Prosecuting fishery law breaches - the roughy end of compliance

S. Bache^[93] and Gail Lugten^[94]

1. INTRODUCTION

In August 2003 the Australian public was given a daily account via all news media of the discovery, pursuit, chase and seizure of an alleged illegal, unreported and unregulated (IUU) fishing vessel out of Uruguay - the Viarsa. (ABC - Australian Radio/TV/News Online; South African Press Association; Australian Press Association 2003) The vessel had been found fishing in the remote Australian Fishing Zone (AFZ) surrounding the sub-antarctic Heard and McDonald Islands (HIMI). It was subsequently chased for 3 900 nautical miles over 21 days, (the longest maritime chase in Australian history) before being captured in the south Atlantic Ocean on Thursday 21 August. (ABC News Online 2003) The Viarsa, carrying 85 tonnes of Patagonian toothfish, was subsequently escorted to Fremantle for trial. The crew of the Viarsa are foreign nationals and therefore entitled to the protection of the legal regime established by the 1982 United Nations Law of the Sea Convention (LOSC). This legal regime includes in Article 73 a provision against imprisonment. In contrast, Australian nationals who are found to be fishing illegally within the Australian Fishing Zone will be tried in their respective state court hierarchies and the penalties that they face include penal provisions.

This paper arose from a need to compare and contrast the judicial treatment of foreign and domestic nationals accused of fishing offences. The comparison is interesting from several legal perspectives. These include inter alia:

• lack of consistency by the Judiciary in taking environmental considerations into account when sentencing

• lack of consistency in the sentences that are imposed for fishery offences

• lack of any comprehensive data on the deterrence value of sentences that are imposed and

• significantly different treatment in Australian Courts for foreign nationals and Australian citizens who are accused of fishing illegally.

This paper has been presented within the Compliance theme of the Deep-Sea Conference for the simple reason that court proceedings may be seen as representing the ultimate or final chapter in compliance. That is, why should fishers comply with the law? Is it because it is morally or religiously or socially wrong to be greedy, or to destroy the environment or to break the law? From positivist jurisprudence this paper submits that most fishers comply with the law because they fear the penalties of being caught if they break the law. For this reason alone, it is important that the law is seen as consistent, not a lottery dependent on factors such as where you get caught or which judge will hear the trial.

The paper is divided into two main parts that respectively contrast the prosecution of Australian nationals and foreign nationals accused of fishing offences within the Australian waters. It will be shown that there is widespread inconsistency in the judicial treatment of fishing offenders. To a certain extent, the differences are understandable. In common law jurisdictions, judicial discretion is sacred. Furthermore, in a federated state such as Australia there is a plethora of "hard" and "soft" State, Commonwealth, regional and international fishery laws. However, the paper submits that in sentencing fishery offenders, two core factors should be taken into consideration.

The first is some form of evaluation of the environmental impact of the offence. In the case of the orange roughy conspiracy, the offence occurred in a geographic region that has still not recovered from overfishing excesses in the 1990s. It will be submitted that if an offence occurs where there is a stock sustainability crisis, judicial discretion should err on the side of severity. In this way, the law can be a deterrent to overfishing. Further to this is consideration of precaution. The precautionary principle is now firmly embedded into State, Commonwealth and international law, in both conservation and fisheries disciplines. It is arguable that it is not only management that is required to give expression to this principle, but also that at the enforcement end of the process consideration must be paid to the environmental impact of an activity, and that taking into account the environmental impact of an action when handing down a sentence is the ultimate expression of this principle.

The second factor is that where fish stocks are confronting a resource sustainability crisis, there should be some form of consistency in sentencing fishery offenders. On this point, the paper critiques the work of the United Kingdom Sentencing Advisory Panel (See citation listing) which has acted to address the subject of inconsistency in sentencing for environmental offences. The paper also considers the application of domestic legal principles such as the financial circumstances of a defendant when determining a sentence in foreign illegal fishing cases (such as the IUU fishing vessels seized in the Southern Ocean.) It is suggested that the circumstances of sentencing foreign fishers differ in several critical ways from that of domestic offenders and that these differences need to be taken into account when sentencing foreign national fishing offenders.

2. A TALE OF TWO FISHERIES

This section compares two criminal cases heard by the Supreme Court of Tasmania concerning two different fisheries, that for deep-sea orange roughy and coastal fishery for abalone. The cases are R. v Turner [2002] TASSC 22 an orange roughy case and R. v Georgiadis (No.5) [2001] TASSC 88 an abalone case. Both cases dealt with vulnerable species that have a history of abuse through unregulated overfishing. Both cases involved several accused persons forming a conspiracy for the purpose of defrauding the Commonwealth Government Regulatory Body in the case of the orange roughy, and the Tasmanian Minister for Sea Fisheries in the case of the abalone. Finally, both cases were heard in the first instance by two of the six Supreme Court of Tasmania judges. The case of Georgiadis was later appealed to the Full Court of the Supreme Court, where a further three of the six judges sat on the bench. (Georgiadis v R. [2002] TASSC 58) For the purposes of the Deep-sea Conference, greater attention is given to the orange roughy case. However, reference is given to the abalone case in order to demonstrate how the orange roughy case might judicially have been handled differently. In this part of the paper, it will be argued that the Turner and Georgiadis cases show a lack of consistency in the value given to environmental factors. This may or may not have led to the lack of consistency in sentencing the offenders. It will be suggested that such inconsistencies, while preserving the common law’s highly valued notion of judicial discretion, nevertheless lead to a public perception that the law is a lottery. This is an important compliance issue. How can fisher compliance with fishery laws be obtained if the sanctions or penalties are viewed as a matter of luck rather than punishment?

Orange roughy live in waters approximately 500 to 1 500 m deep, predominantly around deep-ocean seamounts. These fish are slow growing and are believed to be one of the longest living marine species being able to live for over 100 years. They reach maturity at between 20 and 40 years of age and have low fecundity. The slow growth of the orange roughy makes it vulnerable to any factors (such as overfishing) that affect adult survival rates (CSIRO 2003). These biological facts are important to the arguments presented here as they reflect on the inability of orange roughy to quickly or effectively recover from an environmental devastation such as occurred in 1989. The facts of this incident are described as follows.

There are several major roughy fisheries around Australia but the South East Fishery which extends around south eastern Australia and surrounds Tasmania (AFMA 2003), will be considered for the purposes of this paper. The South East Trawl fishery has existed since 1915, but exploitation of orange roughy is a comparatively new phenomenon (AFMA 2003). It was discovered in commercial quantities off Western Tasmania in 1981 and commercial fishing practices commenced in 1982 (CSIRO 2003). During the 1980s, larger spawning aggregations of orange roughy were discovered off eastern Tasmania around the town of St. Helens (Commonwealth DPP v Jansen and Others). As the fish were found to withstand freezing well, orange roughy is ideal for export and a thriving market was established with the United States. In the words of Nicholls and Young orange roughy make excellent fish fingers (Nicholls and Young 2000, p. 273)!

The ease with which the spawning St Helens orange roughy could be caught in large quantities made it a profitable species to target. By 1989, the St Helens Hill fishery reached a peak with up to 67 vessels operating in this small region, such that the sea looked like a car park, with vessels waiting to scoop up their share. In 1989, 60 000 tonnes of orange roughy were taken. In those days (before management of the orange roughy), it was almost impossible for a trawl boat to return to shore without a full load (Commonwealth DPP v Jansen and Others). The fish being caught were all mature, being on average about 80 years of age. But, by 1990 the orange roughy fishery was in a state of collapse.

From 1991, the Commonwealth Government initiated an orange roughy fishery management plan pursuant to the Commonwealth Fisheries Act of 1952. This initial 1991 orange roughy management plan consisted of the Commonwealth regulatory authority setting catch limits and allocating individual transferable quotas (ITQs) to the competing fishers. For the South East Fishery (SEF) an industry quota was divided among the various operators in the industry. The amount of quota allocated to each operator was calculated using a formula that gave credit for the period in which each operator had been catching the species. Further, operators had an obligation to furnish returns to the management authority for every day the vessel operated within the SEF. The purpose of these returns was to enable the Commonwealth Government regulatory authority to monitor the amount of fish that had been caught by each operator during the licence term. During the same period the Commonwealth Government established the Australian Fisheries Management Authority (AFMA), which came into existence in early 1992.

This description of the Commonwealth intervention to save the orange roughy provides the background to the R. v Turner case in the Supreme Court of Tasmania. R. v Turner [2002] TASSC 22, also known as the Victrawl Case, involved five accused people: Lee, Turner, Coulston, Jansen and Tedesco being convicted of conspiring to defraud the Australian Fisheries Management Authority (AFMA) by dishonestly agreeing to make returns to AFMA, which falsely recorded their catches of orange roughy taken from the Southeast Fishery at St. Helens. The five accused pleaded guilty to a single count of conspiring to defraud AFMA, which is contrary to S.86A of the Crimes Act 1914 (Cth). Their conspiracy continued from 1 December 1991 into 1993, but for the purposes of their criminal indictment the conspiracy was restricted to the period 1 December 1991 until 31 December 1992.

The facts of the case were as follows. Victrawl Pty. Ltd. was a fishing company affected by the 1991 management plan as it had fishing boats that landed catches of orange roughy in Tasmania. The accused, Turner was the manager of Victrawl. The accused Jansen and Tedesco were employees of Victrawl. The accused Coulston was the skipper of a fishing boat operated by Victrawl. The accused Lee was the manager of Trident Seafoods Pty. Ltd, which was a Hobart based fish processing company. The accused people agreed amongst themselves to stretch Victrawl’s orange roughy quota by understating Victrawl’s orange roughy catches by 15 percent. Accordingly, 49 of the 70 voyages made to the SEF by Victrawl vessels during the relevant period, made false returns to AFMA. Total catches on these voyages were understated by a total of 907 725 kg of orange roughy. The market value of orange roughy at the time was approximately $A2.60 a kilogram. Therefore, the value of the undeclared orange roughy was about $A2.36 million.

The conspiracy was complex. False figures were used in various documents in order to conceal the understated catches. Secret code letters were used to determine the percentage of understatement of each catch. All five of the accused were aware of the conspiracy and showed a flagrant disregard for both the AFMA management plan and the environmental consequences of their overfishing. The sentence of Justice Alan Blow is of particular interest for the purposes of this paper.

Throughout his judgment in R. v Turner, Justice Blow made a number of criticisms of the 1991 management plan. He noted that the formulas for orange roughy quotas were statistically flawed and produced results that were "unfair, unreasonable and absurd". These criticisms were well founded in law, but rendered immediately obsolete by a series of legal precedents from the 1990s. That is, the allocation of quotas to fishers under the 1991 management plan had already been subjected to litigation disputing its validity on several occasions in the 1990s. (Minister for Primary Industries and Energy v Austral Fisheries Pty. Ltd (1993) 40 FCR 381 (Full Court), Coleman v Gray (1994) 55 FCR 412, La Macchia v Crean (1992) 110 ALR 201). These earlier precedents had already declared the 1991 management plan to be void and as such all purported allocations of quotas that were made under the plan were legal nullities. (Austral Fisheries Pty. Ltd. v Minister for Primary Industries and Energy (1992) 37 FCR 363, Minister for Primary Industries and Energy v Austral Fisheries (1993) 40 FCR 381 per O’Loughlin J. (Full Court); Coleman v Gray (1994) 55 FCR 412 per Gummow J. at 431).

The legal effect of all this meant that if Victrawl had overfished quota in 1991 and declared their excessive catch they could not have been prosecuted. Alternatively, if they had overfished their quota and simply neglected to complete their catch returns, again they could not have been prosecuted. However, because the accused entered into a conspiratorial dishonest agreement to deflect AFMA from the performance of its public duty, the accused were guilty of the crime with which they were charged.

In sentencing the accused, Turner, Jansen, Coulston and Tedesco all received suspended sentences varying from four months to four years and were ordered to pay the Commonwealth a pecuniary penalty ranging from $A2 000 to $A25 000. Mr Lee received the most severe punishment and was sentenced to four years imprisonment, but to be released after serving seven months. This meant he was the only accused with a custodial or prison sentence.

In giving this sentence, a number of mitigating factors affected Justice Blow’s reasoning. These were:

• the delay between the commission of the crime and the sentencing

• the fact that the accused had pleaded guilty and

• the declared void status of the 1991 management plan.

Some comment may be noted regarding these factors.

First, the delay between committing the offence and the matter coming to trial should only be a matter of significance if it is undue in the circumstances. (Warner 2003:113) Given the nature of the offences and the difficulties associated with detecting and investigating conspiracies, a delay in proceedings is arguably standard. At this point it is appropriate to introduce the second fishery case study, a conspiracy to defraud the quantity of abalone that was taken and processed, the case of R. v Georgiadis (No.5) [2001] TASSC 88. In this case, at paragraph 27, Justice Underwood held that the nature of the case was such that it would take a considerable time to investigate and prepare for trial. However, despite the delay, the sentence in the Georgiadis case was not mitigated by reason of delay.

Second, the weight given to a plea of guilty should depend on the relevant circumstances of each case (Warner 107). It is therefore a point of particular value in this case that the accused people who pleaded guilty to the conspiracy, did not demonstrate any remorse for their conspiracy and had only pleaded guilty due to an amendment of the indictment that was favourable to accused pleading guilty. Further, the fact that the accused chose to make a plea of guilty resulted in the Crown abandoning allegations of the conspiracy continuing throughout 1993 and accepting for the purposes of the trial the conduct of the accused just between December 1991 and December 1992.

Third, regarding the void status of the 1991 management plan, as it had already been suggested that as the management plan was no longer in operation, that aspect of the Justice Blow judgment was immediately obsolete. The initial Commonwealth management plan was bound to have teething difficulties in matters of administration. A new catch permit system was introduced by AFMA in 1993 and this was never the subject of a legal challenge.

Having commented on the factors that Justice Blow took into consideration in making his judgment, this paper submits that more glaring and surprising is the missing factor that we can only assume his honour deemed to be unimportant - the cost to the environment in general, and orange roughy stocks in particular.

There is clear scope for a judge who is passing sentence to take into account important policy considerations such as the environmental impact of a crime on the marine environment. In the abalone case of R. v Georgiadis, Justice Underwood gave particular consideration to the environment. At paragraph 22, His Honour held, "Unless properly respected, conserved and managed, exploitation will cause its [the abalone fishery] extinction. This resource belongs to the people of Tasmania." In paragraph 23, Justice Underwood went on to note that without careful management natural resources will be depleted and eventually lost forever. Further, those that are given the privilege by way of licence to take from the natural resource concurrently carry a heavy obligation to assist in the preservation of that resource. It should be noted that in contrast to the Victrawl case, the accused in the Georgiadis case ALL received custodial sentences, and only one of the four sentences contained a suspended sentence.

The differences in the cases of R. v Turner and R. v Georgiadis are difficult to reconcile. They both have similar facts, albeit involving different species - deep-sea orange roughy and coastal-water abalone. Yet the sentences imposed vary dramatically. It can only be assumed that the emphasis given by Justice Underwood, and not given by Justice Blow, to environmental considerations is the determinate factor in the difference between the cases.

This paper submits that if stocks are criminally overfished, and thereby threatened, any legal proceedings that result from the criminal activity, must incorporate environmental factors into the sentencing process. If this results in more severe sentences, the deterrence value of the sentence is arguably increased.

In view of the fact that contemporary environmental law only dates from the 1970s, the subject of how to weigh environmental considerations in sentencing is still relatively new. In the United Kingdom, a Sentencing Advisory Panel has produced a sentencing guideline on environmental offences “Environmental Offences: The Panel’s Advice to the Court of Appeal”. The report deals with specific environmental offences such as air and water pollution, illegal disposal of waste, illegal abstraction of water and failure to meet recycling obligations. While these subjects might appear to be superfluous to fishery offences, the Report does raise interesting considerations on measuring culpability of defendants accused of environmental offences. In paragraph 6, the Report notes that certain factors must be taken to enhance or aggravate culpability. It is submitted that three of the six factors apply to the accused persons in R. v Turner.

They are

• the offence is shown to have been a deliberate or reckless breach of the law, rather than the result of carelessness

• the defendant acts from a financial motive, whether of profit or cost-saving ... and

• the defendant’s attitude towards the relevant environmental authorities (AFMA) is dismissive or obstructive.

Interestingly, the UK Report was motivated by a public perception that the level of fines imposed by the courts in environmental damage cases, were too low.

The Sentencing Advisory Panel Report goes on to discuss sentencing. Their first recommendation is in support of the fine as the most appropriate sanction. This is based on the fact that environmental offences are "non-violent and carry no immediate physical threat to the person". Further, the level of fine should be fixed in accordance with the seriousness of the offence and the financial circumstances of the individual defendant (including the defendant’s economic gain as a result of the offence).

The Report goes on to consider the value of community service and notes that "in cases of greater seriousness involving an individual offender, the court should consider whether there may be merit in imposing a community sentence rather than a fine." On the subject of custodial sentences, the report notes that these may be appropriate where the defendant is an individual as distinct from a company. The report provides, "To cross the custody threshold, a case would need to combine serious damage, or the risk of serious damage, with a very high degree of culpability on the part of the offender." (Paragraph 29 Sentencing Advisory Panel Report).

Today in Australia, the Victorian State Government alone is investigating the idea of establishing an equivalent body to the UK Sentencing Advisory Board. If such a body were established, consistency in sentencing environmental offences should again be a primary subject to address.

The cases of Turner and Georgiadis demonstrate how even in a small jurisdiction such as Tasmania, there can be inconsistency in how environmental damage is considered and in the sentences handed down by the courts. But, are the above mentioned evaluations by the UK Sentencing Advisory Panel good for advice in regard to sentencing in fishery offences? That is, what is the deterrence value of the sentences recommended in the Report? The writer cannot help but wonder how the individual delegates to the Deep-sea Conference would answer that question and how differently would fishermen vote from scientists, or diplomats from lawyers?

In the 2001 South Tome IUU fishing case heard by the District Court in Western Australia, (re: Aviles 11-10-01) Justice Jackson gave an interesting discussion on the subject of deterrence. Noting that many IUU offenders have Spanish Galician roots, Jackson J. held,

The deterrent effect that any sentence or order under consideration may have on the person is a matter to be taken into account. It is interesting that the Crimes Act does not refer to general deterrence. General deterrence is, however, an important part of sentencing. Notwithstanding its absence as a specific matter referred to in S. 16A, it is appropriate to be taken into account. As the prosecutor has pointed out, a number of recent offenders have all come from the same part of the north of Spain, and it is likely therefore that news of this penalty will become known to those who might be tempted in the future to offend in this way.

(Paragraph [j] Sentencing Remarks for Leonardo Manuel Segade Aviles, District Court of Western Australia, 11-10-01). It is submitted that the remarks of Justice Jackson can be applied to any fishing community where a person may contemplate fishing beyond quota, or in some other illegal, unregulated or unenforceable fishing manner. That is, the sentence must reflect the severity of environmental damage and be sufficiently severe that it will encourage compliance by acting as a deterrent on "those who might be tempted to offend" in the future. The extent to which the law does this with foreign nationals engaging in Southern Ocean IUU fishing is the subject of the second part of this paper.

3. DETERRING IUU FISHING IN THE SOUTHERN OCEAN - A TOOTHLESS TIGER?

This section of the paper considers the situation in international law and looks at several occurrences of illegal fishing in the Exclusive Economic Zone (EEZ) surrounding Australia’s Heard and McDonald Islands in the Southern Ocean.

The Law of the Sea Convention provides the primary legal framework for the regulation of fishing by foreign nationals and their vessels in the waters of coastal states. The right to fish in a state’s waters may be granted by an access agreement. Such vessels are required to comply with the conservation and other terms and conditions established in the laws and regulations of the coastal state (Article 62).

A coastal state has broad enforcement powers within its EEZ in relation to foreign fishing vessels. Article 73, subparagraph (1) provides that the coastal state may, "in the exercise of its sovereign rights to explore, exploit, conserve and manage the living resources in the exclusive economic zone, take such measures, including boarding, inspection, arrest and judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by it...". Enforcement powers of the coastal state are subject to some limitations. States are required to

• promptly release arrested vessels and their crews upon the posting of a reasonable bond or other security (Article 73(2), 292)

• not imprison foreign nationals, in the absence of agreements to the contrary by the states concerned, or apply any other form of corporal punishment (Article 73(3)) and

• promptly notify the flag state of an arrested or detained foreign vessel as to the action taken and penalties imposed (Article 73(4)).

The LOSC also places a wide range of responsibilities on the flag state in regard to vessels flying its flag. A flag state must exercise effective jurisdiction and control over vessels flying its flag, though the manner in which such is exercized is subject to a state’s discretion.

The terminology "illegal, unreported and unregulated fishing" (IUU) is commonly used to refer to foreign vessels fishing without authorisation in the waters of a coastal state, or vessels fishing without authorisation in an area and for a species governed by a regional fisheries body. A substantial portion of the IUU industrial fishing fleet targets patagonian toothfish occurring in the Southern Ocean. In what has been described as a ‘white gold rush’, illegal fishing is believed to be taking between 60 and 90 per cent of all fish caught in the Southern Ocean (Greenpeace 1998).

There is no real way of knowing the quantity of the catch taken by IUU vessels. Estimates of the numbers of illegal fishing vessels operating in the Southern Ocean range from 40 to over 100 (Anon. 1997, Woolford 1998). Further estimates from 1997 and 1998 suggest that the illegal catch of Patagonian toothfish (Dissostichus eleginoides) was approximately 100 000 tonnes with a value of over $A500 million, with the portion captured in Australia’s island territories’ EEZ in the multi-million dollar range (Anon. 1998). This trend has not abated and if anything IUU fishing in the Southern Ocean has increased. Unconfirmed reports state that when the Lena was arrested in February 2002 there were up to 12 vessels fishing illegally within, or just outside, the Heard and McDonald Islands AFZ. Based on the Lena’s catch of almost 80 tonnes this equates to almost 800 tonnes harvested illegally within a few short weeks, or 27 percent of the Total Allowable Catch as set by CCAMLR the responsible regional fisheries body.

Patagonian toothfish is a primarily demersal species, though it does spend some stages of is life in the pelagic environment. It is a large fish reaching more than two metres in length. The species is highly vulnerable to the impacts of overfishing due, by and large, to its late maturity of between ten and 12 years and its low fecundity as compared to most other fish species. Compounding this is that little is known about stock dispersal and other biological information relevant to management decisions, due primarily to the difficult conditions and remote locations of the fisheries involved. Hence, management needs to be precautionary and conservative in order to prevent economic collapse and ecological extinction of the species.

Heard and McDonald Islands^[95], which are separated by only 40 km, are remote Australian external territories some 4 000 km south west of Perth. In 1953 the Heard and McDonald Islands Act (Cth) was passed, which effectively applied the laws of Australia to the Islands. In 1979, Australia declared a 200nm Australian Fisheries Zone offshore from the Heard and McDonald Islands followed in 1994 by the declaration of an Exclusive Economic Zone (Commonwealth of Australia Gazette No. S189, 26 September 1979; The Maritime Legislation Amendment Act 1994 respectively). With the discovery and commencement of commercial exploitation of the Patagonian toothfish in the region, the last decade has seen a rapid rise of illegal fishing within the EEZ and in adjacent waters.

Fishing began in the mid-1990s and is tightly controlled under licences issued by AFMA who apply strict quotas reflecting the regional fisheries management regime in place under the CCAMLR. The AFMA has issued only two fishing permits with respect to the Heard and McDonald Islands Fishery. Moreover, as a matter of Australian domestic policy, CCAMLR Conservation Measures apply within the Australian Fisheries Zone (Part 2, Section 11, Heard Island and McDonald Islands Fishery Management Plan). The fishing quotas adopted by the CCAMLR Commission for Statistical area 58.5.2 have been adopted by Australia for the Heard and McDonald Islands Australian Fisheries Zone, as have many of the environmental measures (Bederman 2000).

In response to the threat posed by IUU fishing to both the valuable resources in the area and to Australian sovereignty over the region of the EEZ, Australia established a concerted enforcement programme. To date, Australian authorities have arrested seven foreign fishing vessels fishing illegally in this area of the Australian Fisheries Zone. The value of the combined catches on the seven vessels was in the vicinity of $A6.8-7 million. The environmental cost of the illegal industry includes not only the target catch itself, but also the death of tens of thousands of albatross on the longlines. Table 1 outlines vessel seizures and the ultimate fate of the vessels and crews under Australian sentencing law.

TABLE 1
Summary of IUU vessels apprehended in the Australian Fisheries Zone and penalties imposed

In October 1997, ‘Operation Dirk’ saw the arrest and escort to the port of Fremantle of two boats apprehended in the Southern Ocean. The first of these was the Salvora. The Belize-flagged vessel was boarded some 174 nautical miles inside the Australian Fisheries Zone (Queen v Paz and Santome). Twenty boxes of frozen Patagonian toothfish and 43 boxes of unfrozen headed, tailed and gutted recently cut toothfish were found onboard. The Spanish Captain and Master were both charged with offences under Sections 100 and 101 of the FMA. Section 100 prohibits fishing by a foreign boat in the Australian Fisheries Zone unless so authorized under a foreign fishing licence. Section 101 prohibits a person from having in their possession or charge a foreign boat equipped with nets, traps or other equipment for fishing unless so authorized or if the boat’s nets, traps or other equipment for fishing are stored and secured and the boat meets one of several requirements. These include: having AFMA approval; being on innocent passage on a direct route through the Australian Fisheries Zone; or being for use as a scientific research vessel and having an appropriate permit.

Both are strict liability offences and as such intention does not have to be proven. A 1999 Act addition does however require the prosecution to establish that the accused had knowledge of the vessel’s position with the Australian Fisheries Zone (Sections 100A and 101A). Although defence counsel informed the District Court that the defendants were equally culpable and entered guilty pleas for all charges, they contended that the defendants were fishing in a location under explicit directions from the ship’s owners. In other words they were unaware they were fishing within Australian waters and had they realized, they would have refused to do so.(Queen v Paz and Santome).

An additional argument submitted by the defence of both the Salvora and the Big Star cases was that the illegal fishing of Patagonian Toothfish was not a severe offence on environmental grounds. They argued that it was not the case "that the Patagonian Toothfish is a particularly endangered species" and as such the courts should be lenient. This statement runs in direct contradiction to all scientific data and substantial political recognition that "if illegal and unregulated fishing continues at the current level the population of Patagonian Toothfish will be so severely decimated that within the next two to three years the species will be commercially extinct" (press release, Parer and Downer, 1998a). And indeed, in the Big Star case Justice O’Sullivan expressed reservations in accepting some of these defence submissions.

In the case of the Salvora, on 14 October 1998 a fine of $A50 000 was awarded to each defendant, to be apportioned equally for the two offences (Queen v Paz and Santome). The maximum fine open to the court was $A275 000. The Court also made an order for the forfeiture of the vessel, fishing equipment and catch. The vessel had been released subject to a vessel monitoring system (VMS) bond of $A100 000 and a total vessel bond of $A1.47 million. Notwithstanding that the VMS had become inoperative shortly after the Salvora exited Australian waters, that bond was not automatically forfeited. The vessel did not return to Australia following the Captain and Master’s conviction, and at that point the vessel bond was forfeited.

The second vessel was the Panamian-flagged Aliza Glacial, arrested on 17 October 1997 having been sighted fishing illegally within the Heard and McDonald Islands Australian Fisheries Zone. The Captain and Fishing Master faced identical charges again under Section 101(1) of the FMA. The matters were adjourned with both defendants being granted bail ‘without condition’. On 5 February 1998, both defendants entered a plea of not guilty to the charges and bail was extended. The matters were then adjourned to 6 July 1998. At this point, both defendants failed to appear on the first day of the trial and the warrants remain outstanding.

In relation to the vessel, notice of her seizure, and that of her gear, bait and catch was issued in late November 1997. The vessel’s Norwegian mortgagee, Bergensbanken, made a successful application under the Admiralty Act 1988 (Cth) for the sale of the vessel due the owner’s default in loan repayments (Bergensbanken v. Aliza Glacial). Thus the Australian Government’s claim to forfeiture was defeated by an action for the recovery of the vessel by the boat’s mortgagee. The Commonwealth’s legal costs were however paid from the proceeds of the sale.

At the time federal fisheries law did not provide for the suspension of the sale of a vessel under admiralty law whilst a vessel is detained pursuant to the FMA (Section 84). This legislation has however, since been amended so that a foreign vessel, its equipment and fish is automatically forfeited to the Commonwealth if the vessel is used in an offence against certain sections of the FMA, including Sections 100 and 101.

In February 1998 a third vessel was apprehended in the Southern Ocean on suspicion of illegally fishing within the Heard and McDonald Islands Australian Fisheries Zone. The Seychelles-flagged, Honduras-registered Big Star was seized and brought into port for court proceedings (Bateman and Rothwell 1998). Apprehended 8 miles inside the Australian Fisheries Zone, the vessel’s Spanish Master was charged under the FMA Sections 100 and 101. Evidence from the vessel’s log books indicated that there had been three distinct periods of fishing within the Heard and McDonald Islands Australian Fisheries Zone. The vessel, fishing equipment, catch and crew were released on the posting of a security bond in May 1998 a few months after the arrest. The security bond totalled $A1.35 million. When the vessel was not returned to Australia the court also made an order for the forfeiture of the vessel bond to the Commonwealth Government. Indeed, after departing Fremantle, the Big Star was renamed the Praslin and was arrested by French authorities, again released and later impounded attempting to land a catch in South Africa (ISOFISH 2002).

A guilty plea was entered by the Master to all six charges and fines totalling $A100 000 were issued. In so doing the court took into consideration the monies made available by the vessel’s owner in the event of the imposition of a fine. This fine was appealed and reduced to $A24 000. The reduction was due to the Master’s financial circumstances. Such consideration of the vessel owner’s finances was a departure from the common law principle and is now codified in the Crimes Act (Section 16C(1)), i.e. a court is to take into account the financial circumstances of the accused when imposing a fine. Although the Court of Appeal held that the initial fine was "appropriate to reflect the gravity and criminality of the applicant’s conduct", it was held that the trial judge failed to properly take into account the personal and financial circumstances of the defendant. Interestingly, the minority judge disagreed with this finding. He stated that such an interpretation would defeat the purpose and object of the Act as it would allow those outside the jurisdiction to hide behind the impoverished circumstances of their employees.

On 29 March 2001 once again a foreign fishing vessel was sighted fishing illegally within the Australian Fisheries Zone and was chased across the Indian Ocean by the Southern Supporter. This concluded with a successful arrest 14 days later of the South Tomi. The arrest occurred 8 500 km from Australia only after a show of firepower and with the aid of French and South African authorities (AFMA undated).

Unlike the case of the Big Star, in the instance of the South Tomi the defendant signed his own bail documents and hence technically the bail of $A150 000 was considered to have been paid by the defendant himself. Consequently the financial means of the defendant were not an impediment to imposing a substantially larger fine than in the preceding case. It may however have been the situation that the $A136 000 fine was actually paid by the owners of the vessel.

Due to the amendments of the FMA, the vessel, equipment and catch were automatically forfeited under Section 106A. This forfeiture was initially challenged, though the application was later withdrawn. In addition, Australia failed to set a reasonable bond under Article 73 of the LOSC. No protest, however, was lodged at this. As such, Article 292, which requires prompt release on the posting of a reasonable bond provisions, was never activated. There is no consideration under Article 73 of the LOSC as to the logistics of a situation (not uncommon to IUU fishing) where a vessel owner cannot be identified. It follows however, that a bond cannot be set and paid without knowledge of the vessel owner’s details.

The final two vessels to be seized before the most recent apprehension of the Viarsa, were the Russian vessels the Lena and the Volga. In February 2002 a Navy vessel arrested the Lena, subsequent to an unsuccessful pursuit by a civilian patrol vessel three month earlier. The vessel was arrested approximately 225 kilometres inside the Australian Fisheries Zone and with almost 80 tonnes of toothfish on board. The seizure of the Volga was an extra bonus, arrested on 7 February 2002 as it was exiting the Australian Fisheries Zone and escorted alongside the Lena to Fremantle.

The Captain pleaded guilty to a number of offences relating to fishing within the Australian Fisheries Zone without a licence. In a sentenced handed down in June 2002, he faced fines totalling $A50 000. Both the First Officer and Second Officer who, like the captain, were Spanish nationals, were also charged and pleaded guilty to offences under Sections 100 and 100A of the FMA and each were awarded fines of $A25 000. In regard to the severity of the fines, a report in the Newcastle Herald on the hearings cites District Court Judge Kennedy as saying prior to sentencing that ‘three Spaniards convicted of poaching protected fish from Australian waters may be treated more harshly than poorer Indonesian fishermen charged with similar offences.’ To recall, in the case of the South Tomi the sentencing judge had commented on the Spanish Galician roots of many offenders and the need to take into account the deterrent effect of a sentence. Nonetheless, given the value of the vessel and catch these are not large fines.

The ship’s captain of the Volga was initially charged, however following his death shortly after arrest, the charges were withdrawn. The Fishing Master, Pilot and Chief Mate were charged under Section 100(1) of the FMA for fishing within the Australian Fisheries Zone without a licence.

Following its arrival at the port of Fremantle the Lena was condemned as forfeited. A written claim for the release of the Volga under Section 106E of the FMA was submitted. This allowed a two-month period for the commencement of formal proceedings in accordance with FMA Section 106F. As with the South Tomi, the Australian Government maintained the position that the obligation lies with the vessel owners to pursue the issue of a reasonable bond under Article 73 of the LOSC. As the owners’ details were provided for neither the Lena nor the Volga, and solicitors did not seek the posting of a bond, the vessels were subsequently to be disposed of at the direction of the Commonwealth Fisheries Minister. In the event a bond was set for the Volga and Spanish officials of $A4.1 million.

The Lena and Volga are the first of the seized vessels to be flagged to a CCAMLR member state. Although flagged in Russian and owned by a company registered there, Russia failed to control the vessel’s fishing activities, putting it in breach of its CCAMLR obligations. Their illegal catch undermined the efforts of the CCAMLR to set precaution catch limits via conservation measures.

4. CONCLUSION

The first theme raised at the opening of this paper was the need to take into consideration the environmentally deleterious impact that an illegal fishing action may have in sentencing.

In the evolution of natural resources law there is clearly a creeping inclusion of environmental considerations into more and more aspects of decision-making. Similar to the concept of the victim impact statement in a violent crime, there is no doubt that an increasing number of judges are examining the impact on the environment of an offence relating to natural resource over-exploitation. However, this environmental consideration is not consistent.

The second theme of the paper is that of consistency in sentencing fishery offenders. The application of domestic legal principles such as the financial circumstances of a defendant may become complicated in the case of foreign illegal fishing. Further, inconsistency in sentencing environmental offences is exacerbated when a host of other considerations are also taken into account. While on the face of it these may seem appropriate considerations, given the internationality of southern ocean management, the wisdom in applying principles designed more for domestic Australian law needs to be considered. That is, the wisdom and validity of taking into consideration a defendant’s financial circumstances, when such defendants have been apprehended in the command of a multimillion dollar vessel with a multimillion dollar illegal fish harvest, is questionable. This is even more so when a state’s ability to determine the real (beneficial) owners of the vessel is limited.

In addition, foreign nationals illegally fishing enjoy extra protection to that of Australian nationals convicted for a mirror offence by virtue of the 1982 United Nations Convention on the Law of the Sea whose Article 73 prohibits imprisonment of ships’ crew. Accordingly, this paper recommends that when sustainability of stocks is an issue, stricter and consistent sentencing needs to be applied to domestic offences and commensurably larger fines to IUU offences so that the judicial treatment of fishery offenders acts as a meaningful deterrent and not a lottery.

5. LITERATURE CITED (ONLINE BOOKS AND ARTICLES)

ABC News Online "Toothfish Group Praises Viarsa Capture" 28/8/03 <http://www.abc.net.au/newsitems/s933559.htm>.

AFMA South East Trawl Fishery Management Arrangements 2003 <http://www.afma.gov.au/fisheries/south%20east%20trawl/default.php>.

Bateman, S. and D. Rothwell 1998. Southern Ocean Fishing: Policy Challenges for Australia (University of Wollongong, Wollongong).

Bederman, D.J. 2000. ‘CCAMLR in Crises: A case study of marine management in the Southern Ocean’ in Harry N. Scheiber (Ed) Law of the Sea - The Common Heritage and Emerging Challenges, 169-196

CSIRO 2003. Orange Roughy Assessment Group: The Fishery. <http://www.marine.csiro.au/orag/fishery/index.htm>

News 24.Com (South African Press Association) "Fate of fish, crew undecided" 28/8/03 <http://www/news24.com/News24/SouthAfrica/News/0,,2-7-14421408794,00.html>

News 24.Com (South African Press Association) "Aussie Team on way to Viarsa" 3/9/03 <http://www/news24.com/News24/SouthAfrica/News/0,,2-7-14421410993,00.html>

Nicholls D. and T. Young 2000. Australian Fisheries Management and ESD - the one that got away? 17 Environmental and Planning Law Journal 272.

United Kingdom Sentencing Advisory Panel, "Environmental Offences: The Panel’s Advice to the Court of Appeal" published online at <http://www.sentencing-advisory-panel.gov.uk>.

Warner K. 2002. Sentencing in Tasmania, 2^nd edition, Federation Press, Sydney.

RELEVANT MEDIA REPORTS

• Don Woolford. Toothfish Entrepot. AAP 1998

• ABC AM News, 28 August 2003

• The Mercury Hobart, 28 August 2003

• The Age, Melbourne, 28 August 2003

• The Newcastle Herald, 1 June 2002

• The Age, Melbourne, 29 November 1997

• Press Release by Australian Minister for Resources and Energy, Warwick Parer and Minister for Foreign Affairs and Trade Alexander Downer, 22 July 1998.

• Press Release, Minister for the Environment Senator Robert Hill, 3 November 1998

• Greenpeace, International Commission to Determine the Future of Antarctic Marine Wildlife", GreenPeace Press Release, 2 November 1998

• ISOFISH Occasional Report No 4. May 2002.

LEGAL CASES CITED

• R. v Turner [2002] TASSC 22

• R. v Georgiadis (No.5) [2001] TASSC 88

• Georgiadis v R. [2002] TASSC 58

• Commonwealth DPP v Jansen and Others

• Minister for Primary Industries and Energy v Austral Fisheries Pty. Ltd (1993) 40 FCR 381 (Full Court)

• Coleman v Gray (1994) 55 FCR 412

• La Macchia v Crean (1992) 110 ALR 201

• Bergensbanken ASA v. The Ship Aliza Glacial Federal Court unreported decision of Justice. Ryan, 20 March 1998

• Perez v The Queen, (1999) 21 WAR 470