7 Aug 2018

MPI prosecution: Fishermen want to 're-set' relationship

7:52 pm on 7 August 2018

A group of Hawke's Bay fishermen who admitted falsifying catch records and other fisheries breaches are not in the super rich category and their lawyer says the Crown is wrong to seek $1.5 million in fines from them.

Wellington District Court.

Wellington District Court. Photo: RNZ / Alexander Robertson

A sentencing hearing has been taking place in the Wellington District Court for Joe D'Esposito, his brother Nino D'Esposito and Nino's son, Marcus D'Esposito, relating to fisheries charges to which they pleaded guilty in December.

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.

The Ministry for Primary Industries 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.

Nino D'Esposito's lawyer, Michael Sullivan, told Judge Bill Hastings today that the Crown had claimed the $1.5 million was the minimum fine the Court could impose.

"Not only is that wrong, but that submission is also inconsistent with the agreement the ministry [for Primary Industries] reached [with the defendants].

"The ministry accepted that the range open to the court was between $500,00 and $1.5 million, ie that is at the very top of the range, it is not the minimum."

Mr Sullivan said the defendants were "mid-tier people with mid-tier incomes".

Comparison cases the Crown had raised, such as the sinking of the Rena in the Bay of Plenty, related to another part of the law and were in another league compared with the charges before the court, he said.

His clients were very pro the Quota Management System and understood how it helped MPI do its job.

"They are in what needs to be a cooperative relationship [with MPI] and they recognise that and don't level criticisms at the ministry generally or in specific instances against anybody.

"MPI and [the defendants] have attempted to re-set their relationship. Recently a meeting was held and both sides agreed things need to be re-set and readjusted in terms of their relationship."

The defendants recognised they were big fish in a little pond and had a responsibility to lead and be seen to adopt a standard that was not "just good enough, but better", Mr Sullivan said.

'A man who didn't want to disappoint his father'

Marcus D'Esposito's lawyer, Karyn Van Wijngaarden, said her client had a busy role which had expanded without his original work falling away.

She said as his role in the fishing companies increased he took on more and more work.

"His offending is not about a character flaw or inability to stand up and take responsibility for his shortcomings.

"Instead it is about a man who didn't want to disappoint his father, wanted to do a good job, but lost sight of expectations and couldn't see that he was stretched too thin."

Ms Van Wijngaarden said MPI's submission that no discount should be given for her client's guilty plea failed to address the months of judicial time that saved, that 60 percent of the charges in the case had been withdrawn and over time there had been a substantial change in the charges.

She said her client was a first offender and should receive credit for that when he was sentenced.

'No red flags'

Bruce Squire QC, the lawyer for Joe D'Esposito, also mentioned the amount of time and money saved by his client's guilty pleas.

He said Mr D'Esposito had originally faced 95 charges, but the Crown had withdrawn a large number, leaving 38.

Mr Squire said those charges related to Joe D'Esposito's position as a director of the fishing companies, Explanades Number 3, Hawkes Bay Seafood and Ocean Enterprises Limited, and suggested he should have known of the actions of the corporate body and failed to take action to stop it.

He said there was a challenging aspect to that, where it was accepted from the outset, as it is in this case, that he didn't know of the offending.

"I want to make the same point that ... in sentencing in cases of this kind, care must be taken to ensure the sentence is a fair reflection of the culpability of the offender and in line with those imposed on other offenders with broadly similar culpability."

Mr Squire suggested total fines of $60,000 would properly reflect his client's overall culpability.

"Mr D'Esposito accepts the case can be made against him that had he 'drilled down' sufficiently he'd have found there'd been misreporting.

"But he did not do so because there were no red flags that something was going wrong or that there was such a need he should undertake."

Judge Hastings has reserved his decision regarding penalties to be imposed on the defendants.

Tomorrow submissions will be heard on possible forfeiture of the companies' fishing boats.