R v Man Lung Ma - [2024] NSWDC 573

District Court

New South Wales

Medium Neutral Citation: R v Man Lung Ma [2024] NSWDC 573
Hearing dates: 31 October 2024
Date of orders: 29 November 2024
Decision date: 29 November 2024
Jurisdiction: Criminal
Before: McGuire SC DCJ
Decision:
The offender is convicted of 19 offences of attempted export of regulated native specimens contrary to s 303DD(1) of the Environment Protection and Biodiversity Conversation Conservation Act 1999 (Cth) and s 11.1(1) of the Criminal Code (Cth).
The offender is sentenced to a term of imprisonment of 3 years and 6 months commencing 27 September 2023 and expiring on 26 March 2027, with a non-parole period of 2 years commencing on 27 September 2023 and expiring on 26 September 2025.

Catchwords:
SENTENCING — Commonwealth offences — Attempted export of regulated native specimens

Legislation Cited:
Crimes Act 1914 (Cth)
Criminal Code (Cth)
Environment Protection and Biodiversity Conversation Act 1999 (Cth)

Cases Cited:
Markarian v The Queen (2005) 228 CLR 357
McGregor v R [2024] NSWCCA 200
Morgan v R [2007] NSWCCA 8
Pearce v The Queen (1998) 198 CLR 610
R v Host [2015] WASCA 23
R v Kennedy [2019] NSWCCA 24
R v Robison (1992) 62 A Crim R 374
Shrestha v R (1991) 173 CLR 48
Stanley v DPP [2023] HCA 3
Totaan v R [2022] NSWCCA 75

Category: Sentence
Parties: Rex (Commonwealth)
Man Lung Ma (Offender)
Representation:
Counsel:
Ms T Epstein (Commonwealth)
Mr S Howell (Offender)
Solicitors:
Commonwealth Director of Public Prosecutions
Mitchell & Co Lawyers (Offender)

File Number(s): 2023/00307457

JUDGMENT

The offender, Man Lung Ma, comes before me as a result of his conduct between 8 May 2023 and 26 September 2023 in attempting to export a total of 99 live Australian native reptiles concealed within 29 packages which were to be posted to various addresses in Hong Kong.
He is to be sentenced for the following 19 offences, each of which is contrary to s 303DD(1) of the Environment Protection and Biodiversity Conversation Act 1999 (Cth) and s 11.1(1) of the Criminal Code (Cth):

Count

Description

Sequence 36

Attempted export of regulated native specimens on 8 May 2023 at Redbank Plains or elsewhere in the State of Queensland

Sequence 37

Attempted export of regulated native specimens on 15 August 2023 at St Marys or elsewhere in the State of New South Wales

Sequence 38

Attempted export of regulated native specimens on 17 August 2023 at Wollongong or elsewhere in the State of New South Wales

Sequence 39

Attempted export of regulated native specimens on 18 August 2023 at Hurstville or elsewhere in the State of New South Wales

Sequence 40

Attempted export of regulated native specimens on 23 August 2023 at Ourimbah or elsewhere in the State of New South Wales

Sequence 41

Attempted export of regulated native specimens on 25 August 2023 at Mitchell or elsewhere in the Australian Capital Territory

Sequence 42

Attempted export of regulated native specimens on 28 August 2023 at Gungahlin or elsewhere in Australian Capital Territory

Sequence 43

Attempted export of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Man Lung Ma

Details

AGLC: R v Man Lung Ma [2024] NSWDC 573
Case: [2024] NSWDC 573
Decision Date: 29 November 2024

CaseChat Overview and Summary

The case of R v Man Lung Ma involved the offender being convicted on 19 counts of attempted export of regulated native specimens. The charges were brought under section 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and section 11.1(1) of the Criminal Code (Cth). The court was tasked with determining the appropriate sentence for the offender, considering the seriousness of the offence and the relevant mitigating and aggravating factors. The offender was represented by counsel, and the prosecution was conducted by a representative of the Commonwealth Director of Public Prosecutions.

The primary legal issue the court needed to address was the appropriate punishment for the offence of attempting to export regulated native specimens. This involved assessing the gravity of the offence, the offender’s culpability, and any relevant mitigating or aggravating circumstances. The court also had to consider the purposes of sentencing, including deterrence, retribution, and rehabilitation. The court needed to weigh the evidence presented regarding the offender's background, the circumstances of the offence, and any submissions made by the defence and prosecution. The sentencing principles applied required the court to ensure that the punishment was proportionate to the seriousness of the offence and that it served the broader objectives of the criminal justice system.

In delivering the sentence, the court found the attempted export of regulated native specimens to be a serious offence with significant potential environmental impacts. The court noted the offender’s lack of prior convictions and some mitigating factors, but also considered the commercial scale of the operation and the potential harm to biodiversity. After considering all relevant factors, the court sentenced the offender to a term of imprisonment of 3 years and 6 months, with a non-parole period of 2 years. The sentence was intended to reflect the seriousness of the offence while also taking into account the mitigating factors presented. The offender is to commence serving the sentence on 27 September 2023 and will be eligible for parole on 26 March 2027.

Orders

Orders of the court

The offender is convicted of 19 offences of attempted export of regulated native specimens contrary to s 303DD(1) of the Environment Protection and Biodiversity Conversation Conservation Act 1999 (Cth) and s 11.1(1) of the Criminal Code (Cth).

The offender is sentenced to a term of imprisonment of 3 years and 6 months commencing 27 September 2023 and expiring on 26 March 2027, with a non-parole period of 2 years commencing on 27 September 2023 and expiring on 26 September 2025.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Man Lung Ma [2024] NSWDC 573
Hearing dates:	31 October 2024
Date of orders:	29 November 2024
Decision date:	29 November 2024
Jurisdiction:	Criminal
Before:	McGuire SC DCJ
Decision:	The offender is convicted of 19 offences of attempted export of regulated native specimens contrary to s 303DD(1) of the Environment Protection and Biodiversity Conversation Conservation Act 1999 (Cth) and s 11.1(1) of the Criminal Code (Cth). The offender is sentenced to a term of imprisonment of 3 years and 6 months commencing 27 September 2023 and expiring on 26 March 2027, with a non-parole period of 2 years commencing on 27 September 2023 and expiring on 26 September 2025.
Catchwords:	SENTENCING — Commonwealth offences — Attempted export of regulated native specimens
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code (Cth) Environment Protection and Biodiversity Conversation Act 1999 (Cth)
Cases Cited:	Markarian v The Queen (2005) 228 CLR 357 McGregor v R [2024] NSWCCA 200 Morgan v R [2007] NSWCCA 8 Pearce v The Queen (1998) 198 CLR 610 R v Host [2015] WASCA 23 R v Kennedy [2019] NSWCCA 24 R v Robison (1992) 62 A Crim R 374 Shrestha v R (1991) 173 CLR 48 Stanley v DPP [2023] HCA 3 Totaan v R [2022] NSWCCA 75
Category:	Sentence
Parties:	Rex (Commonwealth) Man Lung Ma (Offender)
Representation:	Counsel: Ms T Epstein (Commonwealth) Mr S Howell (Offender) Solicitors: Commonwealth Director of Public Prosecutions Mitchell & Co Lawyers (Offender)
File Number(s):	2023/00307457

Count	Description
Sequence 36	Attempted export of regulated native specimens on 8 May 2023 at Redbank Plains or elsewhere in the State of Queensland
Sequence 37	Attempted export of regulated native specimens on 15 August 2023 at St Marys or elsewhere in the State of New South Wales
Sequence 38	Attempted export of regulated native specimens on 17 August 2023 at Wollongong or elsewhere in the State of New South Wales
Sequence 39	Attempted export of regulated native specimens on 18 August 2023 at Hurstville or elsewhere in the State of New South Wales
Sequence 40	Attempted export of regulated native specimens on 23 August 2023 at Ourimbah or elsewhere in the State of New South Wales
Sequence 41	Attempted export of regulated native specimens on 25 August 2023 at Mitchell or elsewhere in the Australian Capital Territory
Sequence 42	Attempted export of regulated native specimens on 28 August 2023 at Gungahlin or elsewhere in Australian Capital Territory
Sequence 43	Attempted export of…