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District Court 29 November 2024

R v Man Lung Ma

[2024] NSWDC 573

Theft & property

Citation: R v Man Lung Ma [2024] NSWDC 573
Court: District Court of New South Wales
Date: 29 November 2024
Judge: McGuire SC DCJ

Background

Between 8 May 2023 and 26 September 2023, a Hong Kong citizen attended 24 post offices across Queensland, New South Wales, Victoria, and the Australian Capital Territory and deposited 29 packages addressed to various recipients in Hong Kong. The packages contained 99 live Australian native reptiles, including shingleback lizards, blue-tongue lizards, leaf-tailed geckos, velvet geckos, monitor lizards, and a yakka skink. The consignor and consignee details were partly false and changed regularly across packages to avoid detection.

All 29 packages were intercepted at Australian mail facilities before leaving the country. The offender was arrested on 27 September 2023 and has remained in custody since that date.

The offender pleaded guilty in the Local Court on 29 May 2024 to 19 counts of attempted export of regulated native specimens, one count for each date on which packages were deposited. Each offence carries a maximum penalty of 10 years imprisonment under s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and s 11.1(1) of the Criminal Code (Cth).

  • What sentence, across 19 separate counts of attempted wildlife export, appropriately reflects both the criminality of each individual offence and the totality of the offending conduct?
  • How should the court weigh objective seriousness, general deterrence, and the relevant mitigating factors, including the guilty pleas and the offender's personal circumstances?
  • What non-parole period is appropriate under the mandatory provisions of the Crimes Act 1914 (Cth)?

Decision

McGuire SC DCJ sentenced the offender on each count individually, with sentences ranging from 3 months to 2 years depending on the number and species of reptiles involved in each consignment. The 10-year maximum was treated as a legislative guidepost indicating the seriousness Parliament attaches to wildlife export offences, consistent with Markarian v The Queen (2005) 228 CLR 357.

The court received expert evidence from Professor Phillip Cassey, an environmental biosecurity and wildlife trade specialist, and from Kimberly Herrin, a senior veterinarian at Taronga Zoo. The defence tendered a forensic psychology report, a letter of apology from the offender, and character references. The offender did not give evidence.

Applying the totality principle, the court determined that a substantial degree of accumulation of the individual sentences was warranted, but that the aggregate must remain "just and appropriate" to the whole of the offending behaviour. The court settled on an aggregate sentence of 3 years and 6 months imprisonment, commencing from the date of arrest. A non-parole period of 2 years was set, as required under s 19AB of the Crimes Act 1914 (Cth), reflecting the court's assessment of the overall criminality involved balanced against the mitigating factors available to the offender.

Orders Made

  • The offender was convicted of 19 offences of attempted export of regulated native specimens contrary to s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) and s 11.1(1) of the Criminal Code (Cth).
  • An aggregate sentence of 3 years and 6 months imprisonment was imposed, commencing 27 September 2023 and expiring 26 March 2027.
  • A non-parole period of 2 years was imposed, commencing 27 September 2023 and expiring 26 September 2025.
  • The earliest date of eligibility for parole is 26 September 2025.

Key Takeaways

  • The District Court treated the 10-year maximum penalty under s 303DD(1) of the EPBC Act as a meaningful yardstick for calibrating individual sentences, reinforcing that courts will use statutory maximums to gauge Parliament's view of the offence's gravity.
  • Where an offender faces a large number of separate counts arising from a course of conduct, the totality principle requires that the aggregate sentence be just and appropriate to the whole, not merely the mechanical sum of individual sentences.
  • Under s 19AB of the Crimes Act 1914 (Cth), a single non-parole period must be imposed for multiple Commonwealth offences sentenced together, even where an aggregate sentence is used.
  • A guilty plea, personal circumstances, and supporting character material may reduce the sentence otherwise warranted, but their weight will be assessed alongside the objective seriousness of systematic, planned offending conducted over several months across multiple states.
  • The organised nature of this offending, involving false consignor details, multiple post offices across four jurisdictions, and 99 protected animals, placed it firmly toward the serious end of the scale for this type of offence.

Legislation and Cases Referenced

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

Cases:
- Markarian v The Queen (2005) 228 CLR 357
- McGregor v R [2024] NSWCCA 200
- Morgan v R [2007] NSWCCA 8
- Pearce v The Queen (1998) 198 CLR 610
- R v Host [2015] WASCA 23
- R v Kennedy [2019] NSWCCA 24
- R v Robison (1992) 62 A Crim R 374
- Shrestha v R (1991) 173 CLR 48
- Stanley v DPP [2023] HCA 3
- Totaan v R [2022] NSWCCA 75