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[2009] NSWDC 282
plaintiff. Petersen was sentenced to 18 months’ imprisonment by way of periodic detention, with release after 12 months on a $1,000 recognizance to be of good behaviour for six months and to appear for...
1 cited instrument linked from this judgment.
Petersen agreed to carry forty-four reptiles out of Australia in return for a paid holiday and spending money. The reptiles were discovered in his checked luggage before the flight left Sydney. The judge treated the offence as serious and emphasised deterrence, including the need to discourage couriers. However, the judge considered Petersen's good character, rehabilitation prospects, early guilty plea and assistance to police, alongside the absence of evidence that the reptiles were endangered. Petersen received eighteen months' imprisonment by way of periodic detention, with release after twelve months subject to a six-month recognizance.
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2,169 words · generated 30/09/2026
This is a sentencing decision of the New South Wales District Court, delivered by Berman SC DCJ on 28 August 2009. Evan Alexander Petersen pleaded guilty to attempting to export forty-four reptiles from Australia, an offence identified in the judgment as contrary to s 303DD(1) of the Environment Protection and Biodiversity Conservation Act. The judgment records a maximum penalty of ten years' imprisonment for that offence ([6]).
Petersen had developed an interest in reptiles from a young age, had worked voluntarily at a pet shop, and was later employed there ([1]). A man the judge called “Mr X” offered to pay for Petersen's holiday and provide spending money if he carried reptiles out of Australia ([2]). Petersen agreed because it would allow him to travel to Thailand and meet his girlfriend without paying for the holiday himself ([3]).
Petersen gave a bag containing some of his clothes to Mr X and later collected it. He checked the bag in at Sydney Airport, apparently expecting not to collect it in Bangkok. His plan was to leave the airport with only his carry-on luggage while someone else collected the checked bags ([4]). Before the plane departed, an x-ray revealed forty-four reptiles concealed in the bags. Police boarded the aircraft and removed Petersen ([5]).
At first, Petersen told police he did not know about the reptiles and suggested that someone might have placed them in his bags while they were unattended. The judge described that account as a series of lies, but also noted that Petersen did not maintain it and pleaded guilty at a relatively early stage ([5]–[6]). At sentence, Petersen supplied investigators with Mr X's name and other information. The judge took that cooperation into account, while noting that its value was not yet known ([15]).
The judge imposed eighteen months' imprisonment, ordered release after twelve months on a $1,000 recognizance to be of good behaviour for six months, and directed that the sentence be served by periodic detention. Petersen was to report to the Silverwater Periodic Detention Centre on 13 September 2009 ([21]).
The central sentencing tension was between the seriousness of wildlife-export offending and the personal and factual matters that supported a sentence short of full-time custody. The judge said that the Court of Criminal Appeal had indicated that offences of this kind would normally attract full-time custody, referring to R v Morgan [2007] NSWCCA 8 ([8]). The judgment does not reproduce the appeal court's reasons or identify paragraph numbers from Morgan, so the point should be understood as the sentencing judge's summary of that authority.
The judge rejected the suggestion that Petersen's limited role as a courier justified leniency. The plan was that Petersen's criminal involvement would effectively end when he checked the bags in, but the judge reasoned that couriers remain important to the trade. Deterring couriers could, in turn, hinder the trade in native animals ([9]). Petersen's motivation also counted against him: the judge found that he acted simply to obtain money and a free holiday ([10]).
The offence was not highly sophisticated in its physical concealment. The reptiles had been put in socks, rather than concealed using devices such as corsets. But the judge considered that someone must have arranged for the bags to be obtained from the baggage conveyor in Bangkok, indicating some level of organisation ([11]). That observation arose from the apparent plan described in the sentencing account, rather than from a finding that Petersen personally arranged the collection.
Animal welfare and environmental risks were also considered. Some reptiles died and others were detrimentally affected by the experience ([12]). The judge rejected Petersen's claim that the risk to the animals had slipped his mind, reasoning that his background caring for reptiles meant he could not have failed to appreciate the risks ([12]). The judgment records no evidence that the animals were endangered or rare in the wild, or that they came from the wild. It also records the Crown's concession that there was no demonstrated environmental harm from disease transmission ([13]–[14]). The judge nevertheless recognised the potential for harm if a transported species were introduced into another environment ([14]).
General deterrence was given substantial weight. The judge considered a community service order or suspended sentence inadequate to deter others from making money through the native-animal trade ([17]). He also explained that sentencing required consideration beyond the immediate effect on Petersen, and emphasised the need to communicate that those caught engaging in this conduct should not expect leniency ([18]–[19]).
The judge did not, however, regard full-time imprisonment as necessary in this particular case. He relied on Petersen's otherwise good character, rehabilitation prospects, relatively early guilty plea, and assistance to authorities. He also noted that there was no evidence that any reptile was endangered, and said that evidence of an endangered animal would have made the case one for full-time custody ([20]). Those factors led to a custodial sentence served by periodic detention rather than full-time custody.
The judgment is a sentencing decision, not a comprehensive account of the statutory scheme or the development of wildlife-export law. It identifies the offence as an attempt to export the reptiles contrary to s 303DD(1) of the Environment Protection and Biodiversity Conservation Act and states its maximum penalty as ten years' imprisonment ([6]). It does not set out the elements of the offence, define “attempt”, or discuss the statutory provisions in detail.
For sentencing guidance, the judge relied on the Court of Criminal Appeal's decision in R v Morgan [2007] NSWCCA 8. The judgment says that the appeal court agreed with some of the judge's earlier reasoning in Morgan and, most importantly for Petersen's sentence, said offences of this kind would normally attract full-time custody ([8]). The decision therefore presents that proposition as the applicable general guidance at the time, while also showing that the judge considered the individual circumstances before imposing sentence.
The judgment does not provide a “before and after” account of a change in legislation or doctrine. Nor does it identify a change caused by this decision. It applies Morgan's stated approach to the facts before it and explains why the case, in the judge's view, did not require full-time custody ([8], [20]). The result is a case-specific application of sentencing considerations, not a statement that all courier cases, or all cases involving non-endangered animals, should receive the same sentence.
The judgment's distinction between the ordinary sentencing response and the sentence imposed here is important. The judge described full-time custody as the normal position, but considered the evidence and personal circumstances sufficiently different to impose periodic detention ([8], [20]–[21]). The text does not establish whether later courts have adopted, qualified, or departed from that approach.
At [8], the judge said that offences of this kind would “normally attract a full-time custodial sentence”. In plain English, the judge understood Morgan to set a serious starting point for sentencing, while still undertaking an individual assessment of Petersen's case.
At [9], the judge said that being “a mere courier” did not mean the offender should be dealt with leniently. The practical point was that a courier's role can still contribute to an illicit trade, and that discouraging couriers may make the trade harder to sustain.
At [12], the judge rejected Petersen's assertion that the risk to the reptiles had slipped his mind. The reasoning was tied to his personal experience: he had cared for reptiles and worked in a pet shop, so the judge found it implausible that he had not appreciated that the animals could suffer.
At [14], the judge acknowledged a possible risk to the Thai environment if the reptiles had arrived there, but also recognised that the court did not know what would have happened. This was a statement about potential harm, not a finding that environmental damage in Thailand had actually occurred.
At [15], the judge treated Petersen's disclosure of Mr X's identity as evidence of remorse and possible assistance to investigators. The judge expressly qualified the weight of that assistance because the information had been provided less than an hour earlier and its value was not yet known.
At [20], the judge concluded that full-time custody was not required. This followed the balancing of the offence's seriousness and the need for deterrence against Petersen's good character, rehabilitation prospects, early plea, assistance, and the lack of evidence that the animals were endangered.
At [21], the sentence was set out precisely: eighteen months' imprisonment, periodic detention, release after twelve months on a $1,000 recognizance, and a six-month good-behaviour period. The judgment directed Petersen to report to the periodic detention centre on 13 September 2009.
The case is most directly relevant to sentencing for attempted export of native reptiles where the offender acts as a paid or otherwise rewarded courier. The judgment expressly considered a courier who checked bags containing reptiles in at an Australian airport, expecting another person to collect them overseas ([4], [9]).
The decision also addresses facts involving a substantial number of animals, concealment in ordinary luggage, and actual animal suffering. Here, forty-four reptiles were involved; some died and others were adversely affected ([5], [12]). The judge considered the offender's knowledge of the risks material because of his experience with reptiles ([12]).
The case may also be relevant to cases where there is no evidence that the animals were endangered or rare in the wild. The judge treated the lack of that evidence as important to the assessment of whether full-time custody was required ([13], [20]). The judgment does not say that endangered status is a legal prerequisite to seriousness, or that its absence always prevents full-time custody.
Other potentially relevant features include the offender's motivation, degree of organisation, guilty plea, character, prospects of rehabilitation, and cooperation with investigators ([10]–[11], [15], [20]). The reasons make clear that the sentence reflected the combination of these matters, rather than any single feature. The decision is a District Court sentencing judgment and should be read within those factual limits.
The supplied judgment does not identify any cases decided after 28 August 2009 that considered or applied Petersen. It is therefore not possible, from this text, to describe how later courts have treated this decision.
The only other case identified is R v Morgan [2007] NSWCCA 8, which predates Petersen. The sentencing judge referred to Morgan as authority for the proposition that offences of this kind would normally attract full-time custody, and compared the facts and personal circumstances in the two matters ([8], [16]). In Morgan, as summarised here, the offender transported eggs, deliberately destroyed them when detected, had prior convictions for cultivating cannabis, and was found to have lied in court ([16]). The judge used those differences to explain why Petersen's case warranted a different sentence.
No paragraph numbers from Morgan are provided, and the judgment does not set out the appeal court's complete reasoning. Accordingly, the Morgan discussion should be attributed to Berman SC DCJ's account in Petersen, rather than treated as a full statement of Morgan's ratio.
Several questions are left unresolved by the text. First, the judgment does not explain the statutory elements of s 303DD(1), or how the attempt offence is legally distinguished from completed export. Its focus is sentencing after the guilty plea, not liability.
Second, the judgment notes that the reptiles were not shown to be endangered, rare in the wild, or sourced from the wild, but does not define how those matters should affect sentence in other cases ([13], [20]). It also does not establish a general sentencing consequence where there is evidence of endangered status. The judge's statement that such evidence would have meant full-time custody describes his assessment of this case, not a rule applicable to every case.
Third, the judgment identifies some animals' deaths and the detrimental effects on others, but gives no detailed evidence about the species, the extent of injury, or the precise cause of death ([12]–[13]). It also acknowledges uncertainty about possible environmental consequences in Thailand ([14]). Those limits mean the decision should not be read as resolving how to assess ecological harm on different evidence.
Fourth, the judge took Petersen's disclosure of Mr X's identity into account while noting that the value of the information was unknown ([15]). The judgment does not report what investigators did with the information or whether it led to further proceedings.
Finally, the decision does not explain the mechanics of the periodic detention order or the statutory framework governing the recognizance beyond referring to s 21B of the Crimes Act ([21]). Nor does it record any later appeal or subsequent judicial treatment of the sentence. Those matters cannot be determined from the supplied judgment.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have it checked by a qualified Australian lawyer.
CITATION: R v Evan Alexander PETERSEN [2009] NSWDC 282
HEARING DATE(S): 28 August 2009. EX TEMPORE JUDGMENT DATE : 28 August 2009
DECISION: The offender is sentenced to imprisonment for eighteen months. I order that he is to be released at the expiration of twelve months upon him entering into a recognizance pursuant to s 21B of the Crimes Act in the sum of $1,000 to be of good behaviour for a period of six months from the release date and to appear to receive sentence if called upon to do so at any time in respect of any breach within that period. I order that that sentence of imprisonment be served by way of periodic detention.
CATCHWORDS: Criminal law - Sentence - Courier - Attempt to export reptiles
LEGISLATION CITED: Crimes Act 1914 (Cth) Environment Protection and Biodiversity Act
PARTIES: The Crown Evan Alexander Petersen
COUNSEL: T. Anderson - The Crown P Boulten SC - Offender
SOLICITORS: Commonwealth DPP Murphy's Lawyers - Offender
1 HIS HONOUR: Evan Petersen developed an interest in reptiles at a young age. This led to him working voluntarily at a local pet shop and later, when he was old enough being employed there. It also brought him into contact with others with interests in reptiles including a man I will describe as Mr X. I will call him Mr X because I do not know his name.
2 Mr Petersen had a girlfriend who, although she lived in Shanghai, would visit Phuket in Thailand regularly. It was something of a long distance relationship but the offender flew to Phuket to meet up with his girlfriend when he could. On one occasion, Mr X approached Mr Petersen and made him an offer. The offer was this: If he flew to Bangkok smuggling some reptiles out of the country, Mr X would pay for his holiday and give him some spending money as well.
3 Mr Petersen agreed. He decided that he would commit the serious criminal offence of exporting reptiles from Australia simply for money. He wanted to meet up with his girlfriend. He wanted to have a holiday in Thailand. It was going to cost him money to go there and do that but he could get it for free if he agreed to what Mr X proposed and that is what he did.
4 One day he put some of his clothes into a bag and provided that bag to Mr X. He then later picked up the bag from Mr X and went to Sydney Airport. He checked in at the Thai Airways counter. After he had done that he thought he was scot free. The plan was that he would not even have to collect the bags once he got to Bangkok and that he would simply walk out of the airport with carry on luggage. Apparently someone else was going to pick up the bags from the airport and he was prepared to lose the clothes that he had packed into the bag earlier.
5 Fortunately however his bags were x-rayed before the flight took off. The x-ray revealed the presence of forty-four reptiles secreted in the bags. Police were called, they went onto the aircraft and removed him from it. The offender was then interviewed by police. He told them at that stage a lot of lies. He suggested that he knew nothing about the reptiles packed in his bag and suggested that what may have happened is that when he left his bags unattended, someone had slipped the reptiles in.
6 Fortunately he did not persist with such a fanciful story. He pleaded guilty at a relatively early stage to the offence of attempting to export the forty-four reptiles discovered in his bag. That is an offence under s 303DD(1) of the Environment Protection and Biodiversity Conservation Act and carries a maximum penalty of ten years imprisonment.
7 The offender is a man of otherwise good character. He is a well regarded electrician. Evidence today both written and oral attests to his otherwise good character and indeed the Crown concedes it.
8 Mr Boulten who appeared for the offender made no attempt to suggest that the offence was other than serious. I sentenced a man called Morgan a couple of years ago now and when doing so, I explained why it was that offences of this kind were as serious as they are and why in the appropriate case no other sentence than one of full-time custody is appropriate. The Court of Criminal Appeal agreed with some of what I said (see R v Morgan [2007] NSWCCA8). It said most importantly for the purposes of the sentencing exercise before me, that offences of this kind would normally attract a full-time custodial sentence.
9 During the course of submissions, attention was focussed on a number of matters that Buddin J suggested it were very important in informing the sentencing exercise. The first was the nature and extent of the offender's role. In this case the offender was a courier. As I have explained, it was the plan that he would not even pick up the bags in Bangkok and that his criminal activities in effect ended once he had checked the bags in. However, the fact that the offender was a mere courier does not mean that he should be dealt with leniently. The courts seek to discourage the drug trade as well as the trade in native animals by imposing harsh sentences on couriers. If couriers can be deterred from criminal activities then the drug trade and the native animal trade suffer accordingly.
10 Buddin J next suggested I should look at the motivation of the offender for committing the offence. As I have said, the offender did this simply for money.
11 Next I look at the level of sophistication which the offender was involved. This was not a sophisticated activity. There was no attempt to use corsets or other devices to conceal the reptiles, indeed they were simply put in socks in the bags. On the other hand there must be a level of sophistication at some level. Mr X must have had some arrangement that would enable him or someone else to obtain possession of the bags whilst they were still on the conveyer belt at Bangkok airport.
12 The next matter I should look at concerns whether there were aggravating features such as undue cruelty. In this case some of the animals died. Others survived but were detrimentally affected by the experience. Clearly there was a significant risk to the reptiles. When asked about this in the witness box the offender said that the risk to the reptiles simply slipped his mind. I say quite clearly that I do not accept that. The offender, given his background in looking after reptiles, both his own and in the pet shop where he worked, simply could not have failed to appreciate the risks to the animals. I do not accept that he forgot that they may suffer.
13 There were forty-four animals involved but there is no evidence to suggest that the animals were rare. Indeed the material tendered by the Crown suggests that there is a retail trade in the animals such that they can be valued, that a monetary value can be put on them. One of them may be rare because it had a high monetary value but it is not the case that there is any evidence to suggest that the animals were endangered or rare in the wild or indeed that they even came from the wild.
14 I have mentioned the actual harm to the particular animals and the Crown concedes that there was no harm to the environment through the spread of disease for example. Of course we do not know what would have happened once the reptiles got to Thailand. We do not know whether the introduction of a species that would have been transported to Bangkok would have any harm to the Thai environment but I do say and recognise that the potential is one of the reasons for offences such as this being treated as seriously as they are.
15 The offender now says that he is remorseful. I do rather get the impression that his remorse is firstly for his parents, secondly for himself and only belatedly for the actual wrongfulness of his conduct but there is a concrete way that he has demonstrated his remorse and that relates to the identity of Mr X. In the witness box he indicated that he did not wish to name him because of fears, apparently genuine. However after being given the opportunity of speaking to Mr Boulten he has approached investigating officers and provided them with information about Mr X including his name. Of course as if that occurred only less than an hour ago, the value of that information is not made known to me but I do take into account that the offender has demonstrated his remorse by doing what he did and that this is likely to have been of assistance to the authorities.
16 Given the fact that the Court of Criminal Appeal decision in R v Morgan is the most recent and it contains statements of principle (and also the fact that I was the one who sentenced Mr Morgan), attention has been paid to a comparison between Mr Morgan's case and this one. Mr Morgan was transporting eggs which he deliberately destroyed upon being detected. His decision to deliberately destroy the eggs led to a further offence but it is also relevant to the question as to the harm which the offender caused. Mr Morgan was not of prior good character, he had priors for cultivating cannabis and told, I was clearly satisfied, lies in court.
17 The Crown and Mr Boulten are some distance apart, as is often the case, as to the sentence which should be imposed upon the offender. The Crown says that nothing less than full-time custody is required. Mr Boulten says that I should firstly impose a community service order or if I feel that a sentence of imprisonment is required it should be suspended. I do not consider that either of those options is appropriate. A community service order or a suspended sentence of imprisonment would be insufficient to deter others who may be tempted to make money through the trade in native animals.
18 Mr Petersen, the offender's father, gave evidence saying that sending his son to gaol would do him no good at all, that his son has already appreciated the wrongfulness of his conduct and that there is no benefit to him in locking him up. That may well be right but my task is to look not only at the offender. My task is much broader than that and it is as the Crown reminds me, it is important that I consider general deterrence when I formulate the appropriate sentence to impose upon this offender.
19 Parliament, in introducing this offence, suggested that the trade in endangered species and native animals were second only to the drug trade in terms of the money that can be made. It is therefore necessary that I bear firmly in mind the need to send a message to those who might be tempted to do what Mr Petersen has done that if they are caught they cannot expect leniency and can indeed expect a harsh punishment.
20 Mr Boulten acknowledges that his client is within a whisker of going to gaol full-time. Had there been any evidence that any of these reptiles was endangered, then his client would be spending tonight in Silverwater serving a full time custodial sentence. However, I consider that this is a matter where a full-time custodial sentence is not required. The offender is, as the Crown conceded, a man of otherwise good character. He has good prospects of rehabilitation. He pleaded guilty at a relatively early opportunity and has assisted the authorities in the way I identified earlier. He has much to offer in the future.
21 The offender is sentenced to imprisonment for eighteen months. I order that he is to be released at the expiration of twelve months upon him entering into a recognizance pursuant to s 21B of the Crimes Act in the sum of $1,000 to be of good behaviour for a period of six months from the release date and to appear to receive sentence if called upon to do so at any time in respect of any breach within that period. I order that that sentence of imprisonment be served by way of periodic detention. The offender is therefore to report to the Silverwater Periodic Detention Centre at 8.30am on 13 September 2009 in order to commence serving his sentence.
22 His Honour explained the sentence to the offender.
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R
Evan Alexander PETERSEN
Petersen was sentenced to 18 months’ imprisonment by way of periodic detention, with release after 12 months on a $1,000 recognizance to be of good behaviour for six months and to appear for sentence if called upon for a breach; he was to report to the Silverwater Periodic Detention Centre on 13 September 2009.