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District Court 11 December 2020

R v Pogmore

[2020] NSWDC 883

Fraud & dishonesty
CRIME BORDER OFFENCES COMMONWEALTH OFFENCES EXPORT REGULATED NATIVE SPECIMEN DEALING WITH PROCEEDS OF A CRIME

Citation: R v Pogmore [2020] NSWDC 883
Court: District Court of New South Wales
Date: 11 December 2020
Judge(s): Buscombe DCJ

Background

The offender, a 27-year-old man with a long-standing interest in reptiles, pleaded guilty to three Commonwealth offences. Two counts related to attempted export of protected native wildlife, and a third related to dealing with the proceeds of crime. He was also dealt with for two State offences concerning unlicensed possession of protected animals.

The two export offences arose from events on 24 July 2018, when the offender posted two parcels from separate post offices (at Rooty Hill and Marayong) on the same morning. Each parcel contained three shingle-backed lizards, a species of protected native reptile. The parcels were addressed to recipients in China using false consignor and consignee details, and one was falsely labelled as containing toys. CCTV footage identified the offender at both post offices. The parcels were intercepted before the animals left Australia.

The money laundering offence spanned from October 2017 to March 2019. Investigators traced deposits totalling approximately $59,980 into bank and PayPal accounts held in the offender's name. The court inferred that much of this money was derived from the sale and export of protected reptiles.

Legal Issues

  • What sentence was appropriate for two counts of attempted intentional export of a regulated native specimen, contrary to sections 11.1(1) and 303.DD of the Criminal Code and the Environment Protection Biodiversity Conservation Act 1999?
  • What sentence was appropriate for one count of dealing with proceeds of crime valued at $50,000 or more, contrary to section 400.5(1) of the Criminal Code?
  • What weight should be given to the offender's subjective circumstances, including age, background, remorse, early guilty plea, and prospects of rehabilitation?
  • Whether full-time imprisonment was the only appropriate sentencing option.

Decision

Objective seriousness of the export offences: The court assessed the two attempted export offences as well below a notional mid-range level of objective seriousness (at [21]). Relevant factors included that only six lizards were involved across both counts, the animals were alive and not found to be unwell when intercepted, and the operation was not overly sophisticated (at [19]-[21]). The court noted there was planning involved, including the use of false details, false packaging, and visits to two separate post offices on the same morning, and that the offending was carried out for financial gain (at [16]-[18]). The court accepted the offender's evidence that he felt some obligation to the overseas buyer who had already paid him, though this did not alter the characterisation of the offending as financially motivated (at [17]-[18]).

Objective seriousness of the money laundering offence: The court placed the dealing-in-proceeds offence below a notional mid-range level but not at the very bottom of the range (at [25]). The amount of $59,980 was only slightly above the $50,000 threshold that engaged the relevant offence provision, and the transactions involved no real sophistication, as the accounts used were held in the offender's own name with no attempt to disguise the dealings (at [24]-[25]).

Subjective factors and sentencing discounts: The offender had a limited prior criminal history that included a conditional release order for dealing in protected animals and a fine for unlicensed possession of protected fauna in Western Australia (at [26]-[29]). The court found he had genuine remorse, family support, and reasonable to good prospects of rehabilitation, with a medium to low risk of reoffending assessed in the Sentencing Assessment Report (at [37]-[39]). A 25 percent discount was applied for the utilitarian value of his early guilty plea (at [38]).

General and personal deterrence: The court emphasised that offences of this kind are difficult to detect and threaten Australia's biodiversity, making general deterrence a prominent sentencing consideration (at [41]-[42]). The court also identified a need for personal deterrence given the offender's history of involvement with reptiles and the serious nature of the offending (at [43]). The court was satisfied that full-time imprisonment was the only appropriate sentence, a position accepted by defence counsel (at [44]).

Orders Made

  • Aggregate sentence of three years imprisonment, commencing 20 December 2020 and expiring 9 December 2023.
  • Recognizance release order under the Commonwealth Crimes Act: the offender to be released on 9 June 2022 after serving 18 months, upon entering into a recognizance of $100 without surety, to be of good behaviour for a further 18 months.
  • Indicative sentences: 14 months imprisonment (Count 1), 14 months imprisonment (Count 2), two years imprisonment (Count 3).
  • Convictions recorded and $500 fines imposed on each of the two State offences on the section 166 Certificate.

Key Takeaways

  • The District Court confirmed, following The Queen v Kennedy [2019] NSWCCA 242, that wildlife export offences are always treated as serious because they are difficult to detect and pose a genuine threat to Australia's biodiversity, making general deterrence a prominent sentencing factor (at [41]-[42]).

  • A 25 percent discount for an early guilty plea was applied in this matter, reflecting the utilitarian value of sparing the court the burden of a contested hearing, even where the offender was required to be arraigned on the day of sentence (at [38]).

  • Objective seriousness is assessed across a spectrum: here, the relatively small number of animals involved, the absence of significant cruelty, and the lack of sophistication all placed the export offences well below a notional mid-range, while the money laundering offence sat below mid-range but not at the lowest end, given the number of transactions and the period over which they occurred (at [21], [25]).

  • Where an offender's accounts are used in their own name with no attempt to conceal transactions, that absence of sophistication bears on the objective seriousness of a proceeds-of-crime offence, though knowledge that the funds derive from one's own illegal activity is treated as aggravating (at [24]-[25]).

  • Aggregate sentencing provisions, available when sentencing for Commonwealth offences, were applied here: the aggregate term was not simply the sum of the individual indicative sentences but reflected some accumulation, with greater accumulation applied to the money laundering count given its partial overlap with the export offences (at [40]).

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth) ss 11.1(1), 400.5(1)
- Environment Protection Biodiversity Conservation Act 1999 (NSW) s 303.DD
- Crimes Act 1900 (NSW) Part 1B, s 16A

Cases
- The Queen v Kennedy [2019] SNWCCA 242