Possess More Than Twice Catch Limit of Abalone
– section 68A(4)(b) of the Fisheries Act 1995
A person will be charged with an offence under section 68A(4)(b) of the Fisheries Act 1995 if he/she takes or possesses more than twice the catch limit for abalone. Under section 66C of the Act, the Government must publish the quota in the Government gazette.
As a summary offence, any summons for this charge will primarily be handled by the Magistrates’ Court.
What is the legal definition of Possess More Than Twice Catch Limit of Abalone?Section 4 of the Fisheries Act defines abalone as blacklip and greenlip abalone and includes all other species, forms, races and hybrids of abalone.
Furthermore, section 7B of the Fisheries Act defines ‘possession’ as – ‘person possesses a fish or an item of fishing equipment if the fish or item is on any land or premises occupied by him or her, or is under the person’s control, unless the person can satisfy the relevant court to the contrary’.
Examples of Possess More Than Twice Catch Limit of Abalone
- Possessing more than the prescribed limit of abalone
- Have control over more than the prescribed limit on abalone
Elements of the offenceThe prosecution must prove the following elements beyond reasonable doubt:
- The accused has caught abalone; and
- The amount of abalone in the accused’s possession is more than twice the catch limit in place at a particular fishery.
LegislationThe legislation for this offence of possess more than twice the catch limit of abalone is section 68A(4B) of the Fisheries Act 1995.
A person charged with this offence may raise any of the following defences:
- Lack of intent to possess
- Factual dispute as to possession
- Factual dispute as to identity
Questions in cases like this
- Did you possess the abalone?
- Was the quota limit published in the Government gazette?
- Did you intend to possess the abalone?
This offence carries a fine of 50 penalty units (around $7,000) or 3 months imprisonment. Subsequent offending may result in a fine of 100 penalty units (around $14,000) or 6 months imprisonment as the highest possible sentence. It should be noted that more significant breaches of this section would see a penalty in the higher end of the sentencing range. The Courts are handing out hefty penalties these days for abalone poaching. People are being regularly put in prison for these offences.
Sentencing in the Magistrates’ CourtsThere were 84 cases (84 charges) of Possess More Than Twice Catch Limit of Abalone that were heard in the Magistrates’ Courts of Victoria from 1 July 2013 to 30 June 2016. Financial penalty was the form of sentencing most frequently imposed for this offence (78.6% of the cases) although there were other penalties imposed as well. Community Correction Order was given in 6.0% of the cases, adjourned undertaking/discharge/dismissal also 6.0%, imprisonment at 4.8%, and wholly suspended sentence also at 4.8% of the cases.
All prison terms imposed were less than 3 months. For the fines, the majority were sentenced to an amount between $2,000 and $3,000 (34.9% for aggregate and 3.0% for non-aggregate).1
Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.2
 SAC Statistics – Fisheries Act 1995 (Vic) : s 68A(4B) – possess more than twice catch limit of abalone < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/95_92_68A_4B.html >
 Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >