Director of Public Prosecutions v McDonald, Roderick and Robinson, Gary James
[2012] VCC 1899
•23 November 2012 (Warrnambool)
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case number: CR-12-00741 and CR-12-00740
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RODERICK McDONALD |
| AND |
| GARY JAMES ROBINSON |
---
JUDGE: | HIS HONOUR JUDGE TAFT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 and 9 October 2012 (Melbourne) | |
DATE OF SENTENCE: | 23 November 2012 (Warrnambool) | |
CASE MAY BE CITED AS: | DPP v McDonald, Roderick & Robinson, Gary James | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1899 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords: fishery offences – dealing with proceeds of crime – giant crab and rock lobster – quota entitlement – pot use entitlement – failing to comply with access licence conditions – suspended term of imprisonment – prohibition – pecuniary penalty orders
Legislation Cited: Fisheries Act 1995 (Vic)
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Elston SC Ms D. Piekusis | (plea) (sentence) |
| For the Accused McDonald | Mr M. O’Connell SC Self-represented | (plea) (sentence) |
| For the Accused Robinson | Mr P. Morrissey SC Self-represented | (plea) (sentence) |
HIS HONOUR:
1 On 8 and 9 October 2012 a plea was conducted on behalf of Roderick McDonald and Gary James Robinson. Mr McDonald entered a plea to recklessly dealing with the proceeds of crime and Mr Robinson entered a plea to knowingly dealing with the proceeds of crime. Both Mr McDonald and Mr Robinson also entered pleas to summary offences which were uplifted by consent. The detail of that offending is enumerated in the course of sentencing remarks.
2 It is necessary to provide the factual context in which the offending occurred.
Access licences
3 Mr McDonald was the holder of Rock Lobster Access Licence, RL113, and Giant Crab Access Licence, GC27. He held quota entitlements for both licences. Mr Robinson was a nominated operator on Licence RL113 and Licence GC27. He fished using his own vessel, the “Western Light”.
4 Mr Robinson operated the licences under a verbal agreement with Mr McDonald. Part of this agreement was that all giant crab Mr Robinson caught were then sold to Mr McDonald’s company, Ocean Explorations. Mr Robinson was then given 70 per cent of the landed value of the giant crabs and Ocean Explorations retained the remaining 30 per cent.
5 Mr McDonald also leased Rock Lobster Access Licence RL8, of which Mr Robinson was the nominated operator. Mr McDonald was also holder of Giant Crab Access Licence GC20.
Quota units
6 Both rock lobster and giant crab fisheries are managed under the Fisheries Act 1995 as quota managed fisheries. A total allowable catch is set for a particular fishing season and is then allocated to access licence holders and issued as individual quota unit.
7 Rock lobster is a priority species and since the 2006/2007 season, the total allowable catch has been reduced from 450 tons to 240 tons in the 2010/2011 season.
8 Similarly, concern for the sustainability of the giant crab population has seen a reduction in the total allowable catch from 25 tons in the 2009/2010 season to 18 tons in the 2011/2012 season.
9 On 1 July 2010 Mr McDonald had 803.88 kilograms of quota for rock lobster on RL113. On 15 November 2010 he transferred 800 kilograms off that licence, leaving it with a quota of 3.88 kilograms.
10 On 23 December 2010 Mr Robinson returned from fishing to Port Fairy with 20 rock lobster, weighing 17.4 kilograms. This left the quota balance for rock lobster at minus 13.52 kilograms. On 29 December 2010 Mr Robinson returned to Port Fairy with three rock lobster, weighing 1.60 kilograms, which brought the quota balance for rock lobster to minus 15.12 kilograms.
11 On 8 January 2011 Mr Robinson entered port, stating that he had seven rock lobster on board but did not declare landing any. On 14 January 2011 and 21 January 2011, he stated he had ten rock lobster on board and on 28 January 2011 and 4 February 2011 he stated he had 12 rock lobster on board. On each occasion he did not declare landing any.
12 This conduct forms the basis for the following charges.
Robinson
13 Charge 32: between 30 December 2010 and 28 January 2011, took rock lobster in excess of permitted amount.
Section 66(9)(a) Fisheries Act 1995
Penalty: 50 penalty units and forfeiture of either one individual quota unit or the number of individual quota units equivalent to what was taken, whichever the greater.
McDonald
14 Charge 28: between 30 December 2010 and 28 January 2011, took rock lobster in excess of permitted amount.
Section 66(1) Fisheries Act 1995.
Penalty: 50 penalty units and forfeiture of either one individual quota unit or the number of individual quota units equivalent to what was taken, whichever the greater.
15 On 8 February 2011 Mr McDonald transferred 325 kilograms of rock lobster quota back on to RL113 but on the same day again transferred 300 kilograms of rock lobster quota off RL113 on to another licence. This resulted in a total quota of 9.88 kilograms being left on RL113.
16 Counsel for Mr McDonald submitted that this indicated an intention to comply with the regulations and rectify the negative quota.
17 At the relevant time Mr McDonald had individual transferable quota for giant crab of 1,630 kilograms on GC20 and 7,170 kilograms on GC27. This represented a total of 8,800 kilograms and 28.16 per cent of the total allowable catch for the fishery. Mr McDonald then leased and transferred a further 10,618.74 kilograms, which brought the total to 19,418.74 kilograms and 62.14 per cent of the total allowable catch for 2010/2011.
18 During that quota period Mr Robinson caught and landed 10,658.22 kilograms of giant crab under GC27 on behalf of Mr McDonald.
19 It is not alleged that Mr Robinson took in excess of the quota entitlement to giant crab.
Pots
20 In addition to the quota system, the fisheries of giant crab and of rock lobster are subject to a restriction on the number of pots that can be used by a licence holder.
21 Mr McDonald’s giant crab licence GC27 was linked to his rock lobster licence RL113. Under the Giant Crab Fishery Management Plan, a Giant Crab Fishery Access Licence holder is entitled to use up to twice the number of pots that are specified on the attached Rock Lobster licence, but only up to a maximum of 140.
22 On 1 July 2010 Mr McDonald had a 90 pot entitlement under RL113. On 15 November 2010 he transferred 70 pots off RL113 on to RL8. This left RL113 with an entitlement of 20 pots, or 40 pots when fishing for giant crab.
23 Counsel for Mr McDonald submitted that his client had a genuine belief that he was entitled to fish up to 140 pots under GC27. The 70 pots that had been transferred to RL8 remained idle after another fishing arrangement was abandoned. However the pots that were used still exceeded that 140 pots.
24 It is alleged that during the period 23 December 2010 to 1 April 2011 Mr Robinson set and hauled 3,386 unauthorised pots whilst fishing under RL113 and GC27.
Reporting requirements
25 Mr Robinson was required to report daily on his fishing activities.
26 He was required to report daily by writing in a Daily Catch Record (“DCR”), detailing the fishing activity for the day. This included dates and times, the location where he fished, the number of pots he set or lifted and the number and weight of giant crab and rock lobster caught. The information that is collected by Fisheries Victoria through this system is part of their research collection into the species and that information is then used to set total allowable catch and individual quotas in the fisheries.
27 He was also required to report daily via telephone to the Crustacean Quota Management System (“CQMS”). This included information on his estimated time of arrival in port, estimated unloading time, the number of rock lobster on board and the number of pots lifted. He was also required to report on the number of giant crab on board, the number of pots lifted and the total soak time in days. This refers to days when pots are not lifted but allowed to remain set in the water.
28 In addition to reporting, Mr Robinson kept his own notebook on board the “Western Light”, recording how many pots were set and lifted and when, and the numbers of rock lobster and giant crab that were caught. During a record of interview conducted on 11 April 2011, Mr Robinson admitted that his notebook contained an accurate reflection of his fishing over the offending period.
29 Between 23 December 2010 and 8 April 2011 Mr Robinson’s records in his own notebook show that on all occasions he used more than 140 pots, being the maximum allowed to be used at any one time, and inaccurately reported the number of pots he was using in his DCR and via the IVR.
30 Mr Robinson was originally charged with some 64 summary offences and Mr McDonald some 39, under the Fisheries Act 1995. The practical resolution of this matter has resulted in a smaller number of charges ultimately being prosecuted, which are intended to be representative of the nature of the conduct engaged in over the relevant period.
31 For instance, on 29 December 2010 Mr Robinson declared via the IVR and recorded in the DCR that he had hauled 140 pots. His own records show that he used 193 rock lobster pots. On 4 January 2011 Mr Robinson declared, via the IVR and recorded in the DCR, that he had hauled 140 pots. His own records show that he used 190 rock lobster pots.
32 On 28 January 2011 Mr Robinson declared via the IVR and recorded in both his RL and GC DCRs that he had hauled 140 pots. His own records show that he had hauled 275 pots and reset 271 pots.
33 On 23 February 2011 Mr Robinson failed to record any fishing activity via the IVR or in the RL or GC DCRs. His own records show that he hauled 270 pots and reset 330 pots but he did not declare landing any rock lobster or giant crab.
34 On 1 April 2011 Mr Robinson reported, via the IVR and DCR, that he had hauled 140 pots. His own records show that he had hauled 345 pots and reset 326 pots.
35 The following charges are representative of the conduct engaged in over the period between 23 December 2010 and 8 April 2011 and refer to non-compliance with conditions of the licences:
· failing to accurately report the number of pots lifted under GC27 and the number of rock lobsters on board;
· failing to complete the quota balance on the DCR under both GC27 and RL113;
· using more than the maximum allowable number of pots.
Mr Robinson is charged with a further, and more serious, offence under s.119A(a) of the Fisheries Act 1995 of falsely reporting the number of pots lifted and number of rock lobsters caught.
36 For the purposes of s.53 of the Fisheries Act 1995, if a person who is operating a fishery licence does not comply with any condition of that licence, the person who is the holder of that licence is deemed to have also failed to comply with that condition.
Robinson
37 Charge 45: between 19 January 2011 and 24 March 2011, failed to report accurately the number of pots lifted under GC27 and number of rock lobster on board the vessel.
Section 53(4) Fisheries Act 1995.
Penalty: 100 penalty units or six months’ imprisonment or both.
McDonald
38 Charge 17: between 19 January 2011 and 24 March 2011 failed to report accurately the number of pots lifted under GC27 and number of rock lobster on board the vessel.
Section 53(1) Fisheries Act 1995.
Penalty: 100 penalty units or six months’ imprisonment or both.
Robinson
39 Charge 51: between 19 January 2011 and 24 March 2011 failed to comply with condition of licence GC27 by not completing quota balance on daily catch record.
Section 53(4) Fisheries Act 1995.
Penalty: 100 penalty units or six months’ imprisonment or both.
McDonald
40 Charge 23: between 19 January 2011 and 24 March 2011, failed to comply with conditions of licence GC27 by not completing quota balance on daily catch record.
Section 53(1) Fisheries Act 1995.
Penalty: 100 penalty units or six months’ imprisonment or both.
Robinson
41 Charge 61: between 11 February 2011 and 24 March 2011 failed to comply with condition of licence RL113 by not completing quota balance on daily catch record.
Section 53(4) Fisheries Act 1995.
Penalty: 100 penalty units or six months’ imprisonment or both.
McDonald
42 Charge 37: between 11 February 2011 and 24 March 2011, failed to comply with conditions of licence RL113 by not completing quota balance on daily catch record.
Section 53(1) Fisheries Act 1995.
Penalty: 100 penalty units or six months’ imprisonment or both.
Robinson
43 Charge 50: on 8 April 2011 failure to comply with condition of licence GC27, and used more than the maximum number of pots allowed (140 pots).
Section 53(4) Fisheries Act 1995.
Penalty: 100 penalty units or six months’ imprisonment or both.
McDonald
44 Charge 22: on 8 April 2011, failure to comply with condition of licence GC27, and used more than the maximum number of pots allowed (140 pots).
Section 53(1) Fisheries Act 1995.
Penalty: 100 penalty units or six months’ imprisonment or both.
Robinson
45 Charge 20: between 23 December 2010 and 24 March 2011, false reporting of number of rock lobsters, and of number of pot lifts in his DCR.
Section 119A(a) Fisheries Act 1995.
Penalty: level 7 imprisonment (two years maximum), fine of 240 penalty units, or both.
46 On 11 April 2011 a search warrant was conducted by Fisheries at Mr Robinson’s house. Further investigation on board the “Western Light” revealed that Mr Robinson had been using 321 rock lobster pots to fish. Mr Robinson took part in a record of interview where he admitted to using the extra pots.
47 Fisheries also identified that Mr Robinson did not have a valid licence on board.
Robinson
48 Charge 63: on 11 April 2011 failed to comply with condition of licence RL113 by not having a valid licence on board.
Section 53(4) Fisheries Act 1995.
Penalty: 50 penalty units.
McDonald
49 Charge 39: on 11 April 2011 failed to comply with condition of licence RL113, by not having a valid licence on board.
Section 53(1) Fisheries Act 1995.
Penalty: 50 penalty units.
50 Over two trips, fisheries officers accompanied Mr Robinson on the “Western Light” to recover the extra pots. After the pots were seized fisheries officers identified that the pots did not comply with the conditions of the licence by not having the correct licence holder markings. All pots should have been marked with the registration of the “Western Light”, being XKU but contained a mixture of different markings.
Robinson
51 Charge 54: between 15 April 2011 and 17 April 2011, failed to comply with condition of licence GC27, pots not marked with correct licence holder markings.
Section 53(4) Fisheries Act 1995.
Penalty: 50 penalty units.
McDonald
52 Charge 26: between 15 April 2011 and 17 April 2011, failed to comply with conditions of licence GC27, pots and floats not marked with correct licence holder markings.
Section 53(1) Fisheries Act 1995.
Penalty: 50 penalty units.
Indictable charges
53 It is calculated that as a direct result of the unauthorised fishing activities Mr Robinson and Mr McDonald made respectively, $170,174 and $72,932. This profit forms the basis for the indictable charges under s.194 of the Crimes Act 1958, dealing with proceeds of crime.
Robinson
54 Between 23 December 2010 and 1 April 2011 knowingly dealing with proceeds of crime, being $170,174.
Section 194(2) Crimes Act 1958.
Penalty: level 4 imprisonment, 15 years maximum, or 1800 penalty units.
McDonald
55 Between 23 December 2010 and 1 April 2011, recklessly dealing with proceeds of crime, being $72,931.
Section 194(3) Crimes Act 1958.
Penalty: level 5 imprisonment, 10 years maximum, or 1200 penalty units.
Personal circumstances - McDonald
56 Mr McDonald is 59 and has no criminal record. At the age of 15 he left school to fish. For the last 44 years he has been a fisherman and a boat builder. He is imbued with a work ethic and hitherto has led an unblemished and productive life.
57 A psychological report authored by Dr Simon Kennedy, dated 30 April 2012, was tendered. Dr Kennedy noted that Mr McDonald has developed Type 2 diabetes, problems with his kidneys, high blood pressure and high cholesterol. He takes a variety of medications.
58 Dr Kennedy described Mr McDonald’s personal circumstances. He is married with four children aged between 16 and 23. His wife is a full-time family lawyer. He reported that he had only had one holiday in 30 years and over many decades has worked seven days per week. The family are based in Shepparton but the fishing and export business is centred in Portland. Generally Mr McDonald has fished during the season from November until Easter. He gave up going to sea in 2006 as a result of the sleeplessness and stress associated with that work.
59 Dr Kennedy noted that Mr McDonald presented as somewhat vague and with a tendency to go off track and described a more recent history of confusion. He reported that that deterioration appears to have been in the last three to four years. No evidence of depression was found and Mr McDonald presented as a man with high levels of energy and a continuing interest in his work and life. However, his wife perceives him to be increasingly dogmatic, forgetful, having difficulty with concentration and decision making and becoming more secretive. Testing led Dr Kennedy to conclude that Mr McDonald’s cognitive functioning has been compromised over the last several years. A fuller neuropsychological evaluation is recommended. Overall scores, both at a verbal and nonverbal level, were significantly below Mr McDonald’s estimated pre-morbid level of cognitive functioning.
60 A report from Dr Harry Lee, general practitioner, discloses that Mr McDonald has a number of medical problems including diabetes and a history of hypertension and ischaemic heart disease, high blood pressure and is at significant risk of cardiovascular disease.
61 Iain McDonald, the eldest brother of the defendant, was called to give evidence on the plea in mitigation. He is a retired primary school principal and described his brother’s background and life history. Having left school at 15, Mr McDonald became a deckhand on a fishing boat. The work was hard. At around the age of 22 he became a boat builder and developed a particular model of steel hulled boat that was very successful. Mr McDonald bought Ocean Explorations which purchases crabs and crays for ultimate export. Mr Iain McDonald described his brother as a family man who provides for his wife and children and is sustained by a conservative lifestyle borne of his Scottish descent. He described his brother as “wearing out” and no longer coping so well with hard and continuing work.
62 Mr O’Connell SC emphasised that his client had not engaged in overfishing and that his reporting failures were, to a significant degree, a reflection of his misunderstanding as to his entitlements. It was submitted that the context for Mr McDonald’s offending was his deteriorating capacity to attend to the necessary detail associated with his fishing operation.
63 In my view, that characterisation is an understatement of Mr McDonald’s culpability. At best, Mr McDonald’s conduct was cavalier, disregarding his obligations and taking short cuts.
64 It was contended that Mr McDonald had a genuine misapprehension that he had an entitlement to fish for giant crab using up to a maximum of 140 pots. The fact remains that whatever misapprehensions were entertained by Mr McDonald, the pots that were used far exceeded 140. Mr Robinson’s own records show that he was effectively working in excess of 330 pots for an extended period under the GC27 licence held by Mr McDonald.
65 Giant crab are a carefully managed resource. In December 2011 Fisheries Victoria published a “Victorian giant crab fisheries stock assessment report 2011”. The report recorded giant crab catch and the fishing required to realise that catch. The report was based upon mandatory log book returns from daily records provided by commercial fishers. As a consequence of the incorrect reporting undertaken by Mr McDonald and Mr Robinson, an addendum was required to the earlier 2011 report because of the distortions arising from the failure to accurately record daily catch records.
66 Mr McDonald, would you please stand.
67 In sentencing you, Mr McDonald, I am conscious that you have a good record and that a man with an unblemished history at the age of 59 is entitled to an appropriate measure of latitude. You pleaded guilty at committal and in the past you have participated in industry consultative processes and have assisted Fisheries’ officers.
68 On the charge of recklessly dealing with the proceeds of crime, being $72,931, you are convicted and fined $30,000.
69 On each of the uplifted summary charges, being Charges 17, 22, 23, 26, 28, 37 and 39, you are convicted and fined an aggregate sum of $20,000.
70 As agreed, a Pecuniary Penalty Order in the sum of $72,810 is imposed.
71 Pursuant to s.86 of the Sentencing Act 1991, and as applied by s.97(1)(b) of the Conservation, Forests and Lands Act 1987, I order that you pay $12,500, being your component of compensation to be paid to Fisheries Victoria for the hiring of a support charter vessel with a Fisheries officer and a police officer on board, accompanying the “Western Light” to recover excess pots.
72 In determining the penalties which have been imposed upon you, I have had regard to your inability to fish for two months due to the restraint of your licence and boat, which by way of lost fishing time was asserted to be an effective loss of some $65,000. I have also taken into account the fact that 140 of your pots were seized.
73 Section 128 of the Fisheries Act 1995 provides that an additional penalty of suspension of a fishery licence may be imposed if convicted or found guilty of certain offences. In your case, Mr McDonald, I do not propose to suspend any licence. That decision reflects your past good record and an appreciation that it will affect your capacity to operate, lease or sell any licence that you currently hold.
74 Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that but for your pleas of guilty, heavier fines would have been imposed.
75 Have a seat.
Personal circumstances – Robinson
76 Mr Robinson is in a markedly different position to his co-accused. He has pleaded guilty to more serious offences, he has a relevant criminal history and as recently as a few months before his offending, had written a letter to the Department of Primary Industries licensing officer, responding to concerns that he was not a fit and proper person to operate a Victorian Commercial Fishery Access Licence.
77 On 11 April 2011 Mr Robinson was interviewed by Fisheries’ officers at the Port Fairy Police Station. He was questioned about possible breaches of his access licence conditions related to crab fishing and rock lobster. Mr Robinson stated that there was a glitch in his paperwork in respect of crays. Mr Robinson also conceded that during the month of February 2011, when he was fishing 330 pots, his entitlement was confined to 140 pots.
78 On 2 May 2011 Mr Robinson attended the Warrnambool Department of Primary Industry depot where pots that had been seized from him were stored. Mr Robinson was there to collect the last of his pots which had been released to him on surety. He engaged in conversation with Fisheries officer, Troy Duthie. In relation to his breaches of the Fisheries Act, Mr Robinson indicated that he expected to be fined around $30,000. He indicated that any fine would be equal to one fishing trip and that the fine did not worry him. He specifically stated, “If you average it out over ten years, it’s nothing”.
79 Mr Robinson is no stranger to the courts, nor is he unfamiliar with the consequences that flow from infractions. In September 2003 Mr Robinson was convicted and fined at the Warrnambool Magistrates’ Court for failing to comply with a condition of his fishery licence. The offending related to bookkeeping and by that time Mr Robinson clearly knew that he must keep proper records and would be punished for failure.
80 On 5 September 2010 Mr Robinson told Fisheries that he was aware that there were concerns about him being a fit and proper person and that those concerns may impact his application to operate a Victorian commercial fishery licence. Mr Robinson referred to the proceeding at the Magistrates’ Court in September 2003 and indicated that the presiding magistrate stated:
“That I was beginning to build a history of offending against the Act and that if I was to present before the Court in the near future she would be left with no alternative than to impose a significantly larger penalty”.
81 Mr Robinson then told Fisheries:
“This penalty conviction and the instruction of the magistrate caused a re-evaluation of my future within the commercial fisheries sector, with particular attention allocated to not becoming a recidivist offender”.
82 He then stated that since 2003 he had attempted to build a reputation that overcame his past actions and that he had since made every attempt to comply with the regulations of whichever fishery he was operating within. He stated:
“Commercial fishing is my chosen occupation. I have been involved in this industry since I could walk. I am from a fishing family and it is the only vocation that I have had. Commercial fishing has been the constant in my life, from the amateurish fledgling states of 2000 to 2002 as a young man battling in what amounts to a dinghy, to the large professional outfit we currently operate. I at no stage take the professional responsibility of my operation for granted and I think this is reflected in the professional nature of my conduct since 2003. I do not think that it is excessive to point out that three families’ incomes are directly derived from my actions on board my fishing vessel, as well as the broader economic impact in the community, and that if sanctions are placed upon me due to my actions, it directly affects the lives of others. This responsibility I treat with the highest regard.
I understand that the Victorian Rock Lobster Fishery is a priority managed fishery and that the Department takes the stewardship of this natural resource extremely seriously. Therefore the vetting of the operator is necessary to avoid excessive risk, risk not just to the resource itself, but to the resources of the Department in policing suspect operators.
I accept that in the past I have not treated the requirements of being the operator [of a] commercial fishery access licence with the due respect. I hope that my actions of the last eight years in some way mitigate the offending prior. I can only state my conviction that I will operate a Victorian Commercial Fishery Access licence with the same level of professionalism that I currently display and would in my opinion be an asset to the fishery, not a liability”.
83 Given subsequent events the letter that Mr Robinson wrote is truly remarkable. Real doubt must attach to anything Mr Robinson professes and whether he is prepared to say anything to preserve his commercial interests.
84 This Court has also been informed of a subsequent appearance by Mr Robinson at the Warrnambool Magistrates’ Court for offending which occurred on 18 September 2010, some 13 days after he had written to the Department of Primary Industries asserting he was a fit and proper person. The summary of the offending reveals that on 18 September 2010 Mr Robinson, together with a co-accused, broke into a fishing vessel on a slipway at the harbour master’s yard on the Moyne River at Port Fairy. Mr Robinson’s co-accused stole four navigation units and two marine radios from the vessel and the two defendants discarded the two radios by throwing them into the river. On 20 June 2011 police located three of the four stolen navigation units and Mr Robinson was subsequently interviewed on 24 June 2011, when he admitted to his involvement in the theft and stated that the navigation unit not recovered was disposed of at sea. The motivation for Mr Robinson’s offending was his desire to obtain relevant information about fishing coordinates from the equipment which he stole.
85 The prior offending to which I have referred, together with the correspondence to Fisheries, places the offending in this court in true context. Mr Robinson emerges as an arrogant cowboy with a blustering disregard for the law.
86 Despite this dismal record, in the course of a candid and beguiling plea, made by Mr Morrissey SC on behalf of Mr Robinson, it was submitted that he is now a changed man who is determined to overcome his past discreditable conduct.
87 Mr Robinson is now 36 and has worked as a fisherman for much of his life. He was raised on Raymond Island off Paynesville in Gippsland and lived in Spartan conditions. His father was an alcoholic. Family life was unhappy.
88 At the age of 13 Mr Robinson was accepted into a local Catholic college and he then lived with his grandmother. However, she died when he was 14 and Mr Robinson then lived alone in her house.
89 From an early age Mr Robinson was a talented sportsman and by the age of 15 was playing senior football and representative senior football. As a consequence, by his early and mid teens he was mixing with adults in a non-family setting, drinking alcohol and living a life that belied his years.
90 Despite this he passed Year 12 and obtained the impressive TER score of 74. That enabled Mr Robinson to get into Deakin University at Geelong. He began an engineering degree and completed 32 of 40 units. Over four years of study he played football and worked in local pubs. While playing football with Grovedale, Mr Robinson met his future wife, who was studying arts and journalism. He captained a Gippsland cricket team and secured Victorian representation.
91 During the summer vacations Mr Robinson fished, having previously fished with an uncle on the Gippsland Lakes.
92 From 1997 Mr Robinson worked. He lived in Nauru for a year and obtained a position with the Nauruan fishing agency which involved management of commercial fisheries. His partner joined him for six months and he worked in order to earn sufficient money to obtain a commercial stake in the fishing industry in his own right. He returned with $60,000 from Nauru and in 2001 leased a quota and bought a small fishing boat for $49,000. He fished rock lobster for two years locally and also fished for shark.
93 In 2002 Mr Robinson married Daneel and they have had two children. During the course of that marriage he has been absent for extended periods while fishing. The money was good but while away he was deprived of sleep and when at home he had little sympathy for his wife’s circumstances. Mr Robinson made substantial money by fishing and had considerable assets, although levels of debt were considerable. By 2010 that lifestyle had become unsustainable.
94 Mr Robinson’s mother-in-law, Ann O’Keefe, gave evidence. She was a most impressive witness. She is employed as a pastoral care manager at a hospital in Warrnambool. She said that Mr Robinson had told her that he had “fucked up” and since then had turned his life around. Whereas previously he had lived chaotically and had been unpredictable and unsupportive of his family, he was now a different man. Mr Robinson has lost 35 kilograms and got fit. In the past year he has resumed playing football and has been a dominant goal kicker with the Panmure Football Club, having re-established his links with the community and interest in sport. Mr Robinson drinks less and his mother-in-law stated that he has now won her respect, her support and her love. She noted that she had initially had a cynical attitude towards his professed changes but she now considered that at long last her son-in- law was supporting his wife and children and realised that he must comply with the rules of society. He is no longer partying and drinking to excess and has developed a much better relationship with his son.
95 In the case of Mr Robinson, if past history was indicative of his future prospects of complying with the law, then his prospects would be very muted indeed. However, on the evidence before me and using Mr Morrissey’s terminology, there are indicators that Mr Robinson has “come good”. Mr Robinson has not been charged with further offences in the past 18 months and he enjoys strong familial support with a resolute moral compass. In concluding that Mr Robinson has made progress in the more recent period, I am conscious of the words of an old English proverb, “fine words butter no parsnips”. Time will tell whether Mr Robinson has significantly rehabilitated himself and the imposition of a suspended term of imprisonment is intended to remind him that his rehabilitation should be sustained.
96 Since April 2011 Mr Robinson has been catching shark on a Commonwealth fishery which is closely monitored. He has not fished giant crab or rock lobster and in my view, given the serious nature of the acknowledged offending, a prohibition should prevent Mr Robinson from fishing for those species in Victoria.
97 For sentencing purposes, I accept that the pleas of guilty were entered at an early opportunity and that the seizure of a large number of his pots amounted to a penalty that has already been imposed.
98 Would you please stand, Mr Robinson.
99 On the charge of knowingly dealing with the proceeds of crime, you are convicted and fined $50,000.
100 A pecuniary penalty order in the sum of $100,482 is imposed.
101 On each of the uplifted summary charges – 20, 45, 50, 51 and 61 – you are sentenced to an aggregate term of imprisonment of three months. That sentence is wholly suspended for 24 months. I must advise you that if you commit an offence punishable by imprisonment in the next 24 months, you would have to establish exceptional circumstances as to why you should not go to jail and serve the suspended term of imprisonment.
102 In addition to the suspended term of imprisonment, in respect of the uplifted summary charges which have been specified, I impose an additional penalty by way of an aggregate fine of $15,000.
103 On the uplifted summary charges 32, 54 and 63, you are convicted and an aggregate fine of $5,000 is imposed.
104 Pursuant to s.130 of the Fisheries Act, you are prohibited for two years from engaging in any commercial fishing of rock lobster and giant crab in Victorian waters. I make that order, having been satisfied that the offences for which you have been convicted are of a serious nature, are extensive and committed over a significant period of time, such as would make it likely that you would commit further offences against the Fisheries Act if a prohibition order was not made.
105 Pursuant to s.86 of the Sentencing Act and as applied by s.97(1)(b) of the Conservation, Forests and Lands Act, I order that you pay $12,500, being your component of compensation to be paid to Fisheries Victoria for the hiring of the support charter vessel which has been previously referred to. Further, I order that you make payment by way of compensation for data recovery undertaken by Fisheries Victoria and in the sum of $1,465.16.
106 Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that but for your pleas of guilty, an actual term of imprisonment would have been imposed.
107 You may be seated, Mr Robinson.
108 I will make an order for a stay of six months in respect of the monetary penalties and the ancillary orders that require payments. As I indicated at an earlier point, if counsel acting for either or both of Mr McDonald and Mr Robinson want to make any further submission in respect of orders that I have made I will hear any such submissions.
- - -
0
0
0