imported in the October 2016 consignment from Thailand, posed a significant threat to small mammals and native birds. In Maui they are an “established pest” and possession attracts a heavy fine. The veiled chameleons also pose a risk of introducing disease into Australia. The NSW Department of Primary Industries has a webpage about the risks posed by the species and residents are urged to report sightings;

  5. Whilst the sugar gliders imported posed a low risk to biodiversity, they had the potential to carry pathogens that could be harmful to Australian marsupials;

  1. Thirdly, whilst not at present endangered, the alligator snapping turtles and veiled chameleons were listed in CITES Appendices III and II respectively;

  2. Fourthly, six separate offences committed in discrete episodes of repeat offending in July and October 2016 and then in March 2017 comprised the aggregate sentence. Each of the actual and attempted importation and exportation offences warranted a sentence of imprisonment, two of which involved the importation of a potentially dangerous species, each of which posed a different but substantial risk to the Australian ecosystem such as to warrant a sentence of full-time custody;

  3. Fifthly, offending of this kind is notoriously difficult to detect. When detected, the principles of general deterrence, specific deterrence, punishment and denunciation must be given effect.

  1. In short, for those reasons, we respectfully cannot accept that the sentence imposed reflected the overall gravity of the offending or satisfied the principles of sentencing which, in the circumstances of this case, elevated the importance of general deterrence and accountability over and above the sentencing objective of rehabilitation.

  2. In re-sentencing the respondent, we take into account the material in the affidavit of Bryan Wrench affirmed on 19 September 2019. We would also impose an aggregate sentence. We would adopt the same findings as the sentencing judge about the objective seriousness of each offence, that is:

  1. The two attempts to export regulated native specimens offences were objectively serious. No additional characterisation is required;

  2. The import and attempt to import regulated live specimens offences were also objectively serious. The respondent took a reconnaissance trip to Thailand. He was the sole principal in the criminal enterprise. That enterprise involved over 100 specimens with death being suffered by a third of them. Of the live specimens, the catastrophic consequences for the Australian ecosystem were significant as we have earlier described;

  1. By reason of the findings of the sentencing judge, not challenged by the Crown, that the pythons discovered in the respondent’s possession on his arrest were not threatened with extinction and that it was highly unlikely that the snakes would escape and cause any risk or disruption to the Australian ecosystem, we would adopt the characterisation of the objective seriousness of the possession offence as low;

  2. The proceeds offence was well below the middle range of objective seriousness.

  1. In conducting the required re-sentencing, and in the absence of any challenge by the Crown, we accept all of the very favourable findings about the respondent made by the sentencing judge. As the High Court has made clear, the interests of justice will generally not be served by permitting either party to make a new or different case on the hearing of the appeal: DL v The Queen [2018] HCA 32; 92 ALJR 764 at [38]. In particular, we accept that prior to his being sentenced the respondent had taken significant steps toward rehabilitation. Given the cavalier attitude the respondent took toward his offending when first apprehended, the sentencing judge’s finding that he now “has insight into his offending and the potential danger to the ecosystem as a result of his conduct” is a matter very much in the respondent’s favour. If it were otherwise we would have imposed a higher sentence. We allow a 25% discount for the respondent’s plea of guilty to reflect the utilitarian value of that plea.

  2. This is some of the most serious offending of its kind which has come before the courts. In making that finding, we are conscious that there is little effective guidance provided by decided cases. The list of comparative sentences provided by the Crown involved nearly all first instance decisions of District Courts around Australia. None of those cases was suggested to involve offending as serious as the present case. The few intermediate appellate court decisions on these sections involved much less serious offending. Morgan v R [2007] NSWCCA 8 involved an attempt to export 24 native bird eggs and hindering a Commonwealth official in the performance of his duties by breaking the eggs when he was questioned at the airport. Klein v R (1989) 39 A Crim R 332 involved the importation of seven birds and concealing from a quarantine officer certain goods, namely the birds. R v Robison (1992) 62 A Crim R 374 involved the attempted export of 47 native bird eggs.

  3. The relevant indicative sentences for each offence are as follows:

  1. Sequence 85 – Import regulated live specimens on or about 19 October 2016 – 3 years imprisonment;

  2. Sequence 86 – Attempt to import regulated live specimens on or about 19 October 2016 – 2 years and 6 months imprisonment;

  3. Sequence 83 – Attempt to export regulated native specimens on or about 26 July 2016 – 1 year and 9 months imprisonment;

  4. Sequence 84 – Attempt to export regulated native specimens on or about 12 October 2016 – 1 year and 6 months imprisonment;

  5. Sequence 87 – Possess non-native CITES-regulated specimens on or about 3 March 2017 – 4 months imprisonment;

  6. Sequence 88 – Possess suspected proceeds, money less than $100,000 on or about 3 March 2017 – 3 months imprisonment.

  1. Given a substantial degree of nominal accumulation, an aggregate sentence of 4 years full-time imprisonment is the minimum period of imprisonment required to be imposed for the totality of the respondent’s offending. It is necessary in this case under s 19AB(2) of the Crimes Act to impose a non-parole period. In all the circumstances, we would impose a non-parole period in this case of 2 years and 6 months.

Residual discretion

  1. In R v Cahill [2015] NSWCCA 53 at [9] Johnson J explained:

“As the High Court of Australia stated recently in CMB v Attorney General for NSW [2015] HCA 9 at [33]-[34], [54], [66] in an appeal against sentence under s.5D Criminal Appeal Act 1912, the Crown is required to surmount two hurdles. Firstly, it must demonstrate that the sentence turned on one or more specific errors of law or fact or, in the totality of the circumstances, was unreasonable or plainly unjust. Secondly, if error is demonstrated, the Crown must demonstrate that the discretion under s.5D to resentence the offender should be exercised.”

  1. The question remains whether this Court should intervene and re-sentence the respondent. There is a residual discretion to decline to intervene even though the sentence is manifestly inadequate. The appellant is obliged to satisfy the Court that the residual discretion should not be exercised: CMB v Attorney General for New South Wales at [33].

  2. In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, the majority (French CJ, Crennan and Kiefel JJ) observed at [1] that the primary purpose of Crown appeals was “to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons”. Their Honours described the primary purpose of laying down principles as a “limiting purpose” and said at [36]:

“… It does not extend to the general correction of errors made by sentencing judges. It provides a framework within which to assess the significance of factors relevant to the exercise of the discretion.”

  1. Their Honours observed that other circumstances may combine to produce injustice if a Crown appeal is allowed. Their Honours said at [43]:

“… They include delay in the hearing and determination of the appeal, the imminent or past occurrence of the respondent's release on parole or unconditionally, and the effect of the re-sentencing on progress towards the respondent's rehabilitation. They are relevant to the exercise of the residual discretion. The guidance afforded to sentencing judges by allowing the appeal should not come at too high a cost in terms of justice to the individual.”

  1. In addressing the residual discretion, we take into account the material in the affidavit of Bryan Wrench affirmed on 19 September 2019. There was no delay in the appeal being brought by the Crown. In this case, the respondent has made commendable progress towards rehabilitation. In particular, the respondent has now completed approximately 500 of the 700 hours of community service work ordered as part of the ICO.

  2. The speed with which this appeal was brought, the seriousness of the criminal conduct represented not only by the individual breaches of the EPBC Act but by the range of regulated native specimens the respondent attempted to export and the range and type of regulated live specimens he imported or attempted to import, and the guidance the sentence provides as a principled approach to sentencing for offending of that kind, strongly suggests that the sentence in this case would have significant utility in providing guidance to sentencing courts in the future. We are satisfied that this is a case where the residual discretion should not be exercised.

Orders proposed

  1. For these reasons we make the following orders:

  1. Appeal allowed;

  2. Set aside the sentence imposed by Grant DCJ on 7 June 2019 and in its place:

  1. impose an aggregate sentence of imprisonment of 4 years;

  2. under s 19AB(2) of the Crimes Act 1914 (Cth) impose a non-parole period of 2 years and 6 months;

  3. the sentence and non-parole period to date from 18 October 2019.

  1. ADAMSON J: I agree with the reasons of Payne JA and Fullerton J and with the orders which their Honours propose. I would like to add the following reasons of my own. Although there is no appeal against indicative sentences, their purpose is to indicate the notional sentence that would have been imposed had an aggregate sentence not been imposed. In the present case, I consider that each of the indicative sentences specified by the sentencing judge was too low and explained, at least in part, the manifest inadequacy of the aggregate sentence imposed.

  2. On the question of the residual discretion, I consider general deterrence to be a highly significant factor in the present case. Were the residual discretion to be exercised, there would be a substantial risk that the community which the sentence for such offences is designed to influence would fail to appreciate the seriousness with which the Court regards the respondent’s offending. The nuances of the residual discretion, if it were exercised, would, in effect, deprive the present case of any real potency in terms of general deterrence. Thus, while the reasons of this Court would still have an educative effect on sentencing judges, they would have little practical effect in deterring those inclined to commit offences such as those committed by the respondent. For these reasons, in addition to those articulated by Payne JA and Fullerton J, I am satisfied that the residual discretion ought not be exercised in this case.

**********

Endnote

Amendments

19 May 2020 - [1] add citation


[2] fn 1 amend citation


[24] amend pinpoint


[27] change monies to moneys


[54] change Waverly to Waverley


[56] amend text of 16A(2)(j)


[66] amend citation of Parente v R


[75] add ‘the’


[78] delete “the sentence imposed is manifestly inadequate” and insert ellipsis and paragraph numbers


[80] amend case name


[83] insert paragraph numbers


[97] amend 750 to 700

Decision last updated: 19 May 2020

Most Recent Citation
Cases Citing This Decision

14

R v Zhang [2024] NSWDC 153
R (Cth) v Chin [2021] NSWDC 176
Towers v The King [2025] NSWCCA 142
Cases Cited

32

Statutory Material Cited

5

CMB v Attorney-General (NSW) [2015] HCA 9
CMB v Attorney-General (NSW) [2015] HCA 9
CMB v Attorney General for New South Wales [2014] HCATrans 275