AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
District Court 14 November 2019

R v Chong

[2019] NSWDC 752

Other
CRIME COMMONWEALTH SENTENCE LIZARDS

Citation: R v Chong [2019] NSWDC 752
Court: District Court of New South Wales
Date: 14 November 2019
Judge: Bourke SC DCJ

Background

The offender faced sentence on eight counts of attempting to export regulated native specimens, contrary to section 303DD of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The offences involved a series of attempts, over approximately five weeks in August and September 2018, to mail live Australian native lizards to Hong Kong. Each consignment was intercepted by Australian Border Force officers before it left the country.

The offender used false consignor details on every package and disguised the live animals inside chip tubes, cereal boxes, and game boxes, surrounded by innocuous items such as biscuits, plastic toys, and books. The lizards were immobilised with fabric tape applied to their legs. Species included Shingleback lizards, Blue Tongue lizards, Gidgee Skinks, Geckos, and an Eastern Pilbara Spiny Tail Skink, with a combined estimated value in Hong Kong of approximately US$152,500.

The offender was arrested at Chatswood Post Office on 17 September 2018 as he attempted to leave after lodging the final consignment. He entered guilty pleas to all eight charges on 29 January 2019.

  • What sentence was appropriate for eight Commonwealth offences of attempting to export regulated native specimens, each carrying a maximum of 10 years imprisonment and/or a $110,000 fine?
  • What discount should apply for the offender's early guilty pleas and any assistance provided to authorities?
  • Whether the offences warranted full-time imprisonment rather than an Intensive Corrections Order (a community-based sentence served outside custody)
  • What weight should be given to the offender's subjective circumstances, including claims of partial coercion, relative youth, good character, and rehabilitation prospects?

Decision

His Honour applied the sentencing framework under Part 1B of the Crimes Act 1914 (Cth), and in particular section 16A. The court found the offences were objectively serious. An expert veterinarian concluded that the packaging methods exposed the animals to dehydration, crushing, cold stress, hypoxia, and pain from the taping of their limbs, all of which carried a risk of death.

On the offender's role, the court noted that the offender claimed he acted partly under threat and at the direction of others, and would only receive $100 per box. His Honour acknowledged that version, but did not treat it as substantially diminishing his culpability, particularly given the sustained, methodical nature of the conduct across five weeks and multiple post offices.

The offender received a combined discount of 40% for his early guilty pleas and assistance provided to investigators. His Honour accepted that the offender had good prospects of rehabilitation, noting his prior good character, relative youth, and family support. However, the court rejected the submission that an Intensive Corrections Order would be adequate. Both personal and general deterrence required a sentence of actual full-time imprisonment.

Taking into account the need for some accumulation across the eight offences, and the principle of totality (which requires the aggregate punishment to remain proportionate to the overall criminality), His Honour imposed an aggregate sentence of 15 months imprisonment, with release on a recognisance order after nine months.

Orders Made

  • Aggregate sentence of 15 months imprisonment imposed
  • The offender to be released on a recognisance release order after serving 9 months, on condition of paying security of $100 and being of good behaviour for 6 months
  • Sentence to date from 14 November 2019
  • One day of pre-sentence custody taken into account

Key Takeaways

  • The District Court treated eight separate attempts to export protected native lizards by post as warranting full-time imprisonment, even for a first-time offender with good character and early guilty pleas.
  • A combined discount of 40% was applied to reflect both the utilitarian value of early guilty pleas and the offender's assistance to investigators, though the court noted care was needed to ensure the discounted outcome did not become disproportionately lenient.
  • Under section 303DD of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), each offence of attempting to export a regulated native specimen carries a maximum of 10 years imprisonment and/or a $110,000 fine, underscoring the seriousness with which Commonwealth law treats wildlife trafficking.
  • Both personal and general deterrence were significant sentencing considerations, and the court held that an Intensive Corrections Order would be inadequate where offending was sustained, methodical, and commercially motivated.
  • Evidence of animal cruelty inherent in the packaging methods, including taping of limbs and concealment in sealed containers without adequate air, water, or temperature control, formed part of the factual matrix informing the objective seriousness of the offences.

Legislation and Cases Referenced

Legislation:
- Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 303DD
- Crimes Act 1914 (Cth), Part 1B, s 16A, ss 19AC and 20(1)(b)
- Evidence Act

Cases: No cases were cited in the judgment.