Director of Public Prosecutions v Nguyen

[2016] VCC 542

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-16-00021

DIRECTOR OF PUBLIC PROSECUTIONS

v

VAN NUYGEN

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JUDGE:	HER HONOUR JUDGE PULLEN
WHERE HELD:	Melbourne
DATE OF HEARING:	21 March 2016
DATE OF SENTENCE:	12 April 2016
CASE MAY BE CITED AS:	DPP v Nguyen
MEDIUM NEUTRAL CITATION:	[2016] VCC 542

REASONS FOR SENTENCE
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Subject:  
Catchwords:             
Legislation Cited:     Criminal Procedure Act 2009; Fisheries Act 1995; Confiscation Act 1997; Crimes Act 1958; Sentencing Act 1991
Cases Cited:            Postiglione v R (1997) 189 CLR 295; R v Taudevin (1996) 2 VR 402; DPP v Le (2010) VCC 1558, R v Jure Topic (2008) VCC 1327, R v Brear (2008) VCC 0867, Tran v R [2012] VSCA 330, DPP v Trans (2010) VCC 1543; DPP v Bowerman (2011) VCC 1803.
Sentence:                  

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr J. Livitsanos and Ms C. Cameron	Office of Public Prosecutions
For the Accused	Ms A. Stephanides	Doogue O’Brien George

HER HONOUR:

1       Van Nguyen, you have pleaded guilty to one charge of trafficking in a commercial quantity of a protected species, namely abalone.  The maximum penalty applicable to that offending is 10 years' imprisonment. 

2 You have also consented pursuant to s145 Criminal Procedure Act 2009 to three summary charges being heard by me and have pleaded guilty to a charge of selling a priority species without being authorised contrary to the Fisheries Act 1995. The maximum penalty applicable to that offence is 200 penalty units or 12 months' imprisonment or both. You have also pleaded guilty to selling fish, contrary to the Fisheries Act 1995. The maximum penalty for that offence is 100 penalty units or six months' imprisonment or both.

3 You have also consented pursuant to s145 Criminal Procedure Act to a further summary charge of dealing with money suspected of being proceeds of crime and have pleaded guilty to it.  The maximum penalty applicable to that offence is 2 years' imprisonment. 

4       Your crimes occurred between 1 October 2013 and 14 October 2014 relevant to the trafficking charge and also two summary charges 10 and 11.  Summary charge 15 relates to 14 October 2014. 

5       It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with the prosecution opening (Exhibit A).  I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing.  It is sufficient for present purposes to say your offending is very serious.

6       I have previously sentenced another offender charged through Operation Quantum, Phuong Nguyen on 3 February 2016.  That sentence, as I understood, may be the subject of appeal, apparently yet to be determined and as such was discussed with both counsel.  Neither counsel suggested this could not proceed to sentence with that still being undetermined. 

7       I turn to a brief summary of your offending.  As discussed with both counsel, the first 33 paragraphs of the prosecution opening (Exhibit A) are in the same terms as the prosecution opening when sentencing Phuong Nguyen. 

In brief

8       Abalone and rock lobster are defined as "priority species" pursuant to the Fisheries Act and are therefore subject to a high level of protection, which includes prohibition on trafficking in a commercial quantity of those species. 

9       Holders of commercial fishing access licences are the only persons permitted under the Fisheries Act to take any fish from Victorian waters for sale. 

10      The taking of fish from commercial abalone and rock lobster fisheries is managed under a strict quota management system and licences to ensure sustainability of the fisheries resources and the viability of the licensed commercial industry.  Recreational fishers are subject to a number of restrictions, including not being permitted to take fish for sale or to sell their catch. 

11      These offences pursuant to s116, s40 and s11A, are Schedule 1 offences under the Confiscation Act 1997 and therefore dealing with their proceeds is an offence under s194 and s195 Crimes Act 1958.

12      The illegal fishing of and harvesting of abalone and other priority species is environmentally damaging and health endangering, and the prosecution relied on a number of documents relevant to the impact of illegal abalone and other fishing within paragraph 6 of the prosecution opening.  I shall return to those later in these sentencing remarks. 

13      The commercial value of abalone and rock lobster has made it attractive to unlawful black market activity, particularly by people using the cover of recreational fishing to take fish for commercial purposes. 

14      In an attempt to reduce the unlawful taking of abalone for sale, fisheries managers have implemented a number of controls on recreational activity, which include those matters stated within paragraph 8 of the prosecution opening.  Despite those controls being implemented, however, it appears economically viable for organised groups to operate on the black market while staying within the recreational controls on fishing outside of central Victorian waters. 

15      Your offending was detected as part of Operation Quantum. 

16      The prosecution case is that you were part of a syndicate of divers and retailers operating an unlawful business of taking abalone, rock lobster and other molluscs from western Victoria and selling the catch on the black market in the western suburbs of Melbourne. 

17      The co-accused referred to in the agreed prosecution opening at paragraph 14 predominantly lived in the St Albans and Cairnlea area, the latter also your residential address.  I was advised during the course of the plea hearing of Phuong Nguyen that apart from yourself, all other divers had been dealt with and sentenced for their involvement in the Magistrates’ Court. 

18      The list of co-accused included a number of divers who would travel on average three to four hours each way to the south western coastline of Victoria to catch the recreational daily limit of abalone, rock lobster and other molluscs, being a round trip of approximately 700 to 800 kilometres per day. 

19      Originally the divers travelled in groups of four to five persons per vehicle.  Fisheries Notice No 12/12013 of 19 December 2013, introduced protection of the abalone fishery by means of imposing an overall vehicle limit.  That notice placed a limit of 10 abalone and 10 litres of molluscs per vehicle.  As a result of that notice the methodology of the syndicate changed and commenced harvesting and transporting daily catches in pairs.  That Fisheries Notice significantly reduced the number of diving participants and resulted in an increased number of cars being utilised. 

20      On the issue of parity the prosecution submitted, as it had during the plea hearing of Phuong Nguyen, that there was a distinct difference between your roles and the roles of those who pleaded guilty to charges in the summary jurisdiction in the Magistrates’ Court.  You were regarded as being at the top of one of two pyramids.  Phuong Nguyen at the top of the other in this operation. 

21      Operation Quantum identified 11 divers who operated as an organised syndicate.

22      The divers typically departed their homes in the western suburbs at about 4.00am travelling to various dive locations known to stock abalone, rock lobster and other shellfish. 

23      The divers harvested their catch in an efficient manner.  The way they did this looked like commercial activity rather than recreational diving.  Officers routinely observed the syndicates' vehicles parked close together for five to six days a week, in close proximity to productive dive locations.  The divers prepared their equipment in the same manner and walked as a group from their vehicles to a particular dive location.  The divers would enter the water then harvest their catch in close proximity to each other.

24      After exiting the water the divers would change out of wetsuits, in close proximity to each other, and fill backpacks in a uniform way, as described in paragraph 21 of the prosecution opening.  Fisheries officers routinely conducted inspections to confirm the identity of syndicate members and record details of their daily catch that consisted of five abalone, five litres of other shellfish and quantities of rock lobster. 

25      Surveillance of the divers identified that the syndicate members would then travel back to Melbourne, often in convoy and meet at pre-arranged addresses, of which yours was one.

26      Two methods of sale were identified.  The first method related to the offending by Phuong Nguyen, and I shall not further refer to that, those details are contained within my sentencing remarks of 3 February 2016 relevant to that offender.  The second method of sale related to you. 

27      The prosecution case relevant to you was that members of the syndicate would either consolidate their catch at one of the syndicate member’s residential addresses or would deliver their catch to your home address.  You were also, as I have said, a diver. 

28      When the catch was consolidated at another syndicate member’s house you would attend and pick up the entire catch.  At that location each of the syndicate member’s catch was weighed and they were paid cash by you. 

29      You then transported the catch back to your home where you sorted, weighed and packaged the fish for further sale. 

30      Following that, you would deliver quantities of abalone, rock lobster and other molluscs by pre-arranged orders to a number of private homes and retail outlets.

31      Turning to the charges before me.  Between 1 October 2013 and 14 October 2014 you were inspected on the coast by Fisheries officers on 45 occasions, covertly observed on a further 19, and your diving associates’ vehicles observed a further 45 times. 

32      Of the 45 occasions when you were inspected you were observed to have dived and travelled with other fellow syndicate members.  Consequent inspections revealed you had taken a total of 224 abalone, 224 litres of other molluscs and 19 rock lobster.  Taking into account the covert observations, a total of 544 abalone, 544 litres of other molluscs and 19 rock lobster were harvested. 

33      During that period of time, you travelled back to Melbourne after diving near Warrnambool.  Syndicate members were seen at your home in Cairnlea delivering their daily catch of abalone, rock lobster and other molluscs. 

34      You were also seen to attend residential addresses of other syndicate members collecting their daily catch of abalone, rock lobster and other molluscs. 

35      A location surveillance device was attached to your vehicle, 1CN 70J, from 25 July 2014 to 10 October 2014, pursuant to a warrant.  Information captured from that device showed your vehicle attended the residential addresses of each of the other syndicate members at times when you typically collected their daily catch of abalone, rock lobster and other molluscs.

36      In total you were seen on 33 occasions to receive those species/fish in this manner. 

37      You were questioned by authorities in a recorded interview on 14 October 2014.  You made some admissions to your offending, although as I discussed with counsel, you minimised your involvement even when presented with video evidence of your activities.  Initially you proffered false accounts of your activities eventually making some admissions.  A reading of your interview in its entirety reveals your denials and subsequent admissions, and parts of it were read into the transcript by me.  You said you had been collecting abalone, rock lobster and other molluscs, from Han Dang and Ca Nguyen, and that you collected abalone for sale from Vong Tran, Han Dang and Huu Dang.  When you did not take other divers’ catches, you said they would take it to another lady who sold it in St Albans (a reference to Phuong Nguyen) her activity you described as “too dangerous”. 

38      From April 2014 to September 2014 you were seen transporting and selling the syndicate’s consolidated catch of abalone, rock lobster and molluscs in your vehicles.  From 1 October 2014 to 19 July 2014 in vehicle registration No. ZHW 360, and from 20 July 2014 to 14 October 2014, vehicle registered No. 1CN 70J.  After weighing, sorting and packing the catch, you would deliver quantities of abalone, rock lobster and other molluscs by prearranged orders to a number of private residences and retail outlets in exchange for cash. 

39      You either received orders by phone or you contacted previous clients direct.  Upon arriving at clients’ addresses you typically unloaded the requested product and carried it with a set of green scales to the front door.  You were also seen to carry out your ‘business’ from the rear boot of your vehicle where you invited clients to inspect the abalone, rock lobster and molluscs retained in plastic bags, bucket and white polystyrene box. 

40      You were seen to do this on 18 separate occasions. 

41      In your record of interview you said you sold abalone, rock lobster and other molluscs on every occasion you went diving.  You used scales to show an accurate weight to customers and you placed abalone, rock lobster and other molluscs in a foam box to keep the contents cool and keep customers happy so that they did not get sick.

42      For completeness, and consistent with my discussion with counsel, I have disregarded paragraph 46 of the prosecution opening (Exhibit A) other than Ms Stephanides’ concession that selling the catch had the potential to cause a risk to food safety. 

43      You said clients purchased abalone, rock lobster and other shellfish from your home address.  You said you knew your activity was in breach of the law stating, “It’s illegal to sell, only to eat.”  You further said, “If they dive and they give it to me, I give to them.” 

44      On 14 October a search warrant was conducted at your home in Cairnlea and a quantity of cash was located.  When asked about the origins of that cash, you said “Cash, come from some people.  My wife share, my wife join the Hui system.”  And further, “My wife, she took from my daughter, three times and every month she have to pay $1,500 for the fund.” 

45      The prosecution alleges that $21,235 were proceeds of crime specifically from this offending (Charge 15).

46      You have relevant prior court appearances.  You appeared at Colac Magistrates' Court on 7 February 2000 on charges of possess abalone equipment - exceed catch limit, taking abalone – more than catch limit, and failing to retain abalone meat in its shell, and were convicted and fined $1000. 

47      You next appeared at Geelong Magistrates’ Court on 30 May 2000 on a charge of failing to cut abalone meat within 20m of landing and were convicted and fined $1500. 

48      You next appeared at Sunshine Magistrates’ Court on 16 March 2001 on charges of possessing abalone equipment – exceed catch limit and possess abalone – more than catch limit, and sentenced to an aggregate 4 months’ imprisonment suspended for 12 months and were also convicted and fined $3000. 

49      Ms Stephanides conceded your prior criminal history was relevant when assessing the gravity of your offending and the need for specific deterrence.  I agree.  I note Phuong Nguyen’s lack of Fisheries Act offending. 

50      Your counsel submitted you did not think your current offending was likely to result in imprisonment.  I find that very hard to accept given your prior and relevant offending, in particular, your most recent prior sentence.  Also your acknowledgment that selling was ‘illegal’ and ‘wrong’ (T.939) being aware of and describing the selling by Phuong Nguyen as ‘dangerous’ and that it was ‘less dangerous’ to sell at houses (T.964-965). 

51      Regarding your involvement in this operation it is clear from your record of interview you knew it was wrong.  I find it difficult to accept the submission by Ms Stephanides you did not grasp the severity of your offending because you were collecting the correct amount for each bag limit.  As I previously stated, you knew full well this was not for your own consumption but for the purposes of sale.  To say that you did not appreciate the consequences, including a potential term of imprisonment, is surprising to say the least, given you had previously been sentenced to a term of imprisonment, albeit suspended. 

52      It was submitted you entered your plea of guilty without the need for a contested committal, although acknowledged, resolution of this matter had taken time.  It was submitted you nevertheless entered your plea of guilty at an early stage.

53      Your counsel also relied upon admissions made by you to your offending in the record of interview.  As I have previously stated, there were also significant denials by you during the course of the interview. 

54      Mr Livitsanos, for the prosecution, submitted your plea was late and that, as at mid-November, there was dispute about the date range of the charge on the indictment and also the amount of money relevant to Summary Charge 15.  This was still in dispute, he said, as at 6 January 2016, just prior to the contested committal on 11 January 2016.  I refer to the agreed chronology sent to me yesterday regarding your discussions with the prosecution and eventual resolution to pleas of guilty to these charges on 12 January 2016.  On that same date the charges regarding Thi Van (your wife) resolved into summary charges (Exhibit B) which was provided to me just prior to this sentencing hearing. 

55      I note Ms Phuong Nguyen made her offer to make her statement to police in June 2015 and was close to resolving in September 2015 according to that agreed chronology. 

56      It is clear, however, that at the contested committal, no witnesses were required to be called, although three were present at court.  This matter resolved on the second day of the contested committal to permit Ms Stephanides to read the prosecution opening and draft orders.  You formally indicated your intention to plead guilty on 13 January 2016 before the Magistrate. 

57      The timing of your plea is relevant and I accept there have been ongoing efforts to resolve your offending to suitable charges. 

58      I accept your plea of guilty indicates some remorse for your offending, although I am concerned by your relevant prior criminal history and the duration of this offending (over approximately one year) whilst being aware it was ‘illegal’ and ‘wrong’.  You have, however, pleaded guilty to the four charges before me and you are entitled to have that fact taken into account in your favour, and I do so. 

59      The community by your plea has been spared the time and cost of a trial and witnesses have not been required to give evidence upon your trial. 

60      Whilst I accept your pleas of guilty indicate some remorse, I have some concern regarding the extent of your remorse, in part, given your relevant offending, duration of this offending and awareness of its illegality.  Certainly, I accept you are regretful at having been caught, but that is not to say you are remorseful for what you have done.  I hasten to add, however, I do not find that you are not remorseful. 

61      I was told something of your background and history by your counsel, Ms Stephanides, also in her written submissions (Exhibit 1). 

62      You were born in Vietnam and granted refugee status in 1977.  You had limited education (primary Grade 5 equivalent) as you assisted your father on the farm in Vietnam.  Despite some English classes over a period of three months your English remained relatively poor. 

63      Since coming to Australia you have been in paid employment for 20 years, however, your wife’s medical ailments led to you retiring to be her carer.  There are four daughters of your marriage, two still live in the family home.  I note the presence of some of your family members in court during your plea hearing.

64      You are in receipt of Centrelink benefits as carer for your wife who was on a disability support pension. 

65      When your wife was dealt with for her involvement in this offending, Magistrate Lethbridge accepted that your likely separation from her, should you be incarcerated for your offending, would be traumatic for her.  I accept this will weigh upon your mind in custody and such is a relevant consideration consistent with general sentencing principles.  Ms Stephanides was not relying upon exceptional circumstances relevant to family hardship, and that in my opinion, was an appropriate concession.

66      Ms Stephanides spent much of her plea and written submissions addressing what she submitted was the prosecution position that the purpose of the legislation was to protect the fishing resources.  She urged there should not be an over reliance on sustainability issues when sentencing you for your offending as you only took the amount of abalone and other seafood to which you were entitled, that is, up to the bag limit and not beyond. 

67      It is, however, important to note that sustainability issues were not the only matters upon which the prosecution relied in describing the gravity of your offending.

68      Ms Stephanides submitted it could not be shown by the prosecution that by taking the permissible amount of seafood, your offending damaged the environment by compromising stock.  Your offending by taking the legal limit had not led to stock depletion she urged. 

69      I discussed this with Ms Stephanides, and the transcript will reveal that discussion. 

70      While I agree in your case there should not be emphasis on overfishing and sustainability of resources, such is not irrelevant, rather relevant to the issue that you were taking your ‘permitted bag limit’, but not for the purposes of your own family’s consumption (the intention of the legislation) but for the purposes of selling.  By your own admission that activity was two to three times per week, then consolidating that catch with other divers’ quantities for a purely commercial benefit.  This does deplete abalone and other fishing resources.  The bag limits are set for recreational fishers, and for their own consumption, however, that was not your involvement or intention.  I accept the submission by Mr Livitsanos, that by intending to take the bag limits you did, specifically for sale, you were depleting the environment, albeit, to the limit quantity. 

71      The thrust of Ms Stephanides’ submission in this regard was that ultimately there was no adverse impact upon the environment because appropriate bag limits were taken.  That, to me, is not the end of the matter.  It remains a concern, that you took the fish/abalone as frequently as you did and not for your consumption but specifically for sale. 

72      Ms Stephanides submitted the prosecution could not say your offending was sophisticated because you were staying within the limits of the bag quantity.  I disagree.  The bag limits were for individual recreational fishers.  You, on the other hand, were doing this multiple times per week, and for the purpose of sale, combining your catch with the catches of other divers.  Your activity and involvement with other members of the ‘syndicate’, in my opinion, had the potential to impact adversely and overfish the supply. 

73      Ms Stephanides submitted there was no actual harm caused to the environment by your offending.  I disagree for the reasons I have previously stated.

74      In my opinion, your syndicate operation was sophisticated.  It was systematic offending by an organised group who attended diving locations multiple times per week as part of the group and for a commercial purpose on the black market. 

75      Turning to the Second Reading Speech of 29 October 2003 [p1283], Mr Livitsanos also referred to the broader implications of your offending which also included unfair competition, that is, people doing the right thing, taking their own bag limits for their own consumption.  You, on the other hand, he submitted, for over a year took part in a planned and systemic and systematic commercial activity implemented for the purpose of commercial fishing.

76      Ms Stephanides’ submissions did not reduce the concern about overfishing given the commerciality of this operation, and the number of times you took the limit for the specific purpose of sale.  Your offending, as frequently as it occurred, impacted upon stock quantities because they were for the purpose of sale. 

77      Mr Livitsanos submitted the Fisheries Act set up a regime for fishing of this type, with licensing requirements and thresholds regarding what could and could not be harvested. 

78      Turning to your co-offenders, I was initially advised on 10 December 2015 that they were yet to have their matters finalised.  That had, however occurred by the time of your plea hearing.  Some of the co-accused, specifically the divers, had relevant fishing priors, if not all, and some had been previously dealt with in the Magistrates' Court, others with infringement notices. 

79      On the question of parity, I do not consider those principles to be relevant to offenders dealt with by the learned Magistrate and yourself, however, in considering parity and the offending by Phuong Nguyen, I am conscious of Postiglione v R[1] and R v Taudevin[2]. 

[1] (1997) 189 CLR 295

[2] (1996) 2 VR 402

80      You have a number of relevant prior court appearances for exceeding abalone quantities and fisheries charges.  Phuong Nguyen did not have Fisheries Act priors but did have two appearances for dishonesty.  Also your offending was over a period of approximately one year compared with Phuong Nguyen whose offending was between six and seven months.  You also had an additional role in this offending, in that you were also a diver attending, on your admissions, two to three times a week to help collect your bag limits, and I note specifically observed by Fisheries officers on 64 occasions (that is, the 45 plus 19). 

81      You did not make any statement to the authorities to assist the prosecution as did Ms Phuong Nguyen.  In other words she did.  It was of course your right not to so assist the authorities. 

82      I also note the 45 times you had direct contact with Fisheries officers at the diving scene regarding your catch.  That contact did not dissuade you from continuing involvement in this illegal activity. 

83      You also face the additional charge of dealing with cash the proceeds of crime. 

84      I note the number of purchases relied upon in both yours and Phuong Nguyen’s case of 33 purchases by you, compared with Phuong Nguyen 37, and 18 sales compared with Phuong Nguyen 27 sales, i.e. less sales and purchases by you than Phuong Nguyen. 

85      I also note the timing of your pleas of guilty by both yourself and Phuong Nguyen.

86      In my opinion, there are significant differences between yourself and Phuong Nguyen’s offending.  I accept the prosecution submission your offending can be distinguished in a number of ways from that of Phuong Nguyen and that you are at the ‘high end of the tree’ compared with Phuong Nguyen. 

87      Turning to some authorities.  Ms Stephanides distinguished your offending from that in R v Degelder[3], which involved taking 50 times the catch limit, 14 prior court appearances, that offender having been on a prohibition order at the time, and also breaching a suspended sentence with the offending.  Ms Stephanides submitted a term of imprisonment should be for those types of offenders and not you.  I disagree that only such cases warrant imprisonment.  Ms Stephanides also distinguished the cases of Caldow & Shannon v Hemming[4], Stevenson v Dix[5] and Jetopay Pty Ltd v Dix[6]. 

[3] [2006] VSCA 249

[4] (1991) 55 A Crim R 449

[5] (1995) 81 A Crim R 167

[6] (1994) 76 A Crim R 427

88      At the time that I sentenced Phuong Nguyen, I had the opportunity and had read a number of cases that involved sentencing for the offence of trafficking in a commercial quantity of abalone.  As I said then and repeat now, it is difficult comparing cases, as facts vary enormously case to case: such as, the quantity of abalone involved, the duration of the offending, any co-offenders, and parity issues involved.  Also case to case, matters raised in mitigation of sentence relevant to individual offenders vary enormously. 

89      In my sentencing remarks relevant to Phuong Nguyen I also referred to a number of documents that were relied upon by the prosecution, specifically at paragraphs 67-70 of those sentencing remarks.  I incorporate those paragraphs within these sentencing remarks. 

90      

I have read the Resource Impact Statement - Victoria Abalone Stocks by

Dr Harry Gorfine, who referred to the abalone fishing industry, and there are various quotes that now follow:   

“Abalone resources are under stress and unable to sustain the additional impact posed by illegal fishing.” 

“Greenlip abalone populations are particularly vulnerable to fishing.” 

“Blacklip abalone are also vulnerable to over-exploitation. 

“The depleted status of Victorian abalone stocks is evident from population surveys completed during recent years.” 

"Management responses, to decreasing numbers, have indicated increased size limits and a substantial reduction in total allowable commercial catch." 

“Among the recreational sector, there have been increases in size limits and catch quantities have been controlled through reductions in possession limits, from ten to five per person per day, of which only two may be greenlip, and a restriction on the number of days during which abalone can be harvested from Central Victorian waters.” 

“Even modest quantities in excess of possession limits may severely compromise resource sustainability.” 

“Illegal removal and trafficking in abalone is recognised as a major threat to abalone fisheries' sustainability globally.” 

"The illegal harvest of abalone not only further imperils the sustainability or otherwise relatively healthy stocks of abalone, it also reduces the likelihood that the resource will ever recover in those areas where catastrophic losses have occurred from disease or formation of sea urchins."

“As a consequence, this jeopardises Commonwealth approval for continued export of abalone products or the associated balance in international trade.” 

“Abalone is a community owned resource and the cost to the community for illegal fishing is high, in terms of lost revenue.” 

“It is imperative that abalone fisheries' crime is deterred.”

91 I have also read the Fisheries (Further Amendment) Bill, dated 29 October 2003, which sets out clearly the concerns of Parliament regarding trafficking and taking and possession of abalone and rock lobster:

“As outlined in Part I of the Bill, its purpose is to amend the Fisheries Act 1995 to create various offences in relation to trafficking in, taking and possessing abalone and rock lobster.”

“Part II of the Bill sets out a range of enforcement provisions to ensure that the government has the capacity to effectively address the unique operational challenges presented by the illegal take of Victoria's valuable fisheries resources and its linkages to organised crime.  The emerging scale, complexity, and high costs to the community of this activity requires a    strong response and concerted effort.”

I digress and note there is no suggestion here of organised crime, other than the syndicate issue.

“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 and "priority species" of abalone and rock lobster.  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.”

And further,

“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.  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.

This bill will provide increased penalties and improved enforcement powers, which are essential in addressing the       nature of the offences.  The penalties must also reflect the extremely lucrative nature of the illegal trade, if they are to provide an effective deterrence.  Penalties must be comparable to those applying to other forms of theft and also take account of the high black market value of the resource.  Fines alone are not considered to be an adequate deterrent in a lucrative environment where black marketeers are able to factor in substantial fines as simply "the cost of doing business". As such, imprisonment will be included in the penalties made available for addressing such crimes.

The government has been clear in its intentions for the Victorian abalone industry to implement measures to reduce the estimated levels of illegal take of abalone.

The insertion of indictable offences for illegal theft and trafficking of priority species will enable the provision of assistance by other agencies, such as the Australian Crime Commission, which provides enhanced intelligence, surveillance and operational capabilities.  This will allow enhanced co-operation between national and interstate agencies, and the differentiation between higher levels of illegal operations and minor offences.”

92      I was also referred to standard 4.2.1 referrable to processing/handling seafood.  Strict regulations exist regarding seafood safety requirements, contamination and handling, storage, transportation, appropriate temperatures for seafood.  Reference is also made to health and hygiene requests of a seafood handler. 

93      Regarding licence requirements the Seafood Safety Act 2003 requires all wildcatch businesses operating in Victoria be licensed. The application requires the applicant to develop a food safety plan, and the minimum requirements of such a plan involves a cleaning and maintenance schedule, process control procedures, customer complaint and recall procedure and records (amongst others).

94      There was a reference tendered dated 20 March 2016 from your daughter Christina, who wrote on behalf of she and your other daughters. 

95      Your family continued to support you despite your offending.  You had worked hard in Australia to ensure your family were well educated and your children had benefited from your ongoing emotional and financial support.  You ceased work to care for their mother.  You are apologetic and remorseful for your offending.  She said you were a loving and dedicated father. 

96      Turning to your rehabilitation prospects, I have guarded optimism given your prior relevant history, however, your rehabilitation prospects may improve given your role as carer for your wife, as described by your children, which I hope will encourage your rehabilitation.  I do note however, your offending occurred whilst also being her carer. 

97      In fixing the appropriate sentence, of course I must seek to maximise your chances of rehabilitation as they may be. 

98 Your counsel urged the pecuniary penalty order made of $21,235 could be taken into account when determining the appropriate disposition, also the making of prohibition orders. In my opinion, the pecuniary penalty order can be taken into account when sentencing pursuant to s5(2A)(c) Sentencing Act 1991, and I have.

99      Mr Livitsanos submitted that while not an order under the Confiscation Act 1997, s5(2A)(v), the Act was silent regarding whether or not forfeiture under the Fisheries Act 1995 could be taken into account, relevant in your case to the motor vehicle.

100     Ms Livitsanos submitted that your use of the vehicle involved driving to the diving sites, using the car in all parts of the operation, including attending at clients’ houses with the fish that you were selling or collecting.  He submitted the forfeiture of the car consented to by you would not mitigate your sentence.  He submitted this would be akin to forfeiture following location of a drug laboratory and a claim that the forfeited items, in that regard, would mitigate sentence. 

101     In my opinion, given the extensive use of your car and relevant to this offending, I do not consider forfeiture of that car mitigates your sentence. 

102     Turning to the appropriate disposition, it was urged that a combination disposition of a community correction order, together with a term of imprisonment, would adequately and appropriately reflect the circumstances of your offending and matters in mitigation of sentence.  Mindful also, as I am, of Debono v R[7], and the maximum imprisonment which can be imposed when combined with a community correction order. 

[7] [2016] VSCA 16

103     I was referred to the decision of Boulton & Ors v R[8] in which it was made clear by the Court of Appeal that sentencing judges are to rethink the need for a term of imprisonment being the only appropriate disposition in cases involving even serious offending/offences.  The decision in Boulton has been referred to in a number of authorities since including DPP v Maxfield[9], Alam v R[10], Maracchini v R[11] and Hutchison v R[12], of course being mindful of the different offending in those cases from yours. 

[8] [2014] VSCA 342

[9] [2015] VSCA 95

[10] [2015] VSCA 48

[11] [2015] VSCA 29

[12] [2015] VSCA 115

104     I did not, however, understand the decision in Boulton to remove the need for the sentencing judge to take into account s5 Sentencing Act 1991. Nor did I understand Boulton to mean that the relevant sentencing principles stated by the Court of Appeal relevant to this type of offending now amounted to nought.  Nor did I understand Boulton's decision to remove the instinctive synthesis required when sentencing.

105     As I have stated, Mr Livitsanos submitted that your planned and systematic commercial activity over a year placed your offending at the top of ‘one tree’ sitting higher than Phuong Nguyen.  Mr Livitsanos referred to the difficulties authorities had in ‘policing’ illegal fishing activities, and your prior relevant criminal history. 

106     Mr Livitsanos submitted it was clear from your answers in the record of interview that you knew your activity was illegal.  I agree. 

107     Environment factors were but one issue, there were also financial issues, enforcement issues and to the marketplace.  I agree.  This was commercial trafficking. 

108     Mr Livitsanos also referred to the need for general and specific deterrence when sentencing you, submitting an immediate term of imprisonment was appropriate in all the circumstances. 

109     Taking into account all matters relevant to sentencing you, including parity, in my opinion to impose a combination term of imprisonment and a community correction order would not be adequate or appropriate to reflect all relevant sentencing considerations.  Nor would a community correction order adequately address the need for general deterrence, and in your case specific deterrence, which incorporates your prior criminal offending, the number of occasions over which your offending occurred and your involvement in this offending, not only as a diver but also seller. 

110     As well as matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this. 

111     There is also the need for specific deterrence when sentencing you, given the duration over which your offending occurred and the number of occasions on which you have offended during that period of time, and as I say I also note your prior court appearances for similar offending. 

112     I must also consider the protection of members of the community from you and bear in mind the likelihood of your re-offending.  This continues to concern me. 

113     I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment. 

114     When sentencing you I also take into account the principle of totality and proportionality.

115     On Charge 1 on Indictment E13433776, you are convicted and sentenced to 2 years and 3 months' imprisonment. 

116     On Summary Charge 10, you are convicted and sentenced to 5 months' imprisonment. 

117     On Summary Charge 11, you are convicted and sentenced to 3 months' imprisonment. 

118     On Summary Charge 15, you are convicted and sentenced to 3 months' imprisonment. 

119     I order the following in relation to cumulation and concurrency. 

120     Charge 1 on the indictment is the base sentence, and I direct that 3 months of Summary Charge 10 be served cumulatively upon Charge 1, 1 month of Summary Charge 11 be served cumulatively upon Charge 1, and 1 month of Summary Charge 15 be served cumulatively upon Charge 1.

121     For clarity, the orders for cumulation are upon each other and upon the base sentence. 

122     That results in a total effective sentence of 2 years and 8 months' imprisonment, and I direct you serve a period of 16 months before you are eligible for parole. 

123 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to these charges and been found guilty of them, I would have sentenced you to 4 years’ imprisonment with a non parole period of 2 years and 6 months.

124 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 22 days in custody (up to and including yesterday 11 April 2016), by way of pre-sentence detention, and I direct that be entered into the records of the court.

125     The prosecution made application for a forfeiture order.  Counsel who appeared on your behalf consented to the order being made and I make the order in the terms sought. 

126 The prosecution also made application for a forensic sample, pursuant to s464ZF Crimes Act 1958. This was consented to by counsel on your behalf and I make the order in the terms sought. I make the order on the basis of the seriousness of this offending and your prior offending history. This will be for a saliva sample and I must advise you the authorities may use reasonable force in order to obtain that sample.

127 The prosecution also made application, pursuant to s130 Fisheries Act 1995, for a prohibition order. This was consented to by counsel on your behalf and I make the order in the terms sought.

128     HER HONOUR:  Any other orders?

129     MS CAMERON:  No, Your Honour, just in relation to the forfeiture order, I just don't ‑ ‑ ‑

130     HER HONOUR:  Yes. 

131     MS CAMERON:  With the registration of the vehicle there's a slight typo ‑ ‑ ‑.  Sorry, Your Honour.  It should be ICN ‑ ‑ ‑

132     HER HONOUR:  What did I read out?

133     MS CAMERON:  You didn't read it out.  It's just what's listed on the order in the schedule.  Just the registration listed in the forfeiture order is - a slight typo, so it should be ICN-70J instead of ICN-705. 

134     HER HONOUR:  Rightio.

135     MS CAMERON:  1CN, sorry. 

136     HER HONOUR:  1, yes, I thought it was 1. 

137     MS CAMERON:  Yes, 1CN-70J. 

138     HER HONOUR:  So it should be instead of 705? 

139     MS CAMERON:  Yes, Your Honour. 

140     HER HONOUR:  Yes, got that.  All right.  Well, any objection to that being amended?

141     MS STEPHANIDES:  No, Your Honour.

142     HER HONOUR:  Now, did I check - the 22 days were right? 

143     MS STEPHANIDES:  That's correct, Your Honour.

144     HER HONOUR:  Up to and including yesterday.  Excellent.  I think that's it. 

145     MS CAMERON:  There was just a couple of other matters, sorry, Your Honour.  Just in relation to the sentence, you noted that the co-accused Hoang Nguyen made an offer to resolve in June of 2015, but that was actually in May.  That date wasn't included in the table.

146     HER HONOUR:  That's helpful.  I originally had May and then I changed it because of the table.

147     MS CAMERON:  Yes.  No, Your Honour was correct.  The table only notes the communications in relation to Ms Nguyen offering to make a statement, which was in June, but her offer to resolve was in May.

148     HER HONOUR:  Well, I originally said that in my - I originally had that, and then when I got this chronology I assumed it was after the - it - because originally I was told May/June, and that's what I originally had in my sentence "May/June".  So, all right, well, I'll have to revisit that again, where I was originally, it seems, that it was May/June. 

149     MS CAMERON:  Yes, Your Honour, you were correct originally.

150     HER HONOUR:  I was right the first time.

151     MS CAMERON:  You were, Your Honour. 

152     HER HONOUR:  Well, that's terribly unhelpful if it's not clear from the chronology that was agreed. 

153     MS CAMERON:  Just secondly, Your Honour, you made reference to the cash being subject to a pecuniary penalty order.

154     HER HONOUR:  Yes.

155     MS CAMERON:  But that's part of the forfeiture order, no pecuniary penalty order was sought.

156     HER HONOUR:  I see, so it's - but nevertheless that was being sought, but I have taken that into account because that was the amount that was being sought.  All right.

157     MS CAMERON:  Yes, Your Honour.

158     HER HONOUR:  Okay.  Well, if that's not correct, that there's no PPO, and there isn't - but if it's part of a forfeiture order nevertheless my comments remain the same.

159     MS STEPHANIDES:  Yes, Your Honour.  I did urge Your Honour to take that into ‑ ‑ ‑

160     HER HONOUR:  So I'll have to fix that up - beg yours? 

161     MS STEPHANIDES:  I did urge Your Honour to take it into account the same way, so there's no issue.

162     HER HONOUR:  Yes, no, and I did.  Can I put it that way, I certainly did take it into account.  All right.  Well, is there anything else?  No. 

163     MS CAMERON:  No, Your Honour. 

164     HER HONOUR:  Good.  Yes, thank you.  Well, I think at this stage - thanks Mr Nguyen, you'll have to go.  All right?  Thanks Madam Interpreter. 

165     MS STEPHANIDES:  Thank you, Your Honour.

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