Citation: Brancatisano v NSW Department of Trade and Investment, Regional Infrastructure and Services [2018] NSWDC 333
Court: District Court of New South Wales
Date: 9 November 2018
Judge: Haesler SC DCJ
Background
The appellant was a licensed commercial fisherman who worked as skipper and "nominated fisher" for a company holding shares in the eastern rock lobster fishery. Between December 2012 and May 2014, across two consecutive fishing seasons, he systematically undermined the quota management system by landing and selling lobster in quantities well beyond his employer's allocated quota, failing to declare accurate catch figures, and deliberately misusing or loosely applying identification tags so they could be removed and reused on other lobster.
Following a nine-week defended hearing in the Local Court, Magistrate Williams found the appellant guilty on 117 charges. The custodial penalties arose from ten offences under s 21B of the Fisheries Management Act 1994, each involving the unlawful sale of more than twenty eastern rock lobster (the "indictable quantity"). The total quantity trafficked across those ten sales was approximately 630 kg, representing around 20% of the quota allocated to the company for one of the relevant seasons. Proceeds to the appellant totalled approximately $28,000.
The Magistrate imposed an aggregate sentence of three years with a non-parole period of two years, alongside fines exceeding $75,000 and costs of $250,000. The appellant appealed to the District Court against conviction, sentence, fines, and costs. Before the appeal hearing, he withdrew the conviction appeal and challenges to the fines and costs order, leaving only the custodial sentences in dispute.
Legal Issues
- Whether the aggregate custodial sentence of three years with a two-year non-parole period was manifestly excessive for ten s 21B Fisheries Management Act offences
- Whether a non-custodial or lesser custodial disposition was available and appropriate given the nature and extent of the offending
- Whether personal circumstances, including hardship to the appellant's family and a seriously ill child, warranted a reduction in the sentence
- Whether the recently introduced Intensive Corrections Order (ICO) mechanism was an appropriate vehicle for the balance of any custodial term
- How the principle of totality applied to the aggregate sentence across multiple related offences
Decision
Haesler SC DCJ accepted that the offending was serious, systematic, and deliberate. The conduct involved ongoing breaches of a self-reporting regulatory system that exists to protect a finite natural resource for future generations. The court rejected any suggestion that the appellant's role was minor or that the breaches caused no real harm: the quota system's integrity depended entirely on accurate self-reporting, and the appellant's conduct directly undermined it.
Nonetheless, the court found that the aggregate sentence of three years with a two-year non-parole period was excessive when tested against the totality principle and the indicative individual sentences. The Magistrate had imposed indicative terms of 12 months for seven offences and 18 months for three; on the District Court's reassessment, those indicative terms were reduced. The court also gave weight to the significant hardship that continued full-time imprisonment would cause to the appellant's family, including a child with serious medical needs, though the court was careful not to treat this as displacing the need for a meaningful deterrent sentence.
A significant factor in the outcome was the availability of the Intensive Corrections Order, a sentencing option introduced by recent legislative changes that permits a term of imprisonment to be served in the community under supervision. The court held that this mechanism was appropriate here, given the reduced aggregate sentence and the personal circumstances of the appellant. One discrete fixed-term sentence of five months had already been served; for the remaining matters, the court substituted an aggregate sentence to be served by way of ICO.
The court emphasised that sentences for serious fisheries offences must reflect both specific and general deterrence. The community has a strong interest in protecting shared natural resources, and those who systematically exploit commercial fisheries for profit must expect significant penalties.
Orders Made
- Conviction appeals: dismissed (withdrawn by appellant)
- Sentence appeals relating to fines and costs order: dismissed; Local Court orders confirmed
- One fixed-term sentence (CAN 41, 8 May 2013, 126 eastern rock lobster): five months imprisonment, fixed term, already served (10 June to 9 November 2018)
- Remaining nine custodial matters: sentence appeals upheld in part; sentences varied
- Aggregate sentence for those nine matters: two years and two months imprisonment, to be served by way of Intensive Corrections Order, commencing 9 November 2018 and expiring 8 January 2020
- Standard ICO conditions one and two imposed
- Additional condition: 160 hours community service
- Supervision to continue until completion of community service
Key Takeaways
- The District Court confirmed that blatant, systematic exploitation of a quota-based fishery management system constitutes serious criminal conduct warranting a custodial sentence, even for a first-time offender in relation to custodial-level offending.
- Under the totality principle, an aggregate sentence must reflect the overall criminality of the offending without being disproportionate to any single transaction; the court found the original aggregate of three years exceeded what totality permitted on the individual indicative terms.
- Family hardship, including a seriously ill dependent child, can be a mitigating factor in sentencing but does not displace the need for sentences that serve general and specific deterrence, particularly for offences involving ongoing commercial exploitation of public resources.
- The recently introduced Intensive Corrections Order was available as a mechanism allowing a term of imprisonment to be served in the community; the District Court found it applicable here following the reduction of the aggregate term.
- Withdrawal of conviction and other appeals before the hearing had the practical effect of confining the District Court's review entirely to the length and manner of service of the custodial component.
Legislation and Cases Referenced
Legislation
- Fisheries Management Act 1994 (NSW), s 21B
- Fisheries Management (General) Regulation 2010 (NSW)
- Fisheries Management (Lobster Share Management Plan) Regulation 2000 (NSW)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 17
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases
- Prodanovski v Department of Trade and Investment, Regional Infrastructure and Services [2017] NSWDC 73
- Prodanovski v Andrews [2017] NSWCCA 230
- Carter [2018] NSWCCA 138
- Robertson [2017] NSWCCA 205
- Hili v The Queen (2010) 242 CLR 520
- Markarian v The Queen (2005) 228 CLR 357
- Togias (2001) 127 A Crim R 23
- Edwards (1996) 90 A Crim R 510