Director of Public Prosecutions v Nguyen
[2016] VCC 74
•3 February 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01999
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PHUONG THUY HOAI NGUYEN |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 December 2015 and 1 February 2016 | |
DATE OF SENTENCE: | 3 February 2016 | |
CASE MAY BE CITED AS: | DPP v Nguyen | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 74 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr J. Livitsanos | Office of Public Prosecutions |
| For the Accused | Mr R. Lawson | Winston Lawyers |
HER HONOUR:
1 Phuong Nguyen, you have pleaded guilty on Indictment E13440637, to one charge of trafficking in a commercial quantity of a priority species, namely abalone. The maximum penalty applicable to that offending is ten years' imprisonment.
2 You have also consented, pursuant to s.145 Criminal Procedure Act 2009, to two summary charges being heard by me, and have pleaded guilty to a charge of selling rock lobster 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, being molluscs other than abalone, contrary to the Fisheries Act 1995. The maximum penalty for that offence is 100 penalty units or six months' imprisonment, or both.
3 These crimes arise out of events which occurred between 25 March 2014 and 14 October 2014 at St Albans.
4 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 and 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 simply say your offending is very serious.
5 I turn to a brief summary of your offending.
6 Abalone and rock lobster are defined as “priority species”, pursuant to the Fisheries Act and are therefore subject to a higher level of protection, which includes the prohibition on trafficking in a commercial quantity of those species.
7 Holders of commercial fishing access licences are the only persons permitted under the Fisheries Act to take any fish from Victorian waters for sale.
8 The taking of fish for commercial abalone and rock lobster fisheries, is wrong and is managed under a strict quota management system and licences. The taking of fish for personal domestic consumption, recreational fishing, is also highly regulated to ensure the 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.
9 Offences committed pursuant to s.116, s.40 and s.111A, are Schedule 1 offences under the Confiscation Act 1997 and therefore dealing with their proceeds is an offence under s.194 and s.195 Crimes Act 1958.
10The illegal fishing of and harvesting of abalone and other “priority species” is environmentally damaging and health endangering. The prosecution relied on a number of documents referable to the impact of illegal abalone and other fishing within paragraph 6 of the prosecution opening. I shall return to summarise those later in these sentencing remarks.
11The 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.
12In 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 and fishing outside of central Victorian waters.
13Your offending was detected as part of Operation Quantum.
14The prosecution case is, 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.
15
The co-accused referred to in the agreed prosecution summary at
paragraph 14, predominantly lived in St Albans and Cairnlea areas. The list of co-accused included 11 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 - 800 kilometres per day.
16Originally the divers travelled in groups of four to five persons per vehicle. However, following Fisheries Notice No. 12/12013 of 19 December 2013, the notice introduced protection of the abalone fishery by means of imposing an overall vehicle limit. That notice placed a limited of ten abalone and ten litres of molluscs per vehicle. As a result of that notice, the methodology of the syndicate changed and they 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.
17In relation to the accused, listed as “1”, a contested committal, I was told at your initial plea hearing, was to be held on 11 January 2016. Those two alleged co-offenders, the prosecution submitted, had the same role as you in the offending. Offender No 2, Thi Van, had the added role of diver.
18Regarding alleged accused No 4, your husband, I was told the charges against him were no longer proceeding. The co-accused listed at points 5 through to 14 of paragraph 14, were divers. I was initially told all those persons other than “1” had pleaded guilty to summary charges and their matters had been heard by Magistrate Lethbridge in the Magistrates’ Court, although at that time, had yet to be sentenced. That has since occurred.
19Counsel initially agreed there was no issue of parity to be considered when sentencing you, given your role and the role of those who have pleaded guilty in the summary jurisdiction of the Magistrates’ Court. This was, however, further agitated in submissions on 1 February 2016, following sentence of the "divers" by Magistrate Lethbridge.
20As previously stated, Operation Quantum identified divers who operated as an organised syndicate.
21The divers typically departed their homes in the western suburbs at about 4.00 am and travelled to various dive locations known to stock abalone, rock lobster and other shell fish.
22The divers harvested their catch in an efficient manner, as described by Fisheries officers. The way they did this looked like commercial activity, rather than recreational diving. Officers routinely observed the syndicate’s 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.
23After 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. Fishing officers routinely conducted inspections to confirm the identity of syndicate members observed consistently and recorded details of their daily catch, which consisted of five abalone, five litres of other shellfish and quantities of rock lobster.
24Surveillance of the divers identified the members would then travel back to Melbourne, often in convoy and meet at pre-arranged addresses, of which yours was one, to consolidate their catch for sale.
25Two methods of sale were identified. The first method related to you and your offending.
26Members of the syndicate would meet at your home address in Lester Avenue, St Albans. At that point, each of the syndicate vehicles would reverse discretely into the driveway. Divers then unloaded their catch, took it to the rear of the property, where the catch was weighed by you and each diver was then paid in cash per kilogram for their catch.
27After the divers departed your property, you sorted and packaged the abalone, rock lobster and other molluscs into multiple plastic shopping bags. You concealed abalone and rock lobster by putting newspaper around them inside the bags.
28You then transported the fish in your car to a nearby shopping centre in Alfrieda Street, where you sold the catch to persons in that shopping centre.
29At the shopping centre where you sold the seafood, you were observed to be in possession of a red shopping trolley loaded with plastic bags containing quantities of abalone, rock lobster and other shell fish. You would unload several bags at a time and place them on the footpath at your feet, then invite pedestrians to inspect the contents before negotiating a cash sale.
30You used two motor vehicles, Registration ZLT 225 and 1A1 4GW, to transport the seafood to be sold.
31Turning to the charge of trafficking in a commercial quantity, you received seafood on 37 occasions, and on a further 27 occasions, you were observed selling seafood at the shopping centre.
32Mr Livitsanos, in his opening on the plea, elaborated upon your offending. Charge 1, commercial quantity, equalled 100 abalone or 10 kilograms. He submitted this was a syndicate operation. Albeit each day the bag limit was not exceeded, the commercial quantity occurred when the seafood was consolidated. The case involving the divers had resolved on the basis that on any day they only took five abalone and five litres of shellfish. The charge on the indictment related to the five abalone and five litres per diver that reached a commercial quantity of abalone after 20 occasions (20 x 5). He submitted that whether it be based on the numbers or weight, your offending was well into commercial quantity.
33Regarding the hierarchy of offenders, it was submitted by Mr Livitsanos you and the two co-offenders (Nos.1 and 2 in paragraph 14) were at the higher or top of the hierarchy (in essence two pyramids involving you on the one hand and 1 and 2 on the other).
34For sentencing purposes, Mr Livitsanos acknowledged that some divers had previous Fisheries Act offences and I note your lack of Fisheries Act offending.
35Mr Lawson took issue with the description of this offending as a "syndicate". He submitted from your seven page statement prepared for police after interview, that you knew Phuc Nguyen from a few years ago and that person was the only accused you knew as at March 2014. You told police in your statement, people only came to you by word of mouth when Phuc sent her phone number.
36I am satisfied that even absent the word “syndicate”, your role was a significant and organised one, Charge 1 involving 37 transactions involving purchases by you and 27 sales by you.
37Mr Lawson submitted the seriousness of your offending had now "hit home". You were now aware of the level of your culpability. I discussed at some length with him your awareness of its illegality when committing the offences. You told police in the record of interview you knew it was wrong, and that you knew it was against the law. You also disregarded the wise advice or warning from your husband, that to continue in this activity was "dangerous" (see p.1035 depositions).
38
During the interview, you made a number of admissions to your offending, referred to within paragraphs 37 and 40 of the prosecution opening. Whilst
I accept you made admissions to your offending, I also accept the prosecution's submission you under-estimated your involvement in that interview.
39You have, of course, pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour and I do so. The community has been spared the time and cost of a trial, and witnesses have been spared the need to give evidence upon your trial. I also take into account in your favour, you intimated early your intention to plead guilty to these charges.
40As I have said, I also accept in your record of interview, you admitted your offending, although as I have said, with some minimisation of your role, given the prosecution case against you.
41I am prepared to accept your plea of guilty indicates some remorse for your offending. Further, I accept the seven page statement made by you is indicative of your remorse and some mitigation of sentence for the statement and co-operation is appropriate.
42In that regard, during the course of the plea hearing, you gave evidence confirming you made that statement and signed it on 26 June 2015. The contents of that statement, you said, were true and correct and you undertook to give evidence in accordance with that statement in any proceedings involving your co-offenders. You gave evidence you were aware the Director of Public Prosecutions may appeal any sentence given to you, if the sentence be of a lesser nature given as a result of your assistance to law enforcement officers, if the Director believes you have failed to fulfil your undertaking to give that evidence.
43In that regard, I was referred to the decision of Saner v R;Kamal v R[1]. In Saner, the court referred when sentencing to the discount attributable to an undertaking to co-operate, I must declare, pursuant to s.5(2AB) Sentencing Act 1991, that I have imposed a lesser sentence.
[1] [2014] VSCA 134, paras [78] and [80]
44In Saner, Court of Appeal Tate JA referred to the strong public policy reasons for encouraging co-operation by offenders with the authorities, and that the court should not need to investigate the efficacy of an undertaking (paragraph 78).
45In R v Cartwright[2] and adopted in R v Su[3]:
[2] (1989) 17 NSWLR 243
[3] [1997] 1 VR 1 [78-79]
“It would entirely subvert the benefit otherwise afforded to the public interest if, in cases where information has been given to the authorities, it became necessary for the sentencing judge to enquire into the investigative and prosecuting procedures, in order to ascertain the extent objectively to which that information was in fact effective.” See Cartwright pp.252 to 3.
46In Su, the court did not understand Cartwright to state that the question of effectiveness was irrelevant. The effectiveness of information is relevant because “the degree of effectiveness might well throw light upon whether and to what extent the informer has made full and frank disclosure.”
47The amount of any discount will vary according to the circumstances of each case. I have reduced both your head sentence and non-parole period to reflect your undertaking, and direct the court records that fact.
48Mr Lawson, who appeared on your behalf, submitted that statement was instrumental in averting what would have been an otherwise protracted and cumbersome contested committal hearing, involving many of the co-accused, such also elaborated upon by him in his recent written submissions.
49Mr Livitsanos conceded you should receive the full benefit of your early plea of guilty for remorse and assistance to the authorities through your statement and undertaking. He submitted, however, there was nothing in the statement made by you that "forced" other accused to plead guilty, rather, the impetus was the way the prosecution had elected to proceed by way of summary matters and not indictable charges. Whilst your statement and undertaking was indicative of remorse, Mr Livitsanos submitted its utility was not great and did not play any part in the resolution of the other matters with the other co-accused.
50Mr Lawson, in his written submissions dated 25 January 2016, submitted the statement was significant, that on 29 June 2015 at a committal mention the statement was circulated to all parties before the Magistrate came onto the Bench that the parties then sought an adjournment for some weeks to consider the implications of your statement. Ultimately, the entire proceedings, he submitted, all but settled negating the need for a lengthy contested committal,
51In response to this submission, in his written submissions dated 27 January 2016, Mr Livitsanos maintained the statement was of little or no value, offering no further intelligence than that already gathered, nor did it assist or place pressure on the other accused to resolve these matters.
52He submitted independent negotiations were very much under way at the time you gave your statement and resolved largely in line with the prosecution "bottom lines" already dispatched to each accused before your statement was received.
53I, of course, am not privy to discussions had with other counsel relating to the co-accused. I have concluded some reduction in sentence should be given, as a result of your undertaking, albeit not a significant reduction.
54You have admitted two prior court appearances for dishonesty type offences. You first appeared at Sunshine Magistrates’ Court on 2 March 2006, on a charge of theft from a shop. Without conviction, the matter was adjourned to 4 September 2006. You next appeared at Sunshine Magistrates’ Court on 6 December 2007, again on a charge of theft from a shop and again without conviction, the matter was adjourned to 5 June 2008.
55At your initial plea hearing I received a helpful outline of written submissions prepared by Mr Lawson, who appeared on your behalf, and supplemented by oral submissions. He outlined your personal circumstances. You are 41 years of age at time of sentence.
56You came to Australia from Vietnam in the mid-1990s, having been sponsored by your father. Your parents separated whilst you were in Vietnam and you were brought up by your maternal grandmother. You met your future husband in Vietnam and have been together since the mid-1990s. Your husband was sponsored separately to come to Australia.
57You were educated to Year 8 and there are two children of your marriage, 19 and 13 years of age. Your 19 year old daughter is in the second year of a business course and your 13 year old daughter moving into Year 9 this year.
58You purchased your home in St Albans in late 2004 for $251,000 and took out a bank loan of just under $200,000 to enable the purchase of the property.
59
You had recently been involved in charity work, as had your husband. Your husband is a self-employed truck driver and his main contract is with the Salvation Army. He attends supermarket car parks to collect clothing and furniture left at Salvation Army bins. He works long hours, often starting at
4.00 am in the morning and home by around about 1.00 or 2.00 pm.
60Over the years you have had various jobs, including as a kitchen hand, working in factories, and recently as I have said, helping your husband’s sub-contracting.
61Mr Lawson, in his written submissions and before me, acknowledged your offending was serious, and it is.
62He initially submitted your offending, however, could appropriately be dealt with by of the imposition of a term of imprisonment, wholly suspended or alternatively, by a community correction order. He urged that an immediate term of imprisonment was not warranted for your offending.
63In determining the appropriate disposition, Mr Lawson relied upon my discretion to take into account the forfeiture of your motor vehicle, and also $18,000 that had been restrained by the prosecution.
64Following a luncheon adjournment, Mr Lawson amended his submissions, or varied them, and stated a suspended sentence was not available for your offending (given the date of the offending and legislative changes to suspended sentences). Mr Livitsanos submitted a suspended sentence was not available or appropriate. I agree, and state even if such was available as a possible disposition, such would not adequately address all relevant sentencing considerations in your case.
65Turning to the submissions from Mr Livitsanos on sentence.
66Mr Livitsanos referred to the seriousness of your offending and took me to a number of documents referrable to an assessment of the seriousness of it, in particular relevant to Charge 1 on the indictment.
67
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.”
68I 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.”
69I 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.
70Regarding licencing 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).
71I was also taken to a number of authorities which have considered offending such as yours.
72In Jetopary Proprietary Limited v Dix, and Dix v Stevenson[4], Underwood J referred to the importance of general deterrence when sentencing for offences such as that before me (see p.435). Whilst that case involved the taking of Orange Roughy fish, in my opinion similar sentencing considerations apply to abalone and other priority species.
[4] (1994) 76 A Crim R 427
73His Honour referred to such offending being:
"Difficult and expensive to detect and the rewards are very substantial for those who take fish to which they are not entitled. Orange Roughy and other species of fish 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. The legislation reflects this legitimate interest. Exploitation of the resource by a few for personal financial gain, puts at risk the survival of this resource for future generations.”
74Stevenson v Dix[5] referred to the objectives of the Fisheries Act and its successor, the Fisheries Management Act, and the control of commercial fishing (see p.173).
[5] (1995) 81 A Crim R 167
75R v Degelder[6] involved a charge of taking a commercial quantity of a priority species (abalone) pursuant to s.111B Fisheries Act 1995, which then had a maximum penalty of 5 years' imprisonment.
[6] [2006] VSCA 429
76Court of Appeal Callaway JA referred to illegal abalone fishing being a major threat to the State’s resources:
“In addition to depleting those resources, it threatens the jobs of people lawfully employed in the industry, distorting the market and compromises food safety. There is also a revenue loss to the Government and the community as a whole.” (paragraph 9)
His Honour also noted the 2nd Reading Speech of 29 October 2003 and Parliament’s stated concerns.
77Caldow & Shannon v Hemming[7] also involved illegal fishing. There was also discussion in that case regarding forfeiture of the boat and other equipment used to take abalone. In that case two cars were seized (amongst other property). Milligan J observed:
[7] (1991) 55 A Crim R 449
“It seems to me that where an offence against the Act is of a serious nature, involves the taking of a considerable amount of fish and is deliberately committed, forfeiture of all equipment used should be ordered. The protection of the fishery and the need for deterrence will usually require such an order. It will be no answer to say that forfeiture will cause financial hardship.”
His Honour then observed:
“However it remains to consider the argument of Mr Verlato that, in accordance with the totality principle, the discretion as to forfeiture must be exercised with regard to the monetary penalties imposed in that case. There is some support for this argument in the observations of Olsson J in Cutting v Glover.”
78Mr Livitsanos submitted, and I accept, that compliance with and not breaching the Fisheries Act is important. Yours was trafficking in a commercial quantity of abalone, which was a managed scheme with large amounts of money paid for legitimate licences. Your offending, he submitted, was a theft of public resources and a threat to abalone fishing.
79He submitted illegal activities such as yours took protected species and threatened the jobs of those persons doing the right thing. The abalone industry, he submitted, was a tightly regulated scheme to the point that abalone must be cut in a certain way which enabled Fisheries officers to determine which abalone had been harvested in the right way and which had not.
80The resource, Mr Livitsanos submitted, was not replenishable unless "done" the right way. It was unfair competition with those doing the right thing.
81Mr Livitsanos referred to the difficulty detecting this offending. It involved covert operations and listening devices in houses and cars. This, I accept, reflects the objective gravity of your offending.
82Mr Livitsanos also submitted your offending compromised food safety and the need that seafood in particular be handled carefully.
83Your offending had also led to revenue lost to both the community and the legitimate commercial licence holders, which in extreme cases, he said, could lead to the collapse of fishing. Victorian waters, he said, provided a lot of abalone to the overseas market.
84Turning to the authorities, Mr Livitsanos submitted there were no cases identical to the facts in your case, however, relied upon principles from the authorities to which I have just referred, in particular that general deterrence was a significant and important consideration when sentencing. Such is apparent from the authorities.
85It is also clear from the authorities that a lack of prior convictions, in other words, prior good character, is of less significance, albeit not eliminated, for this offending.
86Regarding the co-offenders, I was initially advised on 10 December 2015, they were yet to have their matters finalised. Some of the co-accused, the divers, had fishing priors, if not all, and some had been previously dealt with in the Magistrates’ Court and others with infringement notices.
87Turning to parity, I am mindful of Postiglione v The Queen[8] and R v Taudevin[9], and was given further information in relation to the “divers”, including the sentences imposed by the Magistrate on 11 January 2016. Significantly, none of them were facing indictable offences, rather summary charges and no trafficking offences. Also, the numbers of days they were observed committing their offending varied from yours. None face commercial quantity charges, ie none faced charges to the degree of seriousness of the charge on the indictment before me. The majority of the other accused also had pecuniary penalty orders against them, however involving different amounts.
[8] (1997) 189 CLR 295
[9] (1996) 2 VR 402
88Regarding your offending, Mr Livitsanos submitted it fell into a totally different category to your co-accused (dealt with in the summary stream) by a “long way”. I agree. There are a number of features that distinguish your offending from that of your co-offenders directly relevant to parity. Having said that, again I also note the co-offenders had similar prior offending.
89It is also relevant, in my opinion, that the Fisheries Act's penalties have increased over the years, which further reflects the seriousness with which this offending is regarded.
90Mr Livitsanos submitted immediate imprisonment was the only appropriate disposition for your offending, albeit moderated because of your early plea of guilty, undertaking and consent (at that time) to a pecuniary penalty order.
91I asked Mr Livitsanos whether a community correction order, as urged by Mr Lawson, combined with a term of imprisonment would be within the range of appropriate dispositions, and Mr Livitsanos submitted the prosecution position was that such a disposition would not adequately reflect all the matters I needed to take into account when sentencing for your offending, including all matters in mitigation of sentence.
92He submitted there was nothing before me which would indicate that a community correction order would have any rehabilitative benefit (see Boulton & Ors v R[10] paragraph 103). That, however would not necessarily preclude such a disposition if I considered a community correction order to be appropriate in all the circumstances. Your offending, he submitted, was at the top of the chain and needed to be denounced.
[10] [2014] VSCA 342
93I regard your offending as very serious and that you were aware of the illegality of it whilst offending. You were not deterred and repeated your offending on multiple occasions. In my opinion, a community correction order, even in combination with a term of imprisonment, would not adequately reflect all sentencing considerations in your case.
94Having so concluded, I am aware of Boulton and the need for the court to reconsider whether an actual term of imprisonment is the only appropriate disposition. The courts, of course, have always sentenced on the basis that an actual term of imprisonment must be the last resort of the court.
95Boulton has been considered in a number of subsequent authorities, including Alam v The Queen[11], DPP v Maxfield[12], Marocchini v The Queen[13], and Hutchinson v The Queen[14], to name a few, although of course, I am mindful of the different offending in those cases from yours.
[11] [2015] VSCA 48
[12] [2015] VSCA 95
[13] [2015] VSCA 29
[14] [2015] VSCA 115
96I did not understand, however, that Boulton removed the need for consideration of s.5 Sentencing Act 1991, nor did I understand Boulton to remove the instinctive synthesis required when sentencing. Nor did I understand Boulton to mean that sentencing principles relevant to offending such as yours now amounted to nought.
97Mr Livitsanos conceded that the pecuniary penalty order that I made would have some part to play in sentencing, referrable to s.5(2A)(c) Sentencing Act 1991. I agree and have taken that into account in your favour when sentencing.
98Mr Lawson, at the initial plea hearing, submitted that if a pecuniary penalty order was made, there should be “some latitude regarding that” when sentencing and at that time did not oppose the making of the order for $18,007. However, immediately prior to sentence some days after the plea hearing, he tendered a document (Exhibit 3) in which he submitted the pecuniary penalty order amount should be closer to $4,000.
99Given the relevance of this now disputed amount to sentence, I discussed with Mr Lawson the difficulty proceeding to sentence unless the parties either agreed on the amount, alternatively I would need to determine the amount of the pecuniary penalty order.
100 The plea hearing was then adjourned.
101 Written submissions were subsequently received from both counsel, relevant to the amount of the pecuniary penalty order and addressed in oral submissions on 1 February 2016. The transcript will reveal that discussion. The amount of the pecuniary penalty order is discretionary and must be determined judicially and based on the evidence.
102 Mr Lawson submitted the prosecution had accepted figures regarding the amount of abalone taken by the divers at a much lower value/number than that relied upon relative to you. Mr Livitsanos referred to the evidence within the depositions relevant to this issue, which he submitted supported the prosecution figure as a conservative figure of $18,007. It is also clear that the basis upon which the offending by the "divers" was resolved, was different from the matters relied upon by the prosecution in the agreed summary relevant to you.
103 Having considered the evidence, I have determined the amount sought by the prosecution of $18,007 is the correct and appropriate amount of the order, and I have taken that into account when sentencing, that is, that the pecuniary penalty order is in the sum of $18,007.
104 I have also read a number of cases that have involved sentencing for the offence of trafficking in a commercial quantity of abalone, which have provided some assistance regarding relevant sentencing principles and sentences imposed in other cases.
105 It is difficult comparing cases, as facts vary enormously case to case, such as quantity of abalone involved, duration of offending, co-offenders and parity issues, and the “business like” quantum in the offending. Also, case to case matters raised in mitigation of sentence relevant to individual offenders varies enormously.
106 I have however read cases, DPP v Le, Van Liet[15], R v Jure Topic[16], R v Brear[17], Tran v The Queen[18], DPP v Tran[19] and DPP v Bowerman[20].
[15] [2010] VCC 1558
[16] [2008] VCC 1327
[17] [2008] VCC 0867
[18] [2012] VSCA 330
[19] [2010] VCC 1543
[20] [2011] VCC 1803
107 Turning to your rehabilitation prospects, I have guarded optimism. I am told you now appreciate the gravity of this offending and I would hope your rehabilitations, as a result of that, would be reasonably good, being mindful as you hopefully are now of the heavy penalties that apply to offending of this type.
108 In fixing the appropriate sentence, I of course, must seek to maximise your chances of rehabilitation as they may be.
109 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.
110 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 offended during that period of time (it was not a "one-off"). I also note your prior court appearances for dishonesty, albeit dated, and I am aware none under the Fisheries Act.
111 I must also consider the protection of members of the community from you and bear in mind the likelihood of your re-offending.
112 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
113 I also take into account the principle of totality.
114 On Charge 1 of Indictment 13440637, you are convicted and sentenced to 21 months’ imprisonment.
115 On Summary Charge 5, you are convicted and sentenced to 4 months’ imprisonment, and on Summary Charge 6, convicted and sentenced to 2 months’ imprisonment.
116 I order the following in relation to cumulation and concurrency.
117 Charge 1 on the Indictment is the base sentence and I direct that 2 months' of Summary Charge 5 be served cumulatively upon Charge 1, and 14 days of Summary Charge 6 be served cumulatively upon Charge 1.
118 For clarity, the orders for cumulation are upon each other and upon the base sentence.
119 That results in a total effective sentence of 23 months and 14 days’ imprisonment, and I direct you serve a period of 12 months' before you are eligible for parole.
120 I have also, when determining sentence, taken into account your undertaking to give evidence, the pecuniary penalty order in the sum of $18,007, and the other matters to which I have referred in these sentencing remarks in mitigation of your sentence.
121 Pursuant to s.6AAA Sentencing Act 1991, had you pleaded not guilty to these charges and been found guilty of them, I would have sentenced you to 3 years and 6 months’ imprisonment, and set a non-parole period of 2 years.
122 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 55 days in custody, I would like that confirmed, by way of pre-sentence detention, up to and including yesterday, which was 2 February 2016, and upon confirmation, direct that that be entered into the records of the court.
123 MR LIVITSANOS: That is my calculation, Your Honour.
124 HER HONOUR: Good.
125 MR LAWSON: And mine too, Your Honour.
126 HER HONOUR: Good.
127 The prosecution, as I have previously stated, also made application for a forfeiture order. Mr Lawson made brief submissions in relation to the forfeiture of the Toyota vehicle, referred to as Item 1 on the forfeiture order. In my opinion and consistent with authorities, including Caldow & Ors[21], the forfeiture order should be made and I make the order in the terms sought.
[21]
128 The prosecution also made application for a forensic sample, pursuant to s.464ZF Crimes Act 1958. This was not opposed 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.
129 Again, also I confirm it be noted in the records of the court that the undertaking has been taken into account in the sentence I have imposed, as I have previously stated in these sentencing remarks.
130
The prosecution also made application, pursuant to s.130 Fisheries Act 1995, for a prohibition order. This was not opposed by counsel on your behalf and
I make the order in the terms sought.
131 Any other orders that I have missed?
132 MR LIVITSANOS: No, Your Honour.
133 HER HONOUR: Don't think so?
134 MR LAWSON: No.
135 HER HONOUR: All right. Now the PSD, everyone's happy with that?
136 MR LIVITSANOS: Confirmed.
137 HER HONOUR: Yes, you have agreed.
138 All right, everyone's got the maths. I have signed these, have I? All done? All right, thank you. Can you remove the prisoner please. Thank you.
139 Thank you. I thank counsel for your assistance.
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