R v Pogmore

[2020] NSWDC 883

District Court

New South Wales

Medium Neutral Citation:

R v Pogmore [2020] NSWDC 883

Hearing dates:

11 December 2020

Date of orders:

11 December 2020

Decision date:

11 December 2020

Jurisdiction:

Criminal

Before:

Buscombe DCJ

Decision:

Aggregate sentence imposed one of 3 years imprisonment. To be released on a recognizance release order under the Commonwealth’s Crimes Act after serving 18 months

Catchwords:

CRIME — Border offences — Commonwealth offences — Export regulated native specimen

CRIME — Commonwealth offences — Dealing with proceeds of a crime

Legislation Cited:

Criminal CodeAct 1995 (Cth) ss 11.1(1), 400.5(1)

Environment Protection Biodiversity Conservation Act 1999 (NSW) s 303.DD

Crimes Act 1900 (NSW) Part 1B, s 16A

Cases Cited:

The Queen v Kennedy [2019] SNWCCA 242

Category:

Sentence

Parties:

Director of Public Prosecutions (Crown)
Buddy Pogmore (Offender)

Representation:

Counsel:
Ms A Hedger (Crown)
Mr Fernandez (Offender)

Solicitors:
Ms T Regan (Offender)

File Number(s):

2019/161624

Publication restriction:

Nil

SENTENCE

Introduction

1. The offender is to be sentenced having pleaded guilty to the following offences on an indictment:

2. Count 1, that on or about 24 July 2018 at Rooty Hill and elsewhere he attempted to intentionally export a specimen, namely, three shingle backed lizards, knowing that the specimens were a regulated native specimen.

3. Count 2, is an offence that on or about the same day, as in Count 1, at Marayong and elsewhere, he attempted to intentionally export a specimen, namely three shingle backed lizards knowing that the specimens were a regulated native specimen.

4. Those two offences are offences under Sections 11.1(1) and 303.DD of sub (1) of the Commonwealth’s Criminal Code and the Environment Protection Biodiversity Conservation Act. Both offences each carry a maximum penalty of 10 years imprisonment and/or a fine equivalent to 1,000 penalty units.

5. The third count is an offence that between 29 October 2017 and 19 March 2019 at Lethbridge Park and elsewhere the offender dealt with money that was, and he believed to be, the proceeds of crime and at the time of the dealing the value of the money was $50,000 or more. That is an offence contrary to s 400.5(1) of the Criminal Code. It has a maximum penalty of 15 years imprisonment and a fine of 900 penalty units.

6. There are also two State offences on the s 166 Certificate. Those offences are under the New South Wales Biodiversity Conservation Act and are fine only offences. The principal offences, being Commonwealth offences, I am to sentence the offender in accordance with the Commonwealth Crimes Act and in particular Part 1B and in accordance with, in particular s 16A.

The Facts

7. Turning then to the facts of the matter or in terms of the Commonwealth statute, the nature and circumstances of the offences, they are as follows, which are agreed.

8. On 9 November 2017 investigators from the relevant Commonwealth department executed a search warrant at 41 Moresby Crescent, Whalen, being the then residence of the offender and his partner, and three children. During the execution of the search warrant investigators located and seized a number of reptiles. I am not going to read them out, they are all in the agreed facts. Of some real relevance to the sentencing exercise, is that one was a death adder snake, that is the reptile which is the subject of one of the s 166 Certificate offences, and there were also 44 shingle backed lizards, and I think it is appropriate to mention those lizards because they are the type of reptile that is the subject of the two principal Commonwealth counts.

9. The offender was present during the execution of the search warrant. He confirmed that he did not hold the necessary licence to possess any of the reptiles found and they were seized and taken to a wildlife centre to be cared for. There is no dispute that each of the reptiles as native to Australia and that they were protected animals within the meaning of that term under the relevant New South Wales legislation and that the offender was not authorised to possess the animals.

10. On 23 May 2019 New South Wales police and officers from the relevant department executed a search warrant at 60 Marquesa Crescent, Lethbridge Park, where the offender and his partner and their three children were residing at that time. The offender was present during the execution of the search warrant. He advised the investigators that there were shingle backed lizards and a turtle in his bedroom. During the execution of the search warrant he also advised that there was a Stimson’s python and three Gillen monitors in a white cupboard in his bedroom.

11. During the execution of the search warrant the investigators located a number of reptiles. I will simply mention two because they have some significance. There were two juvenile freshwater crocodiles that were found and I note that the other offence on the s 166 Certificate related to possessing a juvenile crocodile and again there were 12 shingle backed lizards, and I have mentioned those lizards for the obvious reason. The freshwater crocodiles were located in the door of a freezer. He apparently denied to the officers where they had come from. He gave evidence today about the background to the possession offences of these particular reptiles, and I will not go over his evidence but he explained in a satisfactory way to my way of thinking how he came to possess them.

12. There is evidence that some of those reptiles looked unhealthy because of their physical condition, and that is set out in the facts. Those reptiles too were native to Australia and he had no authorisation to possess them. The python and two freshwater crocodiles were significantly underweight to a level that the expert, who is referred to in the agreed facts, considered likely contributed to their deaths. I note the offender gave some evidence about the condition that those reptiles were in when he obtained them from a friend, and I certainly do not feel that I am in a position to reject his account in that respect.

13. In terms of the principal counts then, following the execution of the search warrant in November 2017 two parcels were intercepted by the relevant department. One had been sent from the Rooty Hill Post Office on the morning of 24 July 2018. A consignee was recorded on the parcel from China. The package had certain consignee details from Rooty Hill. The consignor was clearly false, as was the consignee. The second parcel was posted the same morning about 25 minutes later from a different post office at Marayong. The consignee details were again someone in China, as I would understand it they were false, and the consignor details were clearly false. The consignment note of the second parcel, as I understand it, purported to contain toys, that is it was wrongly disguised in terms of its packaging and description.

14. Officers from the relevant department attended on 26 July at the Sydney Gateway Facility where the items had been taken. Each parcel was found to contain three shingle backed lizards. There is some CCTV footage which specifically identified the offender as taking the packages to the two post offices. They were each of specimens of regulated native species. He was not authorised to export them.

15. In terms of the proceeds of crime offence, investigators obtained records in relation to a particular PayPal account which was registered in the offender’s own name. It was linked to a Commonwealth Bank account in his own name. There are then a series of transactions into that account. I am not going to read them all onto the record. Of some significance is the fact that during the period 8 December 2017 to 19 March 2019 a total of $38,480 was deposited into the Commonwealth Bank account from an account named, Zhing Minh Zeng in 31 transactions. That has significance when one has regard to the offender’s evidence, particularly of to whom the shingle backed lizards were effectively being posted to. The total amount received via PayPal and as direct payments into the Commonwealth Bank account that is referred to in the facts totalled some $59,980, and that is the total amount that is the subject of the money laundering account. Much of the facts are devoted to endeavouring to establish that the money that went into the account was from the sale or export of reptiles, and I will say something about that in a moment when I deal with the objective seriousness of the offences.

Objective seriousness

16. Each of Count 1 and 2, as I say, concerned native shingle backed lizards which are a protected species, and as I understand it, a type of blue tongued lizard. There was clearly considerable planning involved in the commission of Counts 1 and 2. The second parcel was falsely described as containing toys, and I have seen photographs of the packaging. A false consignor was used on the parcels. The offender went to the two different post offices on the one day, no doubt to attempt to prevent detection.

17. The offender has given evidence that he simply followed the directions of the proposed buyer of the reptiles in China. He also gave evidence that he had received money from that buyer both prior to and after the commission of the offences.

18. I consider the offender to be an acceptable and straightforward witness and I am prepared to accept his evidence that he may have felt obligated to send the reptiles having been provided with some funds by that person at an earlier point in time. Even accepting that evidence, in my opinion, it is still correct to characterise the offences as being engaged in for financial gain. Although in saying that I am not suggesting the offender lived a life of some extravagance. I accept the evidence he used the money simply to live a basic life and endeavour to provide for his family.

19. I note that six lizards were alive when intercepted, although if they had not been intercepted they would have been confined for a very long time, no doubt, on the journey to China and it would appear with no food or water, and therefore at some risk. I do not consider on the material before me that I could find beyond reasonable doubt that there was significant cruelty to the animals.

20. The number of animals put at risk appears to be relatively small. Six insofar as the principal offences are concerned. The agreed facts do not suggest the animals were deceased or unwell, as I say when the packages were intercepted.

21. The two offences were committed on the same day and involved the same type of animal. The offender himself attended the post offices and had not recruited anyone else to the enterprise and the offending appears to be not overly sophisticated in my opinion. I assess the objective seriousness of the first two principal offences as being well below any notional mid-range offence.

22. The amount of money involved has been said to be a highly significant matter when it comes to sentencing for the money laundering offence. The amount of money, the subject of Count 3, is $59,980, so not much above the $50,000 amount which engages the offence creating provision. It is well below an amount that would constitute an offence under s 400.4 of the Commonwealth Code.

23. The number of transactions and the period over which they occurred are also a relevant factor to have regard to here. The overall facts including an acceptance of the offender’s evidence, support an inference that some of the money the subject of the Count was derived from the sale of protective native species, some from the attempted exports which are the subject of Counts 1 and 2, but I am not able to say to what extent one can divide up the source of the funds.

24. Clearly, the offender here was aware of the source of the money, as it is an overwhelming inference that he generated it through his own activities. Knowledge of the illegal conduct has been said to increase the seriousness of the offence. There was no real sophistication in the money laundering offence. The accounts used were in his own name or that of his partner, and no attempt was made to disguise the transactions.

25. Given the amount of money, the number of transactions and the source of the funds, I consider the offence to be below a notional mid-range level of objective seriousness for such an offence, although not at the very bottom of the range.

The offender’s subjective case

26. Turning then to his subjective case. His date of birth is 3 August 1993, so he is 27 years of age and was 24 as at the date of Counts 1 and 2, still a relatively young man. He has a somewhat limited criminal history, but there are some relevant matters on it.

27. On 24 January 2019 he was given a 12 month conditional release order for a number of offences concerning dealing in protected animals, he having been charged with the relevant offences it seems in November 2018.

28. On 21 October 2019 he received a $5,000 fine in Western Australia for 15 counts of unlawful possession of protected fauna.

29. His criminal record is not such as, in my opinion, to completely disentitle him to some leniency in this sentence. I note he has never been in prison before.

Sentence Assessment Report and psych reports -

30. There is a Sentencing Assessment Report dated 2 June 2020 and a letter of apology from the offender, together with letters of support from his two sisters. Those two sisters have been present today for the sentence proceedings and clearly continue to support him, and as I say he has given evidence before me on sentence.

Family background

31. In terms of his family background the Sentencing Assessment Report reports that he resides with his partner and three young children. He gave evidence about his early life, which was not the subject of challenge by the Crown in cross-examination. It appears he has had to cope with ADHD from a relatively young age and has had something, of what I will describe as an unusual background, in relation to his parents’ use of medication when a child. There was clearly some social disadvantage in that upbringing.

Education and employment history

32. In terms of his educational and employment history, he completed Year 10 at a behavioural school, so, his education was somewhat limited. He was, it seems, a long term recipient of the Disability Pension and gave evidence as to why he had not engaged in significant employment based essentially on what he had accepted from his parents.

33. As at the time of the Sentencing Assessment Report he was said to be normally self-employed as a labourer, although at that time was unemployed due to the Covid 19 pandemic and he confirmed that in his evidence today, and the difficulties he has had with employment in coming up to the pending sentence date.

Attitude to the offence

34. In the Sentencing Assessment Report he attributed his offending to financial stress. He is recorded as telling the author of the Sentencing Assessment Report that he was ashamed of his actions and that he had never hurt animals and was an animal lover.

35. The author of the Sentencing Assessment Report considered that the offender did not appear to believe that his actions impacted on any other person or the animals. In his evidence he said that his actions did not hurt anyone and believed he had discussions about how to look after any animals that he traded with the person who was going to take them.

36. I formed the view from his evidence that from a very young age he developed a fascination with reptiles. I think he probably looked after the animals appropriately in most instances, but certainly posting six in the manner he did showed a disregard for their wellbeing.

The future and risk of reoffending

37. In the Sentencing Assessment Report he was assessed as having a medium to low risk of reoffending.

Imposition of sentence

38. He entered a plea of guilty at an early opportunity. He had to be arraigned this morning, but I understand the Crown accepts it was an early plea and I propose to allow him a 25% discount for the utilitarian value of his plea.

39. Having heard from the offender today and noting the early plea of guilty, I consider that he has some genuine remorse in relation to his offending. Given his limited criminal history, the family support that he has, and he has a medium to low risk of reoffending according to the Sentencing Assessment Report, I consider he has reasonable to good prospects of rehabilitation.

40. He has spent one day in custody, so I will backdate the sentence by a day to have regard to pre-sentence custody. I will utilise the aggregate sentencing provisions which may be used when sentencing for Commonwealth offences. While the two attempt export offences were committed on the one day and involved the same type of animal, in my opinion if I had not been using the aggregate sentencing provisions there should have been some limited level of accumulation in the sentence. There should be slightly more accumulation of the money laundering offence accepting there is some overlap between that offence and the two other offences.

41. Offences of this type are always serious as explained in The Queen v Kennedy [2019] SNWCCA 242. The offences are difficult to detect and impose a threat to this country’s biodiversity, something which in the third decade of the 21st century we should all be very concerned with.

42. General deterrence, that is the need to send the message to the community that such offending will not be tolerated looms large when sentencing for this type of offending.

43. Given his past fascination with reptiles and the serious nature of the offences, there is a need, in my view, for an element of personal deterrence. Money laundering offences are also difficult to detect and general deterrence looms large when sentencing for them.

44. I am satisfied that the only appropriate sentence is one of imprisonment. His counsel accepted that the only appropriate sentence is one of full time imprisonment. The maximum penalties have been taken into account as legislative guideposts.

45. Stand up, Mr Pogmore please. Mr Pogmore, you are convicted of the three offences on the indictment to which you pleaded guilty.

46. I will firstly record the indicative sentences. In determining the indicative sentences and fixing the aggregate sentence I have had regard to all the objective and subjective factors I referred to earlier.

47. The sentences you will hear me first announce are what are called “indicative sentences”. You will then hear me announce an aggregate sentence, which is the sentence and a period of it that you will serve before being released. It is not arrived at by simply adding up all the indicative sentences. When announcing the aggregate sentence I will tell you the date it starts from, the date it ends, and the date when you will be released from custody.

48. The indicative sentences then are as follows: Count 1; 14 months imprisonment. Count 2; 14 months imprisonment. Count 3; two years imprisonment.

49. I impose an aggregate sentence of three years imprisonment. It commences yesterday, 20 December 2020 and expires on 9 December 2023.

50. I make a recognizance release order under the Commonwealth’s Crimes Act and order that you be released on 9 June 2022, after having served 18 months of the sentence upon entering into a recognizance in the sum of $100 without surety, to be of good behaviour for a further period of 18 months.

51. When you are released if you fail to comply with the conditions of the recognizance further action may be taken against you which may require you to return to Court.

52. On the two State offences on the s 166 Certificate, I record convictions and $500 fines on each offence.

Orders

1. The offender is convicted of the offences to which he pleaded guilty

2. Impose an aggregate sentence of three years imprisonment. The sentence commences on 20 December 2020 and expires 9 December 2020.

3. Make a recognizance release order under the Commonwealth’s Crimes Act that the offender be released on 9 June 2022, after having served 18 months of the sentence upon entering into a recognizance in the sum of $100 without surety, to be of good behaviour for a further period of 18 months.

1. Record convictions and $500 fines on the two State offences on the s 166 Certificate

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Decision last updated: 13 April 2021