R (Cth) v Chin

Count 2

1. Count 2 concerns aiding and abetting an attempted export of regulated native animals. At 9.53am on 23 April 2018 a man known as Yoke Peng Oon lodged a package at Eastwood Post Office. The recipient was a resident of Hong Kong. The contents of the package were described in the Customs declaration as candy and chips. The consignment was intercepted by the ABF at the Sydney Mail Gateway Facility and again examined by investigators from the Department of Environment and Taronga Zoo staff. The package contained three eastern blue tongue lizards. The lizards were individually secured inside black socks in Coles chip tubes. There were unopened packets of crisps in the postage box. Forensic examination identified four fingerprints belonging to the present offender on plastic shopping bags found within the package which appears to have been filling to stop movement of the contents within the external packaging. The forensic examination also identified fingerprints belonging to Oon.
2. On 23 April 2018, that is on the same day, but later in the day, Oon lodged another package at Carlingford Post Office. It was addressed to the same addressee as the earlier package. The consignee was said to be different but the name of the consignor on each package was not that of Oon or the current offender. This package was also intercepted and was found to contain four eastern blue-tongue lizards. They were individually secured inside black socks in Coles chip tubes, as were the ones consigned earlier on the same day. Again, forensic examination identified fingerprints belonging both to the present offender and to Oon.

Count 3

1. Count 3 in the indictment concerned aiding and abetting a further attempt to export regulated native animals. The principal whom the offender aided or abetted was Yoke Peng Oon. His packages were all addressed to the same person at the same address as the packages relevant to count 2. This consignment was intercepted and found to contain five blue-tongue lizards. One of those was an albino and one was amelanistic. If my Greek be any good that means that there was no black colouring but the creature was not an albino. Each lizard had been packed in a black sock and was inside a plastic food container. Forensic examination identified one fingerprint belonging to the offender on the lid of one of the plastic takeaway containers. The fingerprints of Oon were also located within the packaging.
2. Count 3 is the subject of a further package which was lodged at the Rose Bay North Post Office on 8 May 2018, that is, on the same day as the first package in count 3 but later in the day. Again, this was addressed to the same person whose identity is given on other packages consigned by Oon. This package contained nine specimens of blotched blue-tongue lizards. Each lizard was packaged in a black sock tied with a cable tie and then placed inside one of four plastic takeaway containers with holes punched in the lids to permit air to circulate and placed inside a Milo cereal box. Again, the offender's fingerprints were found within that packaging.

First Trip to Melbourne

1. On 18 June 2018 the offender travelled on a Tiger Air flight from Sydney to Melbourne. On that evening the offender and a man known as Jia Sheng Chai stayed together at an apartment complex in Melbourne. The offender and Chai posted a parcel in Melbourne on the following day, 19 June, which was intercepted before leaving Australia. That is the subject of count 4 in the indictment. There were three parcels that were successfully exported to Hong Kong but they were intercepted there. That is count 5.

Count 4

1. The facts of count 4 are these. At 9.08am on 19 June Chai lodged a package at the Flinders Lane Post Officer in Melbourne. CCTV footage obtained from outside the post office shows both the offender and Chai outside the front of 271 Collins Street, Melbourne at 9.01am. The offender handed Chai a parcel and Chai entered the post office at 9.02am. The offender went to the Lindt Café and ordered food and a drink. He was joined by Chai at 9.09am at the Lindt Café. Chai handed the offender a piece of paper which perhaps gave details of the posting of the package. The pair left the Lindt Café at 9.10am. The parcel was addressed to a resident in Hong Kong and the consignor was said to be a man living in 480 Little Lonsdale Street, Melbourne. The contents were listed as being toys for children and chips. The package contained four blue-tongue lizards. Each lizard was packaged individually inside a Coles brand chip tube with a sock fitted over the outside of the tube and then placed inside two larger boxes such that there were two lizards in each of two boxes. That there were nine unopened small packets of crisps in the parcels surrounding the containers containing the lizards, clearly designed to hide the contents of the consignment.

Count 5

1. At some time on 19 June 2018, the offender and Chai posted three parcels at post offices in the Melbourne CBD which were exported to Hong Kong but were intercepted by the Hong Kong Customs and Excise Department. The parcels were deconstructed by the authorities in Hong Kong and they found nine native Australian species. There were two Chameleon Geckos, one Prickly Knob-Tailed Gecko, one Thick-Tailed Gecko, one Northern Leaf-Tailed Gecko, one Blue Tongue Lizard, one Stimsons Python and two Lace Monitors.
2. The first of the packages was sent at the Bourke Street Post Office at 8.17am. CCTV footage outside the post office shows the offender and Chai walking up Bourke Street together and arriving at the Bourke Street Post Office at 7.51am. The offender was wearing a black backpack and carrying three plastic bags that contained boxes. Chai carried a Target shopping bag that appeared to contain a box. They sat on a garden bed wall and waited for the post office to open. At 7.59am, Chai went inside the post office carrying a plastic bag. At 8.17, he returned without the plastic bag. The consignor was said to be another resident of 480 Little Lonsdale Street Melbourne. The second package was posted from the Melbourne GPO at 9.51am. The offender was observed on CCTV footage with Chai prior to the posting of that package. The third package was lodged at the Franklin Street Post Office at 11.27am. The consignor was said to be a resident at 480 Little Lonsdale Street Melbourne. The offender was observed on CCTV footage with Chai prior to the posting of that package.
3. Owing to the number of specimens dealt with in count 5, and their posting of the three packages containing them from different post offices in Melbourne, and the fact that they were successfully exported to Hong Kong, and the fact that the offender pleaded guilty to the export of the specimens, this is probably the most serious of the nine offences that the offender committed.

Count 6

1. Count 6 concerns aiding and abetting an attempted export of regulated native animals. This offending happened in Sydney. On 10 July 2018, a package was lodged at the Strathfield Post Office. It was found to contain two blue-tongue lizards. The lizards were each packed in a black sock tied with a cable tie. They were packed inside a pair of Ugg boots which were, themselves, packed in a cardboard gift box. The package was forensically examined by the AFP and the fingerprints of both the offender and Chai were found within the packaging. The second package in count 6 was posted on the following day, 11 July 2018, from the Croydon Park Post Office. The contents were said to be "girl's shoes, girl's clothes, colour book, colour pencils." It was found to contain six blue-tongue lizards. Each animal was inside a black sock that was tied off with a knot. They were packed inside three pairs of boots which were contained within three cardboard gift boxes. The AFP identified a thumbprint belonging to the offender on the base of one of the gift boxes, there were also a thumbprint from Chai within the package.

Second Trip to Melbourne

1. On 19 July 2018, the offender and Chai left Sydney Airport to travel to Avalon Airport in Melbourne. They arrived there at 12.35pm. The offender and Chai stayed overnight at a serviced apartment in Carlton. The offender used the name Peter Zen for that booking. He provided a New South Wales driver's licence in the name of Peter Zen. Chai provided his credit card as part of the registration process. On the following day, 20 July 2018, the offender and Chai attempted to export two parcels of reptiles. On the following day, they left Melbourne at 8.30 and arrived in Sydney by aeroplane at 9.55pm.

Count 7

1. On 20 July 2018, Chai lodged a parcel at the Carlton South Post Office. CCTV footage obtained from outside the post office showed both Chai and the present offender. This parcel was intercepted and found to contain one blue-tongue lizard, seven King skinks, one Major skink, one Knob-tailed gecko and three Eastern Water Dragons. The specimens were packaged in five black socks grouped together by species. The socks were inside a children's stool which was in packaging labelled "my first stool with 22 blocks". The legs of the blue tongue lizard were taped to its body with clear sticky tape. The packaging was forensically examined by Victoria Police who identified fingerprints belonging to Chai within the packaging.
2. A second parcel was lodged at the Franklin Street Post Office later on the same day. When intercepted that was found to contain three blue tongue lizards and three Major skinks. The lizards were packed in black socks with a wooden push toy and other toys. Adhesive tape was used to tape the feet of two blue tongue lizards to their bodies to prevent movement and perhaps to prevent the animal from tearing at the packaging. Fingerprints were obtained from within the packaging of both the present offender and Chai.

Third trip to Melbourne

1. There was a further trip from Sydney to Melbourne on 24 July 2018. The offender again used the name Peter Zen and on this occasion was accompanied by a man known as Khai Tat Chow. They left Sydney at 11am and arrived at Avalon Airport at 12.35. While they were in Melbourne between 24 and 26 July the offender and Chow attempted to export four parcels of reptiles, they comprise count 8 in the indictment. They left Avalon Airport at 3.45pm on 26 July, arriving back in Sydney at 5.10.

Count 8

1. The first package that was lodged was at the Law Courts Post Office in Melbourne on 25 July. That contained two lace monitors and four shingle back lizards. The specimens were packed individually in black socks with a wooden baby walker, baby clothes and plastic shopping bags.
2. On 25 July 2018 the offender and Chow lodged a package at the Albert Park Post Office. CCTV shows the offender paying for the postage. This consignment contained two Northern Leaf-Tailed geckos and three Marbled Velvet geckos. The specimens were packed in black socks with multiple packets of crisps. Forensic examination by Victoria Police identified fingerprints belonging to the present offender within the packaging.
3. The next packet was lodged at the Garden City Post Office on 25 July 2018, an half hour later. This packet contained one Northern Leaf-Tailed gecko, one Marbled Velvet gecko and four Chameleon geckos. It appears that the animals were packed in black socks within other packaging within the external packaging which contained toys and the usual potato crisp bags.
4. A fourth package was lodged at the Richmond North Post Office on the following day, 26 July 2018. That contained two Northern Leaf-Tailed geckos, two shingle back lizards and ten Chameleon geckos. Each animal was packed in a sock and in foil and placed inside Ugg boots with multiple biscuit packets and a chocolate box seeking to hide the smuggled animals. Forensic examination identified fingerprints belonging to the offender within the packaging.

Count 9

1. The final crime was committed in Sydney. At 12 noon on 17 August 2018 a male lodged a parcel for export to Hong Kong at Ashfield Post Office. The consignor was listed as "Tommy Gan". The consignment was found to contain two blue tongue lizards. Forensic examination identified the fingerprints belonging to the offender within the packaging.

Arrest

1. Some 14 months later at 9.25am on Wednesday 9 October 2019 the offender was arrested at his home in Chatswood and has been in custody since that time. The offender was offered an interview but, in accordance with his rights, he declined to give such an interview.

Seriousness

1. As frequently occurs in cases of this nature the Crown made submissions which if anything exaggerated the role played by the offender in these crimes. On the other hand the material presented on behalf of the offender attempted to minimise the role that he played in these crimes. For example, the Crown submitted that the offender recruited for his own purposes the assistance of those who accompanied him to Melbourne, Chai and Chow. However, there is no evidence that he actually recruited them. It is highly unlikely that the offender was a principal of any group or syndicate seeking to profit from exporting Australian native species overseas. Equally, the offender is described by Mr Sam Borenstein as a person who merely agreed to post boxes with a view to making a quick profit. It is clear the offender, because of where his fingerprints were found, was actively involved in packaging the animals so that they could be exported using the postal service.
2. There is no evidence that the offender paid anybody for the native animals which he endeavoured to export. Indeed the evidence suggests that the offender was very short of money and agreed to involve himself in this scheme in order to make money. There was no evidence that the offender could source the native specimens for somebody else and the inference to be drawn, especially from his visits to Melbourne, is that others found the specimens. They were probably collected by the offender or persons such as Oon, Chai and Chow and then packaged by them and they were involved in exporting the packages by lodging them with couriers or at post office for transmission overseas.
3. The authorities make it clear that categorisation of the offender's role is not particularly important. However, I should state that he does not appear to have been a principal but nor was he a mere courier, that is taking a package from one person and lodging it for export with a courier company or at a post office. He was trusted to package the animals to aid in their export and then physically to do the act which amounts to the exportation.
4. The Crown submitted that the offending of this offender exhibited a level of sophistication in that it involved premeditation, planning, recruitment of others and the incurring of costs such as travel and accommodation and postage. Whilst one could describe the system as having a level of sophistication, there is no evidence that this scheme was developed by this offender. As I said there is no evidence that he could find the native species, pay for them and then involve others, paying their costs. There was no evidence that the offender paid for the airfares to Melbourne or paid for the accommodation in Melbourne, nor paid for whatever method was used to travel around that city whether it be a hire car or the taking of taxi cabs or public transport.
5. True it is that the offender knew he admitted from the second time he was involved in this scheme what he was doing and it is clear that he must have known that native animals were being exported because he was involved in packaging them. This is deliberate activity, hardly due to chance or inattention or a momentary lapse of judgment. However, as I said, there was no evidence that the offender was the author of the scheme or, for example, the person who paid Chow and Chai to do what they did to assist him. Nor is there any evidence that, for example, he was paid by Oon when he aided and abetted Oon to attempt to export species, but rather it seems likely that Oon and the other two men were in much the same position as the current offender.
6. All told the offender was involved in attempting to export 95 specimens and actually exported a further 9 specimens, taking the total tally to 104 specimens. Those specimens were concealed in 21 parcels which were lodged at various post offices in either Sydney or Melbourne for export to Hong Kong. Three of them were intercepted in Hong Kong, the rest in either Sydney or Melbourne.
7. The parcels were addressed to various people living at various addresses in Hong Kong. The offender is not from Hong Kong. I accept that he is Chinese but he is Malaysian born Chinese. There was no evidence he has ever been to Hong Kong. There is evidence he has been to Singapore which is quite common for those who live in Malaysia, but the names and addresses of the consignees in Hong Kong would have had to have been given to him by others.
8. Likewise the consignors' details given in Melbourne would have had to have been given to him by somebody with some knowledge of Melbourne itself. The Crown makes much of the fact that different post offices were used in both Sydney and Melbourne. That is very common in this and like schemes where, for example, illicit drugs are imported into Australia via the mail. They are often addressed to different post office boxes and the like, different addresses, because if the same addresses are used the consignments will be readily detected.
9. The offender use a bogus New South Wales Driver's License under the name of Zen to seek to hide his true identity. There is no evidence that a search warrant was ever executed at the offender's home and what may have happened to the bogus driver's license I do not know. Whether the offender made it or it was made for him by somebody else I do not know. However when one considers the offender's background it is unlikely that he was able to make a bogus New South Wales Driver's License.
10. The offender wrote a letter to me which is in Chinese characters. It is accompanied by an English translation. Whether the offender wrote the details of the consignor and consignee and made the declarations as to the contents of the parcels is unknown. I do not know whose handwriting it may or may not have been. There are photographs of it before me but nothing can be deduced from that other than it is likely that the person doing the writing was not proficient in written English. It is likely that the person may have had some background in another language that did not use the Latin alphabet.
11. The Crown submitted that its analysis of the facts demonstrated the offender played, "the controlling and central role in the export or attempted export of the native specimens". I cannot be persuaded that that is correct. Rather everything suggests to me that the offender was a trusted part of an organisation, carrying out a necessary, indeed vital, role for the group that was involved in the attempted transmission of the native animals to China. However the part that the offender played, as I said is vital and must be dealt with in an appropriate fashion.
12. These are hardly minor crimes. I shall refer to the Environment Protection and Biodiversity Conservation Act 1999 (Cth) as the EPBC Act. S 3 of the EPBC Act sets out the objects of that legislation. Those objects include:

• to provide for the protection of the environment.
• to promote the conservation of biodiversity.
• to assist in the cooperative implementation of Australia's international environmental responsibilities. Pt 13A of the EPBC Act deals with the international movement of wildlife specimens. The objects of that Part of the Act are set out in s 303BA(1) which was introduced by an amending Act in 2001. Those objects include:
• to ensure that Australia complies with obligations under the Convention on International Trade in Endangered Species (CITES) and the Biodiversity Convention.
• to protect wildlife that may be adversely affected by trade.
• to promote the conservation of biodiversity in Australia and other countries.
• to ensure that any commercial utilisation of Australian native wildlife for the purposes of export is managed in an ecologically sustainable way.
• to promote the humane treatment of wildlife.

1. In a speech in the House of Representatives on the Second Reading of the Amendment Bill 2001, the Parliamentary Secretary to the Minister for the Environment and Heritage, Dr Sharman Stone, said this: "On a global scale, the illegal trade in wildlife is horrific. In dollar terms it is likely to be second only to the illicit drug trade. Most people are aware of high profile species such as the black rhino and the elephant and the role that illegal trade has played in their demise. But there are also many less charismatic species that have been seriously threatened by illegal trade - species such as the Chiru, a Tibetan antelope, the Brazilian Rosewood, the salmon crested cockatoo from Indonesia, the Queen Alexandra's butterfly from Papua New Guinea and the Baltic sturgeon. Australian native species are also in demand by wildlife smugglers. A rough knob-tailed gecko can fetch up to $US2,000, while the Palm Cockatoo may be sold for $US12,000 per pair". I note that here one of the species which it was sought to export was a rough Knob-Tailed gecko. One wonders what the US dollar value of such a species is 20 years after the Parliamentary Secretary delivered that speech.
2. In Morgan v R [2007] NSWCCA 8, Buddin J said that: "The expectation must be that offences [under s 303DD(1) of the EPBC Act] would normally attract a full-time custodial sentence". That is conceded in this case by the offender himself.
3. The caselaw is also replete with references concerning the importance of general deterrence. In R v Robinson (1992) 62 A Crim R 374, the Victorian Court of Appeal said this of legislation replaced by the current legislation: "The plundering by non-Australians of Australian wildlife for commercial exploitation is a threat to the Australian heritage and likely to generate great anger in the community. It is also accepted that offences of the present kind are difficult to detect and that there is reason to believe that the international smuggling of birds, reptiles and other animals has greatly increased…offenders against the Act, particularly since the amendment of 1991, must come to expect substantial sentences of imprisonment".
4. In R v Kennedy [2019] NSWCCA 242, Payne JA and Fullerton J said at [85]: "General deterrence, denunciation and the protection of the community are critical principles of sentencing relevant to cases under the EPBC Act involving threats to Australian fish, fauna and biodiversity. Offending which threatens native species and Australia's biodiversity warrants stern punishment". In that matter an ICO imposed upon the offender was set aside and replaced with a full-time custodial sentence. I should point out, however, that Kennedy has filed an application for special leave to appeal to the High Court which, as far as I am aware, has not yet been heard by the High Court.
5. One of the submissions made by the Crown was about potential cruelty to a number of the specimens, particularly the attempts to restrict the movement of, for example, lizards by taping their legs to their body. There is no evidence that any animal was killed in any of the crimes committed by this offender. There is no evidence that any animal suffered actual harm. I do not know whether taping a lizard's legs to its body would cause it any physical or psychic harm. Fortunately, these days all mail is sent by air. The idea of putting an animal inside a parcel to be delivered to Hong Kong might involve an eight hour flight and might involve days prior to the flight departing Australia and days after its arrival in Hong Kong but it does not seem that it is likely that that would lead to any of the animals being killed. There is no evidence that any harm was done to those animals that were successfully exported to Hong Kong. Insofar as the Crown submits that this is an aggravating factor, I must point out that there was no evidence of any actual harm suffered by any creature. If any restraint of movement of a reptile causes that animal harm, then it would be necessary to call some expert in reptilian biology or behaviour to give evidence of that fact. However, one must concede that there was potential to cause harm to each animal by its being constrained in one way or another in packaging which was inherently fragile and could, for example, be easily dropped or lost in transit causing the death or hurt to the specimens in question.

Personal Circumstances

1. I turn at this stage to consider the offender's personal circumstances. The offender was born in October 1992; he is currently 28 years old. At the time of the offending he was aged between 25 and 26 years. He was born in Malaysia. He has no siblings. His parents separated and divorced shortly after his birth. He was to live with his father who was living with his parents, that is, the offender's paternal grandparents. The offender has had little to do with his mother since he was seven years old. The offender's father was imprisoned in Malaysia and released when the offender was about 20 years old. It would appear that the offender has had little contact with his father because of his imprisonment during the offender's formative years. In essence, he was raised by his paternal grandparents and a paternal uncle and his wife and was raised with their three children. As one might expect, a sole child reared with his paternal cousins would treat those cousins as if they were his siblings. The offender told Mr Sam Borenstein, by whom he was interviewed on 24 February 2021, that he was very close to at least one of his cousins who unfortunately died relatively recently. The offender told Mr Borenstein that his relationship with his mother broke down because her second husband did not like the offender. The offender has half siblings from his mother's second marriage but it appears that the offender has had little contact with them.
2. The offender was educated to the age of 16 years in Malaysia, completing four years of high school. The offender began to work at the age of 11 to support his grandparents who were becoming "more elderly." I understand the offender's grandmother is about to turn 80. When he left school, the offender moved to Singapore where he worked as a packer in vegetable markets. He worked in Singapore according to Mr Borenstein for some four years and then decided to come to Australia. According to Mr Borenstein, the offender came to Australia "to learn English and to earn more money to send back to his grandparents." However, the offender came here on a tourist visa. Prior to that visa expiring, the offender engaged a migration agent who advised him that he could apply for a visa as a student. The offender gave him money but he never obtained a student visa because he had no further interaction with the migration agent. Whether the person he believed to be a migration agent was in fact a migration agent is unknown.
3. The offender stayed in Australia on his tourist visa but was working or attempting to work in Australia. The offender tells me in exhibit 7 that in Australia he has worked at vegetable markets, as a shop worker in a Chinese butchery, as a bar attendant, delivering newspapers, as a removalist, as a cleaner, as a "boat attendant" and in the building industry.
4. The offender at some stage formed a relationship with a lady and he told Mr Borenstein that he had a partner/spousal visa up until the time that that relationship ended in 2014 or 2015. The offender married on 2 October 2019 Ms Shijin Li but unfortunately for the couple the offender was arrested exactly one week later. The offender's wife has permanent residency in this country but the offender has not any right of residence here and is currently an illegal alien. It is likely that when released from custody he will be deported to his native country. That is not a matter that I can take into account, in accordance with the authorities. Whether the Minister administering the Migration Act takes that course is a matter that I cannot predict.
5. It is clear that the offender's motive in being here was to make money. The evidence is replete with allegations that he was remitting money to his grandparents in Malaysia. I accept that that is highly likely. The offender gave a history to Mr Borenstein that he was unable to send much money back to prevent a cousin who was ill from dying. That is not inconsistent with other histories which failed to mention the cousin. It is likely that the whole family would pitch in to obtain the wherewithal to treat somebody who was chronically ill, which I understand was the situation with his cousin, and the offender merely spent more time talking to Mr Borenstein than he has had speaking with others. It is clear that the offender entered into this smuggling racket to obtain money. Indeed, the offender himself said this in his letter to me. "At the age of 20 I moved to Australia to study English and seek for greater work opportunities. However, my work wasn't stable and I got to know people from all industries. Before making this mistake, somebody asked if I was interested in making some extra money, and my own greed drove me into trouble. I was completely terrified, scared and regretting all I have done at the time I got arrested."

Consideration

1. A question which is the subject of some debate was whether the offender was truly remorseful. Often offenders are very upset for the damage they do to their own reputation, the damage they do to their family name and family members for the shame they bring upon their family by their misconduct. The Court is not particularly concerned with such matters. What the Court is concerned with is whether the offender realises the damage done by the crime, for example, the hurt done by people who are assaulted and injured, whether the offender has "victim empathy". In a case of this nature, it is whether the offender realises the potential damage he did to the fauna involved and whether he realises the potential threat he places on the biodiversity of endangered species.
2. One of the references tendered in the offender's case is from Mr Boon Hao Lee of Burwood. Mr Lee describes himself as a friend of the offender who has known him four or five years. In Mr Lee's reference of 22 February 2021 he said this: "He felt very guilty and regretful about what he had done. He was guilty about the harms he brought to the animals and the environment. He was regretful for the negative influences he brought to the whole society. He was also ashamed about the mental stress he brought to his family and wife." Mr Lee does speak exactly to the relevant type of remorse. In Mr Borenstein's report there is this: "Mr Chin expressed feelings of guilt and remorse, and an understanding of the impact his indirect behaviour has on native species, which are protected and some endangered." Whilst the offender is truly ashamed for what he had done I accept that part of his remorse is a realisation of the potential damage done to the native species.
3. Theoretically I must consider the prospects of rehabilitation. I believe it unlikely, given his experience since the time of his arrest, that the offender would involve himself in attempts to smuggle Australian native animals again. Indeed his experience of being in custody will probably dissuade him from ever committing any other crime.
4. He comes before the Court as a man of prior good character. He has no criminal record in Australia, nor is there any evidence that he has any criminal record in Malaysia or Singapore. That speaks in the offender's favour.
5. One issue which does arise is the extent of the discount to be given to the offender for the utilitarian value of his plea. The Crown's written submissions, MFI 1, contain a procedural history which is important to note, that is this: "Proceedings were initially commenced in New South Wales, relating to the conduct that occurred in New South Wales and Victoria. The offender indicated that the matters would be contested so proceedings were commenced in Victoria in relation to the offences committed in that State. On 17 June 2020, the New South Wales offences were committed for trial to the District Court and on 3 July 2020, the offender entered pleas of not guilty in relation to conduct that now forms counts 1-3, 6 and 9. Those matters were listed for trial in the District Court of New South Wales to commence on 30 November 2020. Following negotiations between the parties, it was determined that charges be "rolled up" and the offender would be sentenced for all offences in New South Wales. On 9 December 2020, the offender entered a plea of guilty in the Central Local Court to the Victorian offences originally charged in that State (now forming counts 4, 5, 7 and 8) and was committed for sentence to the District Court. On 10 December 2020, an indictment was signed for and on behalf of the Commonwealth Director of Public Prosecutions charging the nine counts detailed above." The offender pleaded guilty to each count in the indictment on 17 December 2020 and proceedings in the Victorian Magistrate's Court were withdrawn.
6. The offender asks me to grant him a discount of 25% for the utilitarian value of his plea of guilty. One would normally only allow such a discount for a plea of guilty at the earliest available opportunity. However, it is clear that the offender's pleas, albeit late, have great utilitarian value. If he had maintained his pleas of not guilty, trial by jury would have been compulsory. There would have been a trial in New South Wales and a separate trial with a jury in Melbourne. Why the Crown elected to divide the charges up I do not know. They could all have been dealt with in one court but it may have been for the reasons that witnesses from Melbourne would need to be called and it was easier to have a separate trial in that city, than bring all the Melbourne witnesses to Sydney. However, the pleas were entered at a time when the criminal list for jury trials are extremely lengthy because of the COVID-19 pandemic and the interruption of jury trials in the middle of 2020. Indeed, I understand the situation in Melbourne to be worse than it is in Sydney. The pleas have great utilitarian value and that was conceded by the Crown in right of the Commonwealth. In the circumstances I am prepared to allow a discount of 20 % on the proper sentences to be passed.
7. The question is what should be the length of the custodial sentence? One thing that does provide me with a guide is the judgment in R v Kennedy [2019] NSWCCA 242. In that case there were two attempts to export regulated native specimens. One was known as sequence 83 and the other as sequence 84. Sequence 83 concerns the interception of four international mail items bound for export to Sweden. They were intercepted in Sydney at the Sydney Mail Gateway Facility. The packages had been posted on the preceding day, 26 July 2016, by somebody retained by the offender at post offices in Toongabbie and Greystanes. In total there were 24 live shingle back lizards and ten live native turtles bound in cloth bags inside plastic Sistema Klip IT containers. After allowing for a 25% discount, the Court of Criminal Appeal gave an indicative sentence of one year and nine months for that offence.
8. The sequence 84 offence, was an attempt to export regulated native specimens. On 12 October 2016, two further international mail items bound for export to Sweden were intercepted at the Sydney Mail Gateway Facility. The packages had been deposited at two separate post offices by a man who had been recruited by the offender and paid $500 for actually posting the packages. The packages combined contained nine live shingle back lizards wrapped in cloth bags inside plastic containers. After allowing for 25% discount, the Court of Criminal Appeal made an indicative sentence of one year and six months for that offence.
9. This, like Kennedy is an appropriate case in which to impose an aggregate sentence.
10. For count 1, I start with a head sentence of one year and three months. Reducing that by 20% one comes to an indicative sentence of one year.
11. For count 2, I start with a head sentence of ten months. Reducing that by 20%, one comes to an indicative sentence of eight months.
12. For count 3, I start with a head sentence of 12 months imprisonment. Discounting that by 20% I come to a sentence of seven months and fifteen days.
13. In respect of count 4, I start with a head sentence of one year and three months. Applying a 20% discount, one arrives at an indicative sentence of one year.
14. In respect of count 5, the successful export, I start with a head sentence of one year and six months. Applying a 20% discount and rounding off, one comes to a head sentence of one year and two months.
15. For count 6, I start with a head sentence of ten months. Reduced by 20% that becomes an indicative sentence of eight months.
16. For count 7, I start with a head sentence of one year and six months which, reduced by 20%, gives an indicative sentence of one year and two months.
17. For count 8, I again start with a head sentence of one year and six months. Reduced by 20%, that becomes an indicative sentence of one year and two months.
18. For count 9, I start with a head sentence of eight months. Reduced by 20%, that becomes an indicative sentence of six months.
19. The cumulative total of all those sentences, is seven years, eleven months and fifteen days. However, there must be substantial concurrency and looking at the outcome in Kennedy, I believe the appropriate sentence should be three years and six months.
20. The question then becomes what ought be the non-parole period? I have come to the view that the appropriate non-parole period is two years and four months or two thirds of the head sentence.
21. If the offender is released into the community at the end of his incarceration he would need assistance in finding suitable employment which would probably mean assistance in finding a relevant visa and getting himself established again in the community. In my view a period of one year and two months with the assistance of Community Corrections might assure the offender of doing his best in our community if he is released back into it. It is common ground that the sentence should be backdated to the time of the offender's arrest on 9 October 2019.
22. The Crown's submissions dealt at some length with the weight to be given to the untested out of court statements made by the offender to third parties. In particular the Crown drew to my attention the statement of principle contained in [57] of the reasons of Wilson J in Imbornone v R [2017] NSWCCA 144. Frequently those standing for sentence do not give sworn evidence. Sometimes that is because it is thought to be unnecessary. In a case of this nature the offender would be at a disadvantage giving evidence in a system which is not known to him and a culture which is not his own and where he would fear being misunderstood. I do not believe that the offender has failed to give evidence because her fears giving evidence for a reason, for example, that he has been concocting stories.
23. The Courts often proceed in these matters on the weight of the evidence, the consistency of the histories, and taking into account cultural matters. Here the offender does not appear to be well educated, he was working since the age of 16 in manual vocations, he is certainly not proficient in the English language and he may not share values which we accept in Australia and he may, of course, be influenced by cultural factors such as the Chinese idea of losing face. I do not therefore reject what the offender has stated out of court as being self-serving, inaccurate, or misleading, but rather I look at all of the evidence before me to ascertain what is likely. When I look at all the evidence it appears to me, for example, that it is hardly likely that this offender was a principal in this smuggling racket. It is likely that he was recruited on the promise of making quick easy money but got himself more involved no doubt with the idea of his making greater amounts of money, as he himself admitted, he was drawn into it by greed. It is of course not a mitigating factor that he was drawn into it in order to support family members.
24. When dealing with involvement in drug trafficking it is well established that to make substantial amounts of money from trading in drugs for the purpose of payment of personal and family debts is no less criminal than to make the same amounts for pure profit. That was laid down a long time ago by Barr, J in Ruben Botero in the Court of Criminal Appeal on 24 June 1998. Here the fact that the offender was involved in the smuggling to support his family overseas is no different to his being involved in the smuggling for the purposes of making pure profit. However, I accept that it is likely that he was remitting money to Malaysia for the purposes of supporting his grandparents there and perhaps his paternal uncle's family, his cousins.
25. But I look at the evidence overall and it appears to me that what I have stated is what the Court should accept as being the reality
26. I have clearly approached the report of Mr Borenstein with some caution. I have read so many of those reports over the years that one needs to approach such a report with caution especially when he could identify no psychological problem, and, if he did, it could only be something such as anxiety and depression. Anybody who was standing for sentence for serious crimes and was not anxious or depressed would be abnormal. But Mr Borenstein makes no diagnosis and therefore his report is merely in effect a shorthand method of taking the offender's evidence.
27. JAMES: Is it the Crown's understanding the remarks in relation to the consistency of the history and what the offender said out of court also applies to his statements as to remorse in relation to the offending? HIS HONOUR: In particular when dealing with Mr Borenstein's report I approached his statement of the offender's remorse with caution but gave it weight when I found a similar history, a similar statement recorded by Mr Lee in his reference of 22 February 2021.
28. JAMES: I'm grateful for that clarification, your Honour.
29. HIS HONOUR: Chek Wei Javill Chin, on each of the nine counts to which you have pleaded guilty you are convicted. I sentence you to imprisonment.
30. I set a non-parole period of two years and four months commencing on 9 October 2019 and expiring on 8 February 2022. I impose a further period of imprisonment of one year and two months commencing upon the expiration of the non-parole period and expiring on 8 April 2023. The total sentence is, therefore, three years and six months comprising the non-parole period and the balance of the sentence.

Amendments 13 May 2021 - Stylistic error in heading for Count 6 corrected DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 May 2021