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District Court 8 March 2021

R (Cth) v Chin

[2021] NSWDC 176

Other
CRIME SENTENCE CTH OFFENCE 20% DISCOUNT ALLOWED NEITHER A PRINCIPAL OR A MERE COURIER MOTIVATED BY DESIRE FOR MONEY

Citation: R (Cth) v Chin [2021] NSWDC 176
Court: District Court of New South Wales
Date: 8 March 2021
Judge(s): Neilson DCJ

Background

The offender, a Malaysian-born man who had been living and working in Australia on what was originally a tourist visit, was convicted on nine counts of offences under the Environment Protection and Biodiversity Conservation Act 1999 (Cth). The offences involved exporting, attempting to export, or aiding and abetting the attempted export of regulated native Australian animals. The conduct occurred between December 2017 and August 2018 across both Sydney and Melbourne.

The smuggling operation involved packaging live lizards and other reptiles inside socks, chip tubes, and takeaway containers, concealed within boxes of crisps and similar goods, then consigning them to recipients in Hong Kong via ordinary postal and courier services. Species involved included shingleback lizards, eastern blue-tongue lizards, various geckos, a Stimsons Python, and Lace Monitors. The offender was arrested in October 2019, more than 14 months after the last offence, and had been in custody from that point forward.

The offender was not the organiser of the smuggling ring, but he was more than a passive courier. He prepared packaging, accompanied co-offenders to post offices, physically handled consignments, and travelled interstate in connection with the operation. He pleaded guilty, though not at the earliest opportunity.

  • What was the appropriate sentence across nine federal environmental offences, each carrying a maximum of ten years' imprisonment or a $210,000 fine?
  • What role did the offender occupy within the smuggling syndicate, and how should that role affect the sentence?
  • What discount should apply for the guilty plea, given it was not entered at the first available opportunity?
  • What weight should be given to the offender's personal circumstances, including his reasons for participating in the scheme and his expressions of remorse?

Decision

Neilson DCJ determined that the offender sat in an intermediate position within the smuggling syndicate. He was neither a principal organiser nor a mere courier, having taken active steps to prepare consignments and coordinate with co-offenders. Each of the nine offences was treated as a serious matter, reflecting the deliberate and systematic nature of the conduct and the international dimension of the trade in protected native species.

The offender's motivation was financial. His Honour rejected the proposition that sending money to support family members overseas rendered the conduct less culpable than smuggling for pure profit, referencing the principle that financial motivation of any kind does not diminish the seriousness of the offending. The court did, however, accept that the offender likely was remitting funds to support relatives in Malaysia.

A discount of 20 percent was applied to the sentence to reflect the guilty plea, which, while not entered at the first opportunity, was characterised as being of great utilitarian value. The court approached the psychological report tendered on the offender's behalf with caution, noting that expressions of anxiety and depression are unremarkable in a person facing sentence for serious offences, and that no formal diagnosis had been made. Remorse was given some weight, supported by consistent accounts recorded in an independent character reference.

Notably, no animals died or were injured as a result of the offending, a factor that was taken into account in the sentencing exercise.

Orders Made

  • The offender was convicted on all nine counts.
  • A non-parole period of two years and four months was set, commencing 9 October 2019 and expiring 8 February 2022.
  • A further period of imprisonment of one year and two months was imposed, commencing upon the expiration of the non-parole period and expiring 8 April 2023.
  • Total sentence: three years and six months.

Key Takeaways

  • Participation in a wildlife smuggling syndicate at a level above mere courier but below principal organiser will attract a sentence reflecting that intermediate culpability, even where the offender did not profit at the highest level.
  • Financial motivation, including the desire to support family overseas, does not reduce the seriousness of offending involving the illicit export of protected native species.
  • A late guilty plea can still attract a meaningful discount (here, 20 percent) where it is assessed as being of genuine utilitarian value to the administration of justice.
  • Psychological reports filed in support of an offender at sentence carry limited weight where no formal diagnosis is made and the symptoms described are consistent with the ordinary experience of being prosecuted for serious crime.
  • The absence of physical harm to the animals involved was a relevant mitigating consideration, though it did not displace the overall seriousness of a sustained course of conduct across nine separate offences spanning eight months and two states.

Legislation and Cases Referenced

Legislation:
- Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Cases:
- Imbornone v R [2017] NSWCCA 144
- Morgan v R [2007] NSWCCA 8
- R v Kennedy [2019] NSWCCA 242
- R v Robinson (1992) 62 A Crim R 374