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District Court 18 December 2019

R v Lee

[2019] NSWDC 888

Fraud & dishonestyTheft & property
CRIMINAL SENTENCE S16BA OFFENCES TAKEN INTO ACCOUNT SYSTEMIC AND ONGOING BREACH OF TRUST FLAGRANT DISREGARD FOR RESPONSIBILITIES AGGREGATE SENTENCE

Citation: R v Lee [2019] NSWDC 888
Court: District Court of New South Wales
Date: 18 December 2019
Judge: King SC DCJ

Background

The offender was employed as a Senior Biosecurity Officer with the Commonwealth Department of Agriculture and Water Resources from June 2011 to January 2019. His responsibilities included inspecting cargo and specimens for compliance with relevant legislation. He never held a permit for the importation of live animals.

Between October 2016 and early 2018, the offender used knowledge gained through his role to identify vulnerabilities in the Live Fish Importation System Procedures and assist third parties in illegally importing regulated live specimens for sale. He also stole live prohibited aquatic fauna that he had been tasked with euthanizing during the course of his employment.

When Australian Federal Police executed a search warrant at his home in November 2018, they found illegally imported live specimens including Asian Arowana and a Suckermouth Catfish, along with $10,350 in cash inside a personal safe. Intercepted phone calls and Gumtree advertisements placed under an alias had previously revealed an active trade in numerous regulated species, including stingrays, eels, and various exotic fish.

  • Whether the agreed facts and subjective circumstances supported the proposed aggregate sentence across three counts and two matters taken into account on a schedule
  • How the court should weigh the systemic and prolonged nature of the offending, including the abuse of a public office position, against any relevant mitigating factors
  • What non-parole period was appropriate, given the totality of the offending

Decision

King SC DCJ sentenced the offender on three counts: possessing non-native CITES/regulated specimens (Count 1, maximum five years); abusing public office to gain advantage (Count 2, maximum five years); and dealing with proceeds of crime of $10,000 or more (Count 3, maximum ten years). Two further matters were taken into account pursuant to s 16BA of the Crimes Act 1914 (Cth), involving a second period of possessing regulated specimens and a further instance of abusing public office.

The court characterised the conduct as a systemic and ongoing breach of trust. The offender held a position specifically designed to protect the community and the environment from biosecurity risks, and instead exploited his insider knowledge for personal financial gain over an extended period. The court noted that, given his role, the offender would have been acutely aware of the potential adverse consequences of his actions, yet persisted.

His Honour indicated individual sentences of one year for Count 1, two years for Count 2, and one year for Count 3, before arriving at an aggregate sentence of three years. A Recognisance Release Order was imposed requiring the offender to serve half the aggregate sentence before release.

The court also made a forfeiture order under the Proceeds of Crime Act in respect of the $10,350 in cash found at the offender's property.

Orders Made

  • Aggregate sentence of three years' imprisonment, commencing 18 December 2019
  • Recognisance Release Order: the offender to be released after serving one year and six months, on a recognisance of $5,000, subject to a condition of good behaviour and any further conditions imposed by authorities
  • Parole period of one year and six months, expiring 17 December 2022
  • Forfeiture of $10,350 cash pursuant to s 48(1) and s 316 of the Proceeds of Crime Act

Key Takeaways

  • The District Court treated the offender's insider knowledge of regulatory vulnerabilities as a significant aggravating feature, describing the conduct as a "flagrant disregard" for his responsibilities rather than isolated or impulsive wrongdoing.
  • An aggregate sentencing approach was applied across three counts of differing severity, with indicative individual sentences identified for each count as required by that methodology.
  • Where a public official systematically exploits their position over an extended period for financial gain, the sentencing court regarded ongoing breach of trust as central to the assessment of objective seriousness.
  • Under the Environment Protection and Biodiversity Conservation Act 1999, regulated live specimens not assessed for environmental impact cannot be imported without a permit, and the court treated the possession and sale of multiple such species as a serious environmental offence.
  • Proceeds of crime legislation operated alongside the criminal sentence: the $10,350 cash found at the offender's home was forfeited separately under the Proceeds of Crime Act.

Legislation and Cases Referenced

Legislation:
- Environment Protection and Biodiversity Conservation Act 1999 (Cth), s 303GN(2)
- Criminal Code Act 1995 (Cth), ss 142.2(1)(a)(iii), 400.6(1)
- Crimes Act 1914 (Cth), s 16BA
- Proceeds of Crime Act (Cth), ss 48(1), 316

Cases:
- Macarian v The Queen (2005) 215 ALR 213
- Morgan v R [2007] NSWCCA 8