R v Zhang

[2024] NSWDC 153

District Court of NSW|2024-03-22|Before: Gleeson CJ, Callinan JJ, French CJ, Bell JJ

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At a glance

Source facts

Court

District Court of NSW

Decision date

2024-03-22

Before

Gleeson CJ, Callinan JJ, French CJ, Bell JJ

Source

Original judgment source is linked above.

Judgment (3 paragraphs)

[1]

JUDGMENT

Mr Zhang appears for sentence regarding five offences contrary to s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
The maximum penalty for each offence is 10 years imprisonment and a large fine.

[2]

Approach to Sentencing

To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
I must have regard to Part IB Crimes Act 1914 (Cth) (the Act) in passing sentence and in particular the matters provided for in section 16A of that Act.
A court determining a sentence in respect of any person for a Federal offence must impose a sentence that is of a severity appropriate in all the circumstances: s 16A(1) of the Act. The Court must take into account the matters listed in s 16A(2) that are relevant and known to the Court: R v El Karhani (1990) 21 NSWLR 370. The list of factors in section 16A(2) of the Act is not exhaustive and common law principles apply: Johnson v The Queen (2004) 78 ALJR 616 at [15].
For a Federal offence the non-parole period is the minimum period that justice requires the offender to serve in custody, fixed by reference to s 16A(1), the relevant matters in s 16A(2) and by application of the principles set out by the High Court in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367 and Bugmy v The Queen (1990) 169 CLR 525: see Hili v The Queen (2010) 242 CLR 520 at [40]-[44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

The offending took place between 28 December 2022 and 25 January 2023, slightly under a month, and it involved the offender attempting to send the reptiles by post to Hong Kong. Each package was detected by the authorities. The offending was a course of conduct.
Exporting native fauna is a serious offence. The maximum penalty is a guidepost as to an appropriate sentence. It has been held, understandably, that the importation of overseas fauna into Australia is more serious than exporting, although covered by the same offence provision, because of the potentially devastating impact on the environment. Cane toads amply illustrate why this is so. R v Kennedy [2019] NSWCCA 242 at [23]
Section 3 of the Act sets out the objects of that legislation, which include: (a) to provide for the protection of the environment (b) to promote conservation of biodiversity (c) to assist in the cooperative implementation of Australia's international environmental responsibilities.
Part 13A of the Act relevantly deals with the international movement of wildlife specimens: (a) … (b) To protect wildlife that may be adversely affected by trade; (c) to promote conservation of biodiversity in Australia and other countries; (d) to ensure that any commercial utilisation of Australian native wildlife for the purposes of export is managed in an ecologically sustainable way; (e) to promote the humane treatment of wildlife…
The Crown bundle included the second reading speech for the Environment Protection and Biodiversity Conservation Amendment (Wildlife Protection) Bill 2001. I have read the second reading speech and noted that the amended Act has a focus on the prevention of the extinction of species and the protection of both Australia's native species and species in other countries that are threatened by illegal trade in wildlife. The legislation also places a higher priority upon considerations of animal welfare.
Agreed facts were tendered. Those facts set out the details of the address and sender/receiver of each package, together a description of how the reptiles were packaged. In no instance did the offender use his own name when he posted the parcels. On each occasion false information was provided regarding the contents of the package. In the cases involving sequences 13, 14, 15 and 16, forensic examination of the packaging revealed either DNA or fingerprints linked to the offender. In his evidence, Mr Zhang did not dispute he had packaged the lizards. This included the first package, sent on 28 December 2022, that did not include forensic evidence linking him with the packaging.
After the parcels had been detected, each one was opened, and the contents were examined and photographed. Photographs depicting the unpacking of each parcel and the way in which the various lizards and skinks were packaged formed part of the agreed facts.
In addition to the agreed facts, the Crown tendered two statements from a senior veterinarian at the Taronga Park Zoo. The unchallenged opinion of the veterinarian was that the circumstances of the lizards' placement into the various packages paid no regard to their welfare. They could not move or rest naturally and were placed inside socks and objects that were highly likely to have caused discomfort, injury or suffering in all cases. By being tightly contained within the packages there was an impediment to ventilation. The packaging would not have protected them from extremely low temperatures found on air cargo transport, or from being exposed to fluctuations in temperature during transportation, including time spent on an airport tarmac. The packages were unlikely to remain upright throughout the journey and this would pose problems that included the compression of the various lizards' and skinks' lungs. There was an absence of protection from noise and vibration during shipment. There was no water available in any of the packages and the trip time could have been anywhere between 2 and 10 days, with injury and suffering occasioned by dehydration. An inspection of the individual specimens showed that many were either lean or emaciated and some were covered in their own faeces. It was the expert's opinion that the 32 bluetongue skinks relevant to sequences 13 and 14 were all likely to have been captive bred and thus not removed from the wild. Regarding the deceased three water dragons, it was noted that each specimen was very young and had died "almost certainly due to the conditions under which they were transported."
Each of these offences is serious, given the purpose of this legislation is to protect Australia's biodiversity. Implicitly, the legislation also has a focus on protecting the welfare of native fauna. Reducing these reptiles to commodities and packaging them in restrictive and dangerous postal packages without water or food is cruel and it displays a significant level of callousness on the part of the offender. In his evidence the offender said that he did feel sorry for the lizards, however he accepted he did not take any action to care for them and continued to send the packages, despite any sympathies he may have had for their plight.
Of the 43 reptiles in total, three Eastern water dragons died. Included in the material on sentence were photographs of how the reptiles were packaged. Those photographs amply demonstrate the cruelty that this offending involved. The three dead Eastern Water Dragons were very small, and the expert evidence was that most likely they were very young. That they died because of the actions of the offender is no surprise and while it is relevant to the objective seriousness of that particular offending, is not a matter aggravation. Instead, it is a predictable outcome of the deliberate actions he took.
The Crown directed the Court's attention to the containment of a shingleback, the subject of sequence 15. This reptile was encased into a sock and then placed inside a large plastic dinosaur with no apparent ventilation. This was the worst example in this case of the cruelty involved in sending a live lizard by post.
The surviving reptiles were transferred to the care of a local wildlife park.
The agreed facts also set out the evidence regarding the offender's attendance at several different post offices in metropolitan Sydney, where he endeavoured to send these packages to Hong Kong.
The offending was relatively unsophisticated and did not involve the importation of animals from outside Australia. The offender was not part of an organised operation, other than in the context of being able to source reptiles and having the connections required in Hong Kong. As noted, the fact that all 32 of the blue tongue skinks were likely captive bred does reduce the objective gravity of those sequences to an extent. Nevertheless, the offender's conduct still contributed to a loss of biodiversity in Australia. It involved significant cruelty to the packaged reptiles and callousness on the part of the offender to their suffering.
The evidence is silent as to whether the offender engaged in this conduct by himself. The evidence is that he packaged the reptiles and took them for postage. Implicit in his evidence was an assertion that that was the extent of his involvement. There is no evidence of how he came into possession of the reptiles. His evidence did include assertions that he had been told by those who were to receive the reptiles that there was a good prospect they would survive being sent in the post. This does suggest that he had a very hands-on role in what was occurring, even if he was not responsible for sourcing the reptiles and had no role in what was to happen to them upon their arrival in Hong Kong.
The offender is a Chinese citizen. He came to Australia on 22 June 2022 on a Student Visa. He has no criminal history and was previously a person of good character. This entitles him to a measure of leniency. It is notable that he was a mature man aged 32 at the time. I consider that his conduct arose because of the difficult time he was having in Australia, as detailed in the report of Mr Sheehan. I consider his offending to be an aberration. I also consider, having had the opportunity to see him give evidence, that the experience of incarceration to date has had a profound impact on him.
In keeping with these conclusions, I consider he is unlikely to re-offend. I note his work history is extensive, both here and in China and his stated intention is to return to China, as will be the case when the non-release period has been served, given his immigration status, and find work. I think his future prospects are reasonable.
Tendered on his behalf without objection was a report from Patrick Sheehan, a forensic psychologist. Mr Zhang gave evidence that what he had said to Mr Sheehan was the truth. He was not challenged on this issue.
In his report, Mr Sheehan provided a summary of Mr Zhang circumstances. At the time of this offending, he was 32 years of age. He grew up in China and is an only child. He described having a basically favourable childhood with no familial problems with substance use, mental illness, domestic violence, or criminality. He didn't experience trauma at a significant level and was never abused. He described himself as a well-adjusted child who had good relations with his family. He started working in a factory when he was 18 and would sleep at the factory during the week. He lived independently from the age of 27, although he continued to have close links with his family.
Mr Zhang described feeling pressure to be a success and to marry. These pressures have caused him distress in last few years because he has not been able to meet these expectations. He told Mr Sheehan that his mother is suffering from a uterine tumour and that he had kept regular contact with his family from the time he travelled here in June 2022, but has had no contact with them after his arrest in July 2023.
In his evidence he said it was shameful that he had been arrested and was in custody. He accepted he had not told his family for this reason, nor his friends in China or the friends he has made here in Australia.
Mr Zhang told Mr Sheehan he went to a mainstream school and did not have any serious learning difficulties, although his grades were mixed. He described problems in concentration and said that he got into trouble from time to time but was never suspended or expelled and completed the equivalent of Year 12 in 2006.
As noted, Mr Zhang then entered employment. He told Mr Sheehan that he'd rarely been unemployed in the years that followed. He performed factory work, construction work and labouring but never achieved promotions or increases in income. This lack of progress became increasingly difficult for him and his plan to come to Australia was to start his life anew and hopefully find success and self-satisfaction that he had not achieved in China. Upon arriving here, things were not as he had hoped they would be. He came on the basis he would be studying a certificate in hotel operations. He found some employment, but it was poorly paid and unreliable. He was not willing to seek the support of his family or tell them he was struggling, and it was at about the same time that he became involved in these matters. He told Mr Sheehan that since he'd been arrested, he has been working in custody and upon his return to China he hopes to resume working in the construction industry.
The offender told Mr Sheehan that because of his arrest and remand he had lost contact with all his social contacts, both in Australia and China. Mr Sheehan considered that this was also because of the shame the offender felt for the circumstances in which he is now in.
On the question of remorse, the Crown cross-examined the offender about why he was sorry about the offending. Mr Zhang said that the reasons he felt sorry were because he had been arrested and incarcerated, he had lost a lot of money from the failure of the exports, and he was sorry for his family. He said this last factor was the most important reason. The Crown was critical of this because it did not appear that he had any insight into the gravity of his conduct and submitted that his remorse was self-focused. I think there is substance to this submission, however it is important to appreciate that the offender has grown up in a very different society and he gave his evidence through an interpreter. He was also emotional during his evidence.
Although I do have misgivings about whether he is genuinely remorseful, it appears to me that his arrest and incarceration have had a very substantial impact on him. That there might be a question about his remorse in my view says little to advance the Crown's submission that the Court would not find that he had reasonable prospects of rehabilitation.
Returning to Mr Sheehan's report, he noted that custody for the offender had been difficult because of the isolation he experienced within a substantially English-speaking gaol population and in circumstances where the food, the language and the culture were all alien to him. In his evidence, Mr Zhang described that in his current placement there are 4 or 5 Mandarin speakers amongst a group of about 80 inmates. His profound lack of English means that he cannot communicate at all with Correctional staff and relies on other Mandarin speakers to communicate for him. I have concluded that his experience of custody has been onerous to date and is likely to continue to be because of his lack of English and the relatively few Mandarin speakers he is likely to encounter.
Mr Sheehan noted the offender had no problematic behaviours with drugs or alcohol or gambling and did not have a history of problems with his mental health. He did note that the offender reported a history of low mood and anxiety in his mid-to-late 20s, because of the pressure he had been put under to succeed and the fact that his life had not progressed as he would have liked. Mr Sheehan noted that the severity of his distress would wax and wane over time and when he was 29, he briefly commenced taking antidepressant medication. There is no evidence that he has taken antidepressant medication or any other treatment about mental health issues whilst in custody.
Mr Sheehan considered that some aspects of Mr Zhang's personality meant that he displayed avoidant/dependent personality characteristics. That he did not display any antisocial personality disorder was a positive prognostic indicator.
Mr Sheehan reviewed the circumstances of the offending at [17] of his report, however to a large extent the offender's counsel resiled from that explanation. There was no oral evidence regarding the contents of paragraph 17 of Mr Sheehan's report and I am left to conclude that the offender's conduct, however it developed, arose because he became aware that this form of trafficking wildlife could return him significant sums of money. This coincided with the time in his life when he was trying hard to advance his situation but not having success.
Mr Sheehan concluded his report by noting the offender has a basically conventional personal history with few problems of a magnitude worthy of comment. Despite this, he has had ongoing periods of depression "likely underpinned by chronic problems with intolerance to stress, low self-esteem, sense of failure, exaggerated fears of criticism, resulting in avoidance coping." Mr Sheehan considered that the offender's move to Australia was an attempt to address these problems.
The Crown submits that the offending was premeditated and displayed a degree of sophistication. The offending was premeditated in the sense of there being a need to be organised and in possession of the lizards that were to be trafficked, the need to package the lizards in a manner likely to avoid detection and still ensure their survival, plus the need to identify a person to receive the packages. The photographs of how this was achieved however, do not display much sophistication. Instead, the photographs display fairly clumsily put together plastic boxes, with holes made for airflow and a rudimentary attempt at concealing the true nature of the packages by the use of large numbers of plastic toys.
Unlike other cases of this type of offending, there were no trips taken by the offender and there is no evidence he was directing anyone else. He was engaged in this conduct by himself over a limited period of time.
In terms of the seriousness of the particular counts, in my view some of the counts are more serious than others, because of the way in which the reptiles were concealed and by the differing numbers of reptiles in the various packages. I accept that the offending is serious, and I adopt the submissions made on behalf of the offender in writing at [9]-[13] regarding the seriousness of the individual offences:

Sentencing for this type of offence has been considered in several decisions, including the cases of R v Kennedy [2019] NSWCCA 242 and Qui v R [2022] NSWCCA 247 ("Qui"). In this instance the offending occurred over a more confined period and involved fewer specimens. I found the case of Qui to be the most helpful comparable case. The offender in that matter was sentenced with regard to 14 offences of attempted export contrary to the same provision. He had also been sentenced with regard to a further five offences involving the possession of CITES [1] specimens, contrary to s 303GN(2) of the Act.
The various export offences had all occurred over a three-month period, with the exception of one count. This is to be contrasted with this matter, where the period of the offending was about one month.
In Qui the offender had sent 14 parcels by post, whereas in this matter the offender sent six. As is the case in this matter, in Qui the offender had not attempted to import specimens into Australia. Only one skink, a bluetongue, was deceased from the 48 specimens that were sought to be exported. A matter that sets the case of Qui apart is the attempted export of a red belly black snake. This snake is venomous and potentially fatal to humans. The indicative sentence imposed in relation to that matter was the longest of the indicative sentences at 12 months.
A further matter that was present in Qui and not present in this case was his possession at his home of 105 further specimens, including turtles, pythons, tortoises, South American horned frogs. Indicative terms were nominated in relation to all six of the offences that related to the possession of these specimens.
As is the case in this matter, the offender in Qui had no prior record. His family was in financial difficulty in China. His father was ill and required medical treatment. The offending was motivated by the desire for financial gain. The sentencing judge made no finding as to remorse, but like this case, concluded that the offender was unlikely to reoffend and had good prospects in the future. A mitigating matter present in the case of Qui and not present in this case was the finding that he had cooperated with the authorities by making it known that he was in possession of further items in his home.
In Qui the Court of Criminal Appeal imposed an aggregate sentence of three years 10 months with a non-parole period of two years. In my view, the offending in Qui was more serious because of the greater number of attempted exports, the attempt to export a red belly black snake that posed a risk of serious harm to anyone who may have encountered it, plus the possession of a large number of prohibited specimens at his home. The subjective cases in both instances were similar.
I accept the Crown's submission that general deterrence is an important sentencing purpose in this matter. See R v Klein (1989) 39 A Crim R 332 at 335; R v Robinson (1992) 62 A Crim R 374 at 378-379; R v Kennedy [2019] NSWCCA 242. It is also important to denounce the offender's conduct.
I accept the Crown's submission that the guilty pleas were entered in the face of a strong prosecution case and that there is no evidence that the offender co-operated with the authorities. These factors relate to the question of the offender's remorse. As noted, I am ultimately unpersuaded that he is remorseful for his conduct, although it is clear he regrets his decision to participate in this activity, given the personal consequences it has brought.
As earlier noted, given his prior good character and the obvious impact on him to date of being in custody. I consider there is no need to give emphasis to specific deterrence.
I intend to impose an aggregate sentence. The indicative sentences, reduced by 25% on each offence, are as follows: Sequence 12: 6 months Sequence 13: 8 months Sequence 14: 6 months Sequence 15: 8 months Sequence 16: 8 months
The aggregate sentence is a term of imprisonment of 2 years 4 months.
By reason of the seriousness of the offending and the need to punish the offender, together with the guidance provided by comparable cases, I do not consider it appropriate that the sentence be served by way of an Intensive Correction Order.
As the overall sentence is less than 3 years, I am required to make a recognizance release order, per s 19AC of the Crimes Act 1914.
Accordingly, I order that the offender be released on 25 September 2024, upon entering a recognizance in the sum of $1,000 to be of good behaviour for a period of two years.
Mr Zhang, the overall sentence is 2 years 4 months imprisonment, starting on the day you were arrested. You are to serve 1 year 2 months of the sentence in custody and then you will be released on 25 September 2024, just over 7 months from now, upon you entering an agreement to be of good behaviour for 2 years. If you were to commit any further offences whilst on the bond, you can be brought back to the Court and resentenced.