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Qiu v The King [2022] NSWCCA 247

The offender was sentenced following pleas of guilty to 14 counts of attempting to export regulated native specimens contrary to s 303DD(1) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (‘EPBC Act’) and ss 11.1(1) and 11.2A(1) of the Commonwealth Criminal Code, 4 counts of possessing a CITES specimen contrary to s 303GN(2) of the EPBC Act and s 11.2A(1) of the Commonwealth Criminal Code, and 1 count of possessing regulated live specimens in Part 2 of the list referred to in s 303EB of the EPBC Act contrary to s 303GN(6) of the EPBC Act and s 11.2A(1) of the Commonwealth Criminal Code. Original sentence imposed 5 years imprisonment with a non-parole period of 2 years and 10 months. Offender appealed on the grounds that the sentence was manifestly excessive and the sentence was not at parity with that imposed against co-offender.

Manifest Excess: The aggregate sentence imposed upon offender was unreasonable and plainly unjust. Offending did not involve any importation or attempt to import offences. Whilst any attempt to export Australia’s native specimens may potentially have an effect on Australia’s biodiversity, the effects are not of the type referred to as potentially catastrophic arising from the importation offences in Kennedy. Offending remains serious but does not fall in the category identified in Kennedy as the most serious offending of its kind. Offending did not involve the same level of sophistication as in Kennedy. There was no international travel or scoping work. Whilst the number of counts is high, they are all of the same type and involve a small number of specimens. Except for the first offence which occurred a year earlier, all offending took place over a 3 months period. Offender had a strong subjective case.

Nature and Circumstances: Offending was serious in that it involved an attempt to export a number of types of Australia’s native specimens over a period of 14 months. In some respects, offending involved cruelty to the specimens. Other than in respect of sequence 43, each of the offences fall below the mid-range of objective seriousness. Most of the offences involved an attempt to export a small number of specimens. The attempt to export the Red Bellied Black Snake (sequence 43) posed additional risks to the safety of persons because of its venom. That offending was more serious.

Leave to appeal granted. Appeal allowed. Offender resentenced to 3 years and 10 months imprisonment with a non-parole period of 2 years.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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