Director of Public Prosecutions v Finai

[2024] VCC 301

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised

Not Restricted

Suitable for Publication

Case No. CR-22-00768

Indictment No. C2114732

DIRECTOR OF PUBLIC PROSECUTIONS

v

JUNIOR FINAI

---

JUDGE:

His Honour Judge Trapnell

WHERE HELD:

Melbourne

DATE OF HEARING:

21 February 2024

DATE OF SENTENCE:

DATE OF REASONS:

21 February 2024

19 March 2024

CASE MAY BE CITED AS:

DPP v FINAI

MEDIUM NEUTRAL CITATION:

[2024] VCC 301

REASONS FOR SENTENCE
---

Subject:Criminal Law

Catchwords:              Sentence – Trafficking in a commercial quantity of a priority species – Offender part of syndicate – Offender harvested abalone on single occasion – Lower end example of offending – Guilty plea – Delay – Parity

Legislation Cited:      Fisheries Act 1995

Cases Cited:

Sentence:                  $6,000 fine without conviction

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms D Price Ms R Khan	Abbey Hogan, Solicitor for Public Prosecutions
For the Accused	Mr N Leslie	Slink & Keating Lawyers

HIS HONOUR:

1Junior Finai, on 21 February 2024 you pleaded guilty before me to one charge of trafficking in a commercial quantity of a priority species contrary to s 111A of the Fisheries Act 1995 (‘FA’). This was Charge 10 on a combined indictment charging various similar offences against your co-accused and others. The maximum penalty for this offence is 10 years’ imprisonment.

2On 21 February 2024, I sentenced you to a $6,000 fine without conviction. Pursuant to s 33(1) of the Confiscation Act 1997, I ordered that the property referred to in the Schedule to the order be forfeited to the relevant Minister. Pursuant to s 130AA of the FA, I made the prohibition order prohibiting you from engaging in specified abalone fishing related activities for a period of 3 months.

3Pursuant to s 6AAA of the Sentencing Act, I indicated the sentence I would have imposed but for your plea of guilty would have been a $12,000 fine with conviction.

4At the time of sentencing you, I indicated I would provide my reasons for sentence at a later time. These are those reasons for sentence.

The Facts

Legislative scheme   

5Abalone is a ‘priority species’ under s 4(1) of the FA. Holders of commercial fishery access licences are the only persons permitted under the FA to take any fish from Victorian waters for sale.

6The commercial abalone fishery in Victoria is managed under a quota management system, whereby the holder of a fishery access licence is issued with a quota each year that details how many tonnes of abalone the holder is allowed to take. This quota is set by the responsible minister after the total allowable commercial Catch (‘TACC’) for the fishery is determined. The TACC is set each year following stock assessments to determine how many fish can be taken in a sustainable manner. The TACC is divided between the license holders to form their quota.

7The commercial quantity of abalone is fixed at either 100 or more abalone or 10 kg or more abalone including shells pursuant to s 4(1) of the FA and r 455 and item 1 of the table in Schedule 29 of the Fisheries Regulations 2019.

8The taking of fish for personal domestic consumption (recreational fishing) is also highly regulated. Recreational fishers are subject to a number of restrictions and are not permitted to take fish for sale or sell their catch under s 36(1), s 40, s 111A and s 116 of the FA.

9As part of its statutory functions, the Victorian Fisheries Authority (‘VFA’) issues a yearly fisheries notice declaring open and closed days for accessing the resource. Saturday 28 March 2020 was a designated closed day for the harvest of any abalone in central Victorian waters.

10It is an offence to traffick a commercial quantity of any priority species without being authorised to do so under s 111A of the FA. Pursuant to s 11A(2) of the FA, trafficking includes preparing, selling, processing or receiving a priority species, as well as taking a priority species for sale.

Background

11You were born in October 1995. You were 24 years old at the time of the offending and are currently 28 years old.

12Between 13 January and 20 April 2020 a syndicate of persons comprising — you, Elijah Cruse, Andre Cruse, David Cruse, Lee Cruse, Ethan Cruse, Rydge Hogan, Tristan Sadoski, Bunnunmarrah Butler and Jason San Miguel (together known as the ‘Cruse syndicate’) — attended marine waters in Victoria to illegally harvest commercial quantities of abalone. You are charged before me with a single offence committed on or about 28/29 March 2020.

The offending

13As noted earlier, 28 March 2020 was a designated closed day for the harvest of abalone in central Victorian waters.

14On 28 March 2020, investigators monitored a listening device recording numerous conversations taking place in a vehicle (‘Andre Cruse’s vehicle’) while it travelled to Apollo Bay. Andre Cruse was in the vehicle with his father David Cruse and two unidentified men. The group discussed needing to ‘get enough’ that day before lock down started and going diving and spear fishing again tomorrow. They said Crayfish Bay and Green Cape are ‘good spots’. David Cruse discussed a previous time when they got 130 kilos out of the ocean that was sold for $14,000. They mentioned 'Van' is the buyer today because it is too ‘iffy’ for ‘the other guys with the restaurants’.

15At 6:19am, the listening device recorded a conversation between Elijah Cruse, Andre Cruse, David Cruse and yourself, where you all discuss what you will do with the money earnt from diving that day and that, while there is no work, you can keep selling ‘abs’.

16VFA investigators and fisheries officers identified you, Elijah Cruse, Andre Cruse, David Cruse and Rydge Hogan attending Crayfish Bay on Cape Otway. From 8:20am, fisheries officers observed you and the other men standing around Andre Cruse’s vehicle and another vehicle owned by Rydge Hogan (‘Rydge Hogan’s vehicle’). Andre Cruse’s vehicle stayed at Crayfish Bay for nearly four hours.

17At 8:29am, Andre Cruse and David Cruse discussed sighting a fisheries officer whilst travelling in Andre Cruse’s vehicle. At 8:51am Andre Cruse and an unknown male (believed to be either you or Rydge Hogan) discussed how much money can be made from diving.

18At 8:54am, Rydge Hogan told someone in the vehicle he would not come back in his own car, so he had an excuse to tell his dad he lent the car if he loses it.

19At 10:15am, the five men, including you, were observed diving at Stinko Bay, which is west of Crayfish Bay. One of the divers made his way out of the water dragging a green mesh catch bag along the shallows while attempting to conceal its contents. The diver then emptied the contents of the bag behind a rock on the shoreline.

20David Cruse was observed shucking abalone in large quantities wearing a single protective glove on one hand, which is a common method for shucking abalone. Elijah Cruse was seen discarding shells in the water. Rydge Hogan was observed dragging two partially submerged green mesh catch bags full of abalone, which is a technique commonly used by abalone poachers to avoid detection. Rydge Hogan was also observed carrying a green mesh catch bag containing a large quantity of abalone.

21You were observed on two separate occasions carrying a mesh catch bag containing large quantities of abalone. You were also photographed holding a screwdriver, which is a tool commonly used to shuck abalone.

22Approximately 250 abalone were harvested by you and your co-offenders on 28 March 2020.

23At 12:50pm, the listening device in Andrew Cruse’s vehicle captured Rydge Hogan saying he hopes the farmer does not find his car because, if he did, he would ‘call fisheries straight away’.

24At 1:30pm, you, Andre Cruse, Elijah Cruse, Bunnunmarrah Butler and Rydge Hogan discussed how big the abalone were that day. You were recorded saying you needed to buy a new bag and that ‘you have to spend money to make the money’.

25At 2:30pm, the listening device recorded a conversation between you, Andre Cruse and Elijah Cruse in which Elijah Cruse said, ‘they’re fucken big abs today … some of them I couldn’t fit more than two in my hands’.

26At 3:03pm, the listening device recorded Elijah Cruse asking you to call ‘Van’ and ‘tell her we have 40 to 50 massive ones’. Later that afternoon, a conversation occurred between you and Andre Cruse regarding the price of abalone per kilogram and how much you each expected to receive after the sale.

27On 29 March 2020, VFA investigators observed Andre Cruse, Elijah Cruse and Rydge Hogan depart 2 Creek Court, Eumemmering, in Andre Cruse’s vehicle. The listening device captured a conversation between you, Andre Cruse, Elijah Cruse and Rydge Hogan. Elijah Cruse said he had only left the house to get his money and the group would get something to eat in Springvale.

28Between 2:51pm and 2:55pm, Elijah Cruse and Rydge Hogan are seen in Springvale.

29The case put against you is that on 28 March 2020, you, together with other members of the Cruse syndicate, took a commercial quantity of abalone for sale. The ‘commercial quantity’ element is satisfied because of the assistance you provided in the overall harvesting operation, including the two incidents in which you are seen carrying abalone. The fact the abalone were taken for sale is evidenced by the circumstance that other members of the syndicate, with whom you are complicit, were seen the next day in Springvale for the purpose of selling the abalone taken by the syndicate the day before.

30At no point did you hold an access licence or act on behalf of the holder of an access licence, nor were you otherwise authorised under the FA to traffick commercial quantities of abalone.

Arrest and record of interview

31On 5 June 2020 at 1:25pm, Fisheries Officers Darren Deering, Joel Sedgwick, Liam Quinn and Madison Porta executed a warrant at your home at 19 Nugget Way, Cranbourne East where you were arrested. A quantity of recreational dive equipment located on the floor of the front garage was seized. This is the subject of the forfeiture order I made on 21 February 2023.

32On 11 June 2020, you made a ‘no comment’ record of interview as was your right.

Offence seriousness

33Trafficking in a commercial quantity of a priority species is a serious offence as reflected by the maximum penalty of 10 years’ imprisonment. Abalone is highly protected as a priority species under the FA. As I observed earlier, holders of commercial fishery access licences are the only persons permitted under the FA to take any fish from Victorian waters for sale. Moreover, recreational fishers are subject to a number of restrictions and are not permitted to take fish for sale or sell their catch.

34This offence was introduced in 2003 in recognition that:

The illegal take of fish resources, or theft of a public resource, is the biggest known threat to the sustainable use of Victoria's most valuable fishery resources, the 'priority species' of abalone and rock lobster.[1]

In the Second Reading Speech associated with the enactment of the section, the Minister for Agriculture said:

Not only does this illegal take of resources threaten the sustainability or survival of the fishery, but it also threatens the jobs of people in the industry. Broader implications for the wider community include the unfair competition with legitimately sourced product in the market place, the compromising of food safety and also the revenue loss for the government, and therefore the community as a whole. Countries around the world have seen the collapse of their fisheries due to high levels of illegal take. As a result of these collapsed abalone fisheries Victoria and Tasmania are now in the unique position of providing approximately half the world's supply of wild-catch abalone.[2]

[1]     Victoria, Parliamentary Debates, Legislative Assembly, 29 October 2003, 1283 (Robert Cameron, MP, Minister for Agriculture).

[2]     Ibid.

35The Government was also concerned with the ‘detriment of an increased vulnerability to being targeted by opportunistic and organised crime’. The Minister for Agriculture said:

Along with the benefit of premium prices for wild-catch abalone comes the detriment of an increased vulnerability to being targeted by opportunistic and organised crime. Illegal fishing activity has parallels with the illegal drug trade and at times intersects with it. Organised crime uses increasingly sophisticated measures to harvest and launder profits from the illegal fishing trade.[3]

[3]     Ibid.

36The prosecution submitted the following features are relevant in assessing the gravity of your offending conduct:

(a)   You contributed to the threat to a priority species for financial gain.

(b)   The system of designated closed days is calculated to protect the fragile resource of abalone.

(c)   By intending to take a commercial quantity, you depleted the environment.

(d)   Your offending conduct involved a level of planning. You travelled from Melbourne to the dive site in Crayfish Bay with diving and fishing equipment, such as wetsuits and mesh bags.

(e)   You committed the offence in company.

(f)    Detection avoidance techniques were utilised when retrieving the abalone from the water.

(g)   Your co-accused were aware of the potential detection and that reports had been made to VFA investigators.

37I also accept the prosecution’s submission that your offending impacted on each of the objectives of the FA, namely: (1) to provide for the management and development and use of Victoria's fisheries, aquaculture industries and associated aquatic biological resources in an efficient, effective and ecologically sustainable manner; (2) to protect and conserve fisheries resources, habitats and ecosystems, including the maintenance of aquatic ecological processes and genetic diversity; (3) to promote sustainable commercial fishing and viable aquaculture industries and quality recreational fishing opportunities for the benefit of present and future generations; (4) to facilitate access to fisheries resources for commercial, recreational, traditional and non-consumptive uses; (5) to promote the commercial fishing industry and to facilitate the rationalisation  and restructuring of the industry; and (6) to encourage the participation of resource users and the community in fisheries management.

38Moreover, in Strachan v Graves,[4] Underwood J observed:

A fisheries resource is a resource which belongs to the public at large. Offences such as those ... are difficult and expensive to detect. Abalone constitute a natural resource, the preservation, controlled harvest and proper management of which is a matter in which the whole community has a legitimate interest. It is a notorious fact that the abalone fishery is a precarious resource, one which will be lost forever unless strong deterrent penalties are imposed upon those who exploit it outside the controls imposed by those who are authorised on behalf of the community to manage this resource.[5]

[4] (1997) 141 FLR 283.

[5] Ibid 303.

39Nonetheless, I accept your offending conduct occurred on a single occasion and falls at the lower end of offending of this type given the relatively minor role you played in the syndicate’s offending. Your offending was of a short duration, occurring over the course of a two-day period on 28 March 2020, when you took a commercial quantity of abalone for sale with the Cruse syndicate and on 29 March 2020, when you were complicit in the almost certain sale of the abalone in Springvale. Moreover, you were not directly involved in that sale. Finally, there is no evidence to suggest you benefited financially from your offending.

40Clearly, denunciation and general deterrence, are the primary sentencing considerations in offences of this kind.

Personal circumstances

41You are currently 28 years of age. At the time of the offending you were 24 years of age. You were born in New Zealand to Samoan parents. You are one of six children.

42Your family came to Australia when you were aged three and settled in Noble Park in Victoria. You originally lived with your Aunt. You mother stayed at home raising the children, while your father, originally a shoemaker in New Zealand, found employment as a bus driver.

43You first attended Silverton Primary School before moving to Cranbourne. From Grade 2 you attended Cranbourne Primary School. You attended Hallam Senior College for Year 12 in 2014, but dropped out during the year when co-parenting your newborn child became too difficult.

44You joined a recruiting agency through Centrelink and obtained labouring work, factory work and picking and packing. Following this, you found employment in steel fencing and have remained in this field since.

45Your first serious relationship was with Andrina Smith. Your co-accused, Elijah Cruse, is Ms Smith’s half-brother. The relationship lasted approximately nine years. Your first child was born in February 2014. You have informal shared custody and are on amicable terms with Ms Smith.

46Your current relationship is with Ebony Gilbert. You have a baby son with her who was born in January of this year.

47You enjoy spending time diving, fishing and snorkelling. You also ride motorbikes and enjoy going on group rides.

Prior criminal history

48You have a minor and presently irrelevant prior criminal history.

49On 22 May 2017 you appeared at the Frankston Magistrates’ Court in relation to one charge of unlawful assault. You were sentenced to a without conviction two-year good behaviour bond.

Mitigating circumstances

50This matter resolved following a sentence indication hearing before me on 21 February 2024. You pleaded guilty to the present charge on that day.

51Your plea was not entered at an early stage. Nonetheless, it has significant utilitarian benefit. It indicates an acceptance by you of responsibility for your offending conduct. It also indicates a willingness to facilitate the course of justice, by saving the time and expense of the matter running as a trial and avoiding the need for witnesses to attend to give evidence.

52While I accept you are undoubtedly regretful for the situation you are in and the effect this has had on you, there is insufficient evidence before me to make a determination that you are genuinely remorseful and demonstrate true contrition for your offending conduct, beyond what is evident from the plea itself.[6]

[6]     See Barbaro v The Queen (2012) 226 A Crim R 354, 364–365 [32]–[38] ((Maxwell P, Harper JA and T Forrest AJA).

53The effect of delay is a mitigating circumstance in your case. You were interviewed by fisheries officers in relation to this offending on 11 June 2020 and charged on 17 March 2021. It is now three years since you were charged.

54As the Victorian Court of Appeal observed in Rodriguez v DPP (Cth):[7]

Delay is normally relevant in two ways. First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself.[8]

[7] (2013) 40 VR 436.

[8] Ibid 445–6 [36] (Warren CJ and Redlich JA) (citations omitted).

55There is no evidence before me regarding the efforts you have made towards your rehabilitation during this period of delay. However, I accept you have not reoffended. I also accept you have a long history of gainful employment and enjoy a stable relationship with your current partner. These are protective factors which auger well for your future prospects of rehabilitation. Given your lack of relevant priors, your employment history and family support, I assess your prospects for rehabilitation as very good.

56So far as delay akin to punishment is concerned, since you were charged in relation to these offences you have had the prospect of a sentence of imprisonment hanging over your head. Undoubtedly, this would has caused you anxiety and stress. I take the punitive effects of delay into account in your favour.

Application of sentencing principles

57I have had regard to current sentencing practice in relation to this offence as informed by the decisions of the High Court of Australia in R v Kilic[9] and DPP (Vic) v Dalgliesh (a Pseudonym)[10] and the Victorian Court of Appeal decisions in DPP v Zhuang[11] and DPP (Cth) v Thomas.[12]

[9] (2016) 259 CLR 256, 266–268 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).

[10] (2017) 262 CLR 428,444–447 [47]–[58] (Kiefel CJ, Bell and Keane JJ), 452–455 [78]–[85] (Gageler and Gordon JJ).

[11] (2015) 250 A Crim R 282, 292 [30]–[31] (Redlich, Priest and Beach JJA).

[12] (2016) 53 VR 546, 606–609 [173]–[183] (Redlich, Santamaria and McLeish JJA). See also Williams (a pseudonym) v The Queen [2021] VSCA 35 [21]–[25] (Priest and Kyrou JJA); Russo v The Queen [2021] VSCA 244 [53]–[56] (Emerton JA, Priest JA agreeing).

58While current sentencing practice is relevant to the sentence I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing a just sentence in your case.[13]

[13]    See DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.

59Moreover, it is difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute this offence and the myriad of personal circumstances pertaining to individual offenders. Nonetheless, to the extent I have been able to gain assistance from comparable cases, I have sought to do so in your case.

60The basic purposes for which a court may impose a sentence are just punishment, denunciation, deterrence, both specific and general, protection of the community and rehabilitation. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offence, your culpability for it and your personal circumstances.

61In sentencing you for this crime I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure that, so far as possible, you are rehabilitated and reintegrated into society.

62Parity is a very important principal to be applied in this case. I have had regard to the sentence imposed on your co-offender Rydge Hogan. Hogan was sentenced by his Honour Judge Wraight on 11 November 2022.[14] On the charge of trafficking in a commercial quantity of a priority species he was sentenced to a $6,000 fine without conviction.

[14]    DPP v Hogan [2022] VCC 2394 (Judge Wraight).

63The objective seriousness of Hogan’s offending conduct is very similar to yours, albeit Hogan attended the shop in Springvale in company with other co-accused on 29 March 2020. Hogan was a young offender when he committed the offence, being 20 years of age. You were 24 years old when you committed the offence and accordingly were a youthful offender. Hogan had no prior criminal history, while you have one presently irrelevant criminal prior. While a psychological report was tendered by Hogan’s counsel at the plea hearing, no Verdins principles were relied on. You can both call upon delay and your respective pleas of guilty as mitigating circumstances.

64Ultimately, so far as the application of the parity principle is concerned, it is difficult to draw any significant distinction between the seriousness of your offending conduct and your moral  culpability and that of Hogan. Moreover, your personal and mitigating circumstances are comparable.

65I accept the prosecutor’s submission that the parity principle has very limited application in respect to your co-offenders, Tristan Zezovski, Jason San Miguel and Van Banh, who were all dealt with summarily in the Magistrate’s Court. Zezovski gave an undertaking to give evidence against his co-accused. Miguel was charged with the lesser offence of taking fish for sale and not with trafficking a commercial quantity of a priority species. Banh’s role was merely that of a buyer.

66Just punishment, denunciation and general deterrence are the primary sentencing considerations in this case. I consider very little weight need be given to specific deterrence or protection of the community in sentencing you for this offence. Finally, as I observed earlier, I assess your prospects for rehabilitation as being very good.

67Ultimately, after having considered all other available sentences, I was of the opinion that a fine in the amount of $6,000.00 without conviction was the appropriate disposition in your case