R v Degelder [2006] VSCA 249

1 The appellant, who is now aged 50, pleaded guilty in the County Court at Bairnsdale to one count of taking a commercial quantity of a priority species (abalone) within 24 hours. That is an offence against s.111B of the Fisheries Act 1995, for which the maximum custodial penalty is five years' imprisonment. The appellant's commission of that offence breached a suspended sentence. On 21st February 2003 Judge Neesham had sentenced him to six months' imprisonment for perjury, of which three months were suspended for an operational period of three years.

2 The appellant admitted one previous finding of guilt and 14 previous convictions, including the conviction for perjury, from five court appearances between February 1990 and February 2003. Most of them were for fisheries offences. There had been a gap in the offending between November 1991 and February 2002, but the appellant was then convicted of taking fish for sale without a licence, possession of abalone equipment exceeding the catch limit, possession of abalone in excess of the prescribed limit and using an unregistered vessel for commercial fishing. At the same time an order pursuant to s.130 of the Fisheries Act was made against him. The present offence breached that order as well as the suspended sentence.

3 After hearing a plea for leniency on his behalf, the learned judge sentenced the appellant on 22nd February 2006. His Honour's intention was to impose a sentence of two years' imprisonment for the offence against s.111B, to restore the part of the sentence for perjury suspended by Judge Neesham and order the appellant to serve it and further to order that one month, and only one month, of that sentence, be served cumulatively upon the sentence imposed for the Fisheries Act offence. The intended total effective sentence was 25 months' imprisonment. A non-parole period of 13 months was fixed and a declaration made regarding 14 days' pre-sentence detention.

4 In addition, his Honour made orders pursuant to ss.106, 130 and 130B of the Fisheries Act. The first order was for forfeiture of property seized. The schedule to the order listed 48 items or groups of items, including clothing, diving equipment and abalone meat. The other orders prohibited the appellant from being in possession of abalone or commercial abalone equipment, from such activities as being on board a registered fishing boat in Victorian waters and, more generally, from being in or on Victorian waters without a lawful purpose.[1]

5 Leave to appeal was granted on 2nd June 2006. It is unnecessary to set out the full statement of grounds. In the end they raised two matters, which were argued by counsel in the following order: first, the way in which it came to be ordered that one month of the suspended sentence be served cumulatively; and, secondly, whether the sentence imposed for the Fisheries Act offence was manifestly excessive.

6 It is convenient to deal with the second matter before turning to the circumstances of the offending. Section 31(6) of the Sentencing Act 1991 provides that, if a court orders an offender to serve a term of imprisonment that had been suspended, that term must be served immediately and, unless the court otherwise orders, cumulatively on "any other term of imprisonment previously imposed on the offender by that or any other court." Both orally when passing sentence, and in the return of prisoners, the judge dealt with the breach of the suspended sentence first. Accordingly, the sentence of imprisonment for the Fisheries Act offence was not a term of imprisonment previously imposed on the appellant. Section 31(6)(b) had no application and, although the point need not be decided, there was probably no other power to direct cumulation.[2]

7 The appeal was argued on the footing that that error re-opened the discretion. Subject to considerations of totality, I see no reason to depart from the prima facie rule in s.31(6)(b) that the restored sentence, meaning the whole of the restored sentence, be served cumulatively. To avoid returning to this topic, I should record now that I have taken totality into account in the orders I propose below.

8 The circumstances of the offence against s.111B were summarized by the judge in the course of his sentencing remarks. Addressing the appellant, his Honour said:

"27. ... In September 2004 you were under surveillance by fisheries officers. On 19th October 2004 you loaded a Ford vehicle with diving gear and commenced travelling to Waratah Bay. You arrived at approximately 1.30 a.m. You were observed to unload your bags at what is called the second beach access track and parked your vehicle a few streets away, with you then returning to your unloaded gear and making your way towards the beach.

28. Shortly after 4 a.m. you returned from the beach, retrieved your vehicle and reloaded your diving gear and placed two dark-coloured plastic bags through the passenger window into the car and drove off. At 4.25 a.m. you drove your vehicle through a fisheries and police road block. You were eventually pulled over approximately 1 kilometre past the road block. A search of the vehicle found wet dive gear and commercial abalone equipment in the boot. An abalone catch bag was found, which was wet and smelled of abalone. At 5.20 a.m. a fisheries officer located a plastic bag, some 40 metres north of the 90 degree bend near the road block site, which bag contained 90 freshly shucked black lip abalone meat.

29. Shortly after 6 a.m. another fisheries officer located another plastic bag by the roadside, some 49 metres before the road block site. This bag contained 162 freshly shucked abalone meat. No other vehicles had used that portion of the roadway where the two bags of abalone were located."

The two plastic bags contained 28.7 kilograms of abalone meat, the wholesale value of which would have been about $4,000 and the retail value approximately $12,000. On the black market, the appellant could have expected a return of between $1,500 and $2,000.

9 In his submissions on re-sentencing, Mr Boyce emphasized matters personal to the appellant. That had to be so because, although the return expected by the appellant was modest, illegal abalone fishing is 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, distorts the market and compromises food safety. There is also a revenue loss to the government and the community as a whole. Section 111B was introduced by the Fisheries (Further Amendment) Act 2003. The multiple mischiefs to which I have alluded are to be found in the Second Reading Speech,[3] to which Mr Cooper referred, as counsel had below.

10 There was another reason why personal factors had to be emphasized, namely the appellant's previous convictions, including previous relevant convictions. Nevertheless, Mr Boyce submitted, the offence was committed at a time of personal difficulty for the appellant and he would be punished not only by the sentence of imprisonment but also by the loss of his life long recreation as a diver. It was said, correctly, that the prohibition orders were matters to be taken into account. The language of the Fisheries Act implies that they are penal as well as prophylactic in nature.[4] It is unnecessary to refer to all the material, including the conditions of bail with which the appellant complied. There is more reason for optimism than the further presentment would suggest and some grounds for leniency.

11 Should the other members of the Court agree, I propose the following orders:

2. The orders made below in relation to the breach of the suspended sentence imposed by His Honour Judge Neesham on 21st February 2003 ("the suspended sentence") are set aside.

3. The sentence imposed on presentment no. S02463045.1 ("the fisheries sentence") is quashed.

4. In lieu of the fisheries sentence, the appellant is convicted and sentenced to 17 months' imprisonment.

5. In lieu of the orders made in relation to the suspended sentence, the part of the sentence held in suspense is restored and the appellant is ordered to serve it cumulatively on the sentence of 17 months' imprisonment imposed by this Court, resulting in a total effective sentence of 20 months' imprisonment.

A fresh declaration will have to be made regarding pre-sentence detention. The forfeiture order and the prohibition orders will remain in place.

12 I agree with the orders proposed by the learned presiding judge, for the reasons his Honour gives.

13 I agree for the reasons given by Callaway, J.A. that the appeal be disposed of as his Honour has proposed.

[1] The duration of those orders is dealt with in ss.130(3)(b) and 130B(4)(b).

[2] As the judge who granted leave observed, it is unlikely that s.16 applies in relation to a suspended sentence. The issue of concurrency or cumulation is dealt with specifically in s.31.

[3] Hansard, Legislative Assembly 29th October 2003, at 1283.

[4] Sections 130(1) and 130B(2) both speak of a prohibition order as being "in addition to any other penalty".