Criminal Law - Jurisdiction practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Miscellaneous matters - Hardship - Adverse effect of term of imprisonment on convicted person's child - Mother and father imprisoned.

R v Mitchell [1974] VicRp 75; [1974] VR 625; Wayne v R [1992] NTSC 42; (1992) 62 A Crim R 1; Boyle v R (1987) 34 A Crim R 202, followed.

Criminal Law - Jurisdiction practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Miscellaneous matters - Other matters - Delay - Relevance to imposition of sentence.

R v Law [1995] QCA 444; [1996] 2 Qd R 63; Duncan v R (1983) 47 ALR 746, followed.

Mill v R (1988) 166 CLR 59; Todd [1982] 2 NSWLR 517, distinguished.

Criminal Law - Jurisdiction practice and procedure - Judgment and punishment - Sentence - Other matters - Tasmania - Conspiracy to defraud the Minister for Fisheries - Fish processor and abalone divers conspired to defraud with respect to quantity of abalone taken and processed - Unlawful conspiracies over four years.

Accused (Georgiadis and Theodosis): A J Glynn SC

Accused (Georgiadis and Theodosis): H Drakos and Company

Accused (Belbin): Legal Aid Commission of Tasmania

Judgment Number: [2001] TASSC 88

1 Each of the six prisoners was charged with one or more counts of conspiracy. In addition, one of them was charged with two counts of perverting justice. The conspiracy counts were pleaded in three alternatives, one of which was to defraud the Minister of Sea Fisheries ("the Minister") contrary to the Criminal Code, s297(1)(d). After a trial of almost three months, verdicts of guilty were returned on all counts except one count of perverting justice.

2 The case concerned the taking and processing of abalone between 1991 and 1995. Two of the prisoners, Georgiadis and Theodosis, were fish processors. Through corporate structures they carried on this business from premises in Queensland and in Hobart. Two of the prisoners, Bostock and Kelly were licensed commercial abalone divers. One of them, Belbin was a deck hand for Bostock and the remaining prisoner, Lamont, was an employee of Georgiadis and Theodosis in the Hobart factory.

3 In essence, all the conspiracies were agreements to understate the weight of abalone caught and processed in returns that had to be lodged with the Minister, or his delegate, and to omit to lodge such returns, in order to deflect the Minister from carrying out his statutory duties with respect to the enforcement of the Act and Regulations governing the taking and processing of abalone.

4 The evidence disclosed that between 1992 and 1995, the conspiracies resulted in more than 30 tonnes of abalone being taken from the wild and processed contrary to the law and without the authorities being aware of this unlawful activity. The value of this illicit harvest was in excess of half a million dollars. The conspirators called these abalone "off the ticket abalone" as their taking was not reported on the divers' dockets that were required to be lodged with the Minister.

5 Accomplices of the prisoners were the managers of the Hobart factory, Williams and Gamble and a process worker at that factory, Jones. Williams was given an indemnity from prosecution in return for him giving evidence on the trial. Gamble pleaded guilty to three counts of conspiracy to dishonestly acquire a financial advantage for another and Jones pleaded guilty to two counts of conspiracy to wilfully make statements, false in a material particular. The former was sentenced to 18 months' imprisonment and the latter to six months imprisonment, both sentences were conditionally suspended for two years. Gamble and Jones also gave evidence upon the prisoners' trial.

6 The prisoner Georgiadis and the prisoner Theodosis were convicted of conspiring to defraud the Minister on four counts. In addition, the prisoner Theodosis was convicted of one count of perverting justice. The prisoner Belbin was convicted on two counts of conspiring to defraud the Minister and the other three accused were each convicted on one count of conspiring to defraud the Minister. The prisoners Georgiadis and Theodosis persisted in their unlawful conduct for a period of at least four years. The prisoner Belbin was a party to a conspiracy to defraud the Minister for a period of about two years and conspired, along with others, with his co-accused Bostock and another person, not a licensed abalone diver, called Paul Hutchings, who has not been charged. The prisoner Bostock was a party to an unlawful agreement for a shorter period of time. The prisoner Kelly was a party to an unlawful conspiracy between mid-1994 and October 1995 when the police raided the Hobart factory. Finally, the prisoner Lamont was a party to an unlawful agreement between about June 1995 and October that year.

8 For the purpose of sentence I accept the evidence of Williams and Gamble. All the accused except Belbin, conducted their defences by alleging that Williams and Gamble had been guilty of stealing their employers' money and conducting their own business "on the side" dealing in off the ticket abalone. It was repeatedly put to both of them that they were thieves and liars. I reject these imputations. No basis appeared for them in the evidence. On the contrary, there were instances during the cross-examination of Gamble when he was unable to account for what appeared to be missing stocks of fish, but re-examination revealed that not only were the stocks not missing, but that the prisoners Georgiadis and Theodosis must have known that they were not missing when they gave instructions to their counsel for that cross-examination. Of course, a prisoner is not to be penalised for the conduct of his or her defence, but the conduct of the trial on the part of Georgiadis and Theodosis clearly revealed a lack of remorse on their part (R v Richmond [1920] VicLawRp 3; [1920] VLR 9; R v Gray [1977] VicRp 27; [1977] VR 225 at 231).

9 Williams started up the fish processing factory in about January 1991. He did so at the request of the prisoner Georgiadis. He and his wife, Julie Theodosis, were then carrying on the business of fish processors in Queensland and were keen to expand their business by acquiring lobsters and other fish caught in Tasmanian waters. They met Williams who was, and is, a physiotherapist by profession. He was keen to try something other than the practice of physiotherapy and agreed with Georgiadis' suggestion that he set up a processing factory in Hobart. As Williams had no experience in the business, the prisoners Georgiadis and Theodosis engaged Gamble to work in the factory. Gamble had worked in the fish processing business in Tasmania for many years and had many contacts among the fishermen.

10 The principal product bought in Hobart was lobster, although there was experimentation with other products from time to time. At some stage not long after the business started, Williams and Gamble began to buy abalone. This, together with virtually all the product bought in Hobart was sent to Queensland where the prisoners Georgiadis and Theodosis onsold it, mostly to overseas markets. Although they lived and worked in Queensland, Georgiadis and Theodosis maintained daily control over the Hobart business by means of telephone and fax. Money to make purchases of lobster and abalone in Hobart was put in a bank account to which Williams, and later Gamble, had access. Funds were put in this account when a request for funds to pay for product purchased was sent to Queensland. These requests were known as funds transfer sheets and they were sent from Hobart to Queensland on virtually a daily basis. They identified to the amount of money required, the name of the vendor and the type of product bought. Upon their receipt in Queensland, Georgiadis or Theodosis signed a cheque to enable Williams and Gamble to, in turn, sign a cheque for the fishermen in Hobart.

11 In either 1991 or 1992 the prisoner Georgiadis asked Williams, and later, Gamble to buy some "cheap abalone". I find that by this request all parties to these conversations understood this to be a reference to off the ticket abalone. After expressing some reservations about doing this, both Gamble and Williams agreed to see if they could buy some off the ticket abalone. Gamble said, and I accept, that some time earlier, the prisoner Belbin had asked him if he was interested in buying some off the ticket abalone. As a result of his conversation with Georgiadis, Gamble approached Belbin to say that they would buy off the ticket abalone. Belbin then contacted the prisoner Bostock who agreed to supply off the ticket abalone and the conspiracy was put into effect. Off the ticket abalone was only bought if Georgiadis and/or Theodosis ordered it. Consignments were either picked up or delivered to the factory. Sometimes the dive dockets disclosed only part of the weight of the catch. Sometimes there were no dive dockets for any of the catch. Frequently payments for the abalone were made in cash.

12 In June 1993 Williams was forced by the prisoner Georgiadis to leave the business over some alleged losses of stock and poor management issues generally. Gamble became the manager and remained the manager until well after the police raided the factory in Hobart in 1995. From 1993 until the police raid, Gamble, acting on the instructions of either Georgiadis or Theodosis, agreed with Belbin on many occasions to buy off the ticket abalone and not to disclose the purchases on documentation that had to be lodged with the fisheries authorities. Belbin, as agent first for Bostock, and later as agent for Hutchings, either recorded false information on dive dockets that were lodged with the Fisheries Department or failed to lodge a docket at all. For his part, Gamble understated the weight of abalone caught in that part of the dive docket that the law required the processor to complete and failed to disclose the true weight of abalone bought in returns that processors were required to lodge with the authority monthly and, after 1994, weekly as well.

13 The prisoner Bostock was prosecuted for offences in connection with the taking of abalone and in result he was asked, in 1994, to show cause why he should not have his licences cancelled. Negotiations ensued and the show cause notices were withdrawn upon condition that he retired from the industry. Upon his retirement, the prisoner Bostock sold his quota licences which authorised him to catch abalone. So valuable were these licences that Bostock sold his quota of 20 units for $2m. When Bostock ceased to be a source of supply, Belbin started to supply Gamble, and thus the prisoners Georgiadis and Theodosis, with off the ticket abalone caught by Paul Hutchings. It was put to me on the sentencing hearing that it was Gamble who suggested to Belbin that he contact Hutchings but I reject this proposition. It is contrary to the sworn evidence of Gamble. Gamble said that it was Belbin who made the arrangements with Hutchings and I accept this evidence.

14 It was also put to me on the sentencing hearing by Mr Browne, counsel for the prisoner Belbin, that he did no more than arrange deliveries of off the ticket abalone for Paul Hutchings and for that trouble only received a total of about $1,000. This assertion was disputed by the Crown and at the time of writing these reasons the dispute has not been resolved either by an agreement or by a hearing and determination.

15 The records seized by police are incomplete so it is not possible to determine the precise weight and value of off the ticket abalone supplied by the prisoners Bostock and Belbin. The best that can be said is that Bostock supplied off the ticket abalone to a value in excess of $74,000 and that Belbin supplied off the ticket abalone to a value in excess of $76,000 although no doubt, he shared a substantial portion of that sum with Paul Hutchings.

16 Towards the end of 1993, Gamble started to buy abalone from the prisoner Kelly. At first their dealings were confined to abalone that were declared to the Authority. Kelly and Lamont were the only two witnesses to give evidence. Kelly admitted in his evidence that he sold off the ticket abalone, but contended that the first such transaction did not occur until November 1994. However, I accept Gamble's evidence in preference to that given by Kelly and find that the first transaction in off the ticket abalone took place in May 1994. All the transactions between May and November 1994 were paid for in cash. These unlawful dealings continued until October 1995. Kelly delivered his abalone to the factory in Hobart, often travelling with his dive docket book incomplete so that if he was stopped by the police he could then fill in the weight and pretend that his failure to do so at the landing (as was required by the law) was an oversight. If he was not stopped, he would not complete a docket at all and use the incomplete docket on a later occasion. Over the whole period the prisoner Kelly was paid almost $200,000 for off the ticket abalone that he sold to Gamble, and thus to the prisoners Georgiadis and Theodosis.

17 By at least the middle of 1994 the unlawful conspiracies were in full force and effect. As a result of discussions, principally between Theodosis and Gamble, the unlawful transactions were disguised in the books of the companies as limpets, duckbills, bait, packaging, large lobster and the like. Often these false descriptions were accompanied by an *. The unlawful agreements to disguise the entries in the books of the companies were entered into in order to avoid detection should the books be inspected by or on behalf of the Authority.

18 The prisoner Lamont entered into the unlawful conspiracy in May 1995 and remained a party to it until the police raid in October that year. He implemented the agreement during the course of his duties at the factory when receiving off the ticket abalone and when sending them off to Queensland.

19 It is impossible to calculate the profit to the prisoners Georgiadis and Theodosis as a result of the implementation of the unlawful conspiracies to which each was a party, but it must have been in excess of $250,000.

20 Following the police raid on the factory in October 1995, the prisoner Theodosis sent a fax to Gamble asking him to obliterate the * on the sales sheets kept in Hobart. The * indicated that the product referred to in the sales sheets was off the ticket abalone and not as stated on the documents. I find, as did the jury, that she instigated Gamble to alter the sales sheets because she knew that they were evidence of the unlawful dealings and as she knew that a prosecution was a real possibility, she wanted to destroy the incriminating evidence.

21 This is a sordid tale of greed by all those involved in the conspiracies except the employees of Georgiadis and Theodosis viz, Williams, Gamble, Jones and Lamont. The three employees received no financial gain from the commission of the crimes other than the preservation of their employment.

22 The abalone fishery in the coastal waters of Tasmania is a precious natural resource. Unless properly respected, conserved and managed, exploitation will cause its extinction. This resource belongs to the people of Tasmania. They have entrusted their elected representatives with the duty of managing it for the benefit of the whole community and with the primary obligation of preserving it for generations to come. In 1987 the fishery was the subject of an agreement between the State and the Commonwealth. In 1985 a system of licensing and the imposition of a limit on the weight of fish that may be harvested was introduced. The limit, or quota, was gradually reduced over the next four years because of increasing concern that if this was not done, the resource would be depleted by over fishing. Between 1992 and 1995, the total allowable catch was 210,000 tonnes per annum. This was divided into 3,500 quota units of 600 kilos each. At the time Bostock sold his quotas in 1994, each had a market value of $100,000.

23 I repeat what I said when I imposed sentence upon Gamble and Jones:

"Looming large in the sentencing process is general deterrence. The abalone fishery, like all natural resources, belongs to the general public. Without careful management and conservation natural resources will be depleted and eventually lost for ever. The public's representatives are charged with the duty of devising, implementing and enforcing management schemes to protect the plundering of these natural resources. Some members of the general public are given the privilege by way of licence to take from the resource. That privilege carries with it a heavy obligation to assist in the preservation of the resource. ... Those who enter into unlawful agreements the execution of which will defeat the proper management and preservation of a natural resource must expect to receive a substantial sentence."

24 It is difficult to identify any mitigating factors. Each of the prisoners, other than Lamont, acted in total disregard of anything other than making an unlawful profit at the expense of the general public. As I have said, there is no sign of remorse. The detection of conspiracies of this kind is difficult and considerable public resources are required to bring them to trial. The prisoners now face condign punishment designed to deter them from committing further crimes and to send a clear message to all those engaged in the abalone fishing industry that if they act in the same way, they face being sent to gaol.

25 No distinction can be drawn between the culpability of the prisoners Georgiadis and Theodosis. Each was a full and willing participant in the four conspiracies. Theodosis has additionally been convicted of one count of perverting justice which, of course, is a very serious crime. Neither has prior convictions. Both will suffer enormous financial loss as a result of the commission of these crimes.

26 I reject the submission put to me on behalf of Georgiadis and Theodosis that there is any parity between them and Gamble. The former instigated the schemes. The former orchestrated and directed the unlawful agreements using Gamble as their tool to do so, and the former profited from the commission of the crimes. In addition, Gamble pleaded guilty and gave evidence against the prisoners.

27 It was put to me by Mr Glynn SC, counsel for the prisoners Georgiadis and Theodosis that there had been considerable delay between the commission of the crimes and the imposition of sentence and that this delay should mitigate against the imposition of penalty. The police raid on the factory was, as I have said, in October 1995. The prisoners were not charged until September 1998. There was a committal hearing in May 1999 and the trial commenced in April 2001. On the face of it, the nature of the case was such that it would take a considerable time to investigate and prepare for a committal hearing and later, trial. The Crown could not reasonably proceed to trial until after Gamble and Jones had pleaded guilty. It was not suggested by Mr Glynn that the prosecuting authorities had been dilatory in their investigation and prosecution of the crimes. It was put that the prisoners Georgiadis and Theodosis had continued to build their careers after the police raid in October 1995 and before being charged nearly three years later, but apart from one matter to which I shall refer shortly, it was not suggested that during this period they did anything other than carry on with their established business. There was no suggestion that the prisoners had been misled in some way into believing that there may not be any proceedings against them. Mr Glynn relied upon Mill v R (1988) 166 CLR 59 but that was a case quite different from the present, as is apparent from this passage taken from the judgment of the Court at 65 - 66:

"In our opinion, the reasoning expounded in Todd ([1982] 2 NSWLR 517) is correct and reflects a just and principled approach to the problem of sentencing when an offender comes to be sentenced many years after the commission of an offence because during the intervening period he has been serving a sentence imposed in another State in respect of an offence of the same nature and committed at about the same time."

28 It has not been shown that the prisoners have suffered any unfairness by reason of any undue delay, which has not been their fault. Nor is there any evidence of rehabilitation during the period between the commission of the crimes and the imposition of sentence (Thompson v R (1988) 37 A Crim R 97). As to impact of delay upon the imposition of sentence, see R v Law [1995] QCA 444; [1996] 2 Qd R 63; Duncan v R (1983) 47 ALR 746. I see no reason to mitigate sentence by reason of any claimed delay between the commission of the crimes and the imposition of sentence.

29 The matter to which I alluded above concerns the only child of the prisoners Georgiadis and Theodosis. She was born on 27 March 1998 and thus is only three years old. Both the prisoners were born in Sydney. He is 37 years of age and she is 40. They married some years ago but this child is their only child. I was told that there was no one to look after her if both her parents go to prison as the prisoners' parents are aged and unwell. Further, there are no relatives of the prisoners living in Tasmania, so the prospects of contact between the prisoners and the child during any period of actual custody are slim. I must say that I am somewhat sceptical of the claim that there is no person to look after this young child while her parents are in custody and I cannot help but feel that the prisoners were not entirely frank with the Court in this respect. However, the assertion was not challenged and despite misgivings, I accept it. The authorities take the view that generally speaking hardship to dependants is not a mitigatory circumstance except in extreme cases. See R v Mitchell [1974] VicRp 75; [1974] VR 625; Wayne v R [1992] NTSC 42; (1992) 62 A Crim R 1; Boyle v R (1987) 34 A Crim R 202. In Thomas, Principles of Sentencing (2nd ed) at 212, the learned author cites as an exception to the general proposition, the case of an offender who is the mother of young children and states that that circumstance may have some effect in relation to less serious offences. This proposition was discussed by Malcolm CJ in Sinclair v R (1990) 51 A Crim R 418 at 431. Mr Glynn submitted that the birth of the child after the commission of the offences and before the prisoners had been charged was not only a mitigatory circumstance, but one that justified disparate sentences as between Georgiadis and Theodosis.

30 I am well satisfied that a long separation between a mother and her three year old only child is likely to have a deleterious effect upon the child, one that may have life long adverse consequences. Although I accept the general rule that hardship upon a prisoner's dependants is not a mitigatory factor and understand the sound reasons for such a general rule, I have come to the conclusion that as both parents are going to prison for the commission of serious crimes, hardship on this child should be taken into account upon the imposition of sentence upon the mother.

31 The prisoner Belbin is aged 53 years. He has been in the fishing industry since he was 27. He has a fishing boat and a fishing licence, but not a commercial abalone diver's licence. He worked as a deck hand for the prisoner Bostock for 20 years. He has a conviction for breach of the regulations concerning the taking of abalone. Belbin always delivered the off the ticket abalone or arranged for it to be picked up. He collected the money for these illegal transactions. He was Bostock's agent at all times until the latter's retirement from the industry. He received a percentage of the cash, which varied from about 10 per cent to 20 per cent depending on the arrangements that were made between them for the harvesting of the abalone. Although he was not required by law to complete any documentation, he assumed the obligation to do so by willingly acting as Bostock's agent. Although his profit from the implementation of the unlawful agreements was less than that of Bostock, his involvement was in two agreements and involved an unlicensed abalone diver.

32 However, at the time of preparing these reasons, I am unable to proceed to impose sentence on Belbin because there remains for curial resolution the disputed fact about Belbin's earnings from his unlawful dealings with Hutchings.

33 The prisoner Bostock is 54. He has two prior convictions for breaches of regulations concerning the taking of abalone. He made a very considerable profit out of the implementation of the conspiracy to which he was a party.

34 The prisoner Lamont is the least culpable of all the conspirators. He was employed as a process worker at the Hobart factory and assumed duties in May 1995 which included making false entries in diver's dockets and omitting to make any entry on a docket with respect to the weight of abalone received at the factory. He also made false entries in the books of the companies with respect to the identity of product sent to Queensland. All of this was done as a result of him entering into the unlawful agreement in respect of which there has been a verdict of guilty. He received no financial benefit from the commission of his crime. His conduct is to be judged as on a par with Jones, whose work he assumed in May 1995, although the period over which Lamont's unlawful conduct persisted was considerably less than in the case of Jones.

35 The prisoner Kelly is aged 49. He entered into many unlawful transactions as a result of his entry into the unlawful agreement in respect of which there has been a finding of guilt. Many of these transactions were paid for in cash. The unlawful conduct was persisted in for nearly 18 months. Although the evidence is that he received more money than Bostock, it must be remembered that for the period from July 1993 to June 1994, although the evidence discloses that over $374,000 was paid for off the ticket abalone, the evidence does not disclose the identity of the supplier of those fish. Kelly did not supply until after the end of that period and consequently the records of his dealing are more complete. Apart from the matter referred to in the following paragraph, there are no mitigating circumstances.

36 The observations I made with respect to delay when dealing with Georgiadis and Theodosis apply with equal force to all the other prisoners. I do take into account, by way of mitigation, the fact that all prisoners assisted the prosecution of the trial by making a number of admissions of fact concerning identity of handwriting on documents and ownership of bank accounts and the like. These admissions saved considerable trial time and cost.

* A conviction in respect of each finding of guilt.

* John Georgiadis is sentenced to four years' imprisonment to commence on 27 July 2001.

* Julie Theodosis is sentenced to four years and three months' imprisonment to commence on 27 July 2001. There will be an order in her case that the execution of the last fifteen months of that sentence be suspended upon condition that she be of good behaviour for a period of two years from the date of her release from prison.

* John Bostock and Paul Kelly are each sentenced to two years' imprisonment to commence on 27 July 2001.

* Andrew Lamont is sentenced to four months' imprisonment to commence on 27 July 2001. There will be an order in his case that the execution of the balance of that sentence be suspended upon condition that he be of good behaviour for a period of eighteen months from today.

* The sentencing hearing with respect to John Belbin is adjourned to a date to be fixed.