R v Man Lung Ma

1. Each of the 19 offences carries a maximum penalty of 10 years imprisonment.
2. I take the maximum penalties for each offence into account as legislative guideposts to serve as an indication of the seriousness which Parliament gives these offences and to serve as a yardstick to determine the degree to which the offender's conduct offends against the legislative object of the offence provisions: Markarian v The Queen (2005) 228 CLR 357 at [372].
3. The offender was arrested on 27 September 2023 and has been in custody since that date. As at today's date, 29 November 2024, the period of presentence custody is 1 year, 2 months and 3 days.
4. The offender entered pleas of guilty to each offence on 29 May 2024 in the Local Court.

The sentence hearing

1. At the sentence hearing before me on 31 October 2024 the Crown tendered a bundle of documents which included a statement of agreed facts, a statement by Professor Phillip Cassey, an expert in environmental biosecurity and wildlife trade, a schedule of the value of each consignment of reptiles, a statement by Kimberly Herrin, a senior veterinarian at the Taronga Zoo and a series of photographs of the intercepted packages and the concealed reptiles.
2. The defence tendered a bundle of material which included a report by Anita Duffy forensic psychologist, a letter of apology from the offender, a letter from the offender's wife, a letter from the offender's brother, a character reference from a Mr Ming Wong and case note extracts from Corrective Services.
3. The offender did not give any evidence during the sentence proceedings.
4. No witnesses were required for cross examination.

The facts

1. The relevant facts are set out in full in an agreed statement of facts. I have taken into account the entirety of the agreed statement of facts. The facts may be summarised as follows.
2. The offender is a citizen of Hong Kong.
3. On 8 May 2023 and during the period between 15 August 2023 and 26 September 2023 the offender attended various Post Offices in Queensland, New South Wales, Victoria and the Australian Capital Territory and deposited 29 packages for posting to various addresses in Hong Kong.
4. A schedule detailing the nature and quantity of Australian lizard specimens in each consignment is annexed to the agreed statement of facts. In summary that schedule establishes the following.
5. On 8 May 2023 the offender attended three Post Offices in Queensland and deposited five consignments containing in total:

• 18 Shingleback lizards;
• 4 Blue tongue lizards;
• 2 Leaf-tailed geckos;
• 2 Monitor lizards; and
• 34 Geckos (sequence 36).

1. On 15 August 2023 he attended a Post Office in western Sydney and deposited one consignment containing:

• 1 Albino blue-tongue lizard; and
• 5 Velvet geckos (sequence 37).

1. On 17 August 2023 he attended two Post Offices, one in Wollongong and one in western Sydney, and deposited two consignments containing in total:

• Two Albino blue-tongue lizards;
• A Yakka skink; and
• Two Shingle-back lizards (sequence 38).

1. On 18 August 2023 he attended a Post Office in southern Sydney and deposited one consignment containing an Albino blue-tongue lizard (sequence 39).
2. On 23 August 2023 he attended two Post Offices on the Central Coast and deposited two consignments each containing a juvenile Shingleback lizard (sequence 40).
3. On 25 August 2023 he attended a Post Office in Canberra and deposited a consignment containing two Shingleback lizards (sequence 41).
4. On 28 August 2023 he attended a second Post Office in Canberra and deposited a consignment containing a Shingleback lizard (sequence 42).
5. On 30 August 2023 he attended two Post Offices in northern Sydney and deposited two consignments each containing a Shingleback lizard (sequence 43).
6. On 31 August 2023 he attended a Post Office on the Central Coast and deposited a consignment containing another Shingleback lizard (sequence 44).
7. On 4 September 2023 he attended a Post Office in Melbourne and deposited a consignment containing two Shingleback lizards (sequence 45).
8. On 5 September 2023 he attended another Post Office in Melbourne and deposited a consignment containing another Shingleback lizard (sequence 46).
9. On 8 September 2023 he attended two different Post Offices in Melbourne and deposited two consignments containing in total:

• Three Shingleback lizards; and
• An Albino blue-tongue lizard (sequence 47).

1. On 11 September 2023 he attended two different Post Offices in Melbourne and deposited two consignments containing in total:

• Two Shingleback lizards; and
• Three Blue-tongue lizards (sequence 48).

1. On 13 September 2023 he attended another Post Office in Melbourne and deposited a consignment containing a Shingleback lizard (sequence 49).
2. On 14 September 2023 he attended another Post Office in Melbourne and deposited a consignment containing a Shingleback lizard (sequence 50).
3. On 15 September 2023 he attended the same Post Office in Melbourne he had previously attended on 11 September and deposited a consignment containing a Shingleback lizard (sequence 51).
4. On 21 September 2023 he attended a Post Office in southern Sydney and deposited a consignment containing a Blue-tongue lizard (sequence 52).
5. On 22 September 2023 he attended two different Post Offices in southern Sydney and deposited two consignments containing in total three Shingleback lizards (sequence 53).
6. On 26 September 2023 he attended another Post Office in southern Sydney and deposited a consignment containing a Shingleback lizard (sequence 54).
7. In total the offender attended 24 different Post Offices and deposited 29 consignments containing 99 lizards. The consignor details for each of the packages contained partly false information and the consignee details were to various names and addresses in Hong Kong. The consignor and consignee details regularly changed from package to package.
8. Each of the packages were detected at mail facilities prior to leaving Australia and later provided to the Department of Climate Change, Energy, the Environment and Water. Each package was examined and each was found to contain lizards and skinks secured within socks or stockings, which in turn were inside plastic containers and amongst toys, snack foods or items of clothing.
9. A search warrant was executed by officers of the Department at the offender's hotel in Hurstville on 27 September 2023. During that search a total of 16 regulated native specimens were located in the offender's hotel room concealed inside plastic containers in a fashion similar to the concealments in the intercepted packages. The offender is not to be sentenced for any offence arising from the possession of those animals.
10. At that time the offender admitted that he had purchased the reptiles and that his intention was to post them to recipients in Hong Kong. He admitted preparing the containers in which the reptiles were packed, concealing the reptiles in socks and then into containers and attending various Post Offices in various states and territories in order to post the reptiles to addresses in Hong Kong. The offender confirmed that he did not hold any permits allowing him to export the reptiles overseas.
11. The offender had been identified by investigators from the Department as a result of CCTV footage associated with his attendance at Post Offices. At the time of the execution of the search warrant the offender was shown stills from that CCTV footage and he confirmed that he was depicted in that footage posting the subject packages. He was also shown images of a motor vehicle and confirmed that he had hired that vehicle to travel between locations for the purposes of posting the packages

The expert evidence

1. In his statement Professor Phillip Cassey, an expert in environmental biosecurity, vertebrate ecology and wildlife trade and particular expertise in live export of Australian reptiles, stated that each of the specimens found in the seized packages were endemic to Australia and do not naturally occur anywhere else in the world. He stated there was a demand for such native Australian reptiles in overseas markets and that they were valuable in those markets. His statement contains detailed tables setting out the average value of relevant species in international trade markets, converted to Australian dollars.
2. The Crown tendered a schedule of values derived from Professor Cassey's statement which shows the total value of the specimens within each package as follows: 1. sequence 36: a total value of $173,613; 2. sequence 37: a total value of $3,871; 3. sequence 38: a total value of $16,974; 4. sequence 39: a total value of $1,776; 5. sequence 40: a total value of $13,422; 6. sequence 41: a total value of $13,422; 7. sequence 42: a total value of $6,711; 8. sequence 43: a total value of $13,422; 9. sequence 44: a total value of $6,711; 10. sequence 45: a total value of $13,422; 11. sequence 46: a total value of $6,711; 12. sequence 47: a total value of $21,909; 13. sequence 48: a total value of $23,700; 14. sequence 49: a total value of $6,711; 15. sequence 50: a total value of $6,711; 16. sequence 51: a total value of $6,711; 17. sequence 52: a total value of $1,776; 18. sequence 53: a total value of $20,133; and 19. sequence 54: a total value of $6,711.
3. The total value of all specimens contained within all consignments is $364,417.
4. In her statement Ms Kimberly Herrin, a veterinarian at the Taronga Wildlife Hospital at Taronga Zoo stated that she assessed the photographs taken by the Department of the concealments and that each of the reptiles from the seized packages was physically examined. She expressed the opinion that the manner of concealment, being restricted in socks or stockings secured by knots or adhesive tape and packaged within other items, was likely to cause discomfort, injury or suffering to the specimens in all of the packages. She also opined that the manner of the concealment was likely to have caused reduced oxygenation and eventual asphyxiation and death of the specimens notwithstanding that air holes had been placed in the containers within the packages. She also expressed the opinion that the manner of transporting the packages was likely to have caused injury or suffering. She also noted that none of the specimens had access to food or water in the packages.
5. Ms Herrin also expressed the opinion, based on physical examination of the specimens, that many of them were in poor condition, that some had signs of emaciation and that a number of them had to be euthanised due to disease, infection or injury.

Principles applicable to sentencing for wildlife offences

1. The objects of the Environment Protection and Biodiversity Conservation Act are set out in s 3 of that Act. Those objects include to provide protection of the environment, to promote conservation of biodiversity and to assist in the cooperative implementation of Australia's international environmental responsibilities.
2. The international movement of wildlife specimens is dealt with in Part 13A of the Act. The objects of that part are set out in s 303BA(1) and include: 1. to ensure that Australia complies with its obligations under the Convention on International Trade and Endangered Species (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; and 5. to promote humane treatment of wildlife.
3. When introducing s 303BA into the Act the then Parliamentary Secretary to the then Minister for the Environment and Heritage stated in the second reading speech: "… one of the most important issues for the next century would be preventing the extinction of species .… we have a responsibility to future generations to safeguard the planet's biodiversity. (The Act) enhances protection for both Australia's native species and the species in other countries that are threatened by trade… 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.… Australian native species are also in demand by wildlife smugglers. … The new wildlife trade provision of (the Act) fully implement CITES and will ensure Australia continues to have the toughest wildlife trade laws in the world… Animal welfare considerations are a higher priority (under the new regime)…".
4. The New South Wales Court of Criminal Appeal has stated that, having regard to the objects of the Act including Australia's obligation to other countries to prevent the export of its native species, those who commit offences under s 303DD(1) of the Act should expect that such offending would normally attract full-time custodial sentences: Morgan v R [2007] NSWCCA 8.
5. General deterrence is a critical sentencing consideration for offences of this type. The Victorian Court of Appeal in R v Robison (1992) 62 A Crim R 374 stated at 378 - 379: "the plundering by non-Australians of Australian wildlife for commercial exploitation is a threat to the Australian heritage and likely to generate 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 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."
6. Although the Victorian Court of Appeal was there dealing with the predecessor legislation, the authority remains relevant in relation to the relevance of general deterrence, the difficulty of detection, the community attitude and the expectation of a substantial sentence of imprisonment under the Act.
7. The New South Wales Court of Criminal Appeal in R v Kennedy [2019] NSWCCA 24 observed that general deterrence, denunciation and the protection of the community were critical sentencing principles for offences under the Act.

Sentencing for federal offences

1. I must sentence the offender in accordance with Part 1B of the Crimes Act 1914 (Cth). The fundamental principle in sentencing federal offenders is that the court must impose a sentence of severity appropriate in all the circumstances of the offence: s 16A(1). The court needs to ensure that an offender is adequately punished for the offending: s 16A(2)(k).
2. I take into account the matters listed in s 16A(2)(a) insofar as they are relevant and known to the Court.

Nature and circumstances of the offending: s 16A(2)(a) and (c)

1. The nature and circumstances in relation to each offence are set out in full in the agreed statement of facts and summarised above.
2. Buddin J in Morgan v R set out factors relevant to the assessment of objective seriousness for offences under s 303DD(1) as including the following: 1. the nature and extent of the offender's role; 2. the offender's motivation for committing the offences; 3. the level of sophistication of the enterprise; 4. whether the offender's conduct revealed any particular aggravating features such as undue cruelty; 5. the number, value or rarity of the specimens involved; 6. the actual or potential harm occasioned to the specimens; and 7. the actual or potential harm or damage occasioned to the environment including, for example, the spread of disease.
3. I will deal with each of those factors in turn.
4. The nature and extent of the offender's role shows a varying degree of autonomy and seniority. In relation to the first package, relevant to sequence 36, other evidence in the sentence proceedings establishes that the offender's boss, Mr Lau, was present with him in Australia at the time of that attempted export and that he was acting under Mr Lau's instruction and supervision at the time. In the context of autonomy the offender's role relevant to sequence 36 is somewhat less objectively serious than his role for the remaining sequences in relation to which he acted relatively independently without the direct instruction or supervision of his boss. However, balanced against that feature is the size of the offending in sequence 36, which relates to a total of 60 specimens, which increases the seriousness of that conduct.
5. Although the offending occurred over a relatively short period, namely on 8 May 2023 and during a six week period during August and September 2023, the offender's conduct during that period included him purchasing reptiles, preparing containers in which they were packed, attending 24 different Post Offices in Queensland, New South Wales, Victoria and the Australian Capital Territory and posting 29 packages containing the 99 specimens.
6. The method of concealment, the attendance at a variety of Post Offices and the changing of consignee and consignor details shows some degree of sophistication. However, I do not find that this offending was at a particularly high level of sophistication. The concealments were relatively crude. The authorities were able to detect the packages prior to export and to identify the offender and his motor vehicle through CCTV footage.
7. Notwithstanding the limited level of sophistication, the conduct of the offender in attempting to conceal his participation elevates the objective seriousness.
8. I also accept that the details found on the offender's electronic devices including consignee and consignor details, notes relating to successful and unsuccessful exports and items revealing his involvement in purchasing the specimens elevates his role and the nature of his involvement. Further the offender's use of a wildlife permit in a name other than his own to purchase the specimens further elevates the seriousness of his role and his attempts to conceal his involvement.
9. I find from the foregoing that the offender's role was significant and that his conduct was premeditated, planned and executed with some degree, albeit a limited degree, of sophistication.
10. In relation to motive the offender admitted that he had purchased the reptiles with money provided to him by Mr Lau and that he received $300 for each reptile he posted. It is unclear on the facts whether the $300 was in fact paid to him for each of the specimens he deposited for posting or whether that money was to be paid upon the safe arrival of specimens in Hong Kong. The total amount, if any, that the offender received in payment for his role is unclear. The maximum financial reward which could have been paid to him for 99 specimens at $300 per specimen is the relatively modest sum of $29,700.
11. Although the objective seriousness of the offending is often greater when offences are committed for financial reward, the significance of this feature to the sentencing exercise is a question of degree. In the present circumstances the potential financial reward is not particularly significant.
12. In relation to undue cruelty and actual or potential harm to the specimens the evidence established that the offender's method of packaging and concealment severely restricted the movement of the animals and was likely to cause discomfort, injury or suffering to them. That evidence establishes that the offender was indifferent to the risk of harm caused to the animals as a result of the method of concealment and the inevitable length of confinement during transit to Hong Kong.
13. In relation to the number, value or rarity of the specimens the evidence establishes that the offender attempted to export 99 specimens. 60 specimens, almost two thirds of the total, were contained within the packages posted on 8 May 2023 relevant to sequence 36.
14. As I have already stated above the specimens were of some significant value in the overseas market for such items. The total value across all the packages relevant to the 19 sequences was $364,417. I accept, however, that the evidence does not establish that, other than $300 per posted specimen, the offender was to receive any other financial gain from the value of the animals in overseas markets.
15. In relation to actual or potential harm or damage occasioned to the environment it is relevant that the offending involved attempts to export native specimens, not attempts to import specimens into Australia. Consequently the offending was not likely to have any potential effect on the Australian ecosystem in the same way that an import offence would do: R v Kennedy [2014] NSWCCA 242.
16. In addition because the packages were detected before they were exported there no actual harm or damage was occasioned to the environment, beyond the harm occasioned to the individual animals.

Any injury, loss or damage resulting from the offending: s 16A(2)(e)

1. The injury and potential harm to each of the individual specimens is established by the expert statement from Ms Herrin. The potential harm arising from the lack of food, water and the opportunity for unrestricted movement inherent in the method of concealment is obvious.
2. As a consequence I take into account the potential harm to the 99 specimens involved.
3. There is however no evidence to establish the condition of each of the specimens before they were placed in the concealments. Consequently I am unable to find that when examined at Taronga Zoo the poor physical condition, the noted disease, infection and injury or the need for a number of the specimens to be euthanised was a direct result of the offender's conduct. Notwithstanding that, I accept that the offender's conduct had the potential for further significant harm and injury to each of the specimens had his attempts to export them been successful.

Contrition: s 16A(2)(f)

1. I take into account the admissions made by the offender during the execution of the search warrant and his early guilty pleas as evidence of his contrition and remorse. Further, I take into account that the offender expressed in his letter of apology his sincere remorse and demonstrated his insight into the consequences of his conduct on the community, the environment and the animals involved.

Pleas of guilty: s 16A(2)(g)

1. The offender entered pleas of guilty at an early opportunity whilst the matters were in the Local Court. I accept that the pleas, although entered in the face of a strong Crown case, indicate his acceptance of responsibility, his subjective willingness to facilitate the course of justice and his genuine remorse.
2. The offender is entitled to a discount on the sentence that would otherwise have been imposed to reflect the utilitarian value of his pleas. It was submitted on behalf of the offender that in the circumstances he was entitled to a 25% discount for the guilty pleas. Counsel appearing on behalf of the Crown did not wish to be heard to the contrary. Accordingly I am satisfied that the offender is entitled to a 25% discount on the sentences that would otherwise be imposed.

The offender's character and antecedents: s 16A(2)(m)

1. The offender is currently 39 years of age. At the time he committed the offending he was 37 years old.
2. He has no prior criminal convictions in Australia or overseas and is to be regarded as a person of prior good character.
3. The subjective material tendered in the defence case establishes the offender's subjective circumstances and background. He was born and raised in Hong Kong. His childhood is described as modest, happy and secure.
4. He completed the equivalent of year 12 education in Hong Kong and performed well academically in engineering, science and mathematics. His employment history establishes that he worked for six years for Sony Music and was eventually promoted to the position of mechanical engineer. In 2013, when he was approximately 28 years of age, the offender started his own business as a renovator and installing security systems in public housing. For a period of time that business was successful and employed up to 7 people. However, as a result of civil unrest in Hong Kong and then the COVID-19 pandemic, the offender was forced to close the business in 2019. During the pandemic the offender provided travel services to people returning from Hong Kong to China and also worked as an Uber driver.
5. In 2022 the offender married his wife. In about February 2023 shortly before the birth of their first child the offender's travel service business began to decline and the offender and his wife considered relocating to Australia.
6. The offender met his boss Mr Lau in late 2022. He stated that he understood Mr Lau to be a Chinese businessman.
7. In March 2023 the offender agreed to travel with Mr Lau to Australia. In early May 2023 whilst they were together in Brisbane Mr Lau offered the offender a job sending live reptiles from Australia to Hong Kong. At that time Mr Lau demonstrated to the offender how to conceal and send the reptiles and offered him payment for his travel expenses to Australia and $300 for each lizard he posted. The offender also stated that he was told by Mr Lau that the system of concealing and exporting the reptiles was to bypass documentation and formal procedures normally required to export lizards, that posting reptiles was not a serious infringement and if caught he would only have to pay a fine. The offender accepted the job offer.
8. In his letter of apology the offender stated that his reason for accepting the job was that he believed that his conduct involved only a minor infringement and that he was motivated financially. However, the offender accepted that he knew from the outset that the conduct he was to engage in was wrong, particularly after he was directed by Mr Lau to go to different parts of Australia to send the consignments and to change his name and the consignee details.
9. The offender also stated in his letter of apology that although he has some ability to communicate in English he is finding custody difficult and describes being in constant fear. He also states that he intends, when ultimately released, to return to Hong Kong and to be a responsible member of his family and the community. Of particular significance is the assertion in his letter that when his son is old enough he intends to share with him the details which led to his offending in Australia to help his son never make similarly bad decisions. He also stated that he intends to always be of good behaviour and never again break the law.
10. The offender is described in letters from his wife and from his brother as hard-working, generous and selfless. Those letters also establish that as a result of his incarceration in Australia the offender has been deprived of the opportunity to see his child grow up and has been unable to financially support his family.
11. In her report Anita Duffy, psychologist, states that she administered a number of assessment tools and found that the offender had depression in the moderate range and anxiety in the mild to moderate range.
12. Ms Duffy also noted in her report that the offender had conveyed to her his remorse and contrition together with his feelings of shame. She noted that the offender did not exhibit any antisocial personality or attitudes and demonstrated a strong sense of responsibility to his family.

Prospects of rehabilitation: s 16A(2)(n)

1. I accept based on the offender's lack of criminal antecedents, his early guilty pleas, his assistance to the authorities in making early admissions and his expressions of remorse and insight that he has positive prospects of rehabilitation. In addition his prior involvement in successful businesses, his previous strong work ethic and his pro-social supports all suggest good prospects of returning to a gainful and law abiding life when he returns to Hong Kong.

General and specific deterrence and the need for adequate punishment: s 16A(2)(j) and s 16A(2)(k).

1. The authorities establish that general deterrence is an important consideration in sentencing for offences of this type. The objects of the Act target the global threat to species' survival posed by the commercially lucrative illegal trade in wildlife. The trade in live animals is rightly described as "horrific".
2. The need for general deterrence is increased because of the difficulty in detecting offences of this type. As a result significant weight must be given to general deterrence in the sentencing task in order to send a strong message to like-minded offenders that exporting Australian native wildlife, or attempting to do so, without proper authorisation will result in significant periods of full-time custody.
3. Although the present offending in this case was planned and shows a limited degree of sophistication and although the offender demonstrated little regard for the safety and well-being of the animals involved, I accept his expressions of contrition and remorse as genuine. Consequently I do not find that there is a need for the sentence I am to impose to reflect a need for specific deterrence to any significant degree.

The need for adequate punishment: s 16A(2)(k)

1. A court must impose a sentence that is of a severity appropriate in all of the circumstances of the offending. Offences of this nature require the imposition of sentences that will both deter others from committing similar offences and will punish and denounce the conduct of the offender.

Co-operation: s 16A(2)(h)

1. The offender co-operated with the authorities by making admissions during the execution of the search warrant. Those admissions were made at the earliest possible stage and reflect a timely and significant degree of co-operation with the authorities. In addition the offender has co-operated by agreeing to the statement of facts following negotiation.

Multiple offences; a course of conduct consisting of a series of criminal acts of the same or a similar character: s 16A(2)(c)

1. A court must take into account where an offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character. In accordance with Pearce v The Queen (1998) 198 CLR 610 and s 19(2), the court is required to fix an appropriate sentence for each offence and then consider questions of accumulation, concurrence and totality.
2. In the present case the offending is characterised as a course of conduct. A number of the sequences are "rolled up" offences, comprising more than one consignment. The presence of multiple distinct offences forming a course of conduct is an aggravating factor on sentence: R v Host [2015] WASCA 23.

Other Commonwealth sentencing provisions

1. Section 17A requires the court to only impose a sentence of imprisonment if it is satisfied that imprisonment is the only appropriate sentence.
2. When a court imposes on a federal offender a sentence which in aggregate exceeds three years imprisonment, the court must fix a single non-parole period, unless it is inappropriate to do so: s 19AB(1) and (3). Where the sentence of imprisonment imposed does not exceed three years, the court must make a recognisance release order and must not fix a non-parole period: s 19AC(1). Conditions attached to a recognisance release order can include that a person be of good behaviour for a period not exceeding five years and a probation order for a period not exceeding two years: s 20(1)(b); s 20(1)(a) (i) and (iv).
3. The Court of Criminal Appeal in McGregor v R [2024] NSWCCA 200 recently confirmed the availability of aggregate sentences for Commonwealth offending.
4. Pursuant to s 16F the court is required to explain the sentence to the offender.

Other considerations

1. The offender has been on remand as a foreign national, with some limitation on his ability to speak English, isolated from his family and friends. He has expressed fears for his safety and concerns for the safety of his family because of his involvement with Mr Lau. As a consequence of those factors I accept that the offender's experience in custody will be more onerous on him.
2. I also take into account the probable adverse effects of the sentence of imprisonment on his wife, child and elderly parents who rely on his support emotionally and financially. I also accept that the evidence has established a psychological burden that his incarceration has and will continue to have on his family: Totaan v R [2022] NSWCCA 75.
3. I take into account that the offender is of otherwise good character and that this is his first time in custody.
4. The fact that he is a foreign national who may be liable to deportation when released from custody is not a relevant consideration on sentence: Shrestha v R (1991) 173 CLR 48.

Presentence custody

1. The offender has been remanded in custody since his arrest on 27 September 2023; a total period of 1 year, 2 months and 3 days. Accordingly, I propose to backdate the sentence I am about to impose to commence on 27 September 2023.

Comparative sentences

1. Both the Crown and the defence have referred the Court to a number of previous cases, loosely described as comparative sentences. I have taken each of the cases referred to me into account in determining the sentence I am about to impose.

Alternatives to full-time custody

1. I now turn to consider alternatives to the imposition of full-time custody.
2. The appropriateness of alternatives to full-time custody depends on various factors: Stanley v DPP [2023] HCA 3. Those factors, relevant to the present case, include whether such an alternative results in a sentence that reflects the objective seriousness of the offending and fulfils the purposes of punishment. In all the circumstances of the case I consider that immediate release by way of recognisance release order is not appropriate; such an order would not result in adequate punishment or reflect the objective seriousness of the offending conduct.
3. I note that counsel for the offender conceded that a period of full time custody was the only appropriate penalty and that alternatives to full time custody need not be considered. Those concessions were in my view correctly made. In addition in light of the length of the sentence I intend to impose an intensive corrections order is not available.
4. Accordingly I am satisfied that no sentence other than one of full-time custody is appropriate in all the circumstances of this case.

Sentence

1. I am required to impose a sentence of a severity appropriate in all the circumstances of the offences. I have had regard to the factors in s 16A(2) so far as they are relevant and known to the court, and the common law purposes of sentencing. I have had regard to the maximum penalties for the offences as guideposts and I have taken into account that the court must only impose a sentence of imprisonment if, having considered all other available sentences, it is satisfied that no other sentence is appropriate in all of the circumstances in accordance with s 16A(1).
2. Ultimately a balance must be struck and appropriate weight must be given to all factors which must be taken into account in arriving at the appropriate sentence by way of the instinctive synthesis discussed in Markarian v the Queen (2005) 228 CLR 357.
3. Having considered all possible alternatives I am satisfied that the only appropriate penalty in the circumstances of this case is one of imprisonment. I am also satisfied that I should proceed by way of an aggregate sentence. That aggregate sentence should reflect a degree of accumulation having regard to the discrete offending conduct and the separate criminality involved in each offence. In determining the aggregate sentence I have also had regard to the principles of totality and the requirement the sentence imposed is appropriate and proportionate in all the circumstances.
4. I set out the following indicative sentences for each offence after taking into account a 25% discount for the guilty pleas. Sequence Description Indicative term 36 Attempted export of regulated native specimens on 8 May 2023 2 years and 3 months 37 Attempted export of regulated native specimens on 15 August 2023 6 months 38 Attempted export of regulated native specimens on 17 August 2023 6 months 39 Attempted export of regulated native specimens on 18 August 2023 3 months 40 Attempted export of regulated native specimens on 23 August 2023 3 months 41 Attempted export of regulated native specimens on 25 August 2023 3 months 42 Attempted export of regulated native specimens on 28 August 2023 3 months 43 Attempted export of regulated native specimens on 30 August 2023 3 months 44 Attempted export of regulated native specimens on 31 August 2023 3 months 45 Attempted export of regulated native specimens on 4 September 2023 3 months 46 Attempted export of regulated native specimens on 5 September 2023 3 months 47 Attempted export of regulated native specimens on 8 September 2023 6 months 48 Attempted export of regulated native specimens on 11 September 2023 6 months 49 Attempted export of regulated native specimens on 13 September 2023 3 months 50 Attempted export of regulated native specimens on 14 September 2023 3 months 51 Attempted export of regulated native specimens on 15 September 2023 3 months 52 Attempted export of regulated native specimens on 21 September 2023 3 months 53 Attempted export of regulated native specimens on 22 September 2023 4 months 54 Attempted export of regulated native specimens on 26 September 2023 3 months

1. Any aggregate sentence must be "just and appropriate" to the totality of the offending behaviour.
2. Given a substantial degree of accumulation, I intend to impose an aggregate sentence to reflect the totality of the offender's offending of 3 years and 6 months imprisonment commencing on 27 September 2023 and expiring on 26 March 2027. It is necessary under s 19AB(1) and (3) to impose a single non-parole period. In all the circumstances I intend to impose a non-parole period of 2 years commencing on 27 September 2023 and expiring on 26 September 2025.

Orders

1. Man Lung Ma please stand.
2. I convict you of 19 offences of attempted export of regulated native specimens contrary to s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and s 11.1(1) of the Criminal Code (Cth).
3. I sentence you to a term of imprisonment of 3 years and 6 months imprisonment commencing on 27 September 2023 and expiring on 26 March 2027, with a non-parole period of 2 years commencing on 27 September 2023 and expiring on 26 September 2025.
4. Accordingly the earliest date upon which you will become eligible to be released on parole is 26 September 2025.

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