Lee v R

1. [1]

   JOHNSON J: By Notice of Appeal dated 1 May 2020, the Applicant, Joseph Ian Lee, seeks leave to appeal with respect to sentences imposed at the Sydney District Court on 18 December 2019 for offences under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (“EPBC Act”) and the Criminal Code (Cth).

2. [2]

   As will be seen, certain offences under the EPBC Act involve specimens classified in accordance with the Convention on International Trade in Endangered Species of Wild Fauna and Flora (Washington, 3 March 1973) [1976] ATC 290 (“CITES”).

The Offences and Aggregate Sentence

1. [3]

   Following pleas of guilty, the Applicant was sentenced by his Honour Judge King SC for the following offences:

2. [4]

   At the request of the Applicant, the sentencing Judge took into account on sentence, under s.16BA Crimes Act 1914 (Cth), the following additional offences:

3. [5]

   The Applicant was sentenced to an aggregate term of imprisonment for three years commencing 18 December 2019 and expiring on 17 December 2022, with a direction that he be released by way of a recognisance release order on 17 June 2021 after serving 18 months’ imprisonment. Proceeding by way of an aggregate sentence is available for several Commonwealth offences: Director of Public Prosecutions (Cth) v Beattie (2017) 270 A Crim R 556; [2017] NSWCCA 301 at [141]-[146].

4. [6]

   The sentencing Judge nominated the following indicative sentences:

Grounds of Appeal

1. [7]

   The Applicant relies upon the following grounds of appeal:

Facts of Offences

1. [8]

   An Agreed Statement of Facts (“Agreed Facts”) was tendered at the sentencing hearing which his Honour utilised for the purpose of passing sentence: R v Lee [2019] NSWDC 888.

2. [9]

   The sentencing Judge made findings of fact which were not challenged in this Court. His Honour commenced with an executive summary drawn from the Agreed Facts (at ROS[9]-[14]):

3. [10]

   His Honour found (at ROS[17]-[18]):

4. [11]

   His Honour made the following detailed findings concerning the Count 1 and Sequence 4 offences (at ROS[20]-[30]):

5. [12]

   The sentencing Judge then turned to the offences contained in Counts 2 and 3 and Sequence 6 (ROS[31]-[43]):

6. [13]

   His Honour recounted the execution by the Australian Federal Police (“AFP”) of the search warrant on 12 November 2018 and the record of interview conducted with the Applicant (ROS[44]-[46]):

7. [14]

   The sentencing Judge referred to material retrieved from the Applicant’s mobile phone (at ROS[47]):

The Applicant’s Subjective Circumstances

1. [15]

   The Applicant was born in September 1987 and was aged between 29 and 31 years at the time of the offences. He was 32 years old at the time of sentence.

2. [16]

   The Applicant had no prior criminal history.

3. [17]

   The Applicant gave evidence at the sentencing hearing on 17 December 2019.

4. [18]

   A sentencing assessment report dated 29 October 2019 of Ms Beth Debreczeny, Community Corrections Officer, was tendered by the Crown at the sentencing hearing. A report of Dr Marcelo Rodriguez, psychologist, dated 20 October 2019 was tendered in the defence case on sentence. Also tendered for the defence were references of persons who knew the Applicant, being Andrew Carruthers, Danai Beganovic, Kevin Tang and Dr Alexander Dennis.

The Sentencing Hearing and Sentencing Remarks

1. [19]

   The sentencing hearing took place on 17 December 2019, at the conclusion of which the sentencing Judge adjourned the proceedings until the next day for sentence.

2. [20]

   Given the grounds of appeal, it is appropriate to refer to a number of findings made by his Honour, including those which came under challenge or attracted submissions in this Court.

3. [21]

   The sentencing Judge referred to the objective seriousness of the offences (at ROS[54]-[63]):

4. [22]

   His Honour allowed a discount for the Applicant’s pleas of guilty and addressed the question of an “Ellis discount” (an aspect challenged in Ground 2) (at ROS[64]):

5. [23]

   Findings were made concerning the Applicant’s pleas of guilty and his period on bail (ROS[65]-[66]):

6. [24]

   His Honour made the following findings concerning the Applicant’s assistance to law enforcement authorities (an aspect challenged in Ground 3) (ROS[67]-[72]):

7. [25]

   His Honour then recounted the Applicant’s subjective matters in detail (ROS[73]-[87]).

8. [26]

   The sentencing Judge said the following with respect to the Applicant’s character (an aspect challenged in Ground 4) (ROS[77]):

9. [27]

   The sentencing Judge considered the Applicant’s health, risk of reoffending and prospects of rehabilitation (at ROS[88]-[90]):

10. [28]

    His Honour turned to issues of proportionality, specific deterrence and general deterrence (ROS[91]-[93]):

11. [29]

    His Honour found that a sentence of fulltime imprisonment was appropriate in the Applicant’s case (an aspect challenged in Ground 1) (ROS[94]-[96]):

Ground 1 - The Learned Sentencing Judge Erred in Failing to Consider Alternatives to Fulltime Imprisonment Available in Sentencing the Applicant

1. [30]

   Mr Ginges, counsel for the Applicant, submitted that, although the threshold under s.17A Crimes Act 1914 (Cth) may have been crossed (after consideration was given to the application of an “Ellis discount”), that approach only addressed the question of whether a term of imprisonment should be imposed and not how such a sentence should be served.

2. [31]

   Counsel pointed to submissions made in the District Court in support of a conclusion that an alternative to fulltime imprisonment should be utilised in this case by immediate release under a recognisance release order pursuant to s.20(1)(b) Crimes Act 1914 (Cth) (as a community-based suspended sentence) or pursuant to s.20AB Crimes Act 1914 (Cth) implementing a State-based sentence such as an intensive correction order (“ICO”).

3. [32]

   Mr Ginges submitted that the sentencing Judge, having determined that a sentence of imprisonment was warranted, did not then consider whether it could be served other than by fulltime imprisonment with no express finding being made that fulltime imprisonment was warranted (ROS[94]-[96] at [29] above). Whilst his Honour did impose a recognisance release order, that was only by reason of the sentence not exceeding three years and the manner in which the Crimes Act 1914 (Cth) prescribed that sentences of imprisonment are to be structured. It was submitted that the sentencing Judge did not consider the suspended sentence option provided by s.20(1)(b) Crimes Act 1914 (Cth).

4. [33]

   Counsel for the Applicant referred to decisions of this Court, including Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455 at [70]-[72] and Fedele v R (2016) 257 A Crim R 78; [2015] NSWCCA 286 at [21] in support of the submission that it was necessary for a sentencing Judge to consider, firstly, whether the offending crossed the threshold such that a term of imprisonment must be imposed with the second step being to determine the length of the sentence (or aggregate sentence) and the third step being to consider whether any available alternative may be appropriate in the circumstances or whether, having considered the alternatives, no alternative other than fulltime custody was appropriate.

5. [34]

   Counsel for the Applicant submitted that the sentencing Judge had properly undertaken the first step in this case with no issue being taken as to his Honour’s reasoning process with respect to the second step. It was submitted, however, that his Honour failed to engage in the third step at all so that consideration was not given to use of a suspended sentence under s.20(1)(b) Crimes Act 1914 (Cth) or an ICO.

6. [35]

   In this way, it was submitted that his Honour erred in failing to consider alternatives to fulltime imprisonment in sentencing the Applicant.

7. [36]

   The Crown submitted that the three-step process relied upon by the Applicant does not apply when sentencing a federal offender to a term of imprisonment. It was submitted that s.17A Crimes Act 1914 (Cth) sets out what a sentencing Judge must have regard to before passing a sentence of imprisonment on a federal offender - namely that, after having considered all other available sentences, the court is satisfied that no other sentence is appropriate in all the circumstances of the case.

8. [37]

   The Crown submitted that there is no express requirement under Part 1B of the Crimes Act 1914 (Cth) to consider alternatives to imprisonment once it has been determined that the s.17A threshold has been crossed. The Crown submitted that, whilst s.20AB picks up State additional sentencing alternatives, it provides that a court may pass such a sentence and does not impose an obligation that they must be considered as a sentencing option nor as an alternative to fulltime imprisonment.

9. [38]

   The Crown submitted that, in sentencing a federal offender, the court must ensure the sentence imposed is “of a severity appropriate in all the circumstances of the offence”: s.16A(1) Crimes Act 1914 (Cth).

10. [39]

    The Crown relied upon R v Togias (2002) 132 A Crim R 573; [2002] NSWCCA 363 at [22]-[23] in support of a submission that s.20AB(1A) Crimes Act 1914 (Cth) did not require the court to find, as a first step, the length of sentence to be imposed before considering whether (in that case), a sentence involving periodic detention could be utilised.

11. [40]

    The Crown submitted that the Crimes Act 1914 (Cth) differs from the Crimes (Sentencing Procedure) Act 1999 (NSW) in this important respect.

12. [41]

    The Crown submitted that, in any event, the sentencing Judge had complied with both the Crimes Act 1914 (Cth) approach and the three-step process referred to in New South Wales decisions. It was submitted that what occurred here had complied with the approach outlined in Douar v R at [72] and [74].

13. [42]

    The Crown relied, as well, upon Kannis v R [2020] NSWCCA 79 at [210].

14. [43]

    It was submitted that the sentencing Judge did consider the third stage and had formed the view that nothing short of fulltime imprisonment was appropriate having regard to the objective gravity of the Applicant’s offences (ROS[94]-[96] at [29] above). It was argued that the approach taken by the sentencing Judge in this respect should be considered against the submissions made by counsel for the Applicant at the sentencing hearing that, whilst the s.17A threshold may be crossed, it remained appropriate to consider alternatives to fulltime imprisonment.

15. [44]

    The Crown submitted that a fair reading of his Honour’s findings indicated that consideration had been given to sentencing alternatives against the background of submissions made at the sentencing hearing, with the conclusion being reached that fulltime imprisonment was the only appropriate sentence. It was submitted that such a conclusion was open having regard to the objective seriousness of the offences, the significant weight to be given to general deterrence and the requirements for denunciation of the conduct of the Applicant and to ensure he was adequately punished.

16. [45]

    The Crown submitted that the cases relied upon by the Applicant concerning the use of ICOs in New South Wales can either be distinguished or were otherwise of limited assistance. With respect to the Applicant’s reliance upon Fedele v R, it was noted that the Crown had acknowledged in that case that, although custodial sentences were appropriate, a suspended sentence would not be considered manifestly inadequate giving rise to a heightened need for reasons to be given for rejecting not only a suspended sentence, but other alternatives as well. In the present case, it was noted that the Crown submission at all times in the District Court had been that sentences of fulltime imprisonment were appropriate.

17. [46]

    The Crown submitted that this ground of appeal should be rejected.

18. [47]

    The Applicant was to be sentenced only for federal offences. The statutory provisions to be considered in his case were those contained in Part 1B Crimes Act 1914 (Cth) including, in particular, s.16A, s.17A, s.20 and s.20AB.

19. [48]

    Sections 17A and 20AB provide as follows:

20. [49]

    The decision of this Court in Douar v R was concerned with a State offender and provisions contained in the Crimes (Sentencing Procedure) Act 1999 (NSW). The offender in Fedele v R was being sentenced for a mixture of Commonwealth and New South Wales offences.

21. [50]

    It is the case that sentencing alternatives under State legislation may be considered by sentencing courts for federal offences so that application of s.20AB Crimes Act 1914 (Cth) can lead a sentencing court into application of relevant State sentencing legislation. However, the important point is that it is the federal legislation in Part 1B which is to be applied, and in particular s.16A, s.17A, s.20 and s.20AB Crimes Act 1914 (Cth).

22. [51]

    New South Wales has been a “participating state” for the purpose of s.20AB since 1990: Director of Public Prosecutions (Cth) v Ede (2014) 289 FLR 82; [2014] NSWCA 282 at [30].

23. [52]

    Some State or Territory laws contain a precondition for the making of an order of a kind described in s.20AB(1AA) that the court must first pass another sentence or make another order (including a suspended sentence or order). A court sentencing a federal offender is relieved of such a precondition by virtue of s.20AB(1A). The court may pass a sentence or make an order applied by s.20AB without first passing the other sentence or making the other order. If a State law requires that a court must first fix an appropriate term of imprisonment before considering whether it should be served by way of periodic detention, s.20AB(1A) is effective to remove that requirement: R v Togias (2002) at [22]-[23].

24. [53]

    However, s.20AB(1A) only relieves a court sentencing a federal offender of a “requirement” under State or Territory law to first pass another sentence or make another order. In Togias v R (2001) 127 A Crim R 23; [2001] NSWCCA 522, Spigelman CJ said (at [24]) that s.20AB(1A) should not be read as if the words “requires that … a court must first pass another sentence” encompassed both a negative and positive formulation as these words are negative rather than positive in effect. The words do not have the effect of removing a qualification under State law that a sentence of periodic detention was available only in relation to a sentence of imprisonment not exceeding three years: Togias v R (2001) at [24], [100]-[107]; Johnsson v R [2007] NSWCCA 192 at [17]-[24].

25. [54]

    A court sentencing a federal offender is not otherwise relieved of preconditions under State or Territory law that apply to the imposition of a sentence or making of an order applied by s.20AB. If the State law requires the consent of the offender to the making of the order, the same requirement would apply to the sentencing of a federal offender: Shambayati v R (1999) 105 A Crim R 373 at [15]. Similarly, if State law requires a prior assessment that the offender would be suitable for a particular type of order, the same requirement would apply to the sentencing of a federal offender: Fedele v R at [71]-[73], [100]-[101].

26. [55]

    If a sentence or order under s.20AB(1) is passed or made in respect of a federal offender, provisions of the laws of the relevant State or Territory with respect to such a sentence or order apply to and in relation to the sentence or order: s.20AB(3). The State or Territory provisions referred to in s.20AB(3) apply “so far as those provisions are capable of application and are not inconsistent with the laws of the Commonwealth”.

27. [56]

    In Atanackovic v R (2015) 45 VR 179; [2015] VSCA 136, the Victorian Court of Appeal (Weinberg, Kyrou and Kaye JJA) held (at [54]-[55], [59], [80]-[87]) that a State provision in relation to a community correction order, which permitted such an order to be combined with a term of imprisonment, was not applicable to the sentencing of a federal offender as it was inconsistent with Part 1B Crimes Act 1914 (Cth).

28. [57]

    If a federal offender is to be sentenced for more than one federal offence, it is open to impose a period of imprisonment for one offence and an order applied by s.20AB for one or more other offences: Atanackovic v R at [78]-[79].

29. [58]

    In Atanackovic v R (at [103]), the Victorian Court of Appeal said that s.17A reflected the well-established principle that imprisonment should be a last resort and that, before imposing a sentence of imprisonment, a sentencing court must consider “all other available sentences and all the circumstances of the case”. This Court expressed a similar view concerning s.17A in R v Winchester (1992) 58 A Crim R 345 at 348-349.

30. [59]

    In R v Fedele, after considering the terms of s.17A and s.5 Crimes (Sentencing Procedure) Act 1999 (NSW) (given that both sections applied in that case), Hidden J (Davies J agreeing) said at [26]:

31. [60]

    If a court imposes a sentence of imprisonment, it is required by s.17A(2) to give reasons and have them entered in the record of the court. The obligation to give reasons does not require that the sentencing court give separate and distinct reasons or run through a check list of possibilities and state why each of them is not appropriate: Warnakulasuriya v R [2009] WASC 257 at [33]. The reasons need only adequately explain why no other sentence but one of imprisonment is considered appropriate: Fedele v R at [28]-[36], [39].

32. [61]

    In Douar v R, this Court said at [72] and [74] with respect to the explanation to be provided by a sentencing court where a sentence of fulltime imprisonment is to be passed:

33. [62]

    In Kannis v R, this Court said at [210]:

34. [63]

    I accept the primary submission of the Crown that, in sentencing a federal offender, a court is required to have regard to the relevant provisions of Commonwealth legislation and, in particular, s.16A, s.17A, s.20 and s.20AB Crimes Act 1914 (Cth). Caution is required before applying principles emerging from decisions relating solely to State legislation.

35. [64]

    This does not mean that principles emerging from decisions such as Douar v R and Fedele v R have no application in a case such as this where the Applicant was to be sentenced solely for federal offences. Both s.17A Crimes Act 1914 (Cth) and s.5(1) Crimes (Sentencing Procedure) Act 1999 (NSW) are statutory reflections of the general sentencing principle that imprisonment is a sentence of last resort. Section 17A(2) requires a sentencing court to explain why no other sentence than one of imprisonment is appropriate in the particular case. There is no practical difference between the functions being served by s.17A and s.5 in this respect.

36. [65]

    It has not been demonstrated that the sentencing Judge erred in the manner asserted in the first ground of appeal. Submissions were made at first instance which accepted that the s.17A threshold had been crossed, but with arguments being advanced for the Applicant as to why a sentence other than fulltime imprisonment should be passed and with the Crown arguing consistently that only a sentence of fulltime imprisonment was appropriate in this case.

37. [66]

    I accept the Crown submission that the proper construction of his Honour’s sentencing remarks on this aspect involved a rejection of the defence submission and an acceptance of the Crown submission in the District Court that a sentence of fulltime imprisonment constituted the only appropriate sentencing outcome having regard to the objective gravity of the offences and other factors bearing on sentence, especially general deterrence. This approach complied with the requirements of s.17A Crimes Act 1914 (Cth): R v Engeln [2014] QCA 313 at [44]-[54].

38. [67]

    I note, in any event, that although adoption of the three-stage process (referred to in Douar v R) has been emphasised in New South Wales sentencing cases, a failure to approach the matter in this way is not itself indicative of sentencing error: Campbell v R [2018] NSWCCA 87 at [53] (Hamill J, Bathurst CJ and Schmidt J agreeing).

39. [68]

    To make good this ground of appeal, the Applicant must demonstrate that the sentencing Judge failed to consider sentencing options falling short of fulltime imprisonment. The Applicant has not demonstrated that this is so. Nor has the Applicant demonstrated that his Honour fell into error in some respect in the manner in which he determined the question whether a sentence of fulltime imprisonment was the only appropriate outcome in the circumstances of this case.

40. [69]

    In the circumstances of this case, it was, in truth, inevitable that a sentence of fulltime imprisonment would be imposed. I will return to this topic when considering the fifth ground of appeal which asserted that the sentence was manifestly excessive.

41. [70]

    I would reject the first ground of appeal.

Ground 2 - The Learned Sentencing Judge Erred in Failing to Give Effect to the “Ellis Discount”

1. [71]

   Mr Ginges submitted that an argument had been advanced in the District Court that an “Ellis discount” should be extended to the Applicant with respect to Counts 2 and 3 because, without his voluntary admissions to the AFP, there would have been no (or at least insufficient) evidence to prove either that he had abused his position as a Biosecurity Officer or that the monies in his safe were from the sale of illegally imported fish.

2. [72]

   It was also submitted that an “Ellis discount” should apply to the Sequence 6 offence concerning the Applicant having stolen five fish from his workplace (three of which were still in his possession at the time of arrest).

3. [73]

   Counsel for the Applicant referred to submissions made in the District Court on this issue which asserted that the Crown had conceded that, in the absence of the Applicant’s admissions to police, there would have been no knowledge of the commission of the offence in Count 2.

4. [74]

   Although the sentencing Judge had indicated that an “Ellis discount” had been taken into account, it was submitted for the Applicant that a specific discount should have been given for it. Mr Ginges noted that there was some controversy as to whether a sentencing Judge is required to specify an “Ellis discount” with respect to State offences, but conceded that there does not appear to be a requirement to quantify such a discount for Commonwealth offences.

5. [75]

   Relying upon the judgment of Adams J in Raad v R (2011) 220 A Crim R 471; [2011] NSWCCA 138 at [20], Mr Ginges submitted that the sentencing Judge had erred in his approach to general deterrence, given the finding that an “Ellis discount” should apply.

6. [76]

   It was submitted that the sentencing Judge had failed to apply his finding that an “Ellis discount” would be taken into account in sentencing for Counts 2 and 3 and Sequence 6.

7. [77]

   If, contrary to this submission, it was accepted that the sentencing Judge had applied an “Ellis discount” to these offences, it was submitted that the sentencing Judge had erred in providing an inadequate discount.

8. [78]

   The Crown noted that the principles arising from R v Ellis are reflected in s.16A(2)(h) Crimes Act 1914 (Cth). The Crown pointed to his Honour’s conclusion with respect to the “Ellis discount” and submitted that no error had been demonstrated concerning this approach (ROS[64] at [22] above).

9. [79]

   With respect to the submission based upon Raad v R concerning general deterrence (see [75] above), the Crown noted that the observations of Adams J were not endorsed by the other members of the Court in that case (McClellan CJ at CL and Buddin J) and that the statement of Adams J had been disapproved of expressly in Younan v R [2012] NSWCCA 155 at [25].

10. [80]

    The Crown submitted that, whilst it may aid transparency to quantify any discount applied, failure to identify a discount will not generally provide a ground of appeal: Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 at [185].

11. [81]

    The Crown submitted that it was appropriate for the trial Judge to have regard to the “Ellis principle” on sentence without quantification and with the value to be given to it to be taken into account as a subjective factor on sentence: R v Dib [2003] NSWCCA 117 at [53]; R v GLB [2003] NSWCCA 210 at [33].

12. [82]

    To the extent that the Applicant’s submissions in support of this ground asserted that an insufficient discount had been allowed by reference to the “Ellis principle”, the Crown submitted that the weight to be given to this factor was a matter for the sentencing Judge and that error has not been demonstrated in this respect.

13. [83]

    The sentencing Judge had regard to the voluntary disclosures made by the Applicant in accordance with the “Ellis principle” (ROS[64] at [22] above).

14. [84]

    This aspect was a subjective factor to be taken into account in the Applicant’s favour on sentence, but did not require application of a quantified discount.

15. [85]

    As McHugh J observed in Ryan v The Queen (at [15]), the “Ellis principle” is “a factor to be taken into account” on sentence but it is “not a statement of a rule to be quantitatively, rigidly or mechanically applied”. Hayne J stated in Ryan v The Queen (at [144]) that sentencing “is not a mathematical process” and that “metaphorical references to ‘credit’, ‘discount’ or the like, must therefore not be taken literally”. Hayne J’s later reference to the Ellis ground (at [152]-[153]) made clear that there was no requirement to quantify any allowance on sentence by application of the “Ellis principle”. Callinan J (at [185]) observed that consideration of voluntary assistance by reference to the “Ellis principle” did not necessarily require a quantified allowance or discount. Gummow J (at [63]) agreed with Callinan J on this issue.

16. [86]

    In CMB v Attorney General (NSW) (2015) 256 CLR 346; [2015] HCA 9, French CJ and Gageler J (at [40]-[44]) noted s.22 and s.23 Crimes (Sentencing Procedure) Act 1999 (NSW) and emphasised McHugh J’s observation in Ryan v The Queen that the “Ellis principle” is “not a statement of a rule to be quantitatively, rigidly or mechanically applied”. Kiefel, Bell and Keane JJ (at [70]-[78]) referred to s.23 Crimes (Sentencing Procedure) Act 1999 (NSW) and the “Ellis principle” without expressing disagreement with McHugh J’s statement in Ryan v The Queen.

17. [87]

    There was no requirement for the sentencing Judge in this case to quantify any allowance to the Applicant on sentence under the “Ellis principle” for his voluntary disclosure to police. The use of the term “Ellis discount” has the potential to mislead if it is read as requiring a quantified discount, certainly with respect to federal offenders. It is preferable to speak of the “Ellis principle” as a recognised factor to be taken into account as a subjective factor on sentence. As in Ryan v The Queen, it was sufficient for his Honour to take the factor into account in the Applicant’s favour on sentence as his Honour stated that he did: R v GLB at [33].

18. [88]

    With respect to the Applicant’s reliance upon Raad v R, I accept the Crown submission that the statement of Adams J in that decision concerning the relationship between the “Ellis principle” and general deterrence is not correct and should not be followed. Adams J said in Raad v R at [20] (emphasis added):

19. [89]

    I express my agreement with the following statement of Latham J (Hoeben JA and Garling J agreeing) in Younan v R at [25]:

20. [90]

    The italicised words to which Latham J referred are those emphasised in the passage set out at [88] above.

21. [91]

    The sentencing Judge was conscious of the operation of the “Ellis principle” in this case. It is important, however, that the role of the “Ellis principle” not be overstated in this case. The Applicant had been under investigation by law enforcement authorities for some time before the execution of a search warrant and his arrest by AFP officers on 12 November 2018. As the Agreed Facts made clear (ROS[25] at [11] above), the Applicant had been detected in telephone intercepts between 2 September 2018 and 5 November 2018 discussing the sale of illegally imported specimens. The Applicant had become aware in March 2018 that his employer Department was conducting controlled purchases of fish as an investigatory measure and had modified his own illegal practices accordingly (ROS[46] at [13] above). The fact that a search warrant was executed on 12 November 2018 upon the Applicant’s residence indicated that the AFP were investigating his criminal conduct and were aware of his position as a Commonwealth public official.

22. [92]

    As the sentencing Judge recognised, the Applicant made admissions which warranted the “Ellis principle” being taken into account in his favour (ROS[64] at [22] above). However, this was a case where application of the “Ellis principle” was to reflect the fact that the Applicant’s criminal conduct was already known to the AFP, with his admissions serving to strengthen the prosecution case in the manner identified by the sentencing Judge.

23. [93]

    The Applicant has not demonstrated error in his Honour’s approach to application of the “Ellis principle” in this case. It has not been demonstrated that his Honour failed to apply that factor in sentencing the Applicant.

24. [94]

    To the extent that it is contended under this ground of appeal that greater weight should have been given to this factor on sentence, I do not consider that this argument assists the claim of error under this ground: Carr v R [2020] NSWCCA 214 at [45]-[49]. I will return to this argument when considering the claim of manifest excess in the fifth ground of appeal, together with other factors relied upon by the Applicant in support of that ground.

25. [95]

    I would reject this ground of appeal.

Ground 3 - The Sentencing Judge Erred in Failing to Give Any Discount on Account of the Applicant’s Assistance and Offer to Assist

1. [96]

   Mr Ginges submitted that the Applicant had provided assistance to authorities and offered to assist, and that reliance was placed upon these matters in submissions made in the District Court in addition to consideration of the “Ellis principle”. It was submitted that his Honour had erred in the approach taken to the Applicant’s assistance (ROS[67]-[72] at [24] above). It was submitted that the Applicant had provided real and tangible information in his own interview about the involvement of Sam Murphy, but that his Honour had erred in failing to allow any discount on behalf of the Applicant’s information concerning Mr Murphy and Mr Murphy’s associate.

2. [97]

   Counsel for the Applicant submitted that the policy objectives behind extending leniency to those who provide assistance to the authorities for the purpose of s.16A(2)(h) Crimes Act 1914 (Cth) (R v Perez-Vargas (1986) 8 NSWLR 559 at 562) called for a discount to be applied in sentencing the Applicant in this case.

3. [98]

   It was submitted that his Honour erred in refusing to provide any discount for the Applicant’s assistance.

4. [99]

   The Crown pointed to the evidence before the District Court concerning the Applicant’s provision of assistance to the AFP and noted the assessment of the value of that assistance was “low”. It was submitted that it was for the sentencing Judge to assess for himself the level of assistance provided to authorities.

5. [100]

   In considering the question of discount for assistance to authorities, the Crown referred to the principles summarised by Wigney J in Director of Public Prosecutions (Cth) v Kawasaki Kisen Kaisha Ltd (2019) 137 ACSR 575; [2019] FCA 1170 at [328]-[334].

6. [101]

   The Crown submitted that there was no evidence before the sentencing Judge as to the use (if any) made by law enforcement officers of the information provided by the Applicant in November 2018 and there was no basis to assess whether this information was genuine and/or reliable.

7. [102]

   As to the information given by the Applicant in September 2019, the Crown submitted that it was open to the sentencing Judge to conclude that this attracted no discount for assistance given the contents of the letter of assistance which was before the District Court.

8. [103]

   The Crown submitted that no error had been established by the Applicant in the approach of the sentencing Judge declining to give a discount for assistance.

9. [104]

   Section 16A(2)(h) Crimes Act 1914 (Cth) requires a sentencing court to take into account the degree to which the person has co-operated with law enforcement agencies in the investigation of the offence or of other offences. It was not submitted for the Applicant in the District Court, nor in this Court, that s.16AC Crimes Act 1914 (Cth) had application to him, with that section relating to a quantified reduction of sentence because a federal offender has undertaken to co-operate in the future with law enforcement agencies.

10. [105]

    It was a matter for the sentencing Judge to determine how, and in what way, any past assistance provided by the Applicant to law enforcement authorities should be taken into account on sentence. A sentencing court is not required to quantify any discount for past assistance: R v Gallagher (1991) 23 NSWLR 220 at 226-230.

11. [106]

    It is important to keep in mind, as well, the potential for overlap between several subjective factors where assistance to authorities is involved: R v Gallagher at 227. An overlap of this type arose here given the Applicant’s reliance upon the “Ellis principle” as a subjective factor operating in his favour as well as a submission that his assistance to law enforcement authorities called for a discount.

12. [107]

    The evidence before the sentencing Judge indicated that the Applicant had interacted with the AFP on 12 November 2018 (when he was interviewed after his arrest) and on 23 September 2019 and 20 November 2019 when he approached the AFP in the period before his sentencing hearing.

13. [108]

    A letter of assistance dated 3 December 2019 was tendered at the sentencing hearing. The letter related to the steps taken by the Applicant on 23 September 2019 and 20 November 2019 and noted that the Applicant did not provide any new intelligence with the evaluation of his assistance being graded as “low”. It was stated in the letter that the information provided by the Applicant did not increase substantially the AFP’s information holdings and was of low intelligence value and that it in no way advanced a criminal investigation being conducted. The letter stated further that the Applicant’s information was vague in nature and was not from the Applicant’s direct knowledge or expertise and that the use and value of the information would be compromised as the Applicant’s court proceedings had appeared in the media with the information being provided some eight months after the Applicant’s arrest.

14. [109]

    The sentencing Judge considered the evidence bearing upon the Applicant’s assistance to authorities (ROS[67]-[71] at [24] above). His Honour then expressed the conclusion in which he declined to allow a discount for assistance (ROS[72] at [24] above).

15. [110]

    It was a matter for the sentencing Judge to make an assessment of the level of assistance provided by the Applicant and its value. With respect to the information provided in September 2019, the letter of assistance indicated the low value of that material. It was relevant that the information provided in September 2019 came long after the relevant events and was based upon material already in the public arena.

16. [111]

    The sentencing Judge was required to have regard to objective evidence of the assistance the Applicant had provided, and to make an assessment as to the value to be given to that assistance, with there being no obligation for a sentencing court to quantify a discount for co-operation: Director of Public Prosecutions (Cth) v Kawasaki Kisen Kaisha Ltd at [330]-[333].

17. [112]

    His Honour was not bound to extend a discount to the Applicant based upon the assistance he had provided. Nor was the Applicant’s position advanced materially by a general indication in his evidence at the sentencing hearing that he was prepared to assist the authorities. As his Honour observed, the Applicant’s evidence on 17 December 2019 did not indicate the actual assistance he could give and the Applicant had already had the opportunity since his arrest on 12 November 2018 to provide relevant assistance (ROS[72] at [24] above).

18. [113]

    The Applicant has not demonstrated error in his Honour’s approach to this issue. I would reject this ground of appeal.

Ground 4 - The Sentencing Judge Erred in Relying Upon the Applicant’s Employment as a Biosecurity Officer to Reduce his Prior Good Character as a Mitigating Factor in Circumstances Where the Applicant’s Employment was Already Relied Upon in Proof of an Element (of Count 2) and had not Been Obtained for the Purpose of Committing Any Offences

1. [114]

   Counsel for the Applicant noted that the Applicant’s character was a factor to be considered in determining sentence under s.16A(2)(m) Crimes Act 1914 (Cth).

2. [115]

   It was submitted that the Applicant had not obtained his employment for the purposes of committing offences and had commenced as a Biosecurity Officer in 2011, five years prior to the commencement of his offending conduct.

3. [116]

   Counsel for the Applicant relied upon Merhi v R [2019] NSWCCA 322 in support of this ground, contending that the Applicant’s prior good character should not have been put to one side as occurred here. The court in Merhi v R considered that, because abuse of trust was relied upon as an aggravating factor, a failure to have regard to Ms Merhi’s prior good character constituted a form of impermissible double counting. Whilst the offender in Merhi v R was sentenced for an offence of bribery of a public official contrary to s.141.1(1) Criminal Code (Cth) and the Applicant’s offence was one of abuse of public office contrary to s.142.2(1)(a)(iii) Criminal Code (Cth), it was submitted that the principle applies analogously to the Applicant.

4. [117]

   It was submitted that the Applicant did not use his prior good character for the purpose of committing the offence as he had obtained his employment over five years before the offending and breach of trust of his employer was an element of the Count 2 offence. It was submitted that it was erroneous for the sentencing Judge to rely upon the Applicant’s employment as a factor to deny him the benefit of his prior good character on sentence.

5. [118]

   Counsel for the Applicant submitted that the sentencing Judge had reduced the importance of the Applicant’s good character because of the offences for which he was being sentenced, contrary to what was said by McHugh J in Ryan v The Queen (at [23]-[25]). It was submitted that, whilst the sentencing Judge did have regard to the Applicant’s prior criminal antecedents when considering his prospects of rehabilitation, that was in respect of a separate sentencing factor under s.16A(2)(n) Crimes Act 1914 (Cth).

6. [119]

   In circumstances where it was open to the sentencing Judge to direct that the sentence be served in the community (by way of an ICO or suspended sentence), it was submitted that the failure to allow the Applicant the full relevant benefit of his prior good character had additional significance in this case.

7. [120]

   The Crown submitted that Merhi v R can be distinguished from the present case. Error had been demonstrated in that case as the sentencing Judge had regard to the offender’s breach of trust as an aggravating factor and then reduced the significance of prior good character based on the same factor (at [51]). To the contrary, in the present case, the Crown submitted that his Honour did not deny the Applicant the benefit of prior good character. Rather, the sentencing Judge found it to be “of somewhat more diminished importance” and that, in this regard, his Honour was balancing the Applicant’s prior good character with the fact that his lack of previous criminal history allowed him to become a Biosecurity Officer and had put him in a position of high trust which he then abused.

8. [121]

   It was submitted that the sentencing Judge’s approach was consistent with authorities which have held that prior good character is to be afforded less weight than it would otherwise attract in cases where the prior good character of the offender enabled him or her to be in a position in which to commit the offence: R v Obeid (No. 12) [2016] NSWSC 1815 at [94].

9. [122]

   The Crown submitted that it was clear from the sentencing remarks concerning the Applicant’s prior good character that his Honour was addressing all of the offences, and not merely Count 2 and Sequence 6. The Applicant’s employment as a Biosecurity Officer was also relevant to Count 1, Count 3 and Sequence 4 because this was the context in which the Applicant was able to possess, and later sell, the non-native CITES regulated specimens.

10. [123]

    With respect to the proceeds of crime offence (Count 3), the Crown relied upon R v Huang; R v Siu (2007) 174 A Crim R 370; [2007] NSWCCA 259 at [36] concerning circumstances where prior good character may have less significance for that class of offence.

11. [124]

    The Crown submitted that his Honour’s approach to the Applicant’s prior good character was entirely consistent with the statement of McHugh J in Ryan v The Queen (at [25]) that the weight to be given to an offender’s otherwise good character will vary according to all of the circumstances.

12. [125]

    The Crown submitted that this ground ought be rejected.

13. [126]

    The sentencing Judge was required to have regard to the character of the Applicant for the purpose of determining sentence: s.16A(2)(m) Crimes Act 1914 (Cth). The Applicant had no prior convictions.

14. [127]

    It was the case that the Applicant had been employed in the Commonwealth Public Service since 2011 in a position where good character was a requirement of service. Whilst so employed, the Applicant committed serious offences which included abuse of public office and the misuse of information obtained through his employment for the purpose of committing offences.

15. [128]

    The sentencing Judge’s approach (at ROS[77] at [26] above) did not involve error. In effect, his Honour was observing that the Applicant’s prior good character had enabled him to obtain and retain a position in the Commonwealth Public Service which he then abused in various ways by the commission of offences. Having regard to the way in which prior good character may be considered on sentence, error has not been demonstrated in his Honour’s approach.

16. [129]

    In R v Gent (2005) 162 A Crim R 29; [2005] NSWCCA 370, this Court said at [48]-[53]:

17. [130]

    It is a well-recognised sentencing principle that, in cases involving abuse of public office where the need for general deterrence is especially strong, prior good character is to be afforded less weight than it otherwise would: R v Obeid (No. 12) at [94].

18. [131]

    I do not consider that the Applicant is assisted by the decision of this Court in Merhi v R. In that case, it was found that there had been impermissible double counting which gave rise to error.

19. [132]

    In the present case, his Honour was sentencing the Applicant for a number of offences and it was open to him to take the view that the Applicant’s prior good character was “of somewhat more diminished importance than it would otherwise be” because of the position which he occupied in the Commonwealth Public Service and the offences for which he was to be sentenced.

20. [133]

    No error has been demonstrated in his Honour’s approach in this respect.

21. [134]

    I reject this ground of appeal.

Ground 5 - The Sentence Was Manifestly Excessive in all the Circumstances

1. [135]

   Mr Ginges submitted that the aggregate sentence imposed upon the Applicant was manifestly excessive. He pointed to the notional starting points for the individual sentences prior to application of the discount for the Applicant’s guilty pleas.

2. [136]

   With respect to Count 1, he submitted that the offence involved the possession of four regulated specimens, with three of the fish having come into the Applicant’s possession when he stole five fish from his workplace instead of euthanising them (Sequence 6). Having regard to the small number of fish, the secure way in which they had been cared for (so that they did not represent a risk to the environment) and that they were being possessed for personal (and not commercial) purposes, it was submitted that the offence in Count 1 fell towards the lower end of the spectrum of objective seriousness. Reliance was placed upon the decision in R v Kennedy (2019) 101 NSWLR 121; [2019] NSWCCA 242 at [86](2) in support of a submission that the Applicant’s offence did not place at risk any Australian species.

3. [137]

   It was submitted that a starting point sentence of 16 months’ fulltime imprisonment for the Applicant’s Count 1 offence was plainly unreasonable or unjust having regard to the circumstances of the offence.

4. [138]

   With respect to Count 2, although the offending was serious and was aggravated by the period over which it occurred, it was submitted that the objective seriousness of the offence fell below the mid-range of offences captured by that provision which is capable of applying to a wide range of circumstances. It was submitted that the Applicant had voluntarily ceased his offending in respect of Count 2 some nine months prior to disclosing his offending to police in his interview. In these circumstances, it was submitted that application of the “Ellis principle” loomed large with the need for specific deterrence being minimal. In these circumstances, it was submitted that a notional starting point of 32 months’ imprisonment was manifestly excessive.

5. [139]

   With respect to Count 3, it was submitted that the amount of money in the Applicant’s possession was $350.00 over the threshold of $10,000.00. It was, as the sentencing Judge found, an offence at the bottom of the range of objective seriousness. Counsel for the Applicant submitted that the money which constituted the proceeds of crime offence arose from the Applicant’s personal interest in illegal exotic fish and not a commercial venture or a venture borne of greed.

6. [140]

   It was submitted that the Applicant’s admissions enabled Count 3 to be charged against him so that the “Ellis principle” was a significant factor on sentence for this offence.

7. [141]

   Counsel for the Applicant submitted that a starting point of 16 months’ imprisonment for this offence was manifestly excessive.

8. [142]

   Counsel for the Applicant submitted that the aggregate sentence was manifestly excessive in all the circumstances and that this Court should intervene and resentence the Applicant.

9. [143]

   The Crown submitted that the Applicant had not demonstrated that the sentence was manifestly excessive.

10. [144]

    In relation to Count 1 (and Sequence 4), the Crown submitted that the legislature has conveyed the degree of seriousness of an offence under s.303GN EPBC Act by fixing a maximum penalty of five years’ imprisonment and that general deterrence is a critical sentencing principle with respect to cases under this legislation which involves threats to Australian fish, fauna and biodiversity and warrants stern punishment: R v Kennedy at [85]. The Crown submitted that this Court has said previously that offences contrary to Part 13A EPBC Act would normally attract a fulltime custodial sentence: Morgan v R [2007] NSWCCA 8 at [11].

11. [145]

    It was submitted that the offence contained in Count 1 should not be characterised as being of low objective seriousness. The possession offences were serious by reference to the range and number of specimens, the fact that the Applicant used his employment to possess regulated live specimens and because the Applicant’s position meant he well understood the potential adverse consequences of his actions, yet he persisted over a significant period of time for his own financial gain.

12. [146]

    With respect to Count 2 (and Sequence 6), the Crown submitted that abuse of public office is a very serious offence as it involves a betrayal of the trust that the public has placed in public officials and has the potential to undermine public confidence in public officials and public institutions: Retsos v R [2006] NSWCCA 85 at [31]; R v Allan; Ex parte Commonwealth Director of Public Prosecutions [2016] QCA 270 at [25]; R v Bartels [2018] SASCFC 34 at [33], [75] and R v Gillett [2019] ACTSC 30 at [87].

13. [147]

    The Crown submitted that general deterrence is a fundamental consideration when imposing a sentence on a public official who has abused their position: R v Lamella [2014] NSWCCA 122 at [57]; R v Bartels at [76]; R v Gillett at [83].

14. [148]

    It was submitted that the Applicant’s conduct represented an ongoing breach of trust as it occurred on multiple occasions over a 16-month period. Contrary to the submission for the Applicant, the Crown submitted that the Applicant only voluntarily ceased his offending when he became aware that the Department was conducting controlled purchases of CITES, non-native CITES and regulated specimens and that he may be caught. The Crown submitted that the Applicant’s offending in breach of public office was objectively serious.

15. [149]

    With respect to the proceeds of crime charge (Count 3), the Crown noted that this Court has recognised that general deterrence of a very significant degree is required for proceeds of crime offences: R v Huang; R v Siu at [36]. This offence involved a not insubstantial amount of money being the financial benefits of selling illegally imported fish and the Applicant was well aware that the money was the proceeds of crime.

16. [150]

    It was submitted that consideration of comparable cases was of limited utility in this case as an aggregate sentence was imposed. In any event, the Crown submitted that consideration of comparative sentences serves to indicate that the sentence imposed upon the Applicant was well within range.

17. [151]

    The Crown submitted that the Applicant’s offences were objectively serious and that general deterrence was of particular relevance, with specific deterrence being less significant for the reasons given by the sentencing Judge. It was submitted that the process of sentencing is an intuitive one and that the sentencing outcome in the present case had not been demonstrated to be manifestly excessive.

18. [152]

    In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 (at [443]), R A Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) summarised the principles to be applied on a sentence appeal where there is a claim of manifest excess:

19. [153]

    I approach this ground of appeal upon the basis that the Applicant has not made good any of his grounds of appeal challenging particular findings made by the sentencing Judge. No ground of appeal sought to challenge the assessment of objective seriousness made by his Honour with respect to the various offences.

20. [154]

    In a number of respects, this was an unusual case. The Applicant’s offences under the EPBC Act were committed by him at a time when he was a public official occupying a position within the relevant Department which administered the EPBC Act itself. In that capacity, the Applicant acquired knowledge and understanding of the relevant law which he utilised in committing the offences. As the sentencing Judge observed, the Applicant “identified holes or vulnerabilities in the live fish importation system” used by his employer Department and then “exploited them” to his own advantage (ROS[33] at [12] above). The Applicant provided “inside information as to how to avoid detection when importing regulated specimens” (ROS[58] at [21] above).

21. [155]

    It is true that the Applicant’s case may be distinguished from cases such as R v Kennedy, where the offender was committing offences under the EPBC Act for the purpose of substantial commercial profit. That said, the offender in R v Kennedy was not a public official in a position of trust and with responsibilities to administer faithfully the terms of the legislation which the Applicant breached.

22. [156]

    It is important to view the Applicant’s criminality in an overall way, having regard to the individual offences, but also the interrelationship between them. As the sentencing Judge observed, “each of the offences is related” and “involved the offender in abusing the trust that was placed in him as a Senior Biodiversity Officer” (ROS[54] at [21] above).

23. [157]

    At the hearing in this Court, counsel for the Applicant acknowledged that the possession offences (Count 1 and Sequence 4) were connected intimately with the Applicant’s role as a Senior Biosecurity Officer (T13-14, 24 July 2020).

24. [158]

    The fact that the Applicant may have been bored and disenchanted in some way with his employment provided little assistance to him on sentence when he abused his position of trust in committing these offences.

25. [159]

    The sentencing Judge had regard to the Applicant’s prior good character in a way which accorded with the law.

26. [160]

    In my view, given the combination of offences committed by the Applicant, it was inevitable that a sentence of fulltime imprisonment would be imposed in this case. These were significant offences under the EPBC Act being committed by a public official who committed an offence as well as abusing his public office. As the sentencing Judge found, the Applicant “used his position of trust to identify weaknesses in the system and assist in facilitating illegal importations for his own financial gain” (ROS[18] at [10] above). There was no realistic prospect of a sentence short of fulltime imprisonment being imposed upon the Applicant in this case.

27. [161]

    The maximum penalties for the various offences for which the Applicant was to be sentenced provided sentencing yardsticks with respect to the fixing of penalty: Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 at [27]. The sentencing Judge had regard to these sentencing yardsticks and made appropriate assessments as to the objective seriousness of the various offences. Proper regard was had to the Applicant’s subjective circumstances in determining sentence.

28. [162]

    General deterrence was a very significant factor on sentence in this case. The Applicant was utilising inside knowledge for the purpose of breaching the law which it was his responsibility to administer. It was important that a strong message be sent, through the sentences to be imposed upon the Applicant, to others in public office that criminal abuse of trust would be met by heavy sentences: R v Nikolovska (2010) 209 A Crim R 218; [2010] NSWCCA 169 at [57]; Dwayhi v R (2011) 205 A Crim R 274; [2011] NSWCCA 67 at [110]. The Applicant used and abused his position and specialised knowledge for the purpose of committing the offences: R v Lamella at [34], [57].

29. [163]

    I do not consider that the Applicant is assisted by consideration of other sentencing decisions. As noted earlier, the Applicant’s case is an unusual one involving a combination of an offence under the EPBC Act and serious offences of engaging in conduct as a public official to obtain a dishonest benefit and money laundering. In addition, there were serious offences to be taken into account under s.16BA Crimes Act 1914 (Cth) which required appropriate recognition on sentence in accordance with the principles in R v Lamella at [48]-[49].

30. [164]

    I have had regard to the application of the “Ellis principle” to the Applicant’s case. I have already determined that error has not been established as asserted in the second ground of appeal. In considering the ground of appeal which asserts manifest excess, I have given consideration to the application of the “Ellis principle” in this case. I do not consider that this aspect assists the Applicant in his claim of manifest excess.

31. [165]

    The Applicant did not succeed in the third ground of appeal concerning his assistance. Once again, I have considered that aspect under the umbrella of the ground claiming manifest excess. I do not consider that this aspect, when taken with all other considerations relevant to sentence, assists the Applicant in his claim that the sentence was manifestly excessive.

32. [166]

    Sentencing is a discretionary process involving a process of instinctive synthesis leading to the formulation of a value judgment as to the appropriate sentence: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [51] (McHugh J). In Munda v State of Western Australia (2013) 249 CLR 600; [2013] HCA 38, French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ said at [59] (footnotes omitted):

33. [167]

    The sentencing Judge had regard to a wide range of factors which were taken into account in the process of forming a value judgment as to the appropriate aggregate sentence to be passed in this case. It has not been demonstrated that the sentence passed upon the Applicant was manifestly excessive.

34. [168]

    I would reject the fifth ground of appeal.

Conclusion and Orders

1. [169]

   The Applicant has not made good any of his grounds of appeal.

2. [170]

   I propose the following orders:

3. [171]

   WRIGHT J: I agree with the orders proposed by Johnson J for the reasons his Honour has given.

4. [172]

   WILSON J: I also agree with Johnson J for the reasons his Honour gives.