Land and Environment Court New South Wales Medium Neutral Citation: Simpson v Office of Environment and Heritage [2014] NSWLEC 34 Hearing dates: 27 March 2014 Decision date: 09 April 2014 Before: Pain J Decision: 1. The appeal is dismissed. 2. Each party to pay its own costs. Catchwords: APPEAL - against severity of sentences in Local Court - objective seriousness of three offences of importing/exporting protected fauna and one offence of possession of protected fauna - environmental harm caused given undermining of regulatory scheme for protection of fauna in NSW under NPW Act - prior convictions - application of totality principle not appropriate - few mitigating factors Legislation Cited: Crimes (Appeal and Review) Act 2001 s 31(1), s 39(2), s 49(2) Criminal (Sentencing Procedure) Act 1999 s 3A, s 21A, s 22 National Parks and Wildlife Act 1974 s 2A, s 5, s 101, s 106, s 120, s 175, s 189, s 194 Non-Indigenous Animals Act 1997 Non-Indigenous Animals Regulation 2012 Wildlife Conservation Act 1950 (WA) s 16A(1) Cases Cited: Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 Environment Protection Authority v Barnes [2006] NSWCCA 246 Environment Protection Authority v Forestry Commission of New South Wales [2013] NSWLEC 101 Franks v Woollahra Municipal Council [2007] NSWLEC 461 Hoare v R [1989] HCA 33; (1989) 167 CLR 348 JJ and ABS Investments Pty Ltd v Environment Protection Authority [2011] NSWLEC 199 Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 Morris v Department of Environment and Climate Change [2008] NSWLEC 309 Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 R v Visconti [1982] 2 NSWLR 104 Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 Category: Principal judgment Parties: Simpson, Neil Andrew (Appellant) Office of Environment and Heritage (Respondent) Representation: Mr T Hoyle SC (Appellant) Mr R Ranken (Respondent) Matouk Joyner Lawyers (Appellant) Office of Environment and Heritage (Respondent) File Number(s): 60778 of 2013 Decision under appeal Date of Decision: 2013-09-05 00:00:00 Before: Magistrate Barnes File Number(s): 400292 of 2012 Judgment Appeal against severity of sentences in Local Court 1The Appellant appeals against the severity of the sentences imposed by the Local Court on 5 September 2013 in relation to four offences concerning the illegal and interstate importation, exportation and possession of protected fauna contrary to s 106 (three offences court attendance notice (CAN) 2, 4, 6) and s 101 (one offence, CAN 7) of the National Parks and Wildlife Act 1974 (NPW Act). 2An appeal to this Court from the Local Court in relation to the severity of a sentence is enabled as of right by s 31(1) of the Crimes (Appeal and Review) Act 2001 (the Review Act). Fresh evidence can be adduced as of right on an appeal against sentence per JJ and ABS Investments Pty Ltd v Environment Protection Authority [2011] NSWLEC 199 at [12]-[15]. In this appeal I consider the matter afresh and it is not necessary that I find any fault in the magistrate's reasoning (see Franks v Woollahra Municipal Council [2007] NSWLEC 461 at [24]). Under s 39(2) of the Review Act the Court may determine an appeal against sentence by setting aside or varying the sentence or dismissing the appeal. Under s 49(2) the Court can exercise any function that the Local Court could have exercised in the original proceedings. 3On 5 September 2013, the Appellant was sentenced as follows in the Local Court: (a)One offence of importing protected fauna into NSW, contrary to s 106(1) of the NPW Act (CAN 2) (the import offence): convicted and fined $5,000; (b)Two offences of exporting protected fauna outside of NSW contrary to s 106(1) of the NPW Act (CANs 4 and 6) (the export offences): convicted and fined $5,000 on each; and (c)One offence of possessing/controlling protected fauna contrary to s 101(1) of the NPW Act (CAN 7) (the possession offence): convicted and fined $6,000. Purposes of sentencing 4The purposes of sentencing are set out in s 3A of the Criminal (Sentencing Procedure) Act 1999 (CSP Act) as follows: 3A Purposes of sentencing The purposes for which a court may impose a sentence on an offender are as follows: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community. 5The Respondent submitted that paragraphs (a), (b), (e), (f) and (g) are of particular relevance to the present matter. As the learned magistrate found, these were planned and premeditated offences that involved deception and dishonesty committed by a person who had previously been dealt with by the courts for dishonesty and fauna related offences. The offences undermined the integrity of the regulatory and licensing regime and the potential harm to the environment was real and serious. What is required are sufficiently severe penalties that will adequately punish the Appellant for the offences and act as a deterrent to both the Appellant and other would be offenders; denouncing his conduct and recognising the harm he has done to the community by deliberately undermining the licensing regime and putting the environment at risk. The Appellant submitted that the offences were of low objective seriousness and that the Appellant's mental state was relevant to his moral culpability so that matters of retribution and general deterrence were of less weight. Statutory framework NPW Act 6Relevant sections of the NPW Act provide: 2A Objects of Act (1) The objects of this Act are as follows: (a) the conservation of nature, including, but not limited to, the conservation of: (i) habitat, ecosystems and ecosystem processes, and (ii) biological diversity at the community, species and genetic levels, and (iii) landforms of significance, including geological features and processes, and (iv) landscapes and natural features of significance including wilderness and wild rivers, (b) the conservation of objects, places or features (including biological diversity) of cultural value within the landscape, including, but not limited to: (i) places, objects and features of significance to Aboriginal people, and (ii) places of social value to the people of New South Wales, and (iii) places of historic, architectural or scientific significance, ... 5 Definitions ... protected fauna means fauna of a species not named in Schedule 11. ... 101 Buying, selling or possessing protected fauna (1) A person shall not buy, sell or have in the person's possession or control any protected fauna. Penalty: (a) in respect of any protected fauna other than threatened interstate fauna-100 penalty units or imprisonment for 6 months or both, (b) in respect of any threatened interstate fauna-1,000 penalty units or imprisonment for 1 year or both. ... 106 Importing or exporting protected fauna (1) A person shall not import into or export from New South Wales any protected fauna. (2) Subsection (1) does not apply to any protected fauna of a species prescribed for the purposes of this subsection or to any emu product. (3) A person shall not be convicted of an offence arising under subsection (1) if the person proves that the act constituting the offence was done under and in accordance with or by virtue of the authority conferred by an import licence or an export licence under section 126. 120 General licence (1) The Director-General may issue a licence (in this Act referred to as a general licence), authorising a person to do any or all of the following: (a) to harm or obtain any protected fauna for any specified purpose, (a1) to hold or keep in possession or under control any protected fauna for any specified purpose, (b) to exhibit protected fauna, (c) to dispose of, whether by sale or otherwise, any fauna harmed, obtained, held, kept or exhibited under the authority of the licence, (d) to sell any fauna in the person's lawful possession, otherwise than as a fauna dealer or skin dealer, (e) to harm any protected fauna (other than a threatened species, population or ecological community) in the course of carrying out specified development or specified activities. ... (3) A general licence may be issued without conditions or limitations or may be issued subject to specified conditions or limitations. ... 175 General offence and penalties (1) A person who: (a) does that which by this Act (Parts 2, 3 and 5 excepted) the person is forbidden to do, or (b) fails or neglects to do that which by this Act (Parts 2, 3 and 5 excepted) the person is required or directed to do, is guilty of an offence against this Act. (2) A person guilty of an offence against this Act, whether pursuant to subsection (1) or otherwise, is, where no other penalty is prescribed, liable to a penalty not exceeding 100 penalty units, in the case of an individual, or 200 penalty units in the case of a corporation. 189 Proceedings for offences (1) Proceedings for an offence under this Act or the regulations may be dealt with: (a) summarily before the Local Court, or (b) summarily before the Land and Environment Court. (1AA), (1BB) (Repealed) (1A) The maximum pecuniary penalty that the Local Court may impose in respect of an offence against this Act or the regulations is 200 penalty units (including any daily penalty, any additional penalty as provided by section 98, 99, 118 or 118A or any further penalty for a second or subsequent offence) or the maximum penalty provided by this Act or the regulations in respect of the offence, whichever is the lesser. (1B) (Repealed) (2) Where the penalty is a daily penalty it may be recovered either under a separate court attendance notice, summons or application for each day or under a court attendance notice, summons or application for the sum of the daily penalties. (3) Where any person is convicted of an offence against this Act or the regulations and the Judge or Magistrate before whom the person was convicted makes an order under the Criminal Procedure Act 1986 for the payment by the defendant of costs, those costs shall be paid into the Fund. 194 Sentencing-matters to be considered in imposing penalty (1) In imposing a penalty for an offence under this Act or the regulations, the court is to take into consideration the following (so far as they are relevant): (a) the extent of the harm caused or likely to be caused by the commission of the offence, (b) the significance of the reserved land, Aboriginal object or place, threatened species or endangered species, population or ecological community (if any) that was harmed, or likely to be harmed, by the commission of the offence, (c) the practical measures that may be taken to prevent, control, abate or mitigate that harm, (d) the extent to which the person who committed the offence could reasonably have foreseen the harm caused or likely to be caused by the commission of the offence, (e) the extent to which the person who committed the offence had control over the causes that gave rise to the offence, (f) in relation to an offence concerning an Aboriginal object or place or an Aboriginal area-the views of Aboriginal persons who have an association with the object, place or area concerned, (g) whether, in committing the offence, the person was complying with an order or direction from an employer or supervising employee, (h) whether the offence was committed for commercial gain. (2) The court may take into consideration other matters that it considers relevant. Evidence Statement of facts 7A statement of agreed facts (SOAF) was relied on before the Local Court. The same statement of facts (Tab 2 of the Prosecution Tender Bundle (PTB)) was agreed and admitted into evidence by consent at the sentence hearing. It provided as follows; 1. The defendant is before the Court in respect of 4 offences against the National Parks and Wildlife Act 1974 ("NPW Act") as follows: ·1 x offence of importing protected fauna into NSW, contrary to s 106(1) of the NPW Act (CAN 2); ·2x offences of exporting protected fauna outside of NSW contrary to s 106(1) of the NPW Act (CANs 4 and 6); and ·1 x offence of possessing/controlling protected fauna contrary to s 101(1) of the NPW Act (CAN No 7). 2. The maximum penalties each of the offences are as follows: ·$11,000 in the case of each of the importing and exporting offences against s 106(1) of the NPW Act (see s 175 of the NPW Act). ·$11,000 or 6 months imprisonment or both, in the case of the possession/control of offence against s 101(1) of the NPW Act. 3. The fauna that are the subject of the allegations are various species of snakes and other reptiles. 4. The offences are provided in Part 7 of the National Parks and Wildlife Act 1974 (the NPW Act). Part 7 of the NPW Act is concerned with the protection of certain types of fauna, including fauna that is "protected fauna". Fauna is protected fauna if it is of a species that is not named in Sch 11 of the NPW Act. No species of reptile, including snakes is named in Sch 11 such that all lizards and snakes are protected fauna for the purposes of the NPW Act. Possession of protected fauna 5. Section 101(1) provides for a blanket prohibition on persons buying, selling or having in their possession or control any protected fauna. 6. Relevantly, the blanket prohibition in s 101(1) is by s 101(5)(a). That section provides that a person shall not be convicted of an offence arising under subsection (1) in respect of the possession of any protected fauna, if the person satisfies the court that he or she believed, on reasonable grounds, that the state of affairs constituting the offence existed under and in accordance with or by virtue of the authority conferred by a licence under Div 2 of Part 9 of the NPW Act or that the person otherwise obtained the fauna lawfully. Importing or exporting protected fauna 7. Section 106(1) provides for a blanket prohibition on person importing into or exporting from New South Wales any protected fauna. A person who breaches that prohibition is guilty of an offence. 8. Relevantly, the blanket prohibition in s 106(1) is qualified by s 106(3). That section provides for a defence where the defendant proves (on the balance of probabilities) that the act constituting the offence was done under and in accordance with or by virtue of the authority conferred by an import licence or an export licence under s 126 of the NPW Act. The licence system relating to protected fauna 9. As mentioned above, the NPW Act provides for defences in respect of the offences against s 101(1) and s 106(1) where the defendant proves in effect that what was done was authorised by a licence issued under Div 2 of Part 9 (which includes s 126). That Division provides for a system of licensing in respect of protected fauna. While the Division provides for a variety of such licences, only three (3) are relevant to the present matter: (a) the general licence under s 120, which authorizes the holder to, inter alia, obtain, hold or keep in possession or under control protected fauna and to dispose of by sale or otherwise any fauna that person has obtained, held or kept under the authority of the licence; (b) an import licence under s 126(1) authorising the holder to import protected fauna into New South Wales; and (c) an export licence under s 126(2) authorising the holder to export protected fauna from New South Wales. 10. One of the grounds on which an application for an import licence or an export licence may be refused is where the applicant is not the holder of a licence under the NPW Act (other than an import licence or an export licence) that authorizes dealings with the protected fauna. In effect, a person cannot get an import or export licence under s 126 unless he or she is the holder of a licence such as a general licence under s 120. Animal Keepers Licences 11. Animal Keepers' Licences issued pursuant to s 120 of the NPW Act are subject to particular conditions attached by the Director General in accordance with s 133(2). The conditions attached to the particular licence are to be found on the licence itself and generally concern aspects of the acquisition, possession and disposal of the protected fauna that may be held under the licence as well as the records that are required to be kept by the licensee and the content of those records: Import and Export Licences and their conditions 12. If the holder of an Animal Keepers' Licence wishes to import protected fauna into or export protected fauna from New South Wales, he or she is required to complete an Application for an Import or Export Licence for each such transaction. In the Application, the person applicant is required to provide: (a) their name, postal address and contact details; (b) the number of their general licence and the class of animals the person is authorised to deal with under that licence; (c) the name and address of the interstate person from whom the fauna is to be imported or to whom the fauna is to be exported together with details of the type and number of that person's interstate licence and the interstate import/export permit or movement number; (d) the period of time (not exceeding one month) when it is intended to import or export the fauna; and (e) details of the species common name, scientific name and the number that are intended to be imported or exported. 13. A separate import or export licence is required to be obtained for each separate consignment. The Import / Export Offences (CANs 2, 4 and 6) 14. Over the course of 2009 and 2010, Mr Simpson conducted the following imports and exports of protected fauna to and from New South Wales: (a) On or about 10 March 2009, Mr Simpson imported four (4) Boyd's Forest Dragons, two (2) Pigmy Spiny-tailed Skinks and three (3) Ring-tailed Geckos from Mr Jeff Wakefield of Queensland to New South Wales (CAN 2); (b) On or about 2 September 2009, Mr Simpson organised for two (2) Banded Knob-tailed Geckos to be exported from New South Wales to Mr Rob Porter of Queensland (CAN 4); (c) On about 1 September 2010, Mr Simpson organised for 4 Pygmy Pythons, 2 Chameleon geckos and 2 Banded Knob-tailed geckos to be sent to Mr Jeff Wakefield in Queensland (CAN 6). 15. In a voluntary record of interview conducted by investigators with Mr Simpson on 3 April 2012, Mr Simpson admitted to organizing, arranging and carrying out the above imports and exports, including completing application forms for import and export licences and liaising with the interstate counterparty to each of those transactions. Mr Simpson paid the fees in respect of the applications for licences and import/export permits using credit cards in the name of Shannon Hedges. 16. Between 1 January 2009 and 1 January 2013, Neil Simpson was not the holder of a general (Animal Keepers') licence. That being so, he could not and did not hold any import or export licences in that period. 17. However, in his record of interview, Mr Simpson says that each of these imports and exports were done under and in accordance with or by virtue of the authority conferred by import licences and export licences issued in the name of a Shannon Hedges. 18. Records kept by the Office of Environment and Heritage (OEH) indicate that an Animal Keepers' Licence (No AKL 61980) had been issued in the name of Shannon Hedges and was current over the relevant period in 2009 and 2010. That licence entitled the holder to acquire, possess and dispose of species of reptiles falling within class R2 (Advanced Reptile, Non Venomous) and species of amphibian falling within class A1 (Basic Amphibian). 19. OEH Records also indicate that in 2009 and 2010, it received various applications signed in the name of Mr Hedges to import and export protected fauna to/from Victoria and Queensland. As a result, OEH issued the following export licences to Mr Hedges: (a) Import Permit IE 094411, issued on 23 February 2009, to import four (4) Boyd's Forest Dragons, two (2) Pigmy Spiny-tailed Skinks and three (3) Ring-tailed Geckos from Mr Jeff Wakefield of Queensland (CAN 2); (b) Export Permit IE 095600, issued on 2 September 2009 to export two (2) Banded Knob-tailed Geckos to Mr Rob Porter of Queensland (CAN 4);and (c) Export Permit IE 107775, issued on 1 September 2010 to export four (4) Pygmy Pythons, two (2) Chameleon geckos and two (2) Banded Knob-tailed geckos to Mr Jeff Wakefield in Queensland (CAN 6). 20. Relevant pages of the Animal Keepers' Record Book for Shannon Hedges for the period 1 April 2008 to 31 March 2009 contain entries relating to the acquisition of the fauna that was the subject of the import conducted in March 2009. 21. Shannon Hedges has told investigators that he: (a) Did not know that Mr Simpson had imported or exported any protected fauna in Mr Hedges' name; (b) Did not know that Mr Simpson had applied and paid for any import or export permits in Mr Hedges' name; (c) Did not request or give permission to Mr Simpson to import or export any protected fauna in Mr Hedges' name; and (d) Did not request or give permission to Mr Simpson to apply for any import or export permits in Mr Hedges' name. The Possession Offence (CAN 7) 22. On 15 February 2012, investigators also executed a search warrant at 39 Mackinnon Avenue, Padstow. Surveillance conducted by investigators on various occasions throughout 2010 and 2011 led them to believe there was a connection between those premises and Mr Simpson. In short, motor vehicles that had been observed to be driven by Mr Simpson were seen parked out the front of or in the vicinity of 39 Mackinnon Avenue on occasion. On one such occasion, Mr Simpson was observed to be going back and forth between those premises and his car. 23. Investigators located and seized a number of reptiles from the premises at 39 Mackinnon Avenue, Padstow during the course of the execution of the search warrant on 15 February 2012. In particular, investigators seized the following: Four (4) Leopard Geckoes; One (1) Crested Gecko; One (1) Emerald Tree Monitor; One (1) Common Boa Constrictor; and Two (2) Centralian Carpet Pythons. 24. Each of the above species (except for the Centralian carpet pythons) was non-native to Australia and could not be the subject of an animal keepers' licence. Photographs of the above fauna are annexed to this statement of facts. 25. In addition to the surveillance evidence of Mr Simpson attending those premises, a number of items were located within those premises linking Mr Neil Simpson to the premises. 8An additional agreed fact relevant to the Appellant's state of mind is that the Appellant applied for an animal keeper's licence which I understand to mean a general licence as provided for under s 120 of the NPW Act in 1997 (see SOAF par 11). 9The Respondent tendered the PTB (exhibit 1) containing CANs dated 14 December 2012, the SOAF set out above, NSW Police Force criminal history of the Appellant, Western Australian criminal history of the Appellant, the Respondent's submission in the Local Court, the report of Mr Watson-Munro dated 5 September 2013 and transcript of the proceedings in the Local Court. The NSW Police Force criminal history of the Appellant identifies that he was imprisoned for three years and six months for making false statements to obtain money, given a suspended sentence of nine months on entering a bond for obtaining money by deception, and a suspended sentence of 12 months on entering a bond for possessing identity information to commit an indictable offence. The Western Australian criminal history of the Appellant shows that he was found guilty under s 16A(1) of the Wildlife Conservation Act 1950 (WA), fined $2,000 and paid costs of $9,660.50. 10An affidavit of Mr Glen Saunders, Director of Invasive Plants and Animals at the Department of Primary Industries, affirmed 11 March 2014 was read by the Respondent. It states that the possession of exotic fauna without a licence has the potential to cause harm to the environment by: (a)Disease introduced by exotic reptiles: There is a potential for fauna (particularly exotic fauna) to carry or develop diseases and/or introduce diseases to native fauna. For example, the leopard gecko can carry a variety of diseases including Coccidiosis and Cryptosporidium spp, which are protozoan pathogens that cause disease in a variety of species including humans (affidavit par 20). The crested gecko and emerald tree monitor may also contain diseases and pathogens which could impact on Australian ecosystems (affidavit par 22 and 24). (b)Invasive potential: There is a risk that new exotic reptile species could establish as wild pests in Australia. If such species escaped or were illegally released into a favourable environment, they could start to breed in the wild and spread to new locations (affidavit par 9). Once they are widespread, eradication becomes virtually impossible. (c)Competition with native animals: There is a potential that if exotic fauna escapes it may impact on populations of native fauna by competing for the habitat of native fauna or harming native fauna (affidavit par 10). Exotic reptiles can establish wild pest populations that cause environmental and economic harm. These introduced species have the potential to cause extinctions of native species, and reduce their range and abundance (affidavit par 8). When exotic reptiles hybridise with native species, and produce fertile offspring, the gene pool of the native species is corrupted. This may threaten the survival of native species. The negative impacts on native species can include predation, competition for food, basking sites and other resources, hybridisation and other genetic effects, spread of diseases and parasites, and poisoning through toxic skin glands or venomous bites. Exotic reptiles may also alter the habitat of native species and disrupt ecosystem dynamics. 11In this particular case, the Appellant unlawfully possessed fauna that is known to pose a threat to the environment, agriculture and humans (affidavit par 18). In NSW, the Non-Indigenous Animals Act 1997 and Non-Indigenous Animals Regulation 2012 identify classes of exotic fauna that are known to pose a threat to the environment, agriculture or persons (affidavit par 16). Of the fauna found at 39 MacKinnon Avenue, Padstow: (a)crested geckoes have been classed as a Category 1a exotic species for the purposes of the Non-Indigenous Animals Regulation 2012, being "animals of extreme pest potential, the keeping of which is generally not permitted" (affidavit par 21). (b)emerald tree monitors have been classed as a Category 1b exotic species for the purposes of the Non-Indigenous Animals Regulation 2012, being "animals that pose a higher risk controlled category of non-indigenous animal, not belonging to any particular category, the importation and keeping of which is generally not permitted" (affidavit par 23). (c)leopard geckoes have been classed as a Category 2 exotic species for the purposes of the Non-Indigenous Animals Regulation 2012, being "animals that pose an extreme or more serious threat to the environment, agriculture or persons" (affidavit par 19). (d)boa constrictors have been classed as a Category 3a exotic species for the purposes of the Non-Indigenous Animals Regulation 2012, being "animals that pose a less serious or moderate threat to the environment, agriculture or persons" (affidavit par 25). (e)the Centralian carpet python is a native species to Australia and naturally found in the Northern Territory and for this reason the species is not classified under the Non-Indigenous Animals Regulation 2012. However, the species is not native to New South Wales and for this reason it has the potential to impact negatively on the native biota of the State (affidavit par 28). 12The Appellant tendered a report of Mr Tim Watson-Munro, forensic psychologist, dated 25 March 2013 (exhibit A). The Appellant also tendered: (i)an import licence issued under s 126 of the NPW Act to Mr Shannon Hedges valid from 23 February 2009 expiring on 22 March 2009 with the application for the import licence; (ii)an export licence under s 126 of the NPW Act to Mr Hedges valid from 2 September 2009 expiring on 1 October 2009 with the import/export licence express processing form, application for the export licence; and (iii)another export licence under s 126 of the NPW Act to Mr Hedges valid from 1 September 2010 expiring on 30 September 2010 with the application for the export licence (exhibit B). 13Mr Watson-Munro's report dated 25 March 2013 prepared for other court proceedings in which the Appellant was charged, stated that the Appellant has been an ongoing client since late 2012, he had seen the Appellant on four occasions and had spoken to him on the telephone six times. The Appellant was before the court concerning three counts of possess documents with intent to use for an indictable offence, was arrested on 15 February 2012 and released on bail. Mr Watson-Munro notes the Appellant's history of fraud matters for which he has served a custodial sentence. The report stated that the Appellant describes suffering an undiagnosed obsessive compulsive disorder (OCD) and a substantial anxiety disorder escalated by a serious motor vehicle accident. The report stated that the Appellant told him that he has a longstanding interest in environmental issues which explains his obsessions with flora and fauna, particularly reptiles. The Appellant has primary care of his two children and his wife is the primary breadwinner. The Appellant was administered the Beck Depression Inventory which confirmed depressive illness. Mr Watson-Munro diagnosed the Appellant as suffering from OCD based on the Appellant's history of obsessions and the Appellant also suffers from severe depression. 14Mr Watson-Munro was cross-examined primarily concerning the above report. He stated that there were no other facts he relied upon other than what he was told by the Appellant and the Appellant's father. He did not have any documents at the time of preparing this report. Mr Watson-Munro stated that the Beck Inventory does not cover OCD, that OCD cannot be diagnosed by the Beck Inventory alone but his diagnosis was based on the nature of the Appellant's behaviour over many years. The Beck Inventory relies on the person's honesty and there is a possibility that a person is exaggerating or malingering. The Appellant made no reference to the offences now before the Court or that he was illegally housing reptiles at the time. 15The Appellant did not tell him how long ago the custodial sentence was for a fraud offence, of the 2008 suspended sentence for another fraud conviction, or of the fauna offence in Western Australia. He stated that these were significant omissions by the Appellant. Mr Watson-Munro was not sure that these omissions meant that the Appellant was malingering. Other things point to his obsessional behaviour of collecting reptiles. Mr Watson-Munro stated that a long standing interest in fauna in and of itself is not OCD and agreed that the clinical features of OCD are not set out in his report. Mr Watson-Munro agreed in strict clinical terms that there was no material in his report on which an OCD diagnosis could be made. He stated that there is a possibility that there is a nexus between the Appellant's OCD and the offences. 16In re-examination Mr Watson-Munro stated that the Appellant does not strike him as someone who is malingering, he is a house father who is dedicated to his family and highly anxious. Usually a malingering person does not contact Mr Watson-Munro after their court dates but that is not the case with the Appellant. The Appellant seems genuine with the caveat of the omission of information. Mr Watson-Munro has not changed his view about the Appellant's depression. The Appellant has shown improvement in his depression since 2012. 17Mr Watson-Munro in his report dated 5 September 2013 produced with knowledge of these current charges reiterates his opinion contained in the earlier report and states that since commencing treatment the Appellant has made solid progress. Mr Watson-Munro states that the Appellant has expressed remorse for his actions. Objective circumstances of the offences Importance of statutory scheme and s 194 factors in NPW Act 18The Respondent made the following submissions concerning the statutory scheme established under the NPW Act, which I accept. The objects contained in s 2A of the NPW Act are given effect by the blanket prohibitions in Pt 7 (including s 101(1) and s 106(1)) and the licensing system established by Pt 9 of the NPW Act outlined at par 5-13 of the SOAF. The fauna licensing system: (a)requires those wishing to possess protected fauna to: (i)obtain a general licence to possess protected fauna and to do so in accordance with the conditions set out in the licence; and (ii)to meet certain criteria in terms of age, experience and skill. (b)requires those involved in importing and exporting protected fauna to obtain a licence and to import and export protected fauna in accordance with the conditions set out in the licence. (c)is designed to ensure that animal welfare requirements are complied with and that fauna is dealt with in a manner that enables regulatory authorities to monitor and record the movement of protected fauna in NSW. (d)is designed to ensure that the Respondent is able to regulate, monitor and record the movement of protected fauna in and out and within NSW. 19The licensing scheme is crucial in enabling the Office of Environment and Heritage to track and adequately control the entry, movement and keeping of protected fauna that are harmful or potentially harmful to agriculture, fauna conservation and public safety (affidavit of Mr Saunders par 13). The key objectives of the licensing scheme are to ensure the following: (a)that there is transparency and accountability in the licensing system by requiring all Animal Keeper's Licence holders to record and report on all protected fauna that is possessed, imported or exported; (b)that those persons who keep protected fauna have the skills necessary to handle and rear that class of fauna; and (c)that only captive-bred animals are kept and traded by licence holders and that animals are not poached from the wild. Trade in protected fauna can be lucrative and the prices that certain protected fauna may attract can operate as an incentive for poaching from the wild. The licensing scheme seeks to establish transparency and accountability by requiring all Animal Keeper's Licence holders to record and report on how all protected fauna are acquired, possessed, imported or exported. 20It was submitted that the Appellant's possession, import and export of protected fauna outside the licensing system established under the NPW Act and the use of licences acquired in the name of another person undermines the regulatory system created by the NPW Act for the protection of wildlife. 21The Appellant used the identity of Shannon Hedges without Mr Hedges' knowledge to obtain permits in respect of the import and exports that the Appellant was not entitled to obtain or undertake. By this deception, the Appellant concealed his offences and undermined the integrity of the information that was provided to those responsible for the administration of the licensing regime. The actions of the Appellant undermined the protective regulatory scheme established by the fauna licensing system and had the potential to impede the ability of the regulating authorities to monitor and record the number of protected fauna that are imported, exported and possessed. 22The Respondent further submitted that the fact that there was apparent compliance with the other record keeping requirements of the licensing system does not mitigate the offences. To the contrary, that apparent compliance was part of the deception by which the Appellant concealed his offences, making them difficult to detect. Moreover, the Respondent can have no faith in the integrity of those records. These submissions are supported by the evidence of Mr Saunders identified above at par 19. 23The importance of this statutory scheme was highlighted in Terrey v Department of Environment, Climate Change and Water [2011] NSWLEC 141 at [63]-[64] and Morris v Department of Environment and Climate Change [2008] NSWLEC 309 at [13]. 24Section 194 of the NPW Act provides a number of matters which must be considered when imposing a penalty. The Court may also take into consideration other matters that it considers relevant: s 194(2). 25In relation to the s 106 offences, the Appellant argued that s 194(1)(a) and (h) apply. No environmental harm was or was likely to be caused by the commission of the offences. The offences were not committed for financial gain (subsection (h)). 26The Respondent submitted that in relation to s 194(1)(a) the affidavit of Mr Saunders highlights the harm or likely harm to the environment that was caused by the offences, particularly given that the majority of the protected species were exotic. I agree with this submission. In relation to s 194(1)(d) the Appellant has a long history of involvement and interest in protected fauna and the obtaining of licences under the NPW Act and a bachelor's degree in environmental science. The Respondent submitted that a person with the Appellant's experience and qualifications could reasonably have foreseen that possessing exotic fauna had the potential to cause harm to the environment. In relation to s 194(1)(e) the Court has to take into account the extent of control that the Appellant had over the causes of the offence. The Appellant had full control over his actions and the circumstances giving rise to the offences. Appellant's state of mind 27The Appellant submitted that the s 106 offences were of very low criminality as Mr Hedges was a real person, the animals were delivered to his address as identified in the relevant licences, the details provided in the licence application of the animals to be imported and exported were correct, the Department was on notice of the intention to move the specified species and could have but did not raise objections. The Appellant complied with the legislation but for applying under someone else's name. The s 106 offences are unlike an offence where no documentation is obtained and animals are completely concealed from the regulator. 28I agree with the Respondent that as a person who has previously applied for an animal keeper's licence in 1997, the Appellant was aware that he was required to personally obtain a licence to possess protected fauna and a licence to import or export protected fauna. The fact that the Appellant intentionally committed these strict liability offences with knowledge of the requirements of the licensing system makes these offences more objectively serious than similar offences not committed with that premeditation and knowledge. The state of mind of a person when committing a strict liability offence has been recognised as relevant to sentencing in this Court for many years, for example Director-General of the Department of Environment and Climate Change v Rae [2009] NSWLEC 137; (2009) 168 LGERA 121 at [42]-[46]. 29The Appellant submitted that the magistrate erroneously found that an aggravating factor under s 21A of the CSP Act existed in relation to whether an offence was part of a planned or organised criminal activity, in his finding that they were. This was based on his finding the offences were committed with premeditation and involved deception and dishonesty and with awareness of the regime regulating the keeping and transporting of wildlife. This approach was submitted to offend the principle in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 at 389 per Gibbs CJ who stated: However, the general principle that the sentence imposed on an offender should take account of all the circumstances of the offence is subject to a more fundamental and important principle, that no one should be punished for an offence of which he has not been convicted. Section 582 reflects this principle. The combined effect of the two principles, so far as it is relevant for present purposes, is that a judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence. 30I consider the Appellant's culpability is serious given that he acted knowingly and misleadingly to obtain licences under s 106 he could not have obtained in his own name because he did not hold an Animal Keeper's licence. That licence is a prerequisite to obtaining a licence under s 106. The s 101 offence of possession of protected fauna is more serious given that it is punishable by both a fine and/or a gaol term. This offence was also carried out knowingly by the Appellant. I do not consider that taking into account the Appellant's state of mind is infringing the principle in De Simoni. I agree with the Respondent's submission that even though the provision of false information on the applications cannot be taken into account as an aggravating factor, it is still open for the Court to consider that the offence was committed dishonestly because of the use of the licence in someone else's name to conduct his own import and export when not able to do so in his own name. 31According to the SOAF par 15 the Appellant made certain admissions to the investigators which can be accepted to the extent these were admissions. The Respondent submitted these were not full admissions, most relevantly the Appellant did not admit that Mr Hedges was unaware of the Appellant's behaviour in relation to the s 106 offences. This does not ameliorate my finding that the s 106 offences were carried out knowingly. 32The Appellant relied on the evidence of Mr Watson-Munro concerning his mental state submitting that this demonstrated a connection between the Appellant's offending and his long standing symptoms of anxiety and depression, and a diagnosis of OCD by him in late 2012. This was said to be relevant to his moral culpability. 33I did not gain much assistance from the reports or oral evidence of Mr Watson-Munro. His sole source of information about the Appellant was the Appellant and his father, the latter to an unexplained extent. As highlighted in cross-examination, the Appellant failed to disclose to Mr Watson-Munro all of his prior convictions which Mr Watson-Munro agreed were material omissions. There is an absence of any support in either report for the diagnosis of OCD, what it means for the Appellant's behaviour and why it can have any relevance to the moral culpability of the Appellant. To the extent it may exist as a condition which the Appellant suffers from, it may provide some explanation for his behaviour. It cannot without greater expert elaboration provide a basis for a submission that the Appellant's moral culpability was affected by the condition. I am not prepared to assume in the absence of credible evidence that a diagnosis of OCD means that a person's understanding of right from wrong is reduced. I do not consider there is any subjective circumstance arising from the Appellant's mental state which can be considered to reduce the objective seriousness of these offences. Maximum penalty 34The maximum penalties for the offences are as follows: (a)$11,000 in the case of each of the import and export offences against s 106(1) of the NPW Act (see s 175 of the NPW Act). (b)$11,000 or six months' imprisonment or both, in the case of the possession offence against s 101(1) of the NPW Act. 35In Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 at 478 the Court said: ... the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed: Ibbs v. The Queen [1987] HCA 46; (1987) 61 ALJR 525, at p 527; [1987] HCA 46; 74 ALR 1, at p 5. That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category. Objective seriousness of offences 36The s 101 offence is objectively more serious than the s 106 offences, as reflected in the potential for greater punishment through the imposition of a fine and/or a gaol term of up to six months or both. The Appellant accepted that the s 101 offence was more serious, also submitting that there was no actual harm occasioned and the potential for future environmental harm was minimal given the small number of animals and the security of their captivity. The animals were not exposed to contact with other persons. The Appellant was experienced in the handling of animals of this kind. 37The Appellant submitted in relation to the s 106 offences that these were at the lower end of the range of seriousness and were unusual in that the Local Court had determined only two other cases between 2008 and 2012 and imposed very low penalties of $250 and $400. 38I consider all the offences are of medium seriousness in the circumstances outlined above. It appears that these are the most serious offences of their type to come before the Local Court in the 2008 to 2012 period. Subjective circumstances Plea of guilty s 21A(3)(k) and s 22 CSP Act 39The fact, circumstances and timing of a plea of guilty is recognised in s 22 of the CSP Act as a matter a sentencing court must take into account. The Appellant pleaded guilty to four charges at the end of the first day of the two day hearing in the Local Court. The Local Court magistrate allowed a discount in penalty of 10 per cent. The Respondent supported that approach, the Appellant argued for 15 per cent because his early admissions narrowed the issues, cost and inconvenience to the Court and witnesses, two from interstate, were saved. The timing of the plea which cannot be described as early in these circumstances meant that there was some utilitarian value which should be recognised in that one day of the hearing was unnecessary. I consider a large amount of costs would have been incurred by that stage by the Respondent in any event. I agree with the magistrate's assessment of the appropriate reduction of penalty. Contrition and remorse s 21A(3)(i) 40Apart from the plea of guilty there is no direct evidence of remorse from the Appellant. Mr Watson-Munro's report dated 5 September 2013 states that the Appellant was remorseful. I do not give that any weight given the clear opportunity the Appellant had to express his remorse, if any, directly to the Court as part of this appeal. Antecedents 41The Appellant was born on 12 July 1964. He lives with his wife and two children in the family home in Petersham. He is unemployed, spending his time caring for his two children aged under 10 years. Further sentencing considerations Prior criminality s 21A(2)(d) CSP Act 42The Appellant does not have any prior offences for environmental offences in NSW. The Appellant has prior convictions in NSW and Western Australia which were before the Local Court: (a)On 24 November 2000, the Appellant was convicted in Penrith District Court of 7 offences of obtaining money by false statements (with a further 25 offences taken into account on a Form 1) and was sentenced to imprisonment for 3 years and 6 months. The Appellant's appeal to the Court of Criminal Appeal was dismissed. (b)On 21 October 2009, the Appellant was convicted in Waverley Local Court of 12 offences of obtaining money by deception and 1 offence of possessing a false instrument. The Appellant was sentenced to imprisonment for 9 months, suspended on entering into a bond and ordered to serve 300 hours of community service. (c)On 30 November 2010, the Appellant was convicted in Perth Central Local Court, Western Australia of 1 offence of possessing protected fauna and ordered to pay a fine of $2,000. (d)On 27 March 2013, the Appellant was convicted in Campbelltown Local Court of 2 offences of possessing identification information with intent to commit an offence and 1 offence of possessing equipment capable of making identity documents with intent to commit an offence and was sentenced to a 12 month suspended sentence. 43The Respondent accepted that the WA conviction can be relevant only to the s 101 offence as it is after the dates of commission of the s 106 offences in 2009 and 2010. 44The Appellant submitted that prior convictions may deprive an offender of leniency but do not aggravate an offence. In Veen v The Queen [No. 2] it was held at [14] - [15]: 14. ... the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v. Ottewell (1970) AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties. 45Section 21A(2)(d) states that prior convictions are an aggravating factor. The magistrate's approach that the Appellant had two prior convictions for dishonesty and for a similar fauna related offence in another State appears to be appropriate, the only caveat being that the WA offence can only be considered in relation to the s 101 offence due to timing. 46I do not accept the Appellant's counsel's submissions that the prior convictions do not manifest a continuing disobedience to the law with respect to offences under the NPW Act. I consider specific deterrence in particular is a relevant factor for this Appellant as explained below. Deterrence 47I accept the Respondent's submission that any penalties imposed should act as a general deterrent to ensure that those involved in the possession, import and export of protected fauna ensure that they do so in accordance with a licence issued under the NPW Act. The Respondent submitted that a strong element of general deterrence is particularly relevant in relation to these types of offences, which are difficult to detect and prevent. When offences are detected, penalties should be designed to send a clear message to the community that criminal breaches of environmental legislation will be penalised appropriately so that other offenders see that it is "not worth the candle". 48The Respondent further submitted that the need for general deterrence is increased by the fact that, if the Appellant is to be accepted, the import and exports were conducted with friends (or at least friendly associates) with a view to trading "in kind" as opposed to financial benefit. As was submitted before the learned magistrate, the informality of such arrangements carries the risk that the parties to the transaction may fail to comply with the strict requirements of the licensing regime. Specific deterrence 49The Respondent submitted that any penalties imposed should also reflect the strong need for specific deterrence in this matter for the following reasons: (a)the Appellant has one prior conviction for possessing protected fauna contrary to s 16A(1) of the Wildlife Conservation Act 1950 (WA); (b)the Appellant carried out the import and export offences with knowledge that he was required to obtain an import or export permit before importing or exporting fauna; (c)the Appellant has been involved in importing and exporting protected fauna under false licences and false identities. This conduct contributes to the seriousness of the import and export offences. It is also consistent with a history of fraudulent offending, particularly recent offending; (d)it is unlikely that the Appellant will be able to obtain a licence in his own name and there remains a risk that the Appellant will engage in similar conduct in the future. Any penalty imposed should act as a deterrent to the Appellant himself; and (e)as noted by Mr Watson-Munro, the Appellant has a longstanding obsession with reptiles, particularly snakes and lizards. The fact that the Appellant had possessed some of the animals the subject of the possession charge for 15 years or that some of those animals were the progeny of animals he had previously possessed indicates a long history of wilful non-compliance. 50I accept these submissions. Given the relevant prior convictions of the Appellant I consider that specific deterrence is a relevant consideration in sentencing of the Appellant. Evenhandedness 51The principle of evenhandedness requires that the Court consider if there is any sentencing pattern for like offences in order to determine a consistent approach to penalty (R v Visconti [1982] 2 NSWLR 104). This principle must always be applied subject to the particular circumstances of the case before the Court (Hoare v R [1989] HCA 33; (1989) 167 CLR 348). Only two other Local Court cases were identified in submissions. According to the Respondent the more usual course for offences of these kinds is for a penalty infringement notice (PIN) to be issued, imposing a fine of $300. There does not appear to be a comparable case or cases I can consider in the Local Court. Costs before the Local Court 52The Appellant submitted the magistrate failed to have regard or sufficient regard to the amount of costs the Appellant had agreed to pay when determining the amount of fines. The costs when added to the total fines resulted in a financial impost on the Appellant of $39,000. When regard is had to the maximum penalty ($44,000) and jurisdictional limit of the Local Court ($22,000) the penalties were towards the top of the range which should reflect a "worst case" category of offences, which these offences are not. The payment of a prosecutor's costs is an aspect of punishment and may be considered in the determination of the appropriate penalty as a factor that acts to reduce the penalty: Environment Protection Authority v Barnes [2006] NSWCCA 246 at [78], [88]. In that case Mason P, Kirby and Hoeben JJ confirmed an order for costs was an important aspect of the punishment in that case. Environment Protection Authority v Forestry Commission of New South Wales [2013] NSWLEC 101 at [160] was also referred to. 53I do not agree with the Appellant's counsel's approach to costs. The costs are not part of any penalty and should not be regarded in that way, contrary to the submission in the previous paragraph. That is not what was held by the Court of Appeal in Barnes. Costs can be considered as part of a judge's sentencing discretion. In Barnes, which I determined at first instance, I had evidence before me of the limited means of the defendant and took that into account in my consideration. In this case the agreed costs were sizeable no doubt because the Appellant did not plead guilty until the end of the first day of hearing. I do not have any evidence before me of the Appellant's means. I do not consider there is any basis for reducing the amount of penalties imposed because of the amount of agreed costs in the Local Court. Should totality principle be applied? 54The Appellant submitted that the totality principle should be applied given that there was more than one offence under s 106 per Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63. This principles requires a judge when sentencing for more than one offence to consider the overall criminality of the offender's behaviour to ensure the totality of fines imposed is appropriate and properly reflects the total criminality. It was accepted that the s 101 offence was separate and that some degree of accumulation is warranted. 55In relation to the s 106 offences, the Appellant submitted that these involved an identical pattern of low level offending on three separate occasions over an 18 month period. 56While the s 106 offences have similar facts they are separate offences given their timing and different counterparties. I do not consider the totality principle should be applied to these. The s 101 offence is objectively more serious and also stands alone for sentencing purposes. Finding on penalty 57I have held above that these matters are objectively serious. I cannot impose greater penalties on the Appellant than the Local Court not having given a Parker direction as required following Parker v Director of Public Prosecutions (1992) 28 NSWLR 282. The range of penalty I can consider is therefore to confirm those imposed in the Local Court or impose lower penalties. Given the various objective factors considered above and the lack of mitigating factors other than a limited reduction for a plea of guilty I consider the decision of the Local Court should be confirmed. I therefore dismiss this appeal. Costs of this appeal 58Section 49(4) of the Review Act gives the Court power, subject to s 70 which limits the circumstances in which a prosecutor can be ordered to pay costs, to make such order as to the costs to be paid by either party as it thinks just. A similar power is found in s 28(3) of the Review Act concerning appeals from the Local Court to the District Court. 59The Appellant submitted that if the appeal is dismissed he should not be ordered to pay the Respondent's costs because appellants should not be deterred from appealing against the severity of sentence. 60The Respondent submitted that in the event the appeal is dismissed it is open to the Court to make an order that the Appellant, having been unsuccessful in his appeal, pay the successful Respondent's costs of the appeal. Such an order is made not to punish the Appellant for his lack of success but rather to compensate the Respondent for the expense to which it has been put by the Appellant instituting and prosecuting his appeal: Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534 at 543, 563 and 567. The Respondent submitted that such an order is appropriate regardless of whether the appeal can be classified as arguable or not: Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349 at [114]. 61I have a broad discretion under s 49(4) of the Review Act to make an order for costs which is just. A severity appeal on sentence which is unsuccessful does not necessarily justify the making of a costs order. Each party should pay its own costs of this appeal on this occasion. Orders 62The Court makes the following orders: (1)The appeal is dismissed. (2)Each party to pay its own costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 April 2014