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District Court 12 April 2024

R v Zhang

[2024] NSWDC 153

Other
WILDLIFE TRAFFICKING

Citation: R v Zhang [2024] NSWDC 153
Court: District Court of New South Wales
Date: 12 April 2024
Judge: D Barrow SC DCJ

Background

The offender, a 32-year-old Chinese citizen who arrived in Australia on a Student Visa in June 2022, appeared for sentencing on five offences of attempted export of native reptiles contrary to s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Between 28 December 2022 and 25 January 2023, he attempted to send six postal packages containing 43 reptiles from metropolitan Sydney to Hong Kong. All six packages were intercepted by authorities.

The reptiles included bluetongue skinks, Eastern water dragons, and a shingleback lizard. Three Eastern water dragons died as a result of the conditions in which they were transported. The offender used false names and false descriptions of the contents when posting the packages, and forensic evidence linked him by DNA or fingerprints to four of the six packages.

The offender pleaded guilty in the Local Court, had no prior criminal history, and gave evidence at the sentencing hearing. A forensic psychologist's report and veterinary evidence from Taronga Park Zoo were also before the court.

Legal Issues

  • What aggregate sentence was appropriate for five federal offences of attempted export of native reptiles, each carrying a maximum of 10 years imprisonment?
  • What weight should be given to the utilitarian value of the guilty pleas?
  • How did the objective seriousness of the offending compare with comparable cases, particularly Qui v R [2022] NSWCCA 247?
  • What role did subjective factors, including the offender's background, prospects of rehabilitation, and the onerous nature of his custody, play in setting the sentence?
  • Whether general deterrence, denunciation, or specific deterrence required particular emphasis.

Decision

Objective seriousness: The court found the offending to be serious, given the legislation's purpose of protecting Australia's biodiversity and the welfare of native fauna. The packaging showed significant cruelty: the reptiles were tightly confined in socks and plastic toys, had no access to water, were exposed to temperature extremes and vibration, and were at serious risk during a journey of potentially two to ten days. Three Eastern water dragons died, which the court described as a predictable outcome of the offender's deliberate actions rather than an aggravating circumstance in itself (at [17]-[19]). The worst individual example was a shingleback lizard encased in a sock and placed inside a sealed plastic dinosaur with no apparent ventilation (at [20]).

Nature and context of the offending: The court characterised the conduct as relatively unsophisticated, not involving importation into Australia, and not part of a larger organised operation beyond the offender having connections to receive the packages in Hong Kong (at [23]). The fact that 32 of the bluetongue skinks were likely captive bred reduced the objective gravity of those particular sequences to some extent, though the conduct still contributed to a loss of Australian biodiversity (at [23]). The court was satisfied the offender was motivated by financial gain at a time when he was struggling in Australia (at [39]).

Comparable cases: The court identified Qui v R [2022] NSWCCA 247 as the most useful comparable. In that matter, the Court of Criminal Appeal imposed an aggregate sentence of three years and ten months with a non-parole period of two years for 14 attempted exports and five possession offences, including an attempt to export a venomous red belly black snake and possession of 105 further specimens at home. The court found the present offending to be materially less serious: fewer packages, a shorter period of offending, no venomous specimens, and no possession charges (at [44]-[49]).

Subjective factors and sentencing purposes: The 25% reduction for the guilty pleas reflected their utilitarian value in avoiding a trial (at [8]). The court acknowledged the onerous nature of the offender's custody due to his profound lack of English, isolation, and cultural alienation (at [36]). While the offender expressed regret, the court was ultimately unpersuaded that he was genuinely remorseful, finding his stated reasons were self-focused (at [51]). The court accepted good character and unlikely reoffending as mitigating factors, reducing the emphasis on specific deterrence (at [25]-[26], [52]). General deterrence and denunciation remained important sentencing purposes (at [50]). An Intensive Correction Order was rejected as inappropriate given the seriousness of the offending and the need for punishment (at [55]).

Orders Made

  • Aggregate sentence of 2 years 4 months imprisonment, commencing 26 July 2023.
  • The offender to serve 1 year 2 months in custody, with release on 25 September 2024.
  • Release subject to a recognizance in the sum of $1,000 to be of good behaviour for a period of 2 years, pursuant to s 19AC of the Crimes Act 1914 (Cth).

Key Takeaways

  • The District Court confirmed that exporting native Australian fauna is a serious federal offence, though importation of foreign fauna into Australia has been held to be more serious given the potentially catastrophic environmental consequences (at [11]).
  • Animal welfare is a distinct consideration in sentencing for wildlife trafficking offences under the Environment Protection and Biodiversity Conservation Act 1999 (Cth): the manner of packaging and the suffering caused to individual specimens can significantly bear on the objective seriousness of individual counts (at [17]-[18]).
  • A 25% sentencing discount applied where guilty pleas were entered in the Local Court, saving the need for witnesses at trial and indicating a willingness to facilitate the course of justice, even where those pleas were entered against the backdrop of a strong prosecution case (at [8], [51]).
  • Onerous custody conditions, including linguistic and cultural isolation within an English-speaking prison population, can be recognised as a relevant subjective factor in sentencing, though the court did not treat it as a standalone mitigating ground (at [36]).
  • Where the overall sentence for a federal offence falls below three years, s 19AC of the Crimes Act 1914 (Cth) requires the court to impose a recognizance release order rather than a fixed non-parole period, as occurred here (at [56]-[57]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth ), s 16A(2)(g)
- Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss 303BA, 303DD(1) , 303GN
- Environment Protection and Biodiversity Conservation Amendment (Wildlife Protection) Bill 2001

Cases
- Bugmy v The Queen (1990) 169 CLR 525
- Deakin v The Queen (1984) 58 ALJR 367
- R v El Karhani (1990) 21 NSWLR 370
- Hili v The Queen (2010) 242 CLR 520
- Johnson v The Queen (2004) 78 ALJR 616
- Power v The Queen (1974) 131 CLR 62
- Qui v R [2022] NSWCCA 247
- R v Kennedy [2019] NSWCCA 242
- R v Klein (1989) 39 A Crim R 332
- R v Robinson (1992) 62 A Crim R 374
- Xiao v R [2018] NSWCCA 4