STATE OF TASMANIA v PETER JOACHIM KOSSMANN 28 OCTOBER 2009
COMMENTS ON PASSING SENTENCE BLOW J
Mr Kossmann has pleaded guilty to four crimes relating to false records and false statements as to catches of abalone between March 2000 and November 2002. He was a professional abalone diver for many years. Under the licensing regime that was in force during the relevant years, there was an unusual arrangement whereby five divers were allowed to take certain quantities of abalone from the waters surrounding the Furneaux group of islands in Bass Strait, but only if they took the abalone personally. Mr Kossmann was one of those divers. As a result of arrangements made by him with other divers, those other divers took quantities of abalone, and false documents were created, showing that the abalone in question had been taken by Mr Kossmann, not those other divers. Before going into detail about the crimes that were committed, I think I should say a little about Tasmania's abalone fishery.
The taking of wild abalone is a significant industry in Tasmania. About $115 million worth of abalone was landed in this State in 2002. The fishery needs to be regulated to maintain its sustainability. That is done by means of a strict regime of licensing, quota management, record keeping and returns. Each year, the total allowable catch for the fishery is determined. That figure is divided into a number of equal parts, each of which is referred to as an abalone quota unit. Commercial abalone divers hold licences that specify the number of abalone quota units that each diver has. There are regulations that require divers to maintain records of abalone catches in the form of divers' dockets in books that are issued by the relevant department. In respect of each day's diving, the diver is required to sign a declaration that he or she personally caught and landed the amount of abalone recorded on the docket. One copy of each completed docket is required to be forwarded to the appropriate government department. Under the Living Marine Resources Management Act 1995, s265(a), it is a crime for a person, in keeping any record under that Act, to make a statement knowing it to be false or misleading.
As from 1990, the five divers who had been diving in the Furneaux group were each entitled to 20 ordinary quota units, and to 8 additional quota units that were the subject of licence conditions that provided (a) that those units were not transferable; (b) that only the diver to whom the particular unit was granted could take abalone in respect of that unit; and (c) that such units were to be surrendered to the State when the diver ceased to be a licensed diver.
Counts 1, 2 and 4 on the indictment are charges of conspiracy. They relate to conspiracies involving Mr Kossmann and three other divers. Mr Kossmann conspired with each of them to keep false records, contrary to s265(a) of the 1995 Act. Pursuant to those conspiracies, between 19 March 2000 and 19 November 2002 Mr Kossman signed at least 56 divers' dockets that contained false statements that he had personally caught abalone when in fact some of the abalone referred to in the dockets had been caught and landed by the other divers. These three charges relate to about 11.47 tonnes of live abalone, with a landed beach price value of over $526,000. The other divers were paid about $65,000, inclusive of GST.
Count 3 on the indictment is a charge of knowingly making a false or misleading statement in keeping records, contrary to s265(a) of the 1995 Act. It relates to a single abalone fishing trip on 22 September 2001. Mr Kossmann went out with four other divers. Each of those divers took 2.88 tonnes of abalone, but Mr Kossmann completed a docket recording that he, not they, had taken all that abalone. The abalone in question was worth $103,680. The other divers were paid a total of $3,960.
These crimes did not result in any over-fishing or any threat to Tasmania's abalone resources. The total allowable catch for each year was calculated on the basis that Mr Kossmann had taken all the abalone that he was licensed to take. It made no difference to the total allowable catch that others had taken abalone that he was only licensed to take personally. But these crimes were serious because they related to large and valuable quantities of abalone, and involved conspiracies that continued for years. The system of records and returns, on whose integrity the sustainability of the abalone fishery depends, was flouted on a massive scale. However Mr Kossmann did not realise how seriously his offending would be viewed, or how serious the consequences would be for him.
Mr Kossmann is 52 years old. He was a professional abalone diver for 28 years. He is a hard-working businessman with family responsibilities. He has a wide range of friends and associates by whom he is very highly regarded. He was fined in 1987 on six charges of failing to submit returns, but has no other relevant prior convictions.
During the years in question, Mr Kossmann's life was very difficult because he had taken on a great many commitments and projects, and did not have sufficient time to give proper attention to all of them. He was involved in litigation with a seafood processing company. He was running a processing company of his own. He was involved in a vineyard, where vines were being planted. That work was very labour intensive and time-consuming. He had a boat that was being refitted after nearly sinking in late 1999. He owed his bank over $1.3 million. His wife was having difficulties in relation to her previous marriage. Because his diving was weather dependent, and because all of these activities and problems made demands on his time, he had trouble finding the time to dive personally for abalone in accordance with the licence restrictions that I have referred to. It was in that situation that he arranged for other divers to dive for him, and for that arrangement to be concealed by false records and returns.
Since 2002 his problems have become worse. The price of abalone fell dramatically in 2003. He suffered substantial business losses as a result. He lost his court case against the seafood processing company, and had to pay around $3 million, inclusive of interest and costs. He lost favour with his bank. He had to sell assets and re-finance in order to pay the bank and his judgment creditor. The repairs to the boat were never completed. He now has debts of about $1.7 million. His diving licence has not been renewed by the Minister for the current year. He expects to lose it altogether, and to lose his eight Furneaux quota units, as a result of being convicted of these crimes. Decisions as to those matters will be made by the Executive, not this Court. The financial impact of the expected losses will be substantial.
The Crown are seeking a pecuniary penalty order in the sum of $336,140. The making of that order was not opposed. I do not have a complete picture of Mr Kossmann's financial position. It was not suggested that he would be unable to pay that amount, but it seems clear that he will need to sell assets and/or increase his borrowings in order to do so. I will therefore make the order sought, and take the burden of that order into account in deciding what other penalty to impose.
Mr Kossmann is the twentieth diver to be sentenced in relation to false statements, false records, or conspiracies in relation to contraventions of restrictions requiring the five Furneaux divers to take abalone personally. Only one of the other 19 divers went to prison, but he had a bad record of prior convictions. In my view the only appropriate penalty, apart from the pecuniary penalty order that I have decided to make, is a wholly suspended sentence of imprisonment. Having regard to the scale and duration of Mr Kossmann's offending, and to the mitigating circumstances I have referred to, particularly the fact that these crimes made no impact on the sustainability of the fishery, I think a suspended sentence of six months' imprisonment is sufficient. I am conscious that other judges have imposed longer suspended sentences in similar cases.
Peter Joachim Kossmann, I convict you on each charge and sentence you to six months' imprisonment, wholly suspended on condition that you be of good behaviour for a period of two years. I assess the value of the benefits that you have received as a result of committing these crimes to be $336,140. I order you to pay that sum to the State of Tasmania as a pecuniary penalty. I order you to pay your victims of crime compensation levies of $200 within 28 days.