A FISHERMAN has been granted his wish of a prison term rather than a crippling fine for illegally fishing in protected waters.
But Peter John Grennell, 52, will not spend a night behind bars.
Maroochydore District Court Judge John Robertson yesterday imposed a four-month sentence on Grennell after earlier hearing that a fine could financially ruin him and his wife, but ordered his immediate release on a good behaviour order.
Grennell had faced a maximum fine of $110,000 after the Commonwealth Director of Public Prosecutions opted to have the matter dealt with in the District rather than in the Magistrates Court, where the maximum fine for the offence is $6600.
In delivering his judgement yesterday, Judge Robertson noted the DPP's decision to switch the matter to the District Court just as Grennell was about to be sentenced in the Magistrates Court last year.
The judge stopped short of describing it as an abuse of process, but raised questions given the only other similar prosecution had been in the Magistrates Court, where a $1500 fine had been issued.
The DPP's decision to switch courts meant the matter hung over Grennell's head for an extra year and Judge Robertson said noted it had a "dramatic adverse effect" on Mr Grennell and his wife. Grennell was charged after the vessel he skippered was tracked twice in Commonwealth Reserve off Lord Howe Island in October, 2011.
The judge accepted that the breach was unintentional, as the vessel did not have appropriate navigational aids and the marine park was not on the charts.
He noted that although Grennell navigated through the zone, the long line behind the boat drifted out of it and there was no way of knowing what proportion of the catch was from within the reserve.
He accepted the offence was "completely out of character" for the skipper who was committed to marine safety and the environment.