Chatto v Kruf [2007] NTSC 55

PARTIES: CHATTO, RAYMOND ERIC

v

KRUF, REINOLD

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction

FILE NO: JA 14 of 2007 (20615453)

DELIVERED: 7 November 2007

HEARING DATES: 18 September 2007

JUDGMENT OF: OLSSON AJ

CATCHWORDS:

CRIMINAL LAW - JUSTICES APPEAL

Respondent pleaded guilty to attempting to take protected wildlife out of the Northern Territory without authorisation, contrary to the Territory Parks and Wildlife Conservation Act - large quantity of reptiles consigned in box from Alice Springs to respondent's address in New South Wales - intercepted at Darwin airport - 23 of the reptiles found dead due to dehydration - respondent had been party to collecting fauna with a co-offender without a permit to do so - first offender - maximum prescribed penalty for an attempt a fine of $27,500 or imprisonment for two years and six months - magistrate imposed nominal fine of $500 - prosecution appeal on grounds of manifest inadequacy and failure to express adequate reasons in justification of nominal penalty - penalty manifestly inadequate and failed to recognise paramount consideration of general deterrence - inadequate reasons explaining imposition of nominal penalty - appeal allowed - respondent to be re-sentenced.

Territory Parks and Wildlife Conservation Act, s 66 (3)

Raggett and Others (1990) 50 A Crim R 41; Robison (1992) 62 A Crim R 374; applied
The Queen v Osenkowski (1982) 30 SASR 212; followed
Janima v Edgington (unreported, Mildren J, No 36 of 1995); Sun Alliance Insurance v Massoud [1989] VR 8; referred to.

 

REPRESENTATION:

Counsel:
Appellant: P Elliott
Respondent: M Johnson

Solicitors:
Appellant: Department of Natural Resources Legal Office
Respondent: A Crane

Judgment category classification: C
Judgment ID Number: ols200703
Number of pages: 17


IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Chatto v Kruf [2007] NTSC 55
No. JA 14 of 2007 (20615453)

BETWEEN:

CHATTO, RAYMOND ERIC
Appellant

AND:

KRUF, REINOLD
Respondent

CORAM: OLSSON AJ

REASONS FOR JUDGMENT

(Delivered 7 November 2007)

Introduction

[1] This is a prosecution appeal against a sentence imposed by an acting stipendiary magistrate on the respondent in the Court of Summary Jurisdiction at Darwin on 14 March 2007.

[2] The respondent was originally charged on complaint with three counts under various provisions of the Territory Parks and Wildlife Conservation Act (“the Act”). When the proceedings were called on before the learned magistrate, the respondent entered a plea of guilty, through his counsel, to one count in full satisfaction of the relevant complaint, whereupon the prosecutor withdrew the other two counts.

[3] By his plea, the respondent admitted that, on or about 4 December 2005 at Alice Springs, he attempted to take protected wildlife out of the Northern Territory, without being authorised to do so under the Act, contrary to s 66(3) of that statute.

[4] That offence attracts a maximum penalty of 250 penalty units, that is to say $27,500, or imprisonment for two years and six months. The prosecution informed the learned magistrate that, given the relevant circumstances, it was not seeking a custodial sentence.

[5] In the event, the learned magistrate fined the respondent $550 (or five penalty units) and ordered him to pay a $40 victim’s levy. She did not express truly definitive reasons for the order that she made.

[6] The appellant appeals against that penalty on the grounds that:

(1) the sentence imposed is manifestly inadequate;

(2) the learned magistrate failed to give any, or alternatively any adequate reasons for imposing the sentence that she did; and

(3) the learned magistrate failed to take into account, or if she did, failed to give effect to the need to impose a sentence that reflected the requirement for general deterrence in relation to offending of the relevant type.

[7] The facts relevant to the offence were not in dispute and, as put by the prosecutor to the learned magistrate, were as follow:

(1) At about 1700 hours on 5 December 2005, the Territory Parks and Wildlife Department received a telephone call from Australian Air Express to the effect that it was thought that a consignment of freight at the Darwin Airport might contain protected wildlife;

(2) Conservation officers from the Department attended the Australian Air Express freight depot and, with the permission of the operations manager, viewed the relevant freight parcel;

(3) An x-ray scan indicated that the parcel probably contained animals. The parcel’s external cardboard wrapping was removed and the parcel opened. It contained a wooden, homemade box approximately one metre by half a metre in size. The box had a lid affixed with self tapping screws;

(4) Once opened, the box was found to consist of two compartments, with a wooden divider down the middle;

(5) One compartment contained a Parenti. The other contained 14 cloth bags, each tied at one end.

(6) The total contents of the bags were found to be 13 central bearded dragons, 38 central netted dragons, 2 gilded dragons, 14 juvenile central netted dragons, 6 blotch tailed dragons, 2 gilded sand monitors, 1 long nose water dragon, 2 three lined mobtails and 2 spiny tailed geckos;

(7) The shipment airway bill attached to the parcel showed that the sender was “R Kruf of 319 Mona Vale Road, Terry Hills in New South Wales”. The contents of the parcel were declared to be clothing. The consignee was stated to be “R Beaton, Cabin 10, 319 Mona Vale Road, Terry Hills, New South Wales 2084”;

(8) Photographs of the box, wrapping and contents were duly taken and the animals were removed to the Department's animal room. The dead animals were placed in a freezer and the live animals were conveyed to the Territory Wildlife Park, for identification and long-term secure housing;

(9) Inquiries made revealed that a freight courier had picked up the parcel on 2 December 2005 from the Elkira Motel in Alice Springs. The relevant room at the motel had been booked under the name “R Kruf”, who had arrived on 2 December. His address and departure date had been recorded, together with his telephone number, driver's licence details and motor vehicle registration. The room had been paid for with a credit card in the name of Reinold Kruf;

(10) Checks on the motor vehicle registration revealed that it had been registered to Ms Catherine Jane Newell, of 294 Albany Creek Road, Albany Creek in Queensland. She is the wife of a person named Barry Newell, who was later implicated by the respondent as an alleged co-offender in relation to the offending conduct;

(11) Investigators attended at the respondent's New South Wales residence and had questioned him. He stated that he had travelled to Queensland and been met by Barry Newell at the Brisbane airport. He said that the two men had travelled to Mount Isa in a red Nissan Pathfinder which the respondent believed belonged to Mr Newell's wife. During the trip they stopped and caught a number of various species of reptiles, which Mr Newell placed in the back of the vehicle;

(12) The respondent told the investigators that the trip was for educational purposes. He did not initially realise it was unlawful to catch reptiles from the wild. On his narrative, when they reached Mount Isa, Mr Newell placed a number of the reptiles in a box and consigned them to his sons in Brisbane;

(13) The respondent conceded that the two men then travelled from Mount Isa to Alice Springs and, again, stopped along the way to catch a number of reptiles. These were placed in bags inside boxes and kept in the back of the vehicle until they reached Alice Springs. Most (but I infer not all) of the reptiles were caught in Queensland in the western area. When the men got to Alice Springs they booked into a motel and the reptiles were taken into a room with them inside a box;

(14) It was asserted by the respondent that the men stayed in two different hotels whilst in Alice Springs, namely the Mount Nancy Hotel and the Elkira. It was whilst the respondent was at the latter that he was party to arranging to have the box containing the reptiles taken to the airport to be flown to his address in New South Wales. The two men subsequently flew back to the eastern states, as the vehicle that they had been using had suspension problems;

(15) During his interview the respondent supplied the investigators with a map showing the route taken during the trip through Queensland and the Northern Territory. He marked on it where they had stopped and caught various reptiles. He admitted that he and Mr Newell had no permits for taking, possessing or exporting protected wildlife. He conceded that he knew that permits were required for this type of activity both in Queensland and the Northern Territory;

(16) The learned magistrate was informed that all of the reptiles seized were protected wildlife under the Act and that the accused had no permit to possess or export them;

(17) The prosecutor further indicated to the learned magistrate that the respondent had come to Darwin and had been prepared to give evidence against Mr Newell. However, the nature of the information that he was able to give was such that it was decided that it was unlikely that a conviction could be obtained against Mr Newell on the basis of that evidence, because it was simply a word on word situation -- with obvious forensic and external evidence of the respondent's involvement, but very little evidence implicating Mr Newell.

[8] The learned magistrate was told that the respondent had no antecedent record.

[9] Counsel for the respondent informed the learned magistrate that his client was a married man with two children. He had worked for the best part of 20 years in a caravan park at Terry Hills. He then currently managed it. It was said that he did not have much formal education and that it was a case of "dumb and dumber, with the realisation that there's something wrong here".

[10] The learned magistrate was told that both the respondent and his wife had been interested in what counsel described as "creepy crawlies" and that the latter had a fauna keeper's licence that permitted her to carry out certain limited activity with fauna. In that context the respondent and his wife had commenced to enter into some legitimate dealings related to fauna with Mr Newell in Queensland. Some documentary evidence was produced to verify that situation.

[11] It was not disputed that the respondent himself had also procured a fauna keeper's licence on 28 July 2005 and that a substantial quantity of creatures (to a value of some $11,000) had changed hands between Queensland and New South Wales, where they had legitimately been located in the caravan park.

[12] It was said that, at a point at which there had been substantial ongoing contact between the two men, Mr Newell suggested to the respondent that the two men go through Queensland and Northern Territory to see fauna in the bush and so that Mr Newell could teach the respondent all kinds of things about wildlife. It was in that context that the trip was undertaken.

[13] Counsel said that, when Mr Newell commenced to pick up creatures by the side of the road, put them in boxes and mailed them to someone else, it began to dawn on the respondent that there was something wrong with this -- to the point that he told Mr Newell to stop picking up the creatures.

[14] As I understand the transcript, counsel indicated to the learned magistrate that, as the two men were approaching Alice Springs, they learnt that the consignment of fauna that Mr Newell had earlier sent to Brisbane had been intercepted. He said that the respondent then realised that there was something wrong and did not want to have any more to do with what was happening. For that reason he booked himself into separate accommodation in Alice Springs, notwithstanding that he was in the middle of Australia and was "stuck with this person in this person's car".

[15] It was put to the learned magistrate that, whilst the two men were in Alice Springs, Mr Newell came to the respondent with the box of fauna and said to him "look, send this box to yourself". He did so, on the basis that the address on the box related to a non-existent person at an address that was the respondent's physical address. It was said that the respondent does not remember who wrote on the box that it contained “clothing”. He may have done so. It was submitted that "he just did what he was told because he decided 'I’ve had enough of this, I'm stuck in Alice Springs, there's a car here doesn't work very well, this guy is a crook, I want out, best way to get out is I’ll post this box and then get out of here and never see him again'".

[16] It was stressed to the learned magistrate that the respondent was a simple, naive man who got himself mixed up with a person who was a "crook", realised that he was doing wrong, sent the box back to himself and "thought it’d all be gone". He had since cooperated, as best he could, with the authorities at a considerable financial cost to himself.

[17] When asked by the learned magistrate what it was being suggested should be done, counsel for the respondent conceded that the offence was serious but pointed out that his client was a first offender and a person of modest means. He asked for the imposition of a fine.

[18] In response, the prosecutor emphasised that the factor of general deterrence was of paramount importance, particularly bearing in mind the obvious policy of the legislation and the difficulties of detecting offenders.

[19] At the conclusion of submissions the learned magistrate had this to say:
"Mr Crane, I think that your client was clearly very naive in relation to the dealings with Mr Newell. However, the fact is that he realised that, or he should have realised that, there were creatures in the box that he sent and I'm concerned that he might have a fauna keeping licence, given that he would have realised that these creatures are going to suffer during their imprisonment in this box and the distance that they had to travel and clearly they did because some of them died. It's an issue that we have to face and, as Mr Elliott said, it is something that we need to deter and is a crime -- an offence that is hard to detect".
She then proceeded to impose the impugned fine.

Issues arising on the appeal

[20] It is accepted by the appellant that, upon an appeal against inadequacy of sentence, he bears a substantial onus. The relevant principles are well established. They were discussed by Kearney J the case of Raggett and Others (1990) 50 A Crim R 41 at 43 and by King CJ in The Queen v Osenkowski (1982) 30 SASR 212 at 212-213.

[21] In the former case, Kearney J had this to say:
“The principles to be applied in appeals relating to sentence, both as to severity or inadequacy are now well established … … A Crown appeal against leniency requires most careful consideration because of what is sometimes referred to as the 'double jeopardy principle' … … it is also trite law that an appellate court will not increase a sentence merely because its members believe that they would have imposed a more severe sentence. The judicial discretion upon sentence is a wide one and rightly so. What must be established, before an appeal based on inadequacy of sentence is allowed, is not that it is lower than average, or merciful, but plainly wrong upon established principles. In determining such an appeal an appellate court must, in the ordinary case, keep an eye on the statute, the circumstances of the offence, the prevalence of the offence, and the background and character of the offender……”

[22] In the latter, King CJ said:
“It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. The proper role for prosecution appeals, in my view, is to enable courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of crime as to shock the public conscience”.

[23] Mr Elliott, of counsel for the appellant, submits that, even allowing for any relevant mitigating factors that were identified by counsel for the respondent, the quite nominal fine imposed cannot be said to reflect, in any meaningful way, the criminality of the conduct of the respondent. It is, he submits, so far below that which was warranted as to be plainly indicative of error or departure from sentencing principles. It patently fails to reflect the paramount factor of general deterrence and the inherent seriousness of the offending, as indicated by the applicable maximum penalties provided for by the Act.

[24] Mr Elliott particularly invited attention to the large number of animals involved, the foreseeability of cruelty and injury to them (23 in fact died), although the respondent pleaded guilty to an attempt to commit the offence he had plainly done everything that enabled the offence to be committed, he clearly appreciated that what was occurring in Alice Springs was unlawful, he did not act under coercion and the nature of the offence was of a kind that was easy to commit but difficult to detect.

[25] Mr Elliott very properly stressed the point that the fallacy in the submissions made to the learned magistrate lay in the facts that, not only did the respondent full well realise that what was occurring was unlawful, but he physically participated in the despatch of the box under a false description of its contents to his own address in New South Wales.

[26] This, as it seems to me, is a very important consideration. If, as counsel for the respondent had suggested to the learned magistrate, this was no more than a naive person having unwittingly become involved with the offender Mr Newell and who was seeking to extricate himself from that involvement, then the obvious question that arose was why did the respondent personally seek to send the consignment to himself? The respondent's assertions would, perhaps, have been more plausible had, for example, the box been consigned to Mr Newell in Queensland.

[27] In truth, what was being put to the learned magistrate, given the objective facts that were conceded, was really an affront to common sense. At the very least the respondent was, in a sense, acting as a courier or conduit. At worst, he intended to receive the surviving reptiles to dispose of as he saw fit. The number of animals involved was such that an obvious inference naturally arising was that some commercial element might well be involved.

[28] It cannot be denied that, for obvious reasons, the legislature has deemed this type of offending to be of an inherently serious nature and that everyday experience indicates that such offences are, in fact, easy to commit and difficult to detect. It is further beyond question that the factor of general deterrence must normally be of paramount consideration in the sentencing process.

[29] The types of sentiment expressed by the Court of Criminal Appeal in the case of Robison (1992) 62 A Crim R 374 at 378-379 were undoubtedly applicable to the situation before the learned magistrate. The plundering of wildlife is a threat to the Australian Heritage and, particularly when coupled with cruelty resulting in death to animals concerned, must almost inevitably attract great concern and condign punishment, as envisaged by the relevant statutory provisions.

[30] I agree that a further matter for concern is the failure of the learned magistrate to express adequate reasons in justification of the quite nominal fine imposed.

[31] Whilst I acknowledge the reference by counsel for the respondent to the dicta contained in the authorities such as Janima v Edgington (unreported, Mildren J, No 36 of 1995) and Sun Alliance Insurance v Massoud [1989] VR 8, it seems to me that they do not excuse the lack of adequate reasons in the instant case.

[32] Due regard must, of course, always be given to the difficulties and pressures under which magistrates work and the reality that it is not feasible, in routine cases, for them to give full and considered reasons for their decisions. In such situations, it is both proper and reasonable to infer that due consideration has been given to all matters necessarily implicit in the conclusions reached.

[33] However, where, as here, the legislature has, for patently sound reasons, indicated that a particular genus of offence is serious and ought normally to attract condign punishment, then, if a magistrate nevertheless proposes to impose what is, in effect, a nominal penalty, it behoves that magistrate to express clear and reasonably definitive reasons in justification of the course proposed to be adopted. To fail to do so is an error of law (Sun Alliance Insurance v Massoud (supra)).

[34] This did not occur and the absence of such reasons renders it impossible to perceive the rationale of the penalty, particularly as, with respect, many of the matters sought to be relied on by counsel for the respondent were, to say the least, of dubious validity on the face of them. For example, the alleged naivety of the respondent is not consistent with the fact that he personally held a New South Wales permit to deal in fauna and had actually participated in substantial dealings pursuant to that permit. The obvious inference was that he knew full well from the outset that taking reptiles without an appropriate permit was a serious breach of the law.

[35] I am quite unable to accept the present submission on behalf of the respondent that the fine imposed was not outside the range of penalties fairly applicable to the offending, even after allowing for the fact that the respondent was a first offender and said to be a person of modest means. Having regard to the penalties prescribed by the legislature, it was a fine appropriate to a trivial offence, being, as counsel pointed out, only two percent of the prescribed maximum fine.

[36] The plain fact of the matter was that the respondent was a willing and complicit party to attempting to effect a serious, deliberate, knowing breach of the Act in circumstances that ultimately did occasion the cruel death of 23 animals. Had the relevant attempt not been circumvented, he personally stood to directly receive the consignment, rather than the co-offender whom he sought to implicate to improve his own position.

[37] Whilst the learned magistrate did acknowledge the factor of general deterrence, she did so almost in passing and the nominal fine imposed by no means reflected such a factor. It must be said that such reasons as were expressed were largely preoccupied with the issue of the cruelty to the animals concerned. Whilst that was by no means irrelevant, it was somewhat peripheral to the “attempt” charge actually brought.

[38] In referring to the apparent naivety of the respondent, the learned magistrate seems largely to have ignored the obvious and compelling common sense inferences that naturally arose from the narrative facts placed before her -- specifically the implications necessarily arising from the fact that the reptiles were being consigned to the respondent rather than Mr Newell. On any view, this plainly indicated that he proposed, in one way or another, to have an ongoing involvement in the ultimate disposal of the reptiles, even if he only envisaged acting as a conduit on behalf of Mr Newell.

[39] I am of the opinion that this is one of those relatively rare cases that fall within the categories adverted to by King CJ in The Queen v Osenkowski (supra). This was an apparently idiosyncratic decision that cannot be reconciled either with the inferences plainly arising from the indisputable facts or the expressed policy of the legislature. What was done necessarily sent the wrong message to like-minded potential offenders. It manifestly failed to observe proper standards of punishment for the type of offence under consideration, to the point that this Court is bound to interfere. The undisputed facts demanded the imposition of a substantial fine.

[40] Indeed, bearing in mind what the courts have consistently said concerning offences related to wildlife protection legislation of the type here under consideration and the obvious policy of such legislation, a custodial sentence must necessarily loom as a very real possibility in situations involving substantial numbers of creatures, as was the scenario in the instant situation. This is particularly so when any element of commerciality appears to be involved. I assume that the attitude of the prosecution, as put to the learned magistrate, in not promoting such a course was essentially a recognition of the preparedness of the respondent to give evidence against the person who was seen to be the prime mover in the overall enterprise.

[41] Even so, there was a clear responsibility on the Court to impose a fine of sufficient quantum to adequately reflect the factors of both personal and general deterrence. By no stretch of the imagination could it be said that a nominal fine achieved such an outcome.

Conclusion

[42] The appeal is therefore allowed and the penalty imposed set aside. It falls to this court to re-sentence the respondent. I will hear counsel as to such re-sentencing.

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