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Court of Criminal Appeal 18 October 2019

R v Kennedy

[2019] NSWCCA 242

Also reported as (2019) 101 NSWLR 121
Fraud & dishonesty
CRIME APPEALS APPEAL AGAINST SENTENCE MANIFEST INADEQUACY MANIFESTLY INADEQUATE RESENTENCED CRIME

Citation: R v Kennedy [2019] NSWCCA 242
Court: Court of Criminal Appeal, NSW
Date: 18 October 2019
Judge(s): Payne JA and Fullerton J (joint reasons); Adamson J (agreeing, with additional reasons)

Background

The respondent pleaded guilty to six Commonwealth offences committed between July 2016 and March 2017. The charges involved two attempts to export Australian native reptiles (shingleback lizards and dinner-plate turtles) to Sweden via international mail, two counts of importing or attempting to import regulated live specimens, one count of possessing non-native CITES-regulated specimens, and one count of dealing with money reasonably suspected to be proceeds of crime.

The respondent had recruited third parties to post the packages on his behalf using false sender details, and the parcels were intercepted by Australian Border Force. The exportation and importation offences each carried a maximum penalty of 10 years imprisonment. The possession offence carried a maximum of 5 years, and the proceeds offence carried a maximum of 2 years.

On 7 June 2019, a District Court judge imposed an aggregate sentence of 3 years imprisonment, to be served by way of an Intensive Correction Order (ICO). An ICO is a supervised community-based order: the respondent would not serve full-time custody but was instead subject to conditions including 700 hours of community service, drug abstinence, and supervision. The Commonwealth Director of Public Prosecutions appealed on the sole ground that the sentence was manifestly inadequate.

  • Whether the aggregate sentence of 3 years imprisonment served by way of an ICO was manifestly inadequate in light of the objective seriousness of the offending and applicable sentencing principles.
  • Whether, if the sentence was manifestly inadequate, the Court of Criminal Appeal should exercise its residual discretion to decline to intervene (that discretion allowing an appellate court, in limited circumstances, to refrain from resentencing even where error is established).
  • Whether each of the individual indicative sentences nominated by the sentencing judge was itself too low, contributing to the inadequacy of the aggregate sentence.

Decision

The Court of Criminal Appeal held unanimously that the sentence was manifestly inadequate. The joint judgment (Payne JA and Fullerton J) acknowledged that an appellate court reviewing manifest inadequacy is not entitled simply to substitute its own view of the appropriate weight to give to factors such as objective seriousness. Rather, the question is whether it was open to the sentencing judge to impose the sentence, including in this case the decision to order that it be served in the community rather than by way of full-time custody.

The Court found that the 3-year ICO failed to reflect the overall gravity of the offending. The legislature had signalled the seriousness of these offences through the high maximum penalties, and the Court observed that those penalties reflected the Commonwealth Parliament's view of the threat posed to Australian fauna and biodiversity. The importation offences, in particular, had potentially catastrophic consequences for the Australian ecosystem. Each of the actual and attempted importation and exportation offences warranted a sentence of full-time imprisonment, and the sentencing judge's excessive weight on rehabilitation at the expense of general deterrence and accountability produced an inadequate outcome.

On the residual discretion, the Court declined to refrain from resentencing. Three factors weighed heavily: the speed with which the appeal was brought, the breadth and seriousness of the criminal conduct across multiple species and transactions, and the utility of a principled sentence as guidance for future sentencing courts dealing with wildlife trafficking offences.

Adamson J added that the individual indicative sentences nominated by the sentencing judge were each too low, and that this contributed to the manifest inadequacy of the aggregate. Her Honour also emphasised that exercising the residual discretion would deprive the decision of practical deterrent effect on those inclined to commit similar offences, even if the reasons retained some educative value for sentencing judges.

Orders Made

  • Appeal allowed.
  • Sentence imposed by Grant DCJ on 7 June 2019 set aside.
  • Aggregate sentence of 4 years full-time imprisonment imposed.
  • Non-parole period of 2 years and 6 months imposed under s 19AB(2) of the Crimes Act 1914 (Cth).
  • Sentence and non-parole period to date from 18 October 2019.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the manifest inadequacy ground requires more than a finding that the sentence failed to reflect objective seriousness; the question is whether it was open to the sentencing judge to impose that sentence, including the mode of custody selected.
  • Maximum penalties fixed by Parliament are a meaningful indicator of legislative intent and were treated by the Court as a significant reference point in assessing the gravity of wildlife trafficking offences under the EPBC Act.
  • Where an offender's prospects of rehabilitation are excellent, those prospects do not automatically displace general deterrence and accountability as the dominant sentencing objectives, particularly for offences with potentially catastrophic environmental consequences.
  • The residual discretion to decline resentencing will not always be exercised merely because error is established; the breadth and seriousness of the conduct, the speed of the appeal, and the need for principled guidance to future sentencing courts were each identified as compelling reasons to intervene in this case.
  • In dismissing the relevance of the residual discretion, Adamson J reasoned that leaving an inadequate sentence in place would undermine the practical deterrent effect on potential offenders, even if the Court's reasons retained educative value for judges.

Legislation and Cases Referenced

Legislation
- Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss 303CA, 303DA, 303DD, 303EK, 303GN
- Criminal Code (Cth), ss 11.1, 400.9
- Crimes Act 1914 (Cth), ss 16A, 19AB, 20AB
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 5, ss 66, 68

Key Cases
- CMB v Attorney General for New South Wales (2015) 256 CLR 346; [2015] HCA 9
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- R v Pham (2015) 256 CLR 550; [2015] HCA 39
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39