Director of Public Prosecutions v Cox

[2021] VCC 808

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MILDURA

CRIMINAL JURISDICTION

CR 21-00502

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHAUN COX

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Mildura
DATE OF HEARING:
DATE OF SENTENCE:	16 June 2021
CASE MAY BE CITED AS:	DPP v Cox
MEDIUM NEUTRAL CITATION:	[2021] VCC 808

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty
For the Accused	Mr G. Tellefson

HIS HONOUR: 

1Shaun Russell Cox, you have pleaded guilty to one charge of knowingly dealing with the proceeds of crime, involving a sum total alleged of $205,600.02.  You also pleaded guilty to an uplifted charge of a between dates, selling fish in contravention of the law of New South Wales - and I do not have to go into the detail of that. 

2That is the crime which gives rise to the proceeds of crime aspect of the first charge, and I regard the two as being totally consumed within each other.  On the opposing separate fine, it will be in these circumstances, almost nominal importance.

3You are now 38 years of age.  You pleaded guilty to a settled indictment.  You confessed indeed when speaking to New South Wales fishing officers.  You must get the utilitarian benefit of that plea of guilty.  Because you have pleaded, I will give you the benefit of remorse. 

4The matter has to be regarded as serious.  And I make it clear at this point that your confessions to fisheries in New South Wales were such that the amount of fish that you have taken, which gives rise in the ultimate to these charges, was 11,500 kilograms of golden perch; that is a lot of golden perch.

5The fish was, apparently on your own admissions, all taken by yourself and all taken from the Darling.  As I sit here, I do not quite understand why you were not charged with those matters in New South Wales, but that is a matter for New South Wales, not for me.  Indeed, I would have thought that the proceeds of crime matters could have been dealt with in New South Wales, as well as the money that was in fact being sent to bank accounts in New South Wales.  That is a matter for them, and I make no comment upon it. 

6The only thing that bears upon the summaries that I am about to read out is that I am to sentence you for realisation of the proceeds of a crime that happened in Victoria.  The matters that happened in New South Wales, such as the taking of the fish, you had no licence, the environmental aspects, all those matters, in my view, are complete once the fish cross the Murray, and that was a matter for New South Wales to deal with.  I am not going to load you up with charges that are not before me simply because of my own personal feelings about the environment. 

7It is a situation where a lot of perch were taken from the Darling River, something like - well, verging on 12 tonne.  That obviously has to have had a significant impact on that river.  The river itself is failing due to human intervention.  I saw it myself a couple of years ago, and just a series of pools, it was quite heartbreaking to look at.  I say that to make it clear what my own personal views of this are, but what you did in terms of taking those fish is not within the sphere of what I am to sentence you for I make that very clear, and I do not do so. 

8In any event, the circumstances were that you did in fact have a commercial fishing licence in 2014.  In South Australia, you were fishing over there quite lawfully, it would appear, and you were taking Mullet and you were also taking  Golden perch.  Ultimately, that licence expired, as I understand it, because the business was not profitable, and you had effectively commenced taking Golden perch from the Darling River over a period from June 2017 up until, as I understand it, 2019.

9You were taking it with mesh or gillnets - I think I remember in your confession you were doing it with Gillnets. And it seems pretty clear that you were fishing in the pools that were being created by the - effectively at the time of the feared death of the Darling.  You told police that the activity was your primary source of income. You told them you were not aware that Golden perch were commercially protected but you knew it was an offence to take them without a licence. 

10You are a man who has had great experience in commercial fishing, it would seem to me.  You were brought up and taught at a young age in all aspects of those matters, and I will also make no comment on the general morality of commercial fisherman, having been brought up amongst them myself.  I simply indicate that I suspected you have a far deeper knowledge of what can and cannot be done, than you may have told your counsel. 

11But as I say, they are not matters that concern me.  What you would do would be to send the fish to Sanford in Melbourne, who would then sell it at the Footscray Market. They would then take a commission and pay the balance to you.  I am not aware of what happened in regard to them, I am not sure where they thought that quantity of Golden perch was coming from, and the only legal Golden perch fishing ground in Australia, as I understand, is in South Australia, and this fish was coming from Mildura, but it is a matter for others, not a matter for me. 

12But in any event, as I understand it, a total of 205,000 was paid to you. I subsequently realised, matters are being deducted from that for various other purposes, and that will be the subject of a later hearing if necessary by myself. 

13What it really comes down to is I will be making a pecuniary penalty order against you in quite a significant sum of some period in time.  General deterrence has to play a part in this, as well as specific deterrence in your case.  I hope that it has reached the end of the road for you, in terms of this type of offending and the sheer amounts of money that you owe do not become a temptation, to try and do it again.

14General deterrence is important, that the capacity of the authorities to catch the sale - if I can put it that way - of illegally taken fish is a difficult one.  And fish obviously do not have serial numbers on them.  Accordingly, there must be a fine of sufficient proportions to deter likeminded people from selling fish that they know were taken in such a way, and accordingly, I propose to do that. 

15I have received a couple of comparative cases from the Crown but they both involve monetary penalties, and that is what I am going to give you, that being accepted by both parties as being appropriate.  The authorities that I have been given also related to the taking of, in one case, Rock Lobster, and in the other, abalone.  So, those matters involve  environmental concern in Victoria.

16You are currently on an income of around $50,000 a year.  You did have a prior conviction from South Australia for taking yabbies or something, that is of no real concern to me.  Of interest is that you were charged upon your apprehension in March 2019 in New South Wales.  Now, at that point in time, you were charged with taking more fish than the daily limit, which were Golden perch, possessing more than the limit of fish, unlawful use of nets, failing to pay a fishing fee, illegally possessing fish and taking fish for sale without a commercial fishing licence.

17As I say, you confessed to the matters that have given rise to the ultimate charge in Victoria, but were not charge, as I understand it, in New South Wales.  Involving all those matters which of course contain the aspects of the environment, you were fined a total of $12,000, and your boat and equipment were forfeited. 

18You are now working, have a partner, and she has a home that you are both living in.  You have repaid about $5000 of the $12,000 that was ordered up in New South Wales.  And, as I say, that does not account for the boat that is gone and the equipment that has been forfeited.  I understand also, from the Bar table, that your vehicle may have been forfeited as well.

19You are on a $100 a week payment to the court in New South Wales and that will continue.  It is clear that there was no great financial income to you from all of this and it is going to take years for you - if you ever do - to pay all these fines.  You have put yourself into this situation, it is very difficult to see how you are going to get yourself out of it.

20In terms of rehabilitation, it is just simply a matter of taking fish you are not allowed to.  That is not a matter of rehabilitation, that is just a matter of common sense.  If you want to take the risk and get caught again, at some stage you are going to get incarcerated. 

21The prospects of your reoffending, I would hope, are low.  You do not have a significant criminal history.  And whilst this matter is at the higher end in terms of the amount involved, one can only hope that you have learnt your lesson and that this illegal conduct will cease. 

22I might point out also, just for completeness, that I have read the report that was tendered by the Crown of the good professor of the effect on the environment, but I have made it very clear, as I possibly can, that that is not what you are before me for, that is a matter for New South Wales.  If they elect not to go ahead with that, that is clearly their decision. 

23You told, apparently, the fisheries people, when they ultimately interviewed you, that you had something of a gambling addiction; I am told nothing about that, I am simply sentencing you on the basis that you were taking the fish for profit.  They were fairly easy prey - if I can use that word - and you stood to make a significant sum of money from the sale, had you not been detected.

24In any event, in what, on the face of it, is an emotive situation, I can only sentence you according to law and according to the proper principles.  On the summary charge of selling fish without a licence, I fine you $1000.  And on the charge of dealing with the proceeds of crime, I fine you $10,000.  That will be a total fine of $11,000.  In this State, I do not give stays.  It just becomes a matter between you and Fines Victoria if they ever catch up with you.

25No other orders I need to make, gentleman?

26MR TELLEFSON:  No, sir.

27MR O'DOHERTY:  You had indicated you would make ‑ ‑ ‑

28HIS HONOUR:  Sorry.  No, no - yes, no.  I will also indicate - I do not think I could do it yet - I will also indicate - sorry, thanks for that, Mr O'Doherty - I will be making a pecuniary penalty, but I will not be doing that until I am satisfied as to the appropriate quantum.  I now understand that the figure that was contained on the indictment may well have had the payments to Lindsay Transport taken out of it already, but there are obviously other business debts that would have been incurred through this, and I want to make sure it is an appropriate figure. 

29As I understand it, a pecuniary penalty orders is not regarded as part of the sentence, therefore it does not affect the fine. 

30MR O'DOHERTY:  No.

31HIS HONOUR:  No.  So, just make sure that is understood as well, it has not reduced the fine.  Nothing else?