R v Lee

[2019] NSWDC 888

District Court

New South Wales

Medium Neutral Citation:	R v Lee [2019] NSWDC 888
Hearing dates:	17 December 2019
Decision date:	18 December 2019
Jurisdiction:	Criminal
Before:	King SC DCJ
Decision:	Convicted. s166 matters - SEQ 004 & 006 - taken into account on sentence imposed below. Indicative sentences: 001 - Count 1 – 1 year’s imprisonment 005 – Count 2 – 2 years’ imprisonment 007 – Count 3 – 1 year’s imprisonment Aggregate sentence: Pursuant to s20(1)(b) of the Crimes Act 1914 the offender is sentenced to a total term of imprisonment for 3 years to commence on 18 December 2019 and to expire on 17 December 2022. The offender is to be released after 17 June 2021 upon entering into a recognizance in the sum of $5000 conditional that he be of good behaviour for a period of 18 months. I make a forfeiture order in the sum of $10,350 as per the SMO handed up in court today.
Catchwords:	CRIMINAL – Sentence - possess non‑native CITES/regulated specimen - official abuse public office to gain advantage - deal with proceeds of crime, money/property, $10,000 or more – s16BA offences taken into account – systemic and ongoing breach of trust - flagrant disregard for responsibilities - aggregate sentence – subjective matters
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth) Environment Protection and Biodiversity Conservation Act 1999
Cases Cited:	Macarian v The Queen (2005) 215 ALR 213. Morgan v R (2007) NSWCCA 8
Category:	Sentence
Parties:	Regina Lee, Joseph Ian
Representation:	Counsel: Def: Mr K Ginges   Solicitors: CDPP: Ms H White
File Number(s):	2018/1347532

Judgment

1. Joseph Lee appears for sentence in respect of three offences, being: Count 1, possess non‑native CITES/regulated specimen, contrary to s 303GN(2) of the Environment Protection and Biodiversity Conservation Act (EPBC Act). The maximum penalty for that offence is five years’ imprisonment and/or a fine of 1,000 penalty units.

2. Count 2 is that between 11 October 2016 and 28 February 2018, official abuse public office to gain advantage contrary to s 142.2(1)(a)(iii) of the Criminal Code (Cth). The maximum penalty for such an offence is five years’ imprisonment.

3. Count 3 is that on or about 12 November 2018, the offender did deal with proceeds of crime, money/property, $10,000 or more, contrary to s 400.6(1) of the Criminal Code. The maximum penalty available is imprisonment for ten years and/or a fine of 600 penalty units.

4. When being sentenced in respect of those three matters, the offender asks the Court to take into account two further matters contained on a schedule pursuant to s 16BA of the Crimes Act 1914(Cth). Those are:

5. Sequence 4, between 2 September 2018 and 5 November 2018, possess non‑native CITES/regulated specimen, contrary to the same section as referred to in relation to Count 1.

6. Sequence 6, on or about 25 August 2017, official abuse of public office to gain advantage, contrary to the same section as referred to before in relation to Count 2.

7. The maximum penalties are of course the same as already expressed.

8. The facts have been agreed and are as follows.

EXECUTIVE SUMMARY

9. Between 14 June 2011 and 3 January 2019, the offender was employed as a Senior Biosecurity Officer by the Commonwealth Department of Agriculture and Water Resources (DAWR). The Criminal Code (Cth) dictionary defines a “Senior Biosecurity Officer” as a public official.

10. Between 11 October 2016 and 28 February 2018, the offender used information obtained in the course of his employment to facilitate the illegal importation of regulated specimens for sale. The offender had responsibilities which included inspecting cargo and specimens to determine compliance with relevant legislation.

11. The offender has never held a permit for the importation of live animals.

12. The offender took possession of illegally imported specimens. The offender stole illegally imported large specimens that he was tasked with euthanizing in the course of his employment.

13. The offender sold illegally imported specimens in his possession for financial gain.

14. On the execution of a search warrant, AUD $10,350 in cash was located in the safe of the offender’s property, that money being the proceeds of sale of illegally imported regulated specimens.

15. That is the Executive Summary as contained in the agreed facts.

16. In the Crown’s written submissions, there is a further summary which I intend to refer to at this point, as I believe it is an accurate reflection of the material.

17. In summary, the offender on the execution of the search warrant:

• Was found to be in the possession of two Asian Arowana, one silver Arowana and one Sakawa Catfish which were illegally imported specimens.

• Did possess and arrange for the sale of the following illegally imported specimens: Peacock Bass, Iridescent Shark, Leo Ray, Tesugelsi Bichier, Tesugelsi Birchier, Silver Arowana, Platinum Senegal Birch, and Fire Eel;

• Used information obtained through the course of his employment as a Senior Biosecurity Officer at the Department of Agriculture and Water Resources to circumvent vulnerabilities in the Live Fish Importation System Procedures used by DOA and to assist in facilitating the illegal importation of regulated large specimens for sale;

• In the course of his employment as a Senior Biosecurity Officer at DOA, stole five live prohibited aquatic fauna which were identified as being Black Arowana, Albino Arowana and Asian Arowana;

• The offender was also found in possession of $10,350 in cash, located inside his personal safe.

18. The offender, as a Senior Biosecurity Officer, was entrusted with protecting the community and the environment from biosecurity risks. He instead used his position of trust to identify weaknesses in the system and assist in facilitating illegal importations for his own financial gain. Due to his position, the offender would have been acutely aware of the potential adverse consequences of his actions, but yet persisted in his conduct over a significant period of time. The conduct was not isolated or impulsive, but rather represented a systemic and ongoing breach of trust.

19. I return now to the agreed facts.

COUNT 1, POSSESS ILLEGALLY IMPORTED SPECIMENS

20. A regulated live specimen is defined in the dictionary to the EPBC Act as having a meaning which defines a regulated live specimen as:

“(a) is a live animal or plant; and

(b) is not included in Part 1 of the list referred to in s 303EB.”

21. That section establishes a list of specimens suitable for live import, being:

• Part 1 - unregulated specimens - which can be brought into Australia without a permit; and

• Part 2 - allowable regulated specimens - which require a permit and which may be conditional.

22. If a large specimen is not included in one of the lists it cannot be imported. This is because it has not been assessed for its potential impact on the Australian environment and it may pose a threat to national biodiversity.

23. On 12 November 2018, the Australian Federal Police executed a search warrant at the offender’s home address. They located illegally imported regulated live specimens, which were identified as two Asian Arowana, one silver Arowana and one Suckermouth Catfish.

24. The specimens were removed from the residential premises and later euthanized due to the quarantine risks.

SEQUENCE 4, On s 168A OF THE CRIMES ACT SCHEDULE

25. Between 2 September 2018 and 5 November 2018, intercepted telephone calls involving the offender demonstrated communication between him and a number of persons arranging the sale of illegally imported regulated live specimens. These included the following:

• Between 5 and 7 September 2018, the offender had a conversation with a person during which that person agreed to pay $700 for “bass and shark”, and the offender arranged to meet the purchaser in Gosford to provide the prohibited aquatic fauna to the person.

• Between 8.16pm and 8.53pm on 29 October 2018, the offender engaged in a conversation where he was referred to by the name “Tee”. The buyer agreed to purchase an albino Arowana. The offender also offered to sell a prohibited Fire Eel.

• Between 6.34pm and 7.40pm on 4 November 2018, the offender engaged in conversation with a person who also referred to the offender by the name “Tee”. The person agreed to purchase a Fire Eel and subsequently received it from the offender in a car park in near proximity to the offender’s residence.

26. The offender possessed and arranged the sale of the following regulated live specimens: Peacock Bass, Iridescent Shark, Leo Ray, Teugelsi Bichier, Teugelsi Birchier, Silver Arowana, Platinum Senegal Birch and Fire Eel.

27. On 28 October 2018 an advertisement was published in the online classifieds of Gumtree. The offender published the advertisement under the name of “[email protected]” with the following details:

“Exotic fish, arowana, aro, leo stingray ray, bichir, birchir, eel

$450.

Silverwater, New South Wales, 2128, Australia.

Tank shut down, everything must go. Good deals on bulk buy. Pick up only.”

Then, listed in the next line:

“Silver aro x 2 (30-35cm) $1k each.

Pure 100% leopoldi x 2 (18-20cm) $3k male, $4k female.

Fire eel, (18cm) $850.

Teugelsi bichir x 2 (20cm) $600 each.

Endlicheri tiger bichir (11cm) $450.

Dabola bichir (14cm), $550.”

28. When interviewed, the offender identified that he was the user of the Gumtree account and stated that “Tee” was an alias. The offender provided police with a login password for the account.

29. Between 28 October and 8 November 2018, the offender, under the alias of Tee, engaged in message communications with a number of Gumtree users to arrange the sale of the regulated species in his possession.

30. On 12 November 2018, in a record of interview, the offender made admissions to possessing and selling the following:

• A Platinum Senegal Bichir for which he received payment into the Bendigo Bank of a deposit of about $200 and a cash payment of around $1,000 to $2,000;

• Five prohibited aquatic fauna in October for about $3,000 to three or four different buyers;

• Two Silver Arowana that he had stolen from the department for $1,750;

• Between 5 and 10 October 2018 three Potamotrygon Leopoldi Sting Ray for about $3,000 each.

• In September 2018 Peacock Bass and Iridescent Shark for $500 cash.

• Approximately 20 Alligator Gar sold for more than $150 each; and

• Between 5 and 10 November 2018, two Potamotrygon Leopoldi Sting Ray for $1,000 and $2,500.

COUNT 2 - ABUSE OF PUBLIC OFFICE

31. Between 11 October 2016 and 28 February 2018, the offender used information obtained through the course of his employment to assist in facilitating the illegal importation of regulated live specimens for sale.

32. As a Senior Biosecurity Officer, the offender conducted “live aquarium fish” inspections, general quarantine inspections and the identification of fish to ensure only permitted species were being imported.

33. The offender in his record of interview stated that he identified holes or vulnerabilities in the live fish importation system procedures used by the Department and exploited them with the assistance of a Mr Murphy. In 2015, the offender approached Murphy with a proposal for illegally importing prohibited aquatic fauna.

34. Following the advice of the offender, Murphy would order the importation of permitted aquatic fauna and prohibited aquatic fauna from fish exporting businesses in Indonesia and Malaysia.

35. The offender had completed “integrity awareness” and fraud training as part of his employment at the Department.

36. The offender made admissions of his involvement in the importation of illegal fish and subsequent possession and sale of the fish was garnered by information gained in his role as a Senior Biosecurity Officer.

37. The offender stated in the record of interview that his motivation was frustration with his job, colleagues, systems and internal role transfers. The offender acknowledged that his actions were illegal in facilitating the importation of regular large specimens and possessing them.

SEQUENCE 6 – On s 16BA SCHEDULE

38. On 25 August 2017, the offender in the course of his duty as a Senior Biosecurity Officer stole five live prohibited aquatic fauna identified as Black Arowana, Albino Arowana and Asian Arowana from the Department while he was performing his duties as a public official. The offender made full admissions for stealing the fish he was tasked with euthanizing. The Asian Arowana stolen by the offender is a restricted species under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).

39. CITES is an international agreement between governments that aims to ensure that international trade in wild animals and plants does not threaten their survival and is enforceable under Australian law by way of the EPBC Act.

40. A CITES specimen is a specimen of a species included in the list of CITES species for the purposes of the Act published by the Minister for the Environment under the EPBC Act.

COUNT 3 - PROCEEDS OF CRIME

41. On 12 November 2018, in the execution of a Crimes Act search warrant at the offender’s home address, a safe was located. The offender provided the code to the safe and when opened, $10,350 in cash was contained in it. The offender made admissions during the interview that the cash in the safe was received in exchange for the sale of fish that had been illegally imported.

42. The offender stated that he believed he had received about $A40,000 from selling illegally imported fish over a period of two years (the amount contained in the safe was approximately 25% of what he admitted to having received for such sales).

43. The offender informed the AFP that he owed $A30,000 to $A40,000 to Mr Murphy relating to the setting up of a legitimate fish importation/resale business which had been set up to assist in the importation of prohibited fish.

SEARCH WARRANT AND RECORD OF INTERVIEW

44. On 12 November 2018, Australian Federal Police executed a search warrant at the offender’s home address, during which time they seized four regulated large specimens, two phones, a laptop computer which contained an image of prohibited aquatic fauna and encrypted messages relating to the possession of prohibited aquatic fauna, identify cards with high level maritime and aviation access and $A10,350 as previously referred to.

45. After being informed of his rights, the offender voluntarily took part in a record of interview during which he made the following admissions:

• He was responsible for advertising and negotiating prohibited aquatic fauna sales utilising a false account and was also responsible for delivering the prohibited aquatic fauna sold;

• The offender had years earlier created a false Facebook profile which he subsequently, together with Mr Murphy, used to advertise and sell prohibited aquatic fauna. The profile was in the name of “Brooke Zara”. Using that profile he had joined a Facebook page forum which specialised in exotic fish to advertise the sale of illegally imported prohibited aquatic fauna that they had in their possession;

• The offender used the BSB and account number of an account in his name or direct cash payments to receive payment in exchange for regulated live species that he sold in Australia;

• In October 2018, he created the user name “Tee” on the internet classified service Gumtree to sell prohibited aquatic fauna. He met with Gumtree customers in the carpark across the road from his premises to conduct the transactions. He communicated with some Gumtree customers using his personal phone;

• He acknowledged that his actions were wrong in terms of breaching his obligations of employment and breaking the law;

• He believed he had received about AUD $40,000 from selling illegally imported fish over a period of two years;

• The offender deleted messages from his phone relating to prohibited aquatic fauna sales to avoid being implicated in the offences;

• On 25 August 2017, the offender stole five live prohibited aquatic fauna, (Arowana) from the Department while he was performing his duties and euthanizing prohibited aquatic fauna;

• His motivation for stealing the fish from work was that he did not want them to be euthanized. He said that there had been a batch of a couple of hundred illegally imported fish that he was responsible for euthanizing and he wanted to have some of them. He took them home and kept them as his pets, not intending to sell them;

• One of the fish seized from the offender’s premises is on the CITES restricted list (an Asian Arowana);

46. In the course of the interview he also voluntarily told investigators:

• the password for all devices, computers and mobile phones, the safe and accounts (including e-Bay) requested by investigators;

• He claimed to still owe Murphy $17,000. The $10,350 located in the safe was from selling fish he had previously obtained from Murphy and which he had kept as pets, but had sold to pay back Murphy the money claimed. The $10,350 was intended to be paid to Murphy;

• He voluntarily ceased using his employed position to import fish by March 2018, when the offender became aware that the Department was conducting controlled purchases and that as a result he may be detected and caught;

• He also sold his “own” fish to pay off the debt he owed to Murphy;

• He and Murphy would never import any fish that were on the CITE’s list.

• He did not believe he was putting the environment in danger because the fish he was selling were already in the community and were bought by people who would not be releasing them;

47. Analysis for the offender’s mobile phone showed:

• Written correspondence under the alias of Brooke, Brooke Zara and Freshwater Exotics Australia;

• Social media sales advertisements for prohibited aquatic fauna;

• Images of prohibited aquatic fauna, some appearing to be in the residence of the offender;

• Written correspondence requesting that a person using the alias Dayanna Grageda not mention the offender’s involvement with Premium Aquaria (being the business operated by Murphy)

• Sales negotiations of prohibited aquatic fauna;

• Images of prohibited aquatic fauna in Styrofoam packaging;

• Screen shots of receipts showing transfers to an account in the name of the offender;

• Images, large amounts of Australia dollars being handled.

48. The objects of the EPBC Act are set out in Part 13A of the Act headed “International Movement of Wildlife Specimens” and are outlined in s 303BA.

49. I am cognisant of the various matters raised in that section but I do not intend to take time to repeat them herein.

50. I am also apprised of relevant quotes from the second reading speech of Senator Ian Campbell in the passing of the legislation. I note that the CITES legislation is an international agreement between governments aimed at ensuring that international trading of specimens of wild animals and plants does not threaten their survival and that the intention of such a provision is to protect native fauna and flora.

51. I accept that the avoidance of quarantine control through illicit wildlife trafficking represents a disease transmission mechanism that potentially threatens the health of humans, livestock and eco systems.

52. I have also had regard to the recognised seriousness of such offences particular the relevant factors as referred to in Morgan v R (2007) NSWCCA 8 at para 12. In that case, Barton J with whom Beasley JA and Hislop JA agreed stated at 11-12:

“Given the clear legislative purpose which has been identified, the expectation must be that offences of the present kind would normally attract a full time custodial sentence”

I will omit the references made by Barton J at that point in his reasons.

53. I note in respect to that case that it concerned the attempted export of regulated native specimens.

54. As to the objective seriousness of the offences, each of the offences is related, in effect, and involved the offender in abusing the trust that was placed in him as a Senior Biodiversity Officer.

55. The offender is clearly an intelligent person; material before the Court indicates that he achieved in the Higher School Certificate an ATAR in excess of 98. There can be no doubt that when engaging in this activity commencing in about 2015 or 2016 that he was fully aware of his obligations as an officer of the Crown and of the reasons why the legislation prohibited the import and possession of particular species.

53. The offending overall demonstrates a flagrant disregard for his responsibilities, and that overall he disregarded his responsibilities in order to achieve a benefit, whether that be a direct financial benefit by way of payment of money or in relation to establishing a future employment in a, at least later, legitimate fish distribution business.

54. While he was only found to have some four fish in his possession on 12 November 2018 which were regulated specimens, I am of the view that it constitutes a serious example of such an offence.

55. In relation to the offence of official abuse of public office to gain advantage, I note that it occurred over a period of more than a year and involved him in providing inside information as to how to avoid detection when importing regulated specimens.

56. I similarly regard that as a serious example of such an offence. I will return to that shortly.

57. In respect of the offence of dealing with the proceeds of crime, being $10,350, as previously indicated, that is approximately 25% of what he admitted he had received, and in itself is not an insignificant sum, although it falls at the very bottom of the range in terms of quantity applicable to s 400.6(1) of the Criminal Code.

58. There is no evidence before the Court that any of the regulated specimens or such specimens constituted any actual threat to the Australian environment by way of pathogen, parasite, genetic character, or characteristics such as aggression towards other fish such as Australian native species. Clearly, in the absence of them having been approved for importation, there is a hypothetical risk, but no expert evidence has been provided to the Court from any appropriately qualified person to indicate the degree of risk or the impact that any of the CITES or regulated specimens may have had on the Australian environment.

59. The Count 1 offence of possessing non-native CITES/regulated specimen is in relation to only four such fish. The facts would appear to indicate that the offender from time to time must have had in his possession various other such live specimens in order to involve himself in the trade, but he can only be sentenced in relation to that which was in fact located on the search warrant, being the four specimens.

60. As to the second count; that is, the abuse of his position as a public official, the only information before the Court is that which he admitted to, and which I have previously referred to. There is no information before the Court as to the extent of any facilitated illegal importations with Mr Murphy, nor indeed, the nature of any individual specimen or its risk to the Australian environment.

61. In consideration of all of the facts, I am of the view that in the absence of the offender making relevant admissions to what he had done, the prosecution would have had a limited circumstantial case in relation to that offence. I accept the submission made by Mr Ginges on behalf of the offender that there must be, at least in relation to that offence, an element of an Ellis discount, which of course in the circumstances would apply to each of the offences. I will indicate now that I do not believe that that is something that needs to be dealt with by way of a specified discount, but it will be taken into account. In my view, Count 2 represents an objectively very serious offence. Count 3 is really in effect that the offender was trying to make a financial advantage from the breach of trust evidenced by the charges.

62. I accept that as the offender was committed for sentence on 23 July 2019 from the Downing Centre Local Court that he is entitled to a discount for the utility of the plea. I further accept in view of the admissions made during the course of the record of interview and the plea of guilty that the offender has facilitated the course of justice. In my view, he is entitled to a discount on sentence of 25% as a result of that conduct, and such a discount has been applied.

63. The offender has been on conditional bail since his arrest on 12 November 2018. There is no evidence before me that that was particularly onerous, and of course, as a result, he has not spent any time in custody in relation to any of the offending.

64. I further note in relation to Count 2 that although the offender gave generalised information about what he had done in the past, there is no evidence that he has provided any specific information about the flaws in the Department’s procedures, or how the illegal importations with Mr Murphy were achieved. It has been submitted by Mr Ginges on behalf of the offender that he should receive a discount on sentence not only on the basis of Ellis, that is, admitting to matters for which the Crown may not have had a strong case, if a case at all, but also to a discount for assistance to the prosecution.

65. Exhibit 2 is a letter of assistance provided to the Court under the hand of Detective Superintendent Clinton Smith of the Australian Federal Police. From the information provided on sentence, I note that the offender although he was interviewed, declined to assist the prosecution by providing a statement in relation to the conduct of any other person involved in this unlawful conduct. He subsequently, on 23 September 2019, attended a pre-arranged appointment with the Australian Federal Police to provide information which might assist them. The information was in relation to a number of online and physical pet and aquarium shops as well as persons suspected of selling prohibited fish in Australia. The information provided by the offender had been obtained through open source search enquiries on the internet. That appears to me to be information that any other reasonably knowledgeable person would have been capable of acquiring. As a result of the information provided, a report was disseminated to the department, to DAWR.

66. The letter of assistance indicates that he did not provide any new intelligence in relation to:

• Suspect corruption or negligence within the department;

• Suspect corruption or negligence within the department;

• Compromised department information systems;

• Avenues where the department practices may be improved to enhance safety, security and function or;

• Assistance with further prosecutions relating to the matter for which he is before the Court.

70. His assistance was given a valuation grading of “low”. He is described as “not increasing substantially the AFP’s information holdings and is of low intelligence value”. Further, that the information he gave did not in any way advance a criminal investigation being conducted, and was “vague in nature and not from the offender’s direct knowledge or expertise”.

71. In addition, the Court was informed by the letter of assistance that the use and value of the information was already compromised, as the offender’s court proceedings had appeared in the media and the information provided some eight months after his arrest.

72. I note that the offender was called to give evidence on sentence, and in that evidence, he indicated that he was prepared to provide assistance, although he gave no evidence of the actual assistance that he could further provide. He has had the opportunity since the time of his arrest on 12 November 2018 to provide relevant assistance. He attended on 23 September 2009 for the purpose of providing assistance but provided, in my view, nothing of any real utility or benefit. In my view, in those circumstances, particularly taking into account his failure to disclose during the record of interview, exactly how it is that he and Mr Murphy defeated the system and its flaws. I am not prepared to accept that there can be any appropriate consideration of a discount for assistance.

SUBJECTIVE MATTERS

73. The offender is now 32 years of age. He is single and has no children.

74. Before the Court is the fact that the offender has no previous criminal history at all. In addition, there is a Pre-Sentence Report under the hand of Ben Debreczeny, Community Corrections Officer, dated 29 October 2019, a psychology report from a Dr Marcelo Rodrigues, dated 20 October 2019, Exhibit L3, containing four references from a Mr Caruthers, being a lecturer in Australian studies at the Australian Studies Centre, Department of Languages and Literature at Shanghai University of International Business and Economics, dated 3 October 2019, a reference from Danai Beganovic, dated 3 October 2019, Kevin Tang, dated 14 October 2019 and Dr Dennis dated 6 October 2019. Each of the persons providing a reference on behalf of the offender indicates that they have known him for a considerable period of time, most in fact since his time at school, and each of them indicates that they regard him highly.

75. I note that several references refer to the offender as being either honest or having an ethical centre and a social conscience. Dr Dennis refers to him as having a strong ethical grounding in honesty, integrity and respect. Considering the duration over which he committed the offending and the nature of the breach of trust, I have significant difficulty in understanding how the referees could express those opinions but accept they genuinely hold those opinions. In my view, however, they are wrongly held.

76. It is constantly the fact that matters come before the Court where those providing references, if they do know of the nature of the charge itself, do not in fact know of the detail, and of course express opinions about persons with whom they were not involved in criminal offending and therefore do not understand the true nature of the offender or his /her offending. I accept that he is held in high regard by those persons, and that that is their genuine opinion and that they will no doubt continue to hold him in high regard.

77. As I have previously indicated, he has no previous criminal history, but it is the fact that he had no previous criminal history which of course would have allowed him to become employed by the department and put in a position of high trust which he then abused. In those circumstances, I am of the view that good character is of somewhat more diminished importance than it would otherwise be.

78. The offender was born in Sydney, his parents having been born in Hong Kong. He was raised in West Pennant Hills and Epping. His parents always had an expectation that he would do well at school. It is said that there was little expression of warmth or love in the household, and that he was lonely and sad as a child and shy and unassertive. He was not the victim of any child abuse, or of any hardship in relation to his early childhood or adolescence. He has no history of any antisocial behaviour.

79. He attended the Arden Anglican Primary School and Trinity Grammar High School in Summer Hill. He had no disciplinary problems. He was never suspended or expelled. He was, as previously referred to, a bright, intelligent student, evidenced by his UAI being 98.2. He studied Animal and Veterinary Bioscience and later a Master of Commerce at Sydney University. While at university he supported himself by working in a Chinese restaurant and also for the business called “Krispy Kreme”.

80. As disclosed in the facts, he has been involved in biosecurity from 2011. He, as I said, never attracted any disciplinary problems in his work for the department, and was mostly happy in his role, although he did not like the management bureaucracy. He has had a number of relationships. He was 31 years of age at the time of the offending and is now some 32 years of age. He has had no major health problems. He has no history of illicit substance use and he has never been dependent on alcohol, being only an occasional and abstemious indulger.

81. He is said to have experienced anxiety and depression secondary to his loneliness since high school, and in 2017 he had several attendances on a psychologist as a result of the breakup of one of his relationships. After being arrested in relation to these matters, he has further consulted a psychologist during the course of 2019 on a regular basis. There is no history of the offender or any member of his family having any mental disorder.

82. The psychologist, under the heading of “Attitude towards the Offences”, seems to indicate that the offender wished to express that his conduct was the result of believing that his supervisors and managers lacked knowledge and expertise, and therefore he was frustrated because he could not make any changes, and as I understand it from his evidence on sentence, that his main motivation was that he observed favouritism at work, and because his colleagues did not know what they were doing. As a result he wished to leave work and for that purpose wished to develop a business which he could subsequently join with Mr Murphy. For that purpose, he indulged in the offending in breach of the trust placed in him. Obviously, if the offender was not enjoying his work or the circumstances, he should simply have quit and sought a new job rather than abusing the trust placed in him. The psychological report indicates:

“He said that it never occurred to him that his actions were ‘that serious’. He said he now realised the gravity of his actions and was deeply sorry for his actions”.

83. In his evidence on sentence, he said in effect that at the time of the offending he knew that what he was doing was morally wrong, but he did not realise the degree of criminality involved, although he accepted that it was a breach of trust. Considering his education, intelligence, training and years of experience, I have no doubt the offender fully understood the seriousness of what he was doing, and the potentially adverse consequences to the Australian community and environment. I do not accept his assertions as to his motivation and lack of insight into the degree of criminality involved.

84. However I do accept, particularly as a result of the record-of-interview and the early plea of guilty that it is appropriate to accept that the offender is genuinely remorseful and contrite in relation to his conduct. It is noted also that there is some support for that proposition in the references that have been tendered. I accept that it is genuine remorse and contrition rather than simply regret at having been detected.

85. While the offender has said that he terminated his conduct prior to being discovered, it is evident from the facts that he terminated the continuing conduct when he realised or became aware from his knowledge of what the department was doing that it was then investigating the distribution of CITES, non-native CITES and regulated specimens being advertised on the internet, and that that may in due course lead them to him. The evidence indicates that he was aware that the department suspected that some of its own officers were, in fact, involved.

86. As I have previously expressed, all the offences are of a serious nature although there is obviously some overlap and interrelationship.

87. I note that in the Pre-Sentence Report that the offender is recorded as indicating

“…that at the time of the offences he did not believe his actions were a big deal. He stated that he initially believed there was no risk involved, nor that there would be any consequences to his actions...he rationalised his offending behaviour as an easy opportunity to import fish into the country for financial gain. He admitted that his offending behaviour was calculated and stated he intentionally broke the law...he acknowledged that he abused his position of authority and knowledge of the system.”

As to his insight into the impact of the offending, he is recorded as stating

“…that whilst he made the assumption people he sold the illegally imported fish to would not release the fish into the environment, he stated that his actions posed a biosecurity risk and a risk to the environment...and that his offending behaviour would have impacted the wider community’s trust in individuals who are in public official positions and the associated systems in place...and also acknowledged that his dealings could have impacted other legitimate fish businesses.”

88. The psychological report and Pre-Sentence Report, in my view, indicate that apart from some depression and anxiety the offender has no significant mental health issues and there is no causative relationship between his anxiety and depression in the past with the commission of the offences. It is entirely usual for offenders faced with coming before the Court to be sentenced for offences that carry terms of imprisonment that they are anxious and depressed. There is no suggestion in the material before me that there is any elevated level of anxiousness and depression resulting from that fact in respect of this offender.

89. I have also taken into account that he was assessed by the psychologist, Mr Rodriguez, as being at a low risk of reoffending, and by the Community Corrections officer, similarly, as being a low risk of reoffending. I accept in the circumstances that those assessments by Mr Rodriguez and Ms Debrezny are appropriate assessments. Indeed, that is further underlined by the fact that the offender has of course now lost his job, and it would seem to be impossible that he would ever be employed in such a position again. I accept that losing his job will no doubt have a significant impact on him, but that is why when holding a responsible and trusted position an individual should not abuse it. He has brought that result entirely on himself.

90. As to the prospect of rehabilitation, I accept in the circumstances, particularly considering his lack of prior offending, even though this offending extended over a significant period of time, that there is a good prospect that the offender will not reoffend.

91. However, it is always necessary for the Court in imposing sentences to impose a sentence which appropriately reflects the objective seriousness of the offences being dealt with.

92. In my view, specific deterrence is not as normally significant in relation to this matter, considering the nature of the charges and the change in the offender’s occupation - whatever it may be in the future, it will not be the same - and also taking into account what I have found in relation to remorse, contrition and rehabilitation.

93. However, general deterrence must remain a significant factor for the Court to take into account. Public officials must understand that if they breach the trust placed in them in significant ways, as here, significant sentences will be imposed to ensure that there is an effect of general deterrence and also in acknowledgment of the fact that the sentence must provide adequate punishment for the offence or offences.

94. As I have indicated, I have taken into account the utility of the plea, the facilitation of justice, and an element of an Ellis discount in determining the sentence or sentences to be imposed. I am mindful of the fact that the Court may only pass a sentence of imprisonment on a person for a Federal offence having considered all other available sentences and being satisfied that no other sentence is appropriate in all the circumstances, s 17A(1) Crimes Act.

95. A Court is required to weigh all of the relevant factors in order to reach a conclusion of a particular penalty that should be imposed. There is of course no mathematical approach to that as referred in Macarian v The Queen (2005) 215 ALR 213.

96. It is an instinctive synthesis that is required. I am satisfied in relation to this matter, particularly because of the need to reflect a stern element of general deterrence, that a sentence of imprisonment is warranted in respect of each of the three offences.

97. Accordingly, the offender is convicted in relation to each of Counts 1, 2 and 3. In providing the sentence, I will in addition take into account two matters contained in the s 16BA form. I intend to proceed by way of an aggregate sentence, and in those circumstances I am required to indicate an indicative sentence in relation to each of the three offences for sentence.

88. Mr Lee, would you please stand.

89. In relation to the offence being Count 1, in short, possession of non-native CITES/regulated specimens; the indicative sentence is one year of imprisonment.

90. In relation to Count 2, being, in short, abuse of your public office, the indicative sentence is two years.

91. In respect of the offence of dealing with the proceeds of crime, the indicative sentence is one year.

92. The aggregate sentence will be a total sentence of three years. I order that you be released on a Recognisance Release Order after having served one and a half years of that three year sentence.

93. The sentence will commence today: that means commencing today 18 December 2019, you will be released on a recognisance release order in the sum of $5,000 for the period of the sentence, on condition that you be of good behaviour during the period of the recognisance and any other conditions that the authorities might see appropriate to impose at that time.

94. The balance of term of one year and six months otherwise referred to as the “parole period” will expire on 17 December 2022.

Thank you, please sit down.

HIS HONOUR: All right. As far as that matter’s concerned, I’ll adjourn. Corrective Services, you’ll need to take Mr Lee. Mr Lee, it may well be that you have material on you that you would rather leave with one of your relatives, I don’t know, it may well be, but if you do wish to, I’ll just ask Corrective officers to give you the opportunity to hand over anything you wish to give to any relative or friend who’s present.

Madam Crown, is there any confiscation order being sought in relation to the $10,350?

WHITE: Yes, your Honour, there is.

HIS HONOUR: I presume there is no utility in order to destroy the fish if there were already destroyed--

WHITE: There already is. I can hand up some short minutes of order which were previously signed by Mr Lee on 31 October in relation to that. I thank your associate for that reminder.

105. HIS HONOUR: Yes, all right. I will make the order that pursuant to s 48(1) of the Proceeds of Crime Act that the property specified in Part 2 of the Schedule as provided, being money in the sum of $10,000 or more, that is $10,350, be forfeited pursuant to s 316 of the Proceeds of Crime Act.

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Decision last updated: 07 May 2020