Qiu v R

The Crown submissions

1. The Crown submits that Ground 1 should be rejected. The Crown refers to the sentencing judge's characterisation of the offending as being of "great seriousness" as well as the sentencing judge's reference to general deterrence and the cruelty involved in the offending. The Crown submits that the aggregate sentence imposed appropriately reflected the total criminality of the offending, particularly as the applicant engaged in 14 distinct attempts to export Australian fauna in circumstances in which he knew that his conduct was illegal and his motive was entirely financial.
2. The Crown submits that the applicant is incorrect as to the significance of the financial aspect of the offending in Kennedy. Further, the Crown submits that the principles enunciated in Kennedy pertain to sentencing offences under the EPBC Act that are general in nature and are not limited to the importation offences under the Act.
3. Further, the Crown says that the applicant did not give evidence on the sentence hearing and there was no finding that the applicant was remorseful or contrite. He appeared to have difficulty accepting his offending.
4. In the circumstances, the Crown submits that the applicant has not established that the sentence imposed was unreasonable or plainly unjust.

Determination

1. In Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 ("Dinsdale"), the Court (Gleeson CJ and Hayne J) said at [6]: "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."
2. Further, as Beech-Jones J (as his Honour then was) (Harrison and Cavanagh JJ agreeing) recently said in Kirby v R [2021] NSWCCA 162 at [45]: "In the case of an appeal from an aggregate sentence, the indicative sentences are not appellable in their own right but they can be a guide to whether error is established in relation to the aggregate sentence (JM v R [2014] NSWCCA 297 at [40] per RA Hulme J with whom Hoeben CJ at CL and Adamson J agreed and cases cited thereat; 'JM') although, even if an indicative sentence is considered excessive, that is not determinative (PD v R [2012] NSWCCA 242 at [44], [82]; BJS v R [2013] NSWCCA 123 at [252]-[254]). The ultimate question will be 'whether [or not] the aggregate sentence reflects the totality of the criminality involved' (JM at [40])."
3. The applicant must demonstrate that the sentence was "unreasonable or plainly unjust": Dinsdale at [6]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
4. Further, it is not sufficient that this Court might have exercised the sentencing discretion in a manner different to the approach taken by the sentencing judge, even if that be so: see Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne and Callinan JJ).
5. Other cases can be considered for the purposes of ensuring consistency in sentencing, but even though other cases might suggest a range, the sentence which might be imposed by a sentencing judge in the exercise of the sentencing discretion is not determined by that range (see Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 at [41] (French CJ, Hayne, Kiefel and Bell JJ)). Having said that, in circumstances in which this Court specifically suggested that the judgment in Kennedy should provide a guide to future sentencing courts, regard should be had to Kennedy (as the sentencing judge purported to do).
6. Both parties relied on Kennedy (in different ways) as supporting their position. In Kennedy, the Court observed at [90]: "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."
7. Further, in considering whether the residual discretion should be exercised, the Court said at [98]: "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."
8. Neither party directed the Court to any more recent case in which sentences have been imposed in respect of offending under the EPBC Act.
9. In Kennedy, the offender was sentenced in respect of offences under the EPBC Act, being: 1. Two counts relating to attempts to export regulated native specimens contrary to s 303DD of the EPBC Act and s 11.1(1) of the Criminal Code (Cth); 2. Two counts relating to importations and attempted importations of regulated live specimens contrary to s 303EK(1) of the EPBC Act; 3. One count relating to possession of specimens which were non-native CITES-regulated specimens contrary to s 303GN(2) of the EPBC Act; and 4. One count of dealing with money less than $100,000 suspected of being proceeds of crime contrary to s 400.9(1A) of the Criminal Code (Cth).
10. The sentencing judge imposed an aggregate sentence of 3 years' imprisonment to be served by way of an intensive correction order. The Crown successfully appealed. The sentence was increased to 4 years' imprisonment with a non-parole period of 2 years and 6 months.
11. There are some similarities between Kennedy and this matter, particularly in relation to the attempt to export offences. There are also some differences, the two most significant being that the offender in Kennedy was also convicted of attempt to import offences and his offending was more sophisticated and involved more planning, including attending Thailand for the purposes of preparing and scoping his venture.
12. There are also some similarities in the subjective cases in that both the offender and the applicant were motivated by financial gain, both had no prior criminal convictions and both were found to have good prospects of rehabilitation and were not likely to reoffend. In Kennedy, there was a specific finding of remorse. Although the sentencing judge referred to the letter from the applicant's ex-wife as to his remorse, the sentencing judge made no specific finding about remorse.
13. The methodology adopted by the offender in attempting to export native specimens in Kennedy was also somewhat similar. Both packaged parcels with the specimens hidden in other goods and arranged for other persons to attend at the post offices to post the parcels providing false sender details. Indeed, the total number of specimens which the applicant sought to export was a similar number to that which the offender sought to export in Kennedy, albeit in Kennedy the offender only sought to export on two separate occasions.
14. On the first occasion (26 July 2016), 4 packages were posted at Post Offices in Toongabbie and Greystanes by a third party. Each package was found to contain regulated native specimens. In total, 24 live Shingleback Lizards and 10 live native Turtles were found in cloth bags inside plastic containers (Sequence 83).
15. On the second occasion (12 October 2016), the offender packaged and posted two further packages, again addressed to an address in Sweden and each containing false sender details. There were 9 live Shingleback Lizards wrapped in cloth bags inside plastic containers (Sequence 84).
16. In respect of Sequence 83, the Court suggested an indicative sentence of 1 year and 9 months (34 specimens). In respect of Sequence 84, the Court suggested an indicative sentence of 1 year and 6 months (9 specimens). Again, like this matter, that was after the 25% discount for the plea of guilty.
17. Although the applicant adopted the same general methodology as the offender in Kennedy, he chose to send the specimens in much smaller numbers but, as is obvious from the number of offences, on more occasions.
18. The aggregate sentence in Kennedy was also reflective of the attempt to import offences. This offending involved travelling to Bangkok and planning to send a number of packages from Bangkok containing reptiles, fish and stingrays to Sydney. The offender completed false sender details and suggested that each of the packages contained a water filter. He deposited the packages at two separate FedEx offices in Thailand and paid $3,024 (AUD) in postage. Officers of the Department of Agriculture and Water Resources intercepted 16 of the parcels posted from Bangkok. They were found to include in total 23 live Chinese Softshell Turtles, 15 live Alligator Snapping Turtles, 10 live Snakehead Fish, 58 dead Snakehead Fish, 11 Neo-Tropical Stingrays, 2 live Sugar Gliders, 18 dead Sugar Gliders and 15 dead Veiled Chameleons. The live specimens were subject to one charge and the dead specimens were subject to another charge. All of the live specimens were destroyed. The Veiled Chameleons were listed in CITES Appendix II as species which could become extinct if trade is not regulated.
19. The Court found that the sentence imposed was manifestly inadequate and increased the sentence from 3 years' imprisonment to be served by way of Intensive Correction Order to 4 years' imprisonment. It identified a number of reasons for doing so at [86], including that: 1. The maximum penalty for both importation and exportation is an indication of the seriousness of threats to Australian fish, fauna and biodiversity. 2. Regard must be had to the potentially catastrophic consequences for the Australian ecosystem involved in the importation offences. Specifically, the Court identified that: 1. The Chinese Softshell turtles presented an inherent risk to the Australian fish population and other aquatic creatures; 2. The Alligator Snapping Turtles presented a potentially catastrophic ecological risk including to Australian fish and fauna; 3. The Snakehead Fish presented a significant risk to food, webs and ecosystems; 4. The Veiled Chameleons posed a significant threat to small mammals and native birds; and 5. Although the Sugar Gliders posed a low risk to biodiversity, they had the potential to carry pathogens that could be harmful to Australian marsupials. 1. The Court also had regard to the fact that this type of offending is notoriously difficult to detect, such that the principles of general deterrence, specific deterrence, punishment and denunciation must be given effect.
20. As the Court said, each of the offences warranted a sentence of imprisonment, again emphasising the risks associated with the attempt to import some of the animals. The Court provided indicative sentences for the import offences of 3 years' imprisonment and 2 years and 6 months' imprisonment.
21. On this appeal, the parties differ as to the significance of the attempt to import offending to the Court's decision in Kennedy. The Crown adopts the reasoning of the sentencing judge to the effect that bearing in mind the export and import offences have the same maximum penalty (10 years), they have the same importance or significance in the total sentence.
22. On the other hand, the applicant submits that the aggregate sentence in Kennedy and the Court's comments about the seriousness of the offending and the impact on Australia's biodiversity were very much reflective of the attempt to import offences. On the applicant's case, this is important as it might tend to suggest that the sentence imposed on the applicant is plainly unjust.
23. I have come to the conclusion that the aggregate sentence imposed upon the applicant was unreasonable and plainly unjust and thus Ground 1 has been established.
24. I have come to this conclusion for the following reasons: 1. The applicant's offending did not involve any importation or attempt to import offences. Whilst any attempt to export Australia's native specimens may potentially have an effect on Australia's fish, fauna and biodiversity, the effects are not of the type referred to as potentially catastrophic arising from the importation offences in Kennedy. The offending of the applicant remains serious offending but it does not fall in the category identified in Kennedy as some of the most serious offending of its kind. It falls below the level of offending in Kennedy. 2. Contrary to what appears to have been the views of the sentencing judge, the Court in Kennedy emphasised and placed significance on the potentially catastrophic effects of the import offences rather than the attempt to export offences. It is correct to say that both carry the same maximum penalty and there is nothing in the legislation which, of itself, directs that an import offence should be treated more seriously than an export offence but, in the particular circumstances of this case, the concerns raised by the Court in Kennedy about the danger to the Australian ecosystem do not arise. 3. It is important to observe that there is no appeal from the indicative sentences but a comparison of the indicative sentences in this matter with the indicative sentences in Kennedy (involving approximately the same number of specimens) reveals that the indicative sentences in this matter add up to three times more than the indicative sentences for the export offences in Kennedy, although approximately the same number of specimens is involved. That may be reflective of the number of offences in this matter and provides a good example of why there is no appeal from the indicative sentences. However, the aggregate sentence must reflect the total criminality and an important factor in sentencing for these types of offences is the number of specimens. Further, each offence was committed as part of the same venture undertaken by the applicant. 4. The sentence in Kennedy was intended to be a guide to sentencing courts. The offending in Kennedy was described as some of the most serious coming before the Court, being very serious offending with potentially catastrophic effects on the Australian ecosystem. The total sentence of 4 years was obviously reflective of both the import and export offences. Yet, in respect of attempts to export somewhat similar specimens (including some different ones), without any attempt to import, the applicant has received a higher aggregate sentence, that is, of 5 years. 5. The offending in this matter did not involve the same level of sophistication or planning as in Kennedy. There was no international travel or scoping work. The applicant appears to have been responding to Facebook enquiries. 6. Whilst the number of offences is high, they are all of the same type and all involve a small number of specimens. Except for the first offence which occurred a year earlier, all of the offending took place over a three month period. 7. The applicant's strong subjective case.
25. In the circumstances, I am satisfied that the sentence imposed was unreasonable or plainly unjust. The applicant succeeds on Ground 1 and thus it is necessary to re-sentence (see Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37). It is not necessary to consider Ground 2.

Re-sentence

1. There is no dispute as to the facts and it is not necessary to restate them during resentencing. I have already referred to them in this judgment.
2. In my view, the offending was serious in that it involved an attempt to export a number of types of Australia's native specimens over a period of 14 months. Further, I adopt the findings of the sentencing judge that in some respects the offending involved cruelty to the specimens. Having said that, other than in respect of Sequence 43, I consider that each of the offences fall below the mid-range of objective seriousness. Most of the offences involved an attempt to export a small number of specimens. For example, Sequences 42, 43, 46, 47, 48, 49, 52 and 53 each involved only 2 specimens, and Sequence 45 involved only 1 specimen.
3. I also adopt the finding of the sentencing judge that the attempt to export the Red Bellied Black Snake (Sequence 43) posed additional risks to the safety of persons because of its venom. That offending was more serious, albeit the actual offence only involved one specimen.
4. It is important in assessing the appropriate indicative sentences that the indicative sentences reflect only an appropriate sentence for the particular offence. This is particularly relevant to the possession offences. The aggregate sentence must reflect the total criminality but it is important that each individual indicative sentence reflect only the offending involved in that offence. The number of specimens is particularly important.
5. I adopt the findings of the sentencing judge in respect of the applicant's subjective case. The applicant has good prospects of rehabilitation and is unlikely to reoffend. Although he relied on a letter from his ex-wife on the sentencing hearing in which she suggested he was remorseful, he did not give evidence on the sentencing hearing and I make no finding on remorse. The applicant has co-operated with the authorities leading to the discovery of specimens in his home. This is a relevant factor under s 16A of the Crimes Act. Further, the applicant is entitled to a 25% discount on account of the utilitarian value of his early guilty plea.
6. In resentencing the applicant, I apply the principles set out in s 16A Div 2 Pt 1B Crimes Act. General deterrence and denunciation are particularly important in sentencing for this type of offending. I am satisfied that no sentence other than a sentence of imprisonment would be appropriate.
7. I provide indicative sentences as follows: Sequence Offence Max Penalty Indicative Sentence 40 Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth). 10 years 6 months 41 Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth). 10 years 7 months 42 Attempt to export regulated native specimens c/s 303DD(1) fof the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth). 10 years 6 months 43 Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) of the Criminal Code (Cth). 10 years 12 months 44 Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) of the Criminal Code (Cth). 10 years 6 months 45 Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth). 10 years 6 months 46 Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth). 10 years 6 months 47 Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth). 10 years 7 months 48 Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth). 10 years 6 months 49 Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth). 10 years 6 months 50 Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth). 10 years 7 months 51 Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth). 10 years 7 months 52 Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth). 10 years 6 months 53 Attempt to export regulated native specimens c/s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 and ss 11.1(1) & 11.2A(1) of the Criminal Code (Cth). 10 years 6 months 54 Possession of CITES specimens c/s 303GN(2) of the Environment Protection and Biodiversity Conservation Act 1999 and 11.2A(1) of the Criminal Code (Cth). 5 years 3 months 55 Possession of CITES specimens c/s 303GN(2) of the Environment Protection and Biodiversity Conservation Act 1999 and 11.2A(1) of the Criminal Code (Cth). 5 years 4 months 56 Possession of CITES specimens c/s 303GN(2) of the Environment Protection and Biodiversity Conservation Act 1999 and 11.2A(1) of the Criminal Code (Cth). 5 years 3 months 57 Possession of CITES specimens c/s 303GN(2) of the Environment Protection and Biodiversity Conservation Act 1999 and 11.2A(1) of the Criminal Code (Cth). 5 years 4 months 58 Possession of regulated live specimens in Part 2 of the list referred to s 303EB c/s 303GN(6) of the Environment Protection and Biodiversity Conservation Act 1999 and 11.2A(1) of the Criminal Code (Cth). 5 years 3 months

1. I must have regard to the total criminality and have regard to the number of offences. Whilst the number of specimens sought to be exported on each occasion was only small, the applicant engaged in repetitive attempts to export. The sentence must necessarily reflect all of the offending. I impose an aggregate sentence of 3 years and 10 months years with a non-parole period of 2 years.
2. The applicant has been in custody since 17 February 2021. As such, his sentence will expire on 16 December 2024. He will be eligible for release on parole on 16 February 2023.
3. The orders I propose are: 1. Leave to appeal granted. 2. The appeal is allowed. 3. The sentence imposed in the District Court is quashed and in its place: 1. Impose an aggregate sentence of imprisonment of 3 years and 10 months; 2. Under s 19AB(1) of the Crimes Act 1914 (Cth) impose a non-parole period of 2 years; and 3. The sentence and non-parole period to date from 17 February 2021.

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