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District Court 7 June 2019

R v Kennedy

[2019] NSWDC 283

Fraud & dishonestyTheft & property

Citation: R v Kennedy [2019] NSWDC 283
Court: District Court of New South Wales
Date: 7 June 2019
Judge: Grant DCJ

Background

The offender was charged with six offences arising from a joint investigation by the Australian Federal Police and the Department of Environment and Energy, known as Operation Melville. The operation targeted the illicit trade of wildlife into and out of Australia between July 2016 and March 2017.

Between July and October 2016, Australian Border Force intercepted 22 packages at the Sydney Mail Gateway facility and through international freight services. Those packages contained live native reptiles being exported to Sweden without authorisation, as well as exotic and protected species smuggled into Australia from Bangkok. The offender recruited others to post packages on his behalf, used false sender details, and falsely described the packages as containing water filters on customs documentation.

On a later occasion, officers found the offender in possession of two pythons listed under the Convention on International Trade in Endangered Species (CITES), and $43,550 in cash reasonably suspected to be proceeds of crime.

  • What sentence was appropriate across six offences, including five wildlife trade offences under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) and one proceeds of crime offence under the Criminal Code (Cth)?
  • What weight should be given to aggravating factors, including undue cruelty to animals, the use of third parties, and the use of deception?
  • Whether the offender's personal circumstances, including prospects of rehabilitation, supported a non-custodial form of sentence.
  • Whether an intensive correction order (ICO) was appropriate in lieu of full-time imprisonment.

Decision

Grant DCJ sentenced the offender on an aggregate basis, imposing a total term of three years imprisonment. The court considered the maximum penalties under the EPBC Act (10 years imprisonment and/or a $180,000 fine for the main export and import offences) as an important guidepost, without treating them as a target.

The court identified several aggravating features. The animals were transported in cloth bags inside plastic containers with no provision for food, water, or ventilation, which the court treated as undue cruelty. The offender used third parties to distance himself from the postings, employed false sender details and customs documentation, and demonstrated clear planning, including internet searches for FedEx locations and notes on his phone about quantities, prices, and recipient hotels.

In considering personal circumstances, the court accepted evidence going to the offender's background and prospects of rehabilitation. Consistent with the purposes of the Crimes (Sentencing Procedure) Act 1999 (NSW) as amended, the court found that community supervision combined with structured conditions was more likely than short-term imprisonment to achieve medium and long-term behavioural change and reduce reoffending.

The court ordered that the three-year aggregate term be served by way of an intensive correction order. This reflects the legislative intent of the ICO regime, which treats community safety as the paramount consideration and recognises that imprisonment of under two years is generally less effective at producing lasting behavioural change than supervised community-based orders.

Orders Made

  • The offender was convicted of six offences (sequences 83 to 88).
  • An aggregate term of three years imprisonment was imposed.
  • The sentence is to be served by way of an intensive correction order, commencing 7 June 2019, subject to the following conditions:
  • The offender must not commit any offence.
  • The offender must perform 700 hours of community service work.
  • The offender must abstain from using illicit drugs.
  • The offender must submit to supervision by a community corrections officer.
  • The offender must report to the City Community Corrections office within five days.
  • A separate order was made in chambers regarding the two pythons.

Key Takeaways

  • Under the EPBC Act, the export or import of regulated native or live specimens without authorisation carries a maximum of 10 years imprisonment and/or a $180,000 fine, and courts are required to treat that maximum as a meaningful guidepost in calibrating the severity of the sentence.
  • Undue cruelty to animals during the commission of wildlife trade offences is a recognised aggravating factor; transporting live animals in sealed containers without food, water, or ventilation satisfied that threshold here.
  • Deliberate use of third-party couriers, false customs documentation, and careful operational planning all weighed toward greater objective seriousness in the sentencing assessment.
  • The District Court held that an intensive correction order was appropriate where the evidence supported a conclusion that community supervision, stable conditions, and treatment programs were more likely than short-term imprisonment to reduce the risk of reoffending.
  • Where aggravating conduct is relied upon by the prosecution to increase a penalty, it must be proved beyond reasonable doubt; mitigating circumstances need only be established on the balance of probabilities.

Legislation and Cases Referenced

Legislation:
- Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss 303DA, 303DD(1), 303EK(1), 303GN(2)
- Criminal Code (Cth), s 400.9(1A)
- Crimes Act 1914 (Cth), Part 1B, s 16A
- Crime (Sentencing Procedure) Act 1999 (NSW), s 66
- Evidence Act 1995 (NSW)
- Judiciary Act 1903 (Cth)

Cases:
- Dasreef Pty Limited v Hawchar [2011] HCA 21; 243 CLR 588
- Henri Robert Morgan v R [2007] NSWCCA 8
- Honeysett v R [2014] HCA 29; 253 CLR 122
- Parente v R [2017] NSWCCA 285
- R v DP [2019] NSWCCA 55
- R v Moon [2000] NSWCCA 534
- R v Pullen [2018] NSWCCA 264
- The Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- Xiao v R [2018] NSWCCA 4
- Yeung v R [2018] NSWCCA 52
- Simpson v The Office of Environment and Heritage [2014] NSWLEC 34
- Roger v Western Australia [2009] WASCA 139