Forbes v Copely[2018] QDC 171

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 7 March 2018, the respondent was convicted after pleading guilty in the Magistrates Court held in Cairns of the offence of taking a protected animal, and he was fined $500 and no conviction was recorded under s 88(2) of the Nature Conservation Act 1992 (Qld) (‘the Act’).

2. [2]
   The appellant now appeals against the sentence on the ground that it was manifestly inadequate.

Background

3. [3]
   The respondent conducted an orchard on his property and wanted to conduct maintenance on his floodwater gates close to the water’s edge, and therefore he set about testing whether any crocodiles inhabited the area to assure his personal safety.

4. [4]
   On 15 January 2018 he set a bait line and hook to capture any crocodiles in that area. The hook was connected to a baited wire trace line, which was then wrapped around a tree. On 18 January 2018 Queensland Boating and Fisheries Patrol officers found a dead estuarine crocodile while conducting a patrol of Sorenson Creek at Deeral. The crocodile had the large fishing hook lodged in its mouth. They set up surveillance, which showed the respondent removing and towing the crocodile away using his utility car.

5. [5]
   On 24 January 2018 police executed a search warrant at the respondent’s home and located the utility, and the line with a large fishing hook. The respondent co-operatively showed the officers the location of the crocodile’s remains.

6. [6]
   An estuarine crocodile (Crocodylus porosus) is protected by its status as vulnerable wildlife.^[1]  The respondent was charged with the offence of taking a protected animal in contravention of to s 88(2) of the Act.

7. [7]
   The respondent accepted the factual basis of the offending. After pleading guilty in the Magistrates Court on 7 March 2018, the learned magistrate convicted and sentenced the respondent with a fine of $500, with no conviction recorded.

8. [8]
   The learned magistrate gave the following oral reasons at sentence:^[2]

“Mr Copley, I take into account your plea of guilty. It is certainly an early plea of guilty, and I impose a lesser penalty because of that. I take into account that you were very cooperative with the authorities. You showed them … them what you had do with the carcass. You participated in a record of interview. You told them that you had set the line to see if there were any crocodiles in the water next to the river bank on your property because you had to get – you were intending to get into the water to do some in the water and you were concerned for your safety. You knew it was an offence. It is – it has been said that you are remorseful now.

I take into account that you have no criminal history whatsoever. You are a mature man with an unblemished record and a record of doing valued work in the community, especially in the Indigenous communities. You certainly have a good work history. I take into account that you hold some commercial licenses, and it is submitted that a conviction recorded for this offence may certainly – may have an impact upon your ability to retain those commercial fishing licenses.

I do have to take into account that you intentionally killed an animal and that it is an offence to do that under the legislation. Obviously, general deterrence is a significant sentencing factor. I take into account the cases that have been handed up and previous sentences which have been imposed for similar-type offending. I take into account your financial circumstances. In all of the circumstances, you are convicted and fined the sum of $500. Fine is referred to SPER. No conviction is recorded.”

Grounds of Appeal

9. [9]
   The appellant appeals against the sentence in reliance on the broad ground that the sentence was manifestly inadequate in all of the circumstances.

Mode of Appeal

10. [10]
    The appellant appeals pursuant to s 222 of the Justices Act 1886 (Qld). Pursuant to s 223 the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave.

11. [11]
    For an appeal by way of rehearing "the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error.”^[3]The rehearing requires this court to consider each of the grounds of appeal while conducting a real review of the evidence before it (rather than a complete fresh hearing), and determine for itself the facts of the case and the legal consequences that follow from such findings.^[4]

12. [12]
    By virtue of s 132C of the Evidence Act 1977 (Qld) the sentencing court may act on an allegation of fact that is admitted or not challenged, otherwise, the court may act on a disputed allegation if satisfied on the balance of probabilities that the allegation is true. In that regard, the required degree of satisfaction varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true.

13. [13]
    This court ought not interfere with a sentence unless it is manifestly excessive or inadequate and thereby falls outside the permissible range, it is vitiated by an error of principle, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice. A mere difference of opinion about the way in which the discretion should be exercised is not a sufficient justification for review, it must be shown that the discretion miscarried.^[5]

14. [14]
    The High Court held in House v The King^[6]that:

"It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."

15. [15]
    The High Court in Kentwell v R^[7]held:

“In the case of specific error, the appellate court’s power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.”

16. [16]
    Once an appellate court identifies an error in this way, the sentence must be set aside and the appellate court must exercise the sentencing discretion afresh, unless, in that separate and independent exercise it concludes that no different sentence should be passed.

17. [17]
    In Dinsdale v The Queen^[8]Gleeson CJ and Hayne J said:

“Manifest inadequacy of sentence … is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate”.

18. [18]
    Later in Hili v The Queen^[9]the High Court held that manifest inadequacy is revealed by a consideration of all of the matters that are relevant to fixing the sentence, particularly the nature of the offending and the sentences imposed in the most closely comparable cases.

Sentencing Considerations

19. [19]
    The only purpose for which a sentence may be imposed by virtue of s 9(2) of the Penalties and Sentences Act 1992 (Qld) are to punish the offender to an extent or in a way that is just in all the circumstances, facilitate avenues of rehabilitation, deter the offender and others from committing a similar offence, make it clear that the community denounces the conduct in this offence, and protect the community.

20. [20]
    It is trite to say that the appropriate sentence will depend on the particular circumstances of the offending and the degree of culpability of the offender. The nature of the penalty in the form of a fine provides little by way of rehabilitation. The gravity of the offending is also gleaned by the maximum penalties, with due regard to the factors of general and, as appropriate, personal deterrence.

21. [21]
    The relevant factors in s 9(2) of the Penalties and Sentences Act 1992 (Qld), for the court to consider when sentencing the respondent include:

1. (a)
   the maximum and any minimum penalty prescribed for the offence;^[10]

2. (b)
   the nature and seriousness of the offence;^[11]

3. (c)
   the extent to which the offender is to blame for the offence;^[12]

4. (d)
   any damage, injury or loss caused by the offender;^[13]

5. (e)
   the offender’s character, age and intellectual capacity;^[14]

6. (f)
   the presence of any mitigating factor or aggravating concerning the offender, including relevant previous convictions;^[15]

7. (g)
   the prevalence of the offence;^[16]

8. (h)
   how much assistance the offender gave to law enforcement agencies in the investigation of the offence or other offences;^[17]

1. (i)
   anything else prescribed by this Act to which the court must have regard (eg. considerations relevant to imposing a fine);^[18]and

10. (j)
    any other relevant circumstance.^[19]

Maximum penalty

22. [22]
    Section 88(2) of the Act makes it unlawful for a person to take a protected animal without being authorised to do so.

23. [23]
    The maximum penalties were amended in 2004 to distinguish between classified offences and thereby facilitate a more balanced and appropriate response depending on the conservation status of the animal involved and the relevant circumstances.^[20]Their maximum penalties cascade depending on the relevant offence classification as follow:

“Maximum penalty—

1. (a)
   a class 1 offence—3000 penalty units or 2 years imprisonment; or

2. (b)
   for a class 2 offence—1000 penalty units or 1 year imprisonment; or

3. (c)
   for a class 3 offence—225 penalty units; or

4. (d)
   for a class 4 offence—100 penalty units.”

24. [24]
    The taking of an estuarine crocodile is a class 3 offence,^[21] therefore, the respondent was punishable up to a maximum fine of 225 penalty units being $29,373.75.

25. [25]
    However, that is not the end of the matter. In addition to the prescribed maximum penalty, an offender is also liable to be punished under s 169 of the Act, which provides:

“A person who is convicted of an offence of taking—

1. (a)
   a natural resource that is protected wildlife in contravention of section 62; or

2. (b)
   protected wildlife in contravention of section 88 or 89;

is liable to an additional penalty of not more than twice the conservation value of the protected wildlife in relation to which the offence is committed.”

26. [26]
    Therefore, the respondent is also in jeopardy of further punishment up to $21,522, being twice the relevant conservation value of $10,761 for an estuarine crocodile.^[22]

Nature and seriousness of the offence

27. [27]
    It seems to me that the following factors are relevant when considering the nature and seriousness of the offence of taking a protected animal:

1. The nature of the offending, including the offender’s role, the method used, level of cruelty and suffering, capture, death, removal and/or disposal;^[23]

2. Scale of offending, eg. approximated age, size, gender, maturity, breeding potential, and number of animals involved;^[24]

3. Degree of rarity and conversation value of the animal.^[25]

4. Motivation of the offender;^[26]

5. Any flagrancy, incidental conduct or deliberateness;^[27]and

6. Degree of commerciality, including any indirect commercial benefit.^[28]

28. [28]
    The respondent’s plea was in response to the agreed facts but there is a dearth of evidence about the level of cruelty and cause of death of the crocodile.

29. [29]
    Officers from the Queensland Boating and Fisheries Patrol discovered the deceased crocodile while doing their patrol at about 11 am on 18 January 2018. Despite the opportunity for the officers to make observation, photograph and film the animal, no evidence was adduced about the officers’ observations of injuries to the animal or other cause of death.

30. [30]
    The crocodile was left in its position and surveillance cameras later recorded the respondent towing the dead crocodile away using his utility car. But none of this surveillance was put before the court.

31. [31]
    Later on 24 January 2018 police executed a search warrant at the respondent’s home and located the utility car, and wire trace line with a large fishing hook similar to the one found attached to the crocodile. The police then transported the respondent to his property at Sorenson Creek and were shown the location of the crocodile’s remains by the respondent.

32. [32]
    The offending involves a single crocodile. The court below, and on appeal, has not been assisted by any evidence about the scale of the offending in terms of approximated age, size, gender, maturity, and breeding potential of the crocodile.

33. [33]
    There was no direct evidence as to the degree of rarity of the animal in the particular habitat, except, it is legislated that estuarine crocodiles are classified as vulnerable wildlife and have a conservation value of $10,761.

34. [34]
    The respondent was later interviewed by police and confirmed it was he who had set the line on 15 January 2018. He went on to state that he removed the crocodile from the water so that it’s carcass would not flow downstream. Additionally he also stated that he runs an orchard on the property and needed to conduct maintenance on his floodwater gates close to the water’s edge and therefore wanted to see if any crocodiles inhabited the area for his own personal safety.

At best, the facts disclosed that the respondent deliberately and purposely set a trap using a large baited fishing hook, which lodged in the crocodile’s mouth. The trace wire was wrapped around a tree. It was only three days from the time the respondent set the baited hook and the time the animal was found dead. It is not clear how and to what extent the hooking and tethering contributed to the animal’s death, for example, by fatal injury, aggravation of a pre-existing condition, drowning, or dehydration. In the court below, the police prosecutor submitted that had been intentionally taken and drowned as a result of being hooked,^[29]but adduced no evidence to support his submissions. Suffice it to say the parties below seemed to have proceeded on the basis the crocodile took the bait, became hooked, restrained, and died prematurely by drowning. It seems to me that the respondent likely inflicted some cruelty by hooking and restraining the animal, but the full extent of cruelty and suffering caused to the animal is unclear.

35. [35]
    There was no evidence at first instance, that the respondent intentionally killed the crocodile (as the learned magistrate found).^[30]However, such a finding is not necessary. There can be no dispute that the respondent’s motivation was to remove any lurking crocodile for his own self-preservation, and to that end his conduct was planned, flagrant and deliberate. This is clear from the method of it capture and conduct on his return apparently expectant and prepared to tow and dispose of the dead crocodile. In my view it both rational and reasonable to infer that the respondent’s deliberate conduct caused, or significantly contributed to, the crocodile’s death.

36. [36]
    This is not a case where the offender actioned a commercial motive to take protected wildlife for his commercial gain, for example, selling the crocodile skin or skeleton for benefit or gain. The respondent owned an orchard on the land bordering the creek and wanted to conduct maintenance on his flood water gates close to the water’s edge. At the hearing of the appeal it was accepted that the orchard was a hobby farm, and the respondent derived no profit from it. He seemed to have embarked on this offending to derive an intangible benefit to himself and farm. He received an indirect benefit of securing safer access to maintain his flood water gates in furtherance of his hobby orchard farm. I accept that he had no commercial purpose.

37. [37]
    The gravamen of the respondent’s offending is that his deliberate conduct in taking the animal cruelly resulted in its untimely death and permanent loss of conservation value.

Extent to which the offender is to blame for the offence

38. [38]
    The respondent acted alone, and is wholly responsible and blameworthy for his conduct of taking the crocodile by setting the trap, capturing and disposing of the animal.

Damage, injury or loss caused by the offender.

39. [39]
    The respondent’s offending conduct resulted in the injury and death of the crocodile, and therefore a reduction of the species population and complete loss of the conservation value of the vulnerable wildlife in that habitat. Estuarine crocodiles have a conservation value of $10,761.

Offender’s character, age and intellectual capacity

40. [40]
    The respondent was 69 years of age with no previous criminal history.

41. [41]
    He has worked in small business and commercial fishing for most of his working life.^[31]He is currently semi-retired holding a contracted position with Ports North to remove mangroves from the Cairns Esplanade on a seasonal basis. He has held that position for some 15 years.

42. [42]
    The respondent’s remorse is evident in his plea, and various character references.^[32]

43. [43]
    He was a mentor for remote indigenous communities in Weipa and Mapoon with a view to establish indigenous commercial fishing projects.^[33]His business partner described the respondent’s contribution this way:^[34]

“Errol was the instrumental spokesperson and instigator for the granting of the first and only individual commercial indigenous 3 year fishing permit in Queensland (MAR). He became a trainer and mentor to myself and the locals in the Fishing Operation. After teaming up with Errol and I now use his commercial licence FXHN to keep the project alive, locals involved and inspired. As he is semi-retired Errol’s role in the operation is now as a consultant, trainer and mentor.

His knowledge and experience in this fishing industry has seen Errol, in our venture, to be the instigator, designer and maker of a crab pot prototype that has ensured a vast reduction in interaction with crocodiles. Errol then introduced the use of field cameras into the business. This enabled us to monitor and prove to ourselves the effectiveness of the pots and their reduction of crocodile interaction before duplicating the pots. In my opinion, the modifications to the pots Errol has introduced within the parameters of our commercial fishing operation has saved many crocodile lives in the area.

Errol has also introduced the usage of Asian hung nets to also ensure less interaction with crocodiles.”

44. [44]
    The respondent’s offending seems incongruous with these sentiments of someone entrenched in sustainable fishing cognisant of crocodile interaction along coast and mangrove areas. He ought to have known of alternate and lawful crocodile management.

45. [45]
    Despite his otherwise good character, the respondent’s conduct of taking the crocodile by bating, capture and disposal was purposeful, flagrant and deliberate. He was at best indifferent to causing the injury or death of the animal.

Presence of any aggravating or mitigating factor concerning the offender.

46. [46]
    The offending is aggravated by the permanent loss of the vulnerable wildlife by the respondent’s deliberate crude method of capture and resultant death of the crocodile.

47. [47]
    The respondent is mature at 69 years of age. He has not committed any offences of this, or indeed of any kind, and he has contributed to the community through his work including mentorship in indigenous communities.

Prevalence of the offence.

48. [48]
    There is no notoriety or evidence of prevalence of offending in this way affecting crocodile populations.

49. [49]
    More generally, I respectfully adopt the remarks of Olsson AJ of the Supreme Court of the Northern Territory in Chatto v Kruf,^[35]when he said in relation the Territory’s analogous legislation:

“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.”

Assistance the offender gave to law enforcement

50. [50]
    The respondent provided assistance when police executed the warrant and in his later interview by police. The respondent’s plea of guilty and admission of wrongdoing was done so at the earliest possible opportunity, and his co-operation with the police and fisheries was absolute.

Anything else prescribed by this Act

51. [51]
    Section 48 of the Penalties and Sentences Act 1992 (Qld) requires the court, in determining the amount of the fine and the way in which it is to be paid, to take into account as far as practical:

1. (a)
   The financial circumstances of the offender,^[36]including any other order for confiscation of proceeds of crime, restitution or compensation, but not the offender levy;^[37]

2. (b)
   The nature of the burden that payment of the fine will be on the offender;^[38]

3. (c)
   In fixing the amount of a fine – any loss or destruction or damage of property caused by the offence, and any benefit to the offender.^[39]

52. [52]
    The respondent receives superannuation payments. His total yearly income is about $40,000.00.^[40]Additionally, he subleases commercial fishing licenses in Mackay, Cairns, Princess Charlotte Bay, and the Gulf of Carpentaria. However, it is not disputed that that the licences do not generate an income.^[41]There is no evidence about any assets available to meet any fine.

53. [53]
    In the respondent’s circumstances, the burden of a fine will be very heavy, and he will require a reasonable time to pay any fine, and ought be afforded the opportunity to make payments by arrangement with the State Penalties Enforcement Registry,^[42]and, if he wishes, make application for a fine option order.^[43]

54. [54]
    The court may impose a fine whether or not it records a conviction.^[44]Pursuant to s 12 of the Penalties and Sentences Act 1992 (Qld) the court has discretion to record or not record a conviction. Sub-section 12(2) provides that:

“(2) In considering whether or not to record aconviction, a court must have regard to all circumstances of the case, including—

1. (a)
   the nature of the offence; and

2. (b)
   the offender’s character and age; and

3. (c)
   the impact that recording a conviction will have on the offender’s—

1. (i)
   economic or social wellbeing; or

2. (ii)
   chances of finding employment.”

55. [55]
    While the offence is serious, the 69 year old respondent is otherwise of very good character and unblemished by a criminal history. It seems to me that recording a conviction will not impact any employment or social wellbeing. However, I accept that a conviction will impact on the respondent’s ability to hold or qualify for renewal of his commercial fishing licences. I accept there are strong grounds not to record a conviction in the particular circumstances of this case.

Other relevant circumstances

56. [56]
    It is opportune here to highlight the importance of general deterrence in cases of this type. This would sound in the severity of the fine imposed to appropriately punish the offender in the circumstances.

57. [57]
    This is consistent with the object of the Act that is the conservation of nature while allowing for the involvement of indigenous people in the management of protected areas in which they have an interest under Aboriginal tradition or Island custom.^[45] This is achieved by an integrated and comprehensive conservation strategy for the whole of the State, including, community education, dedication of protected areas, protection and management of native wildlife and habitats, recognition of first people’s interests and landholder co-operation.

58. [58]
    The Supreme Court of the Northern Territory considered an offence attempting to take protected wildlife under analogous legislation in Chatto v Kruf.^[46] Olsson AJ remarked:^[47]

“[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.”

59. [59]
    His Honour emphasised the matter of general deterrence when he later re-sentenced the respondent, saying:^[48]

“[6] Particularly because of the difficulty of detection of this type of offending and its potential to both degrade our wildlife heritage and potentially spread disease from one area to another, the factor of general deterrence must be a paramount consideration.”

60. [60]
    Whilst a custodial sentence is not open here, His Honour’s remarks seem apt to illuminate the importance of general deterrence in wildlife related offences, particularly when any element of commerciality appears to be involved.

61. [61]
    It seems to me that Crocodile management and removal are not a matter of private land management or commercial management guided by personal whim, even if with perceived support of like minded others in the community. The reality is that this is it a matter for the legislature, which has sought fit to protect crocodiles as vulnerable wildlife and, the Act facilitates their conservation and management as its paramount importance. In this way, alternative appropriate measures of management, including removal, are reasonable and practical within the bounds of the law.

62. [62]
    With these factors in mind, I turn to consider whether the sentence was manifestly inadequate.

Whether sentence was manifestly inadequate

63. [63]
    In this case learned magistrate took into account the respondent’s: facts of the offending, early plea of guilty; co-operation with authorities; motivation out of concern for his own safety; remorsefulness; his mature age; no criminal history and good work history including valued work in the community. Her Honour took into account that the respondent had intentionally killed an animal, and the importance of deterrence. In setting the fine Her Honour considered the respondent’s financial circumstances. And also considered the likely impact that recording a conviction would have on his commercial fishing licenses.

64. [64]
    The learned magistrate was not provided with much evidentiary assistance to fully gauge the nature and seriousness of the offending, especially, the level of cruelty, suffering, and cause of the crocodile’s death. There was also little available by way of comparative cases.

65. [65]
    In R v Kusu, Kusu, and Williams,^[49]three defendants were fined $400, $400 and $600 respectively, with no convictions recorded for killing a protected dugong in the Moreton bay area. They failed in their argument that they misapprehended their reciprocal native hunting rights. One defendant was Caucasian and the other two defendants were not Native Title Holders for the particular area of Moreton Bay and therefore not entitled to take the dugong under very limited circumstances.

66. [66]
    In my view the peculiar facts of Kusu and its age significantly diminish its comparative value. Although, it is noteworthy that Boulton DCJ observed that for the offence of taking of protected animals fines in the range of $6,000 to $12,000 were imposed where an element of professionalism or commerciality or flagrant damage might be involved.^[50]

67. [67]
    In Rue & Fanna v Leavy^[51]the appellants appealed their conviction after trial of killing birds which prayed on a fish farm. The birds included night herons, pelicans, ducks, egrets and jabirus. The appellants were fined $12,000 and in default of payment to be imprisoned for two months, together with $4,272.21 for costs. When dismissing the appeal, the court merely remarked that the penalty was heavy but not challenged on appeal.^[52]

68. [68]
    The offending in Rue can be readily distinguished having regard to the larger numbers of multiple species affected, and the degree of commerciality to protect the fish farm. The current offending involved one animal and although it was committed in furtherance of farm maintenance, it returned no tangible commercial benefit.

69. [69]
    In the Department of Environment and Heritage Protection v Kerr, Vass, Levitt and Lago,^[53] of the Townsville Magistrates Court four defendants aged between 22 and 23 were out pig shooting and happened upon an estuarine crocodile hooked on a line connected to a buoy. The hook was embedded in its stomach. They ‘skull dragged’ or reeled in the crocodile and shot it a number of times which killed it. They then dragged it behind their ‘tinny’ to a shed where they skinned and butchered it. The magistrate considered the size of the crocodile as being some metres in length, the cruelty ‘involved skull dragging the crocodile while it was thrashing about with a hook embedded in its stomach, and then having to shoot the crocodile more than once and perhaps not cleanly through its brain in order to kill it’. Photographic and video footage was taken by the defendants and was relied upon at the sentence. Most of the defendants had minor histories although nothing of a like nature and two of the defendants were in difficult or uncertain financial circumstances. The Magistrate fined each defendant $7000, with a conviction recorded for one defendant who had previously recorded convictions.

70. [70]
    It seems to me that the offending in Kerr was more serious. Although the defendants did not set out to take the crocodile, their offending involved a higher level of cruelty and suffering to the live animal shown in the video, followed by macabre skinning and butchering. The offenders were youthful, but had some criminal history.

71. [71]
    In a more recent case of Department of Environment and Science v Bowie and Matthew,^[54] the court fined 22 year old defendant $500 and the 50 year old co-defendant $1000, and both were ordered to pay conservation value of $7798.50 each. The defendant had no criminal history and they had yearly incomes of $39000 and $78000 respectively. The defendants hunted and killed mature dugong and two green turtles that were inhumanely cut up in pieces. The Magistrate indicated that the volume of meat suggested a commercial motivation, although commerciality was not found. The indigenous defendants falsely claimed that they had permission from a local Elder.

72. [72]
    The offending in Bowie was more serious it is nature and conduct than the present appeal. The offending involved the determined slaying of three animals, and butchering. Unlike the present case, this was a class 2 offence carrying a maximum penalty of 1,000 penalty units ($121,900) or 1 year’s imprisonment. The deterrent aspect was also reflected in the additional imposition of paying the conservation value.

73. [73]
    In the Northern Territory case of Chatto v Kruf,^[55]the respondent pleaded guilty to attempting to take protected wildlife out of the Northern Territory pursuant to the analogous s 66(3) of the Territory Parks and Wildlife Act 1977 (NT), by smuggling the animals inside a wooden box that was to be sent to an address in New South Wales using air freight. At the time the maximum penalty was 250 penalty units ($27,500) or imprisonment for two years and six months. The respondent’s offending was characterised as “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.”^[56]The animals included a ‘parenti’,^[57]13 central bearded dragons, 38 central netted dragons, 2 gilded dragons, 14 juvenile central netted dragons, 6 blotch tailed dragons, 2 sand monitors, 1 long nose water dragon, 2 three lined mobtails and 2 spiny tailed geckos. Olsen AJ allowed the appeal and resentenced the respondent by increasing the initial $500 fine to $2000,^[58]but cautioned that he did “not consider the quantum of fine to constitute any precedent or standard for the future.”^[59]His Honour said “Whilst, under the Sentencing Act, due regard must be had his financial situation, it is clear that a fine in the range of $5000 - $10000 was appropriate. Indeed, had it not been for his willingness to cooperate with the authorities, a modest custodial sentence might properly have been imposed.”^[60]

74. [74]
    Paying due regard to the warning of comparative value, the unmitigated sentencing range is noteworthy. However, the case is readily distinguishable having regard to the type, nature and seriousness of the offending involving multiple species in a highly commercial smuggling operation.

Resentence

75. [75]
    The appellant urges that an appropriate range of fine is $7000 to $8000 and the respondent ought be resentenced accordingly. The respondent supported the fine imposed by the learned magistrate, and relies upon the submissions made below.

76. [76]
    I have undertaken my own independent review of the evidence and discussed the matters relevant to fixing the sentence in this case. In particular, the gravamen of the respondent’s offending lies in his cruel method of taking the crocodile, which resulted in its untimely death and permanent loss of conservation value. Despite his contribution of the community and otherwise good character unblemished by any criminal history, the respondent’s conduct in bating, capturing and disposal was purposeful, flagrant and deliberate. The factor of general deterrence must be a significant consideration in setting a just punishment in all the circumstances of this case.

77. [77]
    While an error is not readily discernible, in my respectful opinion the fine of $500 imposed by the learned magistrate is manifestly inadequate and outside the permissible range. However, I think there is an insufficient evidentiary basis bearing out more serious offending to warrant the magnitude of a fine contended by the prosecution.

78. [78]
    It seems to me that a fine of $3,000 is a just and appropriate sentence without being disproportionally crushing having regard to the offending and the defendant’s mitigating and financial circumstances. No conviction should be recorded.

Order

79. [79]
    For these reasons:

1. I allow the appeal;

2. The sentence of the Magistrates Court imposed on 7 March 2018 for the offence of taking a protected animal is varied by:

1. (a)
   Substituting a fine of $3000 fine in lieu of the fine of $500, and

2. (b)
   Subject to an application for a fine option order, I direct the Registrar to refer to the State Penalties Enforcement Registry for appropriate payment arrangements.

3. Otherwise all the orders made by the Magistrates Court on 7 March 2018 are affirmed including not recording a conviction.