R v Kennedy

s 16A(2)(a) THE NATURE AND CIRCUMSTANCES OF THE OFFENCE

1. The finding of facts upon which the matters proceeds to sentence must be available from the evidence produced on sentence. If there is conduct that would aggravate the offending and lead to a greater penalty, then that conduct must be proved beyond reasonable doubt. If there are circumstances that a sentencing Judge proposes to take into account in favour of the offender, it is enough if those circumstances are proved on the balance of probabilities.
2. If findings cannot be made to the requisite standard on a particular issue, agitated by the Crown or the offender, then the Court must proceed to sentence on the objective facts proved by the evidence. The maximum penalty is an important guidepost in the assessment of sentence, a Judge should steer by the maximum penalty, but not aim for it.

FACTS (SUMMARY)

1. The offender Martin Kennedy is charged with offences relating to the import and export of wildlife. 22 packages containing wildlife were intercepted by Australian authorities on three separate occasions between July and October 2016. Kennedy is also charged with having two pythons in his possession, together with $43,550 cash, being the suspected proceeds of crime.

Background

1. Operation Melville is a joint investigation between the Australian Federal Police (AFP) and the Department of Environment and Energy (the Department) in relation to the elicit wildlife trade in and out of Australia.

Charge 1: On or about 26 July 2016, attempt to export regulated native specimens.

1. On 27 July 2016 four international mail items bound for export to Sweden were intercepted by officers with Australian Border Force and Australia Post at the Sydney Mail Gateway facility in Clyde, New South Wales after anomalies were detected in an x-ray examination. Each package was addressed to an address in Sweden and each contained false sender details.
2. The packages were posted on 26 July 2016, by Reece Elson who had been recruited by Kennedy at post offices at Toongabbie and Greystanes. Kennedy paid Mr Elson to post the packages on his behalf. A total of $457.36 was paid by Kennedy in postage.
3. Each package contained regulated native specimens, in total 24 live shingleback lizards and ten live native turtles were contained inside the packages. The turtles and shingleback lizards were contained in cloth bags inside plastic containers.
4. The turtles and shingleback lizards were contained within cloth bags inside Sistema Klip It plastic containers.
5. The turtles were Chelodina steindachneri, commonly known as dinner plate turtles. The lizards were Tiliqua rugosa commonly known as shingleback or bobtail lizards. Both species are Australian native reptiles and are defined as regulated native specimens under s 303DA of the Environment Protection and Biodiversity Conservation Act 1999 (Commonwealth).
6. Kennedy did not have permission to export any of the specimens.

Charge 2: On or about 12 October 2016 attempt to export regulated native specimens.

1. On 12 October 2016 two international mail items bound for export to Sweden were intercepted by officers with Australian Border Force and Australia Post, at the Sydney Mail Gateway Facility in Clyde, New South Wales, after anomalies were detected in an x-ray examination.
2. Each package was addressed to an address in Sweden and each contained false sender details. The names and addresses of the persons who the packages were addressed to have been recorded in notes made by Kennedy in his phone on 27 September 2016.
3. The packages were deposited at two separate post offices by Matthew Ferguson who was recruited and paid $500 by Kennedy. Kennedy drove Mr Ferguson to the post offices with the parcels for posting, Kennedy had filled out all relevant details on postage forms which he provided to Ferguson to provide to post office staff. A total of $192.85 was paid in postage.
4. Each package was opened and found to contain regulated native specimens, in total nine live shingleback lizards were contained inside the packages. The lizards were wrapped in a cloth bag inside a plastic container.
5. The lizards were Tiliqua rugosa, commonly known as shingleback or bob tail lizards, which is a native reptile and defined as a regulated native specimen under s 303DA of the Environment Protection and Biodiversity Conversation Act 1999.
6. Kennedy did not have permission to export any of the specimens.

Charges 3 and 4: On or about 19 October 2016 import/attempt to import regulated live specimens.

1. On 13 October 2016 Kennedy departed Australia for Bangkok, he returned to Australia from Bangkok on 18 October 2016.
2. On 15 October 2016 Kennedy made a note on his mobile phone about quantities of reptiles and fish as well as prices and freight.
3. On 16 and 17 October 2016 Kennedy conducted internet searches, including four FedEx locations in Thailand and hotels in Sydney.
4. 17 October 2016, Kennedy posted a number of packages from Bangkok in Thailand containing reptiles, fish and stingrays. Kennedy used false sender details and addressed the packages to persons named Brian Turner, Ben Williams and Steven James at hotels in Sydney.
5. Kennedy completed airbill weigh forms stating that each of the packages contained a water filter. He also completed commercial invoices stating that the export of the water filters was for the purpose of a gift.
6. The packages were deposited at two separate FedEx offices in Thailand by Kennedy, Kennedy paid approximately $3,024 in postage.
7. On 17 October Kennedy made a note on his mobile phone recording names next to certain hotels in Sydney where the parcels had been sent.
8. Upon his arrival back in Australia Kennedy was subjected to an examination by ABF officers. Kennedy initially refused to unlock his phone and deleted material from it. The examination included a digital examination and download of his mobile phone.
9. On 19 October 2016 officers with the Department of Agriculture and Water Resources intercepted 16 of the parcels posted by Kennedy from Bangkok, Thailand via the FedEx service at Matraville. The packages were found to include in total 23 live Chinese soft shell turtles, 15 live alligator snapping turtles, ten live snake head fish, 58 dead snake head fish, 11 neo-tropical stingrays, two live sugar gliders, 18 dead sugar gliders and 15 dead veiled chameleons.
10. The turtles were packaged inside plastic tubs, the snake head fish and the stingrays inside kordon breather bags, the sugar gliders inside small cages and the veiled chameleons in white calico bags, all packages were placed inside a black plastic aquarium filters.
11. The live specimens are the subject of charge 3, the remaining dead specimens are the subject of charge 4.
12. All live specimens were euthanised.
13. The veiled chameleons are listed on CITES appendix 2, the alligator snapping turtles are listed on CITES appendix 3.

Events between 19 October 2016 and 2 March 2017.

1. On 19 January 2017 the AFP Deputy Commissioner authorised a major controlled operation in relation to this matter.
2. On 14 February 2017 and 2 March 2017 an AFP undercover operative purporting to be a facilitator of international freight movements met Kennedy at the Helm Bar, Darling Harbour during which discussions were had about the importation and exportation process.

Charge 5 - On or about 3 March 2017 possess non-native CITES/regulated specimen.

1. A search warrant was executed at Kennedy's residence on 3 March 2017, during the execution of the search warrant two live pythons, later identified as belonging to the python malourous group were located inside Sistema brand containers in the hallway. Kennedy admitted that he was the owner of the reptiles and that he knew that the snakes were not Australian natives and that it was illegal to possess them. The pythons were seized.
2. One of the pythons died shortly after being seized, the other python was euthanized.
3. Pythons are defined as CITES specimens pursuant to s 303CA of the EBPC Act, the two pythons seized are listed in CITES appendix 2.

Charge 6: On or about 3 March 2017 possess suspected proceeds of money, less than $100,000.

1. Also located during the execution of the search warrant was $43,550 in cash, the cash was in $50 and $100 notes and was located inside the freezer in the kitchen. Kennedy admitted that the money was his, the money was seized.
2. Following the execution of the search warrant, Kennedy was arrested and conveyed to the AFP offices at the Sydney Airport where he participated in an interview with investigators.
3. During the interview, Kennedy said that his occupation was an importer of fishing tackles and that he works from home.
4. He was asked whether he was involved in the export of reptiles to Sweden and said he was not making any comment, but that that may change and the police should tell him why.
5. During the interview Kennedy:

• admitted knowing Reece Elson;
• denied ever being in possession of dinner plate turtles and said "you need a licence" and he has never had one;
• Denied having ever possessed a shingleback lizard and said he thinks that you need a licence to have them in New South Wales;
• Admits giving Reece Elson money;
• Denied ever giving Martin Ferguson articles to post to Sweden;
• Was able to provide no explanation as to how his fingerprints came up on the inside of parcels in which the reptiles were contained, notwithstanding he knows nothing about them;
• Said he had travelled to Thailand about four to five days before he returned home in October 2016 as he was looking for a guy to hand-make timber lures. Says images on his phone of Australia Post tracking numbers might have been sent to him;
• Is unable to explain why there is a screen shot of his phone, accessing the Australia Post tracking website;
• Is not able to explain at this stage, tracking items on his phone in relation to an October 2016 consignment to Sweden;
• Is not able to explain at this stage why the name Marcus Linquist and an address for him in Sweden is on his phone;
• Says he has never used the name Ben Williams. Says he knows nothing about Ben Williams, says he has never had a CITES permit and has never applied to the Thai government for exportation permits;
• Says that his fingerprint was in the lid of a black plastic aquarium filter inside a cardboard box that had come over from Thailand because it was left there;
• Says he does not remember writing the note about the number of sugar gliders;
• Says it would seem he had an involvement in the sending of four packages to Sweden in July 2016 based on what the officers had said to him;
• Says it would seem he had an involvement in the sending of two packages to Sweden in October 2016 based on what the officers had said to him;
• Says, based on what the officers had said it would seem he had a very strong involvement in the importation of 19 packages by FedEx on 19 October;
• Says that he has never been issued with a CITES management certificate. Admits not holding permits issued under the Environment Protection and Biodiversity Conservation Act;
• Admits not holding import permits in relation to wildlife;
• Admits not holding any import permits in relation to aquarium fish;
• Was asked whether he was aware that there was a risk in bringing in randomly picked up wildlife to Australia, of the introduction of viruses and diseases, he replies he agrees there is a risk, there are risks with everything including the chicken he ate in the break which was imported and the prawns he had on his pizza the night before. He gets the risk but disagrees with it;
• Says he knows people that live in Sweden and people that keep reptiles in Sweden and people in Australia who deal with people in Sweden doing this stuff. He says he knows more about this stuff than anyone else in Australia.

1. At the conclusion of the interview, Kennedy said as follows: "A. Based on the numerical evidence that you found in my phone which is fine, I don't mind commenting at all or not commenting on it, but it just confuses me why they don't appear to be a focal point of the investigation." Q. Well like I said this is the beginning? A. Okay. Q. Of a big investigation? A. Yeah okay. Q. That will cover quite a few people? A. Yeah okay, happy to help."

EVIDENCE OF MR SIMPSON

1. Court time on the sentence hearing was occupied by the evidence-in-chief and cross-examination of Mr Simpson. He was called by the Crown to rebut the suggestion by the offender that he had borrowed money from Mr Simpson to help pay his legal fees in the proceedings brought by the rugby league governing body against him.
2. Mr Simpson is a liar, cheat and fraudster, he has previously made false allegations against serving police officers. He has a number of convictions for dishonesty offences, including 'make false statements'. He has served terms of imprisonment. He has received suspended sentences and as recently as 2015 an intensive correction order. On 31 August 2018 he received a sentence of one year and five months imprisonment from Zahra SC DCJ for the import and export of wildlife specimens. He was released upon entering into a recognisance to be of good behaviour.
3. He is no stranger to the courts in relation to the importing and exporting protected fauna: Simpson v The Office of Environment and Heritage [2014] NSWLEC 34; Simpson v Department of Environment and Conservation [2011] WASC 2006. He was unimpressive as a witness,
4. He told the Court that he and the offender showed an interest and passion for reptiles. He said that he invested in two specific animals, a female albino, red belly black snake and a male albino black headed python. Simpson was to pay for the purchase of the snakes and the offender was to breed the snakes and perpetuate the albino gene. He said that he gave the offender $27,000 in cash to purchase the red belly black snake and that the money was not a loan. He gave him the money in late 2002. The role of the offender was to breed the snakes and perpetuate the albino gene.
5. In relation to the albino black headed python, he supplied $85,000 to the offender to purchase the snake and the offender was to breed the snake. He gave him the money in 2015. He said he has never asked for the return of the money. He said that the offender supplied him with a lot of photographs of the snake: T 13 line 15. No photographs were produced by the Crown to confirm that evidence. If they had existed it would be surprising that experienced senior counsel did not produce them to support the evidence of the witness, or is this a complete fallacy. The more likely alternative is that Mr Simpson was making up his evidence on the run and senior counsel was caught by surprise. I do not accept the evidence of the witness that he was shown a lot of photographs of the snake by the offender.
6. According to Mr Simpson, the offender was unsuccessful in breeding the snakes. He said in evidence that he had asked for the return of the snakes and that he last asked for their return in late 2016.
7. There was no evidence led about the number of times the request was made or what legal steps he undertook for the return of these expensive and rare snakes. At no stage since 2012 did the witness attempt to see the snakes. If he had expended over $100,000 on two snakes, there would be an expectation, with his interest in snakes and the rarity of the snakes, that he would seek to see them. It is implausible that if they existed, he made no efforts to see the expensive and rare snakes.
8. I do not believe the evidence of Mr Simpson that he paid to the offender over $100,000 for two rare snakes that he never saw or attempted to see and made no legal attempts for their return. It is a story that I do not accept.

EVIDENCE OF THE OFFENDER

1. The offender told me that, subsequent to 2015, Mr Simpson gave him a loan of money. The offender, at that point in time, had significant legal bills and Mr Simpson would have known about them as a result of the weekly meetings he had with the offender. I accept on the balance of probabilities that Mr Simpson loaned to the offender a sum of money, subsequent to 2015. The money was given to the offender in cash and there were no terms of repayment, but the emphasis was that it was to be repaid: T p 75 lines 36 to 45.
2. I am unable to determine the amount of the loan, the offender said it was $25,000 but he never counted it. One would expect that if you received a sum of money as a loan from a convicted fraudster, you would count the money so that you were not taken advantage of. The offender may not have counted the money, because up to that point in time he had a trusting relationship with Mr Simpson and as a result of that relationship, believed him to be a man of his word.
3. I accept that the offender believed he was under some pressure to repay the loan, however the offender made it clear in his evidence that it was his decision alone to make money by the import and export of fauna. The motive for Mr Simpson to tell the snake story may have its genesis in the AFP speaking to him about his involvement in these offences and his need to distance himself from the offender.

NATURE AND CIRCUMSTANCE OF THE OFFENCES, s 16A(2)(a) - Crown's submissions

1. The Crown submitted that the offences of attempted exportation fall toward the higher end of the spectrum of seriousness, the offending strikes at the heart of the regime for the protection of wildlife. It was submitted that the importation offence and attempted importation offence fall at the higher end of the scale, they were in breach of an international agreement. The Crown further submitted that the possession of illegal imported specimens and proceeds of crime are above the middle of the range of seriousness.
2. It was submitted that the objective seriousness of the offences, the maximum penalties prescribed by the legislature and the imperatives of general and specific deterrence that a sentence of fulltime custody is the only sentence appropriate in all the circumstance.
3. The Crown relied upon Klein (1989) 39 A Crim R 332 at 335 and Robison (1992) 62 A Crim R 374 at 378-379 (misspelt at [14] of the Crown's submissions) for the proposition that general deterrence is a powerful consideration in matters of this nature.
4. The offences contrary to ss 303DD1 and 303EK1 are rolled up charges, they encompass a number of discrete offences. The Court is required to assess the total criminality involved as particularised by those charges.
5. While the offender is only exposed to the maximum penalty applicable for a single offence for those charges, the more separate instances of criminality involved the more objectively serious the offending conduct will be.

Sequence 83

1. The Crown relied upon the following matters in the assessment of the objective seriousness: 1. the offender was the organiser and principal; 2. his motivation was commercial gain; 3. it was a sophisticated operation using false names and deployment of a courier; 4. he was indifferent to the animals' welfare; 5. the number of creatures involved was significant.

Sequence 84

1. The Crown relied upon the following matters in assessment of the objective seriousness: 1. the offender was the organiser and principal; 2. he paid Mr Ferguson to send the items, thus attempting to remove himself from detection; 3. his motivation was commercial; 4. it was a sophisticated operation designed to avoid detection; 5. the number of creatures involved was nine.

Sequence 85

1. The Crown relied upon the following matters in the assessment of the objective seriousness: 1. the offender travelled to Thailand to effect the importation, he was singularly responsible for all aspects of it; 2. all of the chameleons died, 18 of the 20 sugar gliders and 58 fish died; 3. his motivation was financial; 4. the operation was sophisticated using false details and packaging to hide the specimens; 5. potential harm to the Australian environment. The Crown relied upon a report from Tim Low which I have read and have taken into account; 6. the alligator snapping turtles are classified as a vulnerable species and are listed on CITES appendix III which contains species that are protected in at least country.

Sequence 86

1. The Crown relied upon the following matters in the assessment of the objective seriousness: 1. the offending conduct, the subject of the charge was part and parcel of the conduct subject of sequence 85. 2. The distinguishing feature of the charge is that the creatures the subject of the charge, died as a result of the importation. The offending conduct resulted in the death of 58 snake head fish, 19 sugar gliders and 15 veiled chameleons.
2. The Crown acknowledges that the offences of 19 October 2016 were part of a course of conduct and submits that separate sentences be imposed in relation to both offences and any such sentences be at least partially accumulated.

Sequence 87 (possession of a python)

1. The pythons are listed in appendix 2 to CITES, they are not presently threatened with extinction. I have read and taken into account the report of Mr Low dealing with the dangers of the python. I have also read the report of Zara Bending and have taken that into account.
2. The Crown submitted that the offending conduct fell above the middle range of objective seriousness.

Sequence 88 (deal with money)

1. The offender was in possession of $43,550, the Crown submits that the offending conduct fell above the middle of the range of seriousness for an offence of this nature.

NATURE AND CIRCUMSTANCE OF THE OFFENCES, s 16A(2)(a) - Offender's submissions

1. It is accepted on behalf of the offender that the offending is serious and that the purposes underlying the regulation of importing, exportation and possession of certain wildlife is obvious.

Sequences 83 and 84

1. The attempts failed and the animals were recovered alive and totalled 33 shingleback lizards and ten native turtles. It was submitted that the offending was not particularly sophisticated, in essence the animals were packaged and mailed to their destination.

Sequences 85 and 86

1. The modus operandi was effectively the same, the packages were sent to third parties and the sender details were falsified. It was submitted on behalf of the offender that the possession or keeping of any of these animals would not have presented any particular ecological risk or involve undue cruelty.
2. It was further submitted that there is no evidence as to their rarity or specific value.

Sequence 87

1. There were two pythons kept at the offender's home, consistent with his status as a lifelong enthusiast.

Sequence 88

1. It was submitted that the authorities had a reasonable suspicion that the money was proceeds of crime, but that is different to the money being the actual proceeds of crime. I was informed by Mr James QC that there is to be a contested hearing in relation to a forfeiture application in relation to that money.

Nature and Circumstances of the offences: s 16A(2)(a)

1. The Environment Protection and Biodiversity Conservation Act 1999 (Commonwealth) provides for the safeguarding of the environment and in particular includes measures to regulate trade in Australia's biodiversity with the objective of ensuring any use of the country's native species are ecologically sustainable.
2. The objects of Part 13A of the Act headed "international movement wildlife specimens" are outlined in s 303BA1 and include: 1. To ensure that Australia complies with its obligations under CITES and the biodiversity convention; 2. To protect wildlife that may be adversely affected by trade; 3. To promote the conservation of biodiversity in Australia and other countries; 4. To ensure that any commercial utilisation of Australian native wildlife for the purposes of export is managed in an ecologically sustainable way; 5. To promote the humane treatment of wildlife; 6. To ensure ethical conduct during any research associated with the utilisation of wildlife; 7. To ensure that the precautionary principle is taken into account in making decisions relating to the utilisation of wildlife.
3. Part 13A is divided into three main sections: 1. Division 2 - CITES species; 2. Division 3 - Exports of regulated native specimens; 3. Division 4 - Imports of regulated live specimens.
4. The intent of the provisions is to protect native fauna and flora and to ensure quarantine controls are maintained as illicit wildlife trafficking represents a danger of disease transmission that threatens the health of humans, native species and livestock. The uncontrolled movement of native species threatens eco systems within Australia and worldwide. The Act recognises Australia's international obligations under the Convention of International Trade in Endangered Species and wild fauna and flora (CITES).
5. Offences of the kind that the offender faces sentence are serious offences. The maximum penalty of ten years for four of the offences provides guidance as to the seriousness parliament views such offences.
6. In Henri Robert Morgan v R [2007] NSWCCA 8 the Court of Criminal Appeal noted at [12]: "The object gravity of a particular instance of this kind of offence will depend upon an assessment of a number of factors. Apart from the factors identified in s 16A of the Crimes Act (Commonwealth) the following list of matters, which is not intended to be exhaustive, may inform the sentencing exercise: (a) the nature of the offender's role; (b) the offender's motivation for committing the offence; (c) the level of sophistication of the enterprise in which the offender was involved; (d) whether the offender's conduct revealed any particular aggravating features such as undue cruelty; (e) the number, value and/or rarity of the specimens involved; (f) the actual harm and/or potential harm occasioned to the particular specimens; (g) the actual and/or potential harm or damage occasioned to the environment including for example the spread of disease."
7. The Crown relied upon Kline 39 A Crim R 332 at 335, adopted in Robison (1992) 62 A Crim R 374, 378-379, that those who engaged in the importation or export of specimens "that gaol will be the usual result..."
8. However it was observed in Robison that: "Notwithstanding the submissions as to general deterrence the Courts have more often than not declined to impose custodial sentences for offences of the present kind against the Act." (see headnote 3 and p 380)
9. Neither case is a guideline judgment. Kline was delivered in 1989 and Robison was decided in 1992. To say that gaol will be the usual result is incompatible with the judicial sentencing discretion: Parente v R [2017] NSWCCA 285. It is a prescriptive statement of what ought to be. The administration of the criminal law involves individualised justice. I accept that the major sentencing consideration is general deterrence: "Although general deterrence is important, it can never be allowed to dictate a sentence which is not proportionate to the offence committed or appropriate to punish the particular offender before the Court.": R v Moon [2000] NSWCCA 534 Howie J at [81].
10. I have read a report of Zara Bending dated 8 March 2019, the report deals with the extent of international wildlife trade and the legal frameworks developed to deal with illegal wildlife trade. I have taken that report into consideration when forming a judgment as to the objective seriousness.
11. I have read a report of Tim Low dated 3 May 2019 and Associate Professor Ricky Spencer dated 10 May 2019.
12. Mr Low's report deals with invasive species and he says that the offender: "Exposed Australian biodiversity to serious risk, five of the six foreign species he imported or possessed have formed wild populations overseas from captive sources. That is an unusually high proportion given that most foreign animals in the pet trade have not formed escaped populations. These introduced populations have been having detrimental impacts on active wildlife. Burmese pythons have caused ecological collapse in the Everglades National Park in Florida. Snakehead fish have caused fish declines reported in Madagascar and New Guinea. Chinese soft-shell turtles are reported to have caused fish declines in the Philippines, alligator snapping turtles are considered such a serious ecological problem in Japan that the Chiba prefecture has a program to cull them. Veiled chameleons have also formed invasive populations that are causing concerns about biodiversity impacts in Hawaii, Florida and Taiwan."
13. He further states that: "Five of the species are known to carry a range of pathogens, imported disease, have had major impacts on biodiversity in Australia causing extinctions of several frog species and two mammal species. One of the species imported, the Burmese python has transmitted a parasite into the wild in Florida."
14. Associate Professor Spencer's report deals with the potential risk to biodiversity arising from removal from Australia of dinner plate turtles. I have read the report and have taken it into account when assessing the objective seriousness of the offending. It is to be noted that Associate Professor Spencer agrees with Dr Gerald Kuchling from Western Australia's Department of Environment and Conversation, that the removal of ten wild specimens does not pose a great risk to biodiversity. He further notes that the dinner plate turtle is not considered endangered and the one off removal of ten turtles is unlikely to impact populations significantly.
15. Exhibit D8 is a certificate of expert evidence pursuant to s 177 of the Evidence Act. The expert is Nicole White, a doctor of veterinary science. Dr White is a practicing veterinarian with previous employment at Cairns Tropical Zoo working closely with mammals and reptiles. She was asked to express an opinion on "the turtles and shingleback lizards were contained within cloth bags inside Sistema Klip-it containers". It is her opinion that: "This method is in accordance with best practice for transporting reptiles for a period of time greater than several hours. Calico or cloth bags are commonly used to enable breathability and to ensure animals are not able to escape during transit. I am familiar with sistema containers and believe them to be of suitable rigidity and structured to provide protection and ensure the animals are not easily injured."
16. She was asked to express an opinion regarding the fact that "The packages were deposited at two separate FedEx offices in Thailand by Kennedy."
17. It is her opinion that: "The use of FedEx is a common method for shipping reptiles and small animals within jurisdictions that allow it. The duration of travel time using this method, greater than 48 hours is considered a low risk factor when freighting animals such as reptiles, mammals or fish."
18. After receiving the evidence, the Crown were given the opportunity to file submissions opposing the expert opinion, they did so on 5 June 2019. The thrust of the opposition was that the opinion expressed by Dr White was not opinion evidence as described in Dasreef Pty Limited v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [42] and further explicated in Honeysett v R [2014] HCA 29; (2014) 253 CLR 122 at [23]-[24].
19. The statement of Dr White was tendered on a sentencing hearing. Pursuant to s 4(1)(d) of the Evidence Act, the Evidence Act does not apply to these proceedings.
20. It seems to me that the matters expressed by Dr White if they are not opinion evidence are a common-sense application derived from her study and experience in zoological protocols and procedures and her previous employment at the Cains Tropical Zoo working closely with mammals and reptiles. She does hold a degree of Doctor of Veterinary Medicine from Oregon State University.
21. Her evidence, if the Evidence Act applied, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings (see s 55) in relation to the actual harm and/or potential harm occasioned to the particular specimens and/or whether whether the offender's conduct revealed any particular aggravating features, such as undue cruelty. In my view the evidence is admissible, it is a question of what weight I attach to it.
22. The Crown this morning tendered a statement from Dr Rowley who was employed by the Australian Museum as a curator of amphibian and reptile conservation biology. She has a Bachelor of Environmental Science and completed a PHD in Tropical Biology at James Cook University. It seems to me again that her report is a matter of weight for me to take into account in relation to the factors set out in Morgan and I do take her statement into account.

(a) The nature and extent of the offender's role.

1. The offender paid Mr Elson and Mr Ferguson to post packages on his behalf to Sweden. The packages contained false sender details given by the offender. He paid for the postage, he packaged the specimens, it was his and his alone attempt to export the specimens and he engaged others to distance the risk of detection.

(b) The offender's motivation in committing the offence.

1. The offender's motivation was financial. It matters not that he intended to use his financial gain for living expenses or to repay a debt, neither reduces his moral culpability.

(c) The level of sophistication of the enterprise in which the offender was involved.

1. The use of false sender details, others to post, and the use of a postal service is not particularly sophisticated. It does demonstrate that the offender knew that his activities were illegal and he admitted this to police on 3 March 2017.

(d) Whether the offender's conduct revealed any aggravating features such as undue cruelty.

1. The native turtles and shingleback lizards were placed in cloth bags inside plastic containers. It was submitted by the Crown that the offender appeared entirely indifferent to the risk, to the safety and welfare of the specimens. I do not accept that submission. The offender was financially motivated, he wanted the exportation to be successful. He took what he thought were appropriate means to ensure the survival of the specimens. I do on balance accept the evidence of Dr White that the method adopted by the offender was an available practice for transporting reptiles for a period of time, greater than several hours.
2. The concept of undue cruelty must be read in conjunction with (f) in Morgan. Undue cruelty must be something more than a risk of death upon transportation. The death of a specimen is covered in (f) as is also the question of the loss of breeding stock and how the criminal activity affects the species number. The word "undue" connotes excessive or disproportionate, I am not satisfied beyond reasonable doubt that the means of transporting the specimens amounted to undue cruelty.
3. I note that there were no deaths of the specimens in the attempt to export. If there was it would be a matter that I would take into account when considering the actual harm occasioned to the particular specimens under (f). There are no aggravating features.

(e) The number, value and/or rarity of the specimens involved.

1. The first attempt involved 24 shingleback lizards and ten live native turtles, the second attempt involved nine shingleback lizards. Neither species is rare. As Associate Professor Spencer said the dinner plate turtle is not considered endangered and the one off removal of ten turtles is unlikely to impact populations significantly and furthermore that the removal of ten wild specimens does not pose a great risk to biodiversity. There were no written submissions made by the Crown as to value. It would appear that there is a healthy population of native turtles within this country.

(f) The actual harm and/or potential harm occasioned to the particular specimens.

1. The specimens were alive and well at the time of interception.

(g) The actual and/or potential harm or damage occasioned to the environment including for example the spread of disease.

1. This consideration is not applicable to the facts before me for sequences 83 and 84.
2. The Crown submitted that "the offending falls at the high end of the spectrum of seriousness". I do not accept that characterisation. However, the offences were objectively serious.
3. The appointment of objective seriousness, referable to a notional point on a spectrum of culpability (although convenient as a shorthand descriptor) is not a necessary component of the sentencing task and to express objective seriousness in that way is rarely definitive of that part of the sentencing exercise, that requires the sentencing judge to make an evaluative assessment of the gravity of the particular offending or the culpability of the offender: Yeung v R [2018] NSWCCA 52 at [19]-[30]; R v DP [2019] NSWCCA 55 at [42].
4. The Crown conceded in its written submissions that in relation to sequence 84 the offending is of slightly lesser gravity than sequence 83 by reason of the smaller number of specimens involved.

(a) The nature and extent of the offender's role.

1. The offender made two trips to Thailand, the first trip may be described as a scoping exercise. He sent a test package which contained a thermometer, which was to record the lowest and highest temperatures that the package would be subjected to by its movement from Thailand to Australia.
2. On his second trip to Thailand he obtained the specimens, packaged them and posted them to Australia using false sender details. They were posted to particular hotels or premises where they were to be collected by people who had been arranged to collect them on behalf of the offender. It was he who was singularly responsible for all aspects of the movement of the specimens to Australia.

(b) The offender's motivation for committing the offence.

1. His motivation was financial and there must have been a reasonable degree of anticipation of reward to expend monies on the scoping trip to Thailand.

(c) The level of sophistication of the enterprise in which the offender was involved.

1. There was a degree of pre-planning by reason of his scoping trip. The use of false sender details and the sending of packages to various addresses to avoid detection, has some degree of sophistication but not overly so.

(d) Whether the offender's conduct revealed any particular aggravating features such as undue cruelty.

1. The sugar-gliders were placed in cages and the chameleons in cloth inside water filters. The water filters were solid providing protection for the specimens. I am not satisfied beyond reasonable doubt that the offender's conduct was excessive or the method of transporting the specimens disproportionate. I am not satisfied that there was undue cruelty on the part of the offender.

(e) The number value and/or rarity of the specimens involved

1. None of the specimens are rare. It would appear in Thailand that little value is placed upon them. A number of the specimens are a food source with no rarity. In sequence 85 there were 23 Chinese soft-shelled turtles, 15 alligator snapping turtles, ten snakehead fish, 11 stingrays and two sugar gliders. In sequence 86 there were 58 snakehead fish, 18 sugar gliders and 15 chameleons. I have taken those numbers into account when assessing the objective seriousness.

(f) The actual harm and/or potential harm occasioned to the particular specimens.

1. All of the chameleons died as did 18 sugar-gliders and 58 of the fish.

(g) The actual and/or potential harm or damage occasioned to the environment including for example the spread of disease.

1. Mr Low in his report says that the Chinese soft-shelled turtles present an inherent risk to local fish populations and other aquatic creatures. He says that the alligator snapping turtles present a risk to Australia's fish and fauna by reason of their size and capabilities as a predator. In relation to the snakehead fish, he says that they present a significant risk to food, webs and eco systems. They also host a number of parasites. The risk they pose to biodiversity has resulted in them being banned in several States in the United States of America.
2. As to the neo-tropical stingrays he says that they have seldom formed invasive species in the wild and the risk of establishment is low. As to the sugar-gliders they pose a low risk to Australian biodiversity, however they have the potential to carry pathogens that may be harmful to Australian marsupials.
3. The alligator snapping turtles are classified as vulnerable species and are listed on CITES appendix III which contains species that are protected in at least one country. Veiled Chameleons are listed in appendix II of CITES which contains species that are not necessarily threatened with extinction.
4. The Crown acknowledges that the offences on 19 October 2016 were part of a course of conduct for the purposes of s 16A2(c) and that there is an interrelationship between the legal and factual elements of the offences.
5. I must ensure that the offender is not punished twice for what is essentially the same criminality: Roger v Western Australia [2009] WASCA 139 at [22].
6. The offending conduct was objectively serious, the offender had a scoping trip to Thailand. It was his criminal enterprise. It involved a large number of specimens and death to a large number of specimens. The conduct posed a biodiversity risk to Australia.
7. The conduct in sequences 85 and 86 is objectively more serious than the conduct in sequences 83 and 84. I do not accept the Crown's characterisation that the charges were of the utmost seriousness and at the end of the spectrum.

Sequence 87 (possession of two pythons)

1. The statutory maximum is five years. The keeping of the pythons is consistent with the offender's lifelong interest in reptiles. The pythons are listed in appendix II of CITES and are species that are presently not threatened with extinction. Because they were kept for interest it is highly unlikely that they would escape and cause any risk or disruption to the eco system. The Crown submitted that the keeping of the pythons fell above the middle of the range of objective seriousness. I do not accept that submission. The objective seriousness is low.

Sequence 88 (deal with money reasonably suspected proceeds of crime)

1. Police located $43,550 in a freezer in the kitchen of the offender, the Crown asserts in its submissions that part of the money found came from the sale of a stingray to Mr Kriyohlavy. The offender in his evidence denied receiving any money from Mr Kriyohlavy.
2. I have been informed by Mr James QC that the plea is on the basis that the police formed a reasonable suspicion about the money and that there is a dispute as to whether the monies were proceeds of crime. I am told that this aspect is to be resolved in another forum.
3. I note that the statutory maximum is two years. I do not accept the Crown's submission that the conduct fell above the middle of the range of seriousness for an offence of this nature. The objective seriousness is well below the middle range and is towards the low end.

s 16A(2)(e) Any injury loss or damage resulting from the offence

1. In assessing the objective seriousness of the offending I have taken into account the death of the specimens.

s 16A(2)(f) Contrition

1. The offender acknowledges that his offending represents a very tangible threat to biosecurity and diverse fauna. He is deeply ashamed in the way that he conducted himself with the police. Since his arrest he has been an active volunteer at the Balmain Para-Rowing Club. He is contrite to his family. He is deeply ashamed and remorseful for his crimes and the impact they have had on the community. A day does not go by without him feeling a deep sense of regret for what he has done: Exhibit D6.
2. The offender has been in regular contact with Chris Williams who states that the offender expresses his genuine remorse for the action: Reference of Chris Williams JP Australian Reptile Park.
3. There were other referees who provided evidence of remorse and contrition on the part of the offender.
4. The offender gave evidence before me on 16 May 2019 and was contrite and remorseful. I accept that he has been genuinely remorseful and contrite in relation to his part of his offences.

s 16A(2)(g) Plea of guilty

1. The offender was charged on 3 March 2017. After negotiation he entered pleas of guilty in the Local Court on 27 March 2018.
2. The timing of the plea will largely determine the value of the utilitarian discount accorded. The Crown accepts that the offender is entitled to a discount on the basis of the utilitarian value of his plea in the Local Court: Submission [91].
3. The utilitarian value of a plea of guilty should be taken into account even if there is no subjective willingness by an offender to facilitate the course of justice: Xiao v R [2018] NSWCCA 4 at [278].
4. It was submitted on behalf of the offender that the plea was an early plea and should attract a 25% discount, I accept that submission.

s 16A(2)(h) The degree of cooperation with law enforcement agencies

1. Initially the offender was reluctant to make admissions. At a later time he made admissions and offered his assistance. The assistance related to matters already within the knowledge of the AFP although he was not to know that at the time. I do not propose to give a discount for assistance to the authorities.

s 16A(2)(j), s 16A(2)(ja) The deterrent effect that any sentence may have on the person, the deterrent effect that any sentences may have on other persons.

1. The sentences I propose to impose have a degree of specific deterrence aimed at the offender.

s 16A(2)(k) The need to ensure that the person is adequately punished

1. The sentence to be imposed must reflect a strong element of deterrence. The offences are difficult to detect. There is potential to realise substantial amounts of money from trading in the various species and the incentive to do so must be removed. Those who consider engaging in such conduct should be deterred from taking the risk which have the potential to cause substantial and permanent harm to eco systems, both in Australia and overseas.
2. I do not accept that the need for general deterrence is ameliorated due to his mental state at the time of the offending. I accept that his decision making abilities were impaired at the time of the offending conduct, but there is no causal relation between the offender's depressive disorder and the offending behaviour, the offender well knew his conduct was unlawful.

s 16A(2)(m) The character antecedents, age, means and physical and mental condition of the person

Antecedents

1. The offender was convicted in 2007 for drive middle range PCA. It has no relevance in the sentencing exercise.
2. It was submitted on the offender's behalf that he is a person of good character and it extends beyond a mere absence of prior criminal antecedents. The offender has had an episode of improper conduct. While a professional rugby league player, he sought to obtain banned performance enhancing substances. In the course of an investigation by ASADA he wiped data from his phone. He was found to have attempted to use three banned substances.

Subjective features

1. The offender was born in Lismore in 1989. He is in a de facto relationship. He has two children of that relationship. He received an academic bursary to attend a private school. At that school he was a prefect and one of the school captains. He played rugby and rugby league. He was good. He played representative football. He captained the State team. He was talented, academically and sports wise. In the latter months of year 12 he received a contract to play for the Roosters. He refused an ADFA scholarship to pursue his sporting dream. In 2007 he enrolled at the University of New South Wales in a Health and Exercise Science course. He deferred after the first semester to concentrate on his football. His career was marred with injuries, including broken ankles, torn hamstrings, fracture of the face, to name a few. He looked for supplements to assist his recovery time.
2. ASADA proceedings commenced against the offender in 2013. On 18 March 2015 he was issued with an NRL notice of alleged anti-doping policy breaches. On 19 March 2015 he accepted a voluntary provisional suspension from playing. He has not played rugby league since that date.
3. A very promising career had come to an end. The impact of the loss of that career was substantial. Professor Woods points out that it led to a rapid deterioration in his mental health, to the extent that he suffered from 1. a loss of interest in life with nihilistic ruminations and suicidal ideations. 2. emotional and social withdrawal, including periods where he refused to leave his bedroom for days. 3. an acutely depressed mood.
4. It is the view of Professor Woods that he suffered from a major depressive disorder.
5. Significant legal costs were incurred by the offender in relation to the ASADA and league proceedings. They were in hundreds of thousands of dollars. At the time of his suspension he was not in the de facto relationship that he currently is in now.
6. The offender turned his hand to business. He had a business called Snake Ranch. The business bred reptiles for sale. He also attempted to start a business importing Japanese fishing tackle. He felt that he had the dream business with Snake Ranch but once the ASADA ruling became public he shut up shop and pulled down the website. Before that occurred one of his volunteers broke in overnight and stole a large number of animals. The venture was lost with money owing on it. The Japanese fishing tackle business was also a failure.
7. In the context of financial failure and his banning from football, the offender determined to export fauna to raise money. It was he, solely, who made the decision: (T p 76 line 20) and he was completely open to the fact that he was willing to make money out of it: (T p 80 line 36). He had the stresses of failed businesses and owing money to Mr Simpson.

Prospects of Rehabilitation

1. Shortly after his arrest the offender obtained employment as a traffic controller. He now realises that it is his lot in life and the grandiose dreams of being a successful businessman were nothing more than dreams. He is working hard, up to 70 hours a week and the work references tendered speak very highly of him. He has employment and a stable family life. The glitter of league has well passed. He intends to do the best he can to provide for his wife and young family. The sentence assessment report has assessed him as a low risk of reoffending. It is Professor Woods' opinion that he was highly likely not to reoffend in any way. According to Professor Woods he currently has stable mental health and is not suffering from active symptoms of mental disorders he says were suffered by the offender at the time of the offending.
2. In Yardley v Betts (1979) 1 A Crim R 329 King CJ, at 333 said: "The protection of the community is also contributed to by the success or rehabilitation of offenders, this aspect of sentencing should never be lost sight of and it assumes particular importance in the case of first offenders and others who have not developed settled criminal habits. If a sentence has the effect of turning an offender towards a criminal way of life, the protection of the community is to that extent impaired. If the sentence induces or assists an offender to avoid offending in the future, the protection of the community is to that extent enhanced. To say that the criminal law exists for the protection of the community is not to say that severity is to be regarded as the sentencing norm. Times and conditions change and the approach of Judges to their tasks must be influenced by contemporary conditions and attitudes but public concern about crime, however understandable and soundly based must never be allowed to bring about departure by the Courts from those fundamental concepts of justice and mercy which should animate the criminal tribunals of civilised nations."
3. The Crown submitted that the offender's prospects for rehabilitation were poor. I have taken the view that he has excellent prospects of rehabilitation due to the following reasons: 1. He has put his past life behind him. 2. Arrest, charging and prosecution have been salutary lessons to him. 3. He has a stable family life and the requirement to provide lawfully as best he can. 4. He is in fulltime employment 5. He has insight into his offending and the potential danger to the eco system as a result of his conduct. 6. His mental state is stable and his past demons have been resolved.
4. It is open to impose a sentence that assists the offender to avoid offending in the future to ensure the protection of the community. I am cognisant of the fact that the subjective circumstances of the offender should not overshadow the objective gravity of the crime for which sentence is to be passed: R v Dood [1991] 57 A Crim R 349 at 354.
5. The sentence I intend to impose will not be overshadowed by the subjective circumstances of the offender.

s 16A(2)(p) Probable effect on the offender's family

1. Hardship to family, unless exceptional, does not enliven s 16A(2)(p). There is no exceptional hardship in this case.

No Penalty Other than Imprisonment

1. I am mindful that a Court may, on passing a sentence of imprisonment on a person for a federal offence if, having considered all other available sentences, it is satisfied that no other sentence is appropriate in all the circumstances: s 17A(1)
2. The proper approach to sentencing involves the weighting of all relevant factors in order to reach a conclusion that a particular penalty should be imposed. The Court should avoid taking a mathematical approach as this would depart from principle because it does not take into account that there are many conflicting and contradictory elements which bear upon sentencing an offender: Markarian v The Queen [2005] HCA 25; 215 ALR 213.
3. The task of a sentencer therefore is to take into account all the relevant factors and to arrive at a single result which takes due account of them all.
4. Having considered in particular the objective seriousness of the offending and the need for the sentence to reflect a strong element of deterrence, I have formed the view that a sentence of imprisonment is warranted.

Totality

1. The principle of totality in sentencing was described by Street CJ in R v Holder; R v Johnson (1983) 3 NSWLR 245 at 260 as follows: "The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straight forward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing judge will evaluate, in broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."
2. I have taken this principle into account in determining the overall sentence.

Sentence

1. I intend to impose an aggregate sentence. S 68(1) of the Judiciary Act applies to pick up the aggregate sentencing scheme under s 53A of the Crime (Sentencing Procedure) Act 1999 for Federal offences dealt with on indictment: The Director of Public Prosecutions (Cth) v Beattie 2017 NSWCCA 301 at [141]-[146].
2. It is necessary for me to impose indicative sentences, the indicative sentences are:

• Sequence 83 - Nine months imprisonment, but for the 25% discount the sentence would have been 12 months.
• Sequence 84 - Seven months and 15 days imprisonment, but for the 25% discount the sentence would have been ten months.
• Sequence 85 - Two years imprisonment, but for the 25% discount the sentence would have been 32 months.
• Sequence 86 - I impose the same sentence as sequence 85. If I was not imposing an aggregate sentence I would have made the indicative sentence on sequence 86 concurrent with the sequence 85 to ensure that the offender is not punished twice for what is essentially the same conduct. The indicative sentence on sequence 86 is two years imprisonment, but for the 25% discount the sentence would have been 32 months.
• Sequence 87 - One month and 15 days imprisonment but for the 25% discount the sentence would have been two months.
• Sequence 88 - Two months and seven days imprisonment, but for the 25% discount the sentence would have been three months.

1. The aggregate sentence that I impose is three years.
2. The next question that comes for consideration is whether that sentence should be an immediate term of imprisonment or served by some other means.
3. The Crime (Sentencing Procedure) Act 1999 was amended on 24 September 2018. The purpose of the amendments was: to improve the availability and nature of community based sentencing options; to protect community safety by reducing offending; to reduce the number of offenders receiving short prison sentences; and to get a greater number of appropriate offenders on community based supervised sentences with conditions tailored to address their offending behaviour and criminogenic needs.
4. The new sentencing scheme was considered in the decision of R v Pullen [2018] NSWCCA 264. Harrison J delivered the judgment which was agreed to by Johnson and Schmidt JJ. At [84] he said: "In determining whether an ICO should be imposed, s 66(1) makes community safety the paramount consideration. The concept of community safety as it is used in the Act is broad. As s 66(2) makes plain, community safety is not achieved simply by incarcerating someone; it recognises that in many cases incarceration may have the opposite effect. It required the Court to consider whether an ICO or a fulltime custodial sentence is more likely to address the offender's risk of re offending. The concept of community safety as it is used in the Act is therefore inextricably linked with considerations of rehabilitation. It is of course best achieved by positive behavioural change and the amendments recognise and give effect to the fact that, in most cases, this is more likely to occur with supervision and access to treatment programs in the community"
5. At [89] his Honour went on to say: "Community protection may be best served by ensuring that an offender avoids gaol. As the second reading speech makes plain, evidence shows that supervision within the community is more effective at facilitating medium and long term behavioural change, particularly when it is combined with stable employment and treatment programs."
6. The Attorney General in his second reading speech said this: "New s 66 of the Crimes (Sentencing Procedure) Act will make community safety the paramount consideration when imposing an intensive correction order on offenders whose conduct would otherwise required them to serve a term of imprisonment. Community safety is not just about incarceration. Imprisonment under two years is commonly not effective in bringing about medium to long term behaviour change that reduces reoffending. Evidence shows that community supervision and programs are far more effective at this. That is why new s 66 requires the sentencing Court to assess whether imposing an intensive correction order or serving a sentence by way of full time detention is more likely to address the offender's risk of reoffending": New South Wales Legislative Assembly Parliamentary Debates (Hansard) 11 October 2017 at 2.
7. I have come to the view that the aggregate sentence I have announced will be served by way of an intensive correction order.
8. Mr Kennedy would you please stand.
9. Mr Kennedy you are convicted, the aggregate period of imprisonment of three years is to be served by way of an intensive correction order commencing 7 June 2019. The intensive correction order is subject to the following conditions: 1. The offender must not commit any offence. 2. The offender must perform 700 hours of community service work. 3. The offender is to abstain from using illicit drug. 4. The offender must submit to supervision by a community corrections officer. 5. The offender is to report to the City Community Corrections office within five days.
10. You may take a seat now please.
11. Mr Agius I have signed the order in relation to the two pythons, I did that in chambers and it is available when you require it.

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: 04 July 2019