Total fines of $1.5 million would be an appropriate penalty for a group of Hawke's Bay fishermen and their companies, who admitted falsifying details of their catch records, the Crown says.
Photo: RNZ / Richard Tindiller
The defendants, including Antonino, Giancarlo and Marcus D'Esposito and several of their fishing companies, including Hawke's Bay Seafoods, pleaded guilty in June to more than 100 charges laid by the Ministry for Primary Industries (MPI).
Lawyers for the fishermen and their companies, who admitted under-reporting their catch of bluenose, say they are remorseful and should receive credit for their guilty pleas.
The men and their companies came under official scrutiny when discrepancies were found between the amount of fish they reported catching and the amount they exported.
MPI launched an investigation in October 2012 and the charges laid as a result included selling fish not recorded in returns filed with the ministry, and making false statements.
Initially 355 charges were before the court relating to 32 exports of fish, such as bluenose and trumpeter.
However, many of those charges were amended or withdrawn during the proceedings, with the three defendants and their companies entering guilty pleas in June and being convicted of 130 charges.
In a summary of facts the ministry said Marcus D'Esposito recorded the weight of bluenose caught and that weight formed the basis for all other reports through the Quota Management System.
The unreported catch of bluenose was then sold to Australian customers.
MPI said Nino D'Esposito regularly communicated with one of his skippers while boats were at sea.
"In those circumstances, and as a director of the defendant companies, he should have known that the [paperwork was wrong] and he failed to take all reasonable steps to prevent or stop [that]."
The ministry said that while Joe D'Esposito did not know of the actual misreporting, as a person responsible for monitoring the catch he should have known the exports contained more bluenose than was reported as landed.
"[He] failed to take all reasonable steps to prevent those sales."
Nino D'Esposito has been involved in the fishing industry for more than 40 years while his brother Joe has been in the industry for 30 years.
Both have previous convictions for breaching the fisheries law.
Marcus D'Esposito has been part of the fishing industry for about 10 years and has no previous fisheries convictions.
'Significant...offending'
Crown prosecutor Stephanie Bishop told the court on Monday that the high degree of commercialism was an aggravating factor in the offending.
"$253,000 was the value of the misreported bluenose. But [fisheries penalties] with a deemed value of more than $218,000 [were also] avoided.
"The Ministry for Primary Industries acknowledges the profits are lower than in [a similar case involving orange roughy], but this was significant ... offending.
Ms Bishop said there was also a long-standing, settled pattern of conduct by the D'Espositos and their companies.
"Based on their years in the industry they knew how much bluenose they were entitled to catch annually."
From 2011 New Zealand's bluenose fishery was a stressed resource, she said, and while the extra fish taken by the defendants may only have amounted to 1 or 2 percent of the total allowable catch, that was significant for a fishery already under strain.
Ms Bishop said the defendants also had a high level of knowledge of the extent and effects of their offending.
They used their own document, rather than official MPI paperwork, to record the actual weight of their catches, she said.
"This was their only opportunity to record the true weights. Those false catch documents led to flow-through in other paperwork."
She said Marcus D'Esposito failed to take reasonable steps to ensure that didn't occur, and he had a particular responsibility for doing so as general manager of Hawke's Bay Seafoods.
"He controlled amounts of bluenose reported to the ministry as required, as he knew the weights of bluenose falsely recorded in weigh-in sheets and he completed some of those himself.
"He was fully aware that Hawke's Bay Seafoods sold unreported bluenose to wholesale and other customers in relation to those under-reported events."
That led to a high level of loss and damage to the fishery, and caused serious harm to MPI's management of the bluenose fishery, Ms Bishop said.
"As it is then based on false or misleading information. As a result it may be further over-fished. That impedes the realisation of long-term benefits to New Zealand, including for iwi quotas."
Lawyers for the defendants say $600,000 would be an appropriate total fine.
Defence says credit deserved for guilty pleas
Antonino D'Esposito's lawyer, Michael Sullivan told Judge Bill Hastings his client should be given credit for the saving the guilty pleas represented for the justice system, especially as it brought to an end a trial which could still have been running now.
"We had had a protracted hearing; the indication was it would have gone through to August.
"The plea of guilty alone represented months of saving of judicial time and taxpayer resources of a level ... I can't think of another example where that level of saving has been implicit in an entry of plea of guilty after a negotiated resolution."
The Crown suggested total fines in the case should be $1.5m, but the defence says $600,000 would be a more appropriate figure.
Mr Sullivan said the level of fines suggested by the Crown represented a substantial uplift from those which had been imposed in similar cases to date.
The Crown had questioned whether the defendants had shown remorse, but Mr Sullivan said they acknowledged their failings and were not making excuses.
"In this situation I'm not going to stand before this court and give a story about remorse that stretches the court's credibility.
"The point is they recognise that the failings that occurred are not good enough and they'll have to bear the consequences of that but they are taking steps and have taken steps to eliminate this happening again."
The sentencing hearing will continue on Tuesday and is expected to run for several days.
Judge Hastings has indicated he will reserve his decision over what penalty will be imposed.
The trial in the Wellington District Court is one of the longest-running cases to be heard in New Zealand.
