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Court of Criminal Appeal 25 November 2022

Qiu v R

[2022] NSWCCA 247

Theft & property

Citation: Qiu v R [2022] NSWCCA 247
Court: NSW Court of Criminal Appeal
Date: 25 November 2022
Judge(s): Gleeson JA, Wright J, Cavanagh J (Cavanagh J delivered the leading judgment; Gleeson JA and Wright J agreed)

Background

The appellant pleaded guilty in the District Court to 19 federal offences under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act) and the Criminal Code (Cth). The offences consisted of 14 counts of attempting to export regulated native specimens (carrying a maximum of 10 years each) and five counts of possessing CITES-regulated specimens (carrying a maximum of 5 years each). The appellant was sentenced alongside his partner, who was a co-offender charged with 14 offences arising from the same scheme.

The offending involved the appellant and his partner attending post offices in Sydney, placing small numbers of live native reptiles and other specimens into parcels with false particulars, and posting those parcels to addresses in Hong Kong and Taiwan. Most of the conduct occurred over a three-month period, though one count pre-dated that period by over a year.

The District Court imposed an aggregate sentence of 5 years' imprisonment with a non-parole period of 2 years and 10 months. The appellant sought leave to appeal on two grounds: that the sentence was manifestly excessive, and that it gave rise to a justified sense of grievance when compared with the sentence imposed on the co-offender (the parity ground).

  • Whether the aggregate sentence of 5 years' imprisonment was manifestly excessive for the totality of the offending.
  • Whether the appellant had a justifiable sense of grievance arising from the disparity between his sentence and that imposed on the co-offender.

Decision

The Court of Criminal Appeal allowed the appeal on the ground that the sentence was manifestly excessive. Having reached that conclusion, the Court did not need to address the parity ground.

Cavanagh J (with whom Gleeson JA and Wright J agreed) compared the offending to that considered in R v Kennedy (2019) 101 NSWLR 121, a decision referred to by both parties as providing sentencing guidance for this type of offending. The Court found the present offending was serious, but not as serious as the conduct in Kennedy. A key distinction was that the offending here involved only attempted exportation out of Australia and did not include any attempt to import specimens into Australia. The risk to Australia's biodiversity that arises from importation was identified as an important sentencing consideration, and that risk was absent here.

The Court also noted that the number of specimens involved was comparable to the quantities in Kennedy, yet the aggregate sentence imposed was higher than the sentence in that case, despite the absence of any importation element. Each parcel typically contained only one or two specimens, and while the conduct was repetitive, the individual transactions were of modest scale. Taking into account the total criminality across all 19 counts, the Court resentenced the appellant to an aggregate term of 3 years and 10 months' imprisonment with a non-parole period of 2 years, both commencing from the original sentence date of 17 February 2021.

Orders Made

  • Leave to appeal granted.
  • The appeal allowed.
  • The sentence imposed in the District Court quashed.
  • In substitution, an aggregate sentence of imprisonment of 3 years and 10 months imposed.
  • A non-parole period of 2 years imposed under s 19AB(1) of the Crimes Act 1914 (Cth).
  • The sentence and non-parole period to date from 17 February 2021.

Key Takeaways

  • The Court of Criminal Appeal confirmed that, in sentencing for EPBC Act wildlife trafficking offences, the risk posed to Australia's biodiversity is a material sentencing consideration. Offending that involves only exportation carries less weight on this factor than offending that also involves attempted importation.
  • R v Kennedy (2019) 101 NSWLR 121 continues to serve as a sentencing reference point for EPBC Act export and possession offences, with both parties in this case accepting its utility as a benchmark.
  • The number of specimens involved across a course of offending is a significant factor in calibrating the overall sentence for this category of offending.
  • Repetitive small-scale transactions, while reflecting sustained criminality that must be reflected in the total sentence, do not automatically elevate aggregate sentences above levels imposed in more serious cases involving comparable specimen numbers and additional importation conduct.
  • A sentence that exceeds the outcome in a comparable but more serious precedent case, without adequate justification, may constitute a manifestly excessive sentence susceptible to appellate correction.

Legislation and Cases Referenced

Legislation:
- Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss 303DD(1), 303GN(2), 303GN(6)
- Criminal Code (Cth), ss 11.1(1), 11.2A(1)
- Crimes Act 1914 (Cth), s 19AB(1)

Cases:
- R v Kennedy (2019) 101 NSWLR 121; [2019] NSWCCA 242
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Kirby v R [2021] NSWCCA 162
- Klein v The Queen (1989) 39 A Crim R 332
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- R v Robison (1992) 62 A Crim R 374