Sibanganei v Cubo [2004] PGDC 67; DC497 (10 February 2004)

DC497

PAPUA NEW GUINEA
[DISTRICT COURT OF JUSTICE]

DCCi NO 67, 68 AND 69 OF 2004
70 AND 71 OF 2004

BETWEEN

TERRY SIBANGANEI
Complainant

AND

MUDIADIN CUBO
First Defendant

AND

RODNEY RAKUM
Second Defendant

AND

RAMA BASO
Third Defendant

Madang: C BIDAR PM
2004: 10 February

Fisheries Management Act – Fishing without licence – Sentence – One prisoner convicted following trial – other prisoner initially pleaded not guilty but changed plea to guilty – circumstances of the offences – prisoners two Indonesian citizens arranged with PNG citizen to engage in long line fishing for sharks with foreign vessels and Foreign crew – not a case of blatant disregard of laws of country – Fisheries Management Act 1989, s 58, s 58(5)(b) s 63(2) s 63(1)

Counsel
J. Agaru, for National Fisheries Authority
W Akuani for the prisoners

10 February 2004

Bidar c pm: Prisoner MUDIANO CUBO was found guilty and convicted of three counts of illegal fishing following a trial, whilst prisoner RAMA BASO initially pleaded not guilty to two counts of illegal fishing but changed his plea from not guilty to guilty.

2. The facts and circumstances of the offences have been adequately canvassed in my judgment on verdict. It is only sufficient to state brief facts and circumstances of the offences.

3. The prisoners, their foreign crew and vessels came into the country to fish because they had an arrangement with a citizen of this country. Mr Michael Kauke. Mr Kauke tried to seek assistance from authorities within the country, to pursue his desire to fish particularly for sharks on a larger scale which got him nowhere. He decided to seek assistance offshore. He went to Jayapura to seek assistance. He sought finance, expertise and equipment. He struck a deal with prisoners, their vessels with gear and crew. He communicated with Papua New Guinea Consul Office in Jayapura and obtained multiple visas. He obtained approval from the Managing Director National Fisheries Authority to bring into the country four Indonesian built canoes, which were ideal for artisinal fishing.

4. Basically, these were the circumstances the prisoners came into the country with their vessels and crew, and were involved in the fishing activities for which they are before this Court.

The prisoners entry and involvement in the fishing activities they were engaged in, were unlike others. This was certainly not a case of blatant disregard of the laws of a sovereign nation and did whatever they liked, like in other cases. Mr Kauke who arranged their entry and involvement in the fishing activities tried to comply with some requirements for instance he obtained visas for prisoners and their crew and obtained certain approval from the Managing Director National Fisheries Authority to bring in Indonesian built canoes but his attempts fell short of obtaining appropriate licences as well as other requirements such as work permits.

5. Section 58 of Fisheries Management Act provides for offences, penalties and costs. The relevant penalty for these offences is under s 58(5) of the Act.

The provisions reads:

"(5)(b) The following penalties shall apply in respect of offences described in (1)(b)............... 1(h)

(a) in respect of crew members a fine not exceeding K5000.00

(b) in respect of a natural person, a fine not exceeding K100,000.00

(c) in respect of a corporation, a fine not exceeding K100,000.00

6. Section 62 of the Act provides for forfeiture.

S 62(2) provides that "where a Court convicts a person of an offence against this Act, or such other offences as may be prescribed for the purposes of this subsection, in the commission of which a foreign fishing vessel was used or otherwise involved, the Court shall order the forfeiture of:

(a) the vessel; and

(b) any gear and other equipment that was on the vessel concerned at the time of the notice; and

(c) all fish or fish products on board the vessel at the time of the offence, or where the fish or fish products have been sold, the proceeds of the sale.

(d) The items forfeited in accordance with this section may be sold and the proceeds shall be deposited in accordance with s 22(1)(b).

7. Section 63(1) provides that any vessel or other property forfeited under s 62 becomes the property of the Authority.

SUBMISSIONS

8. Counsel for the prisoners, Mr Akuani made the following submissions:
Prisoner, Mudiadin Cubo aged thirty three (33) from Dok nine (9), Jayapura, Indonesia is married with three (3) children.

Prisoner, Rama Baso is aged fifty five (55) years old also from Dok nine (9), Jayapura, Indonesia married with nine (9) children.

Both prisoners have no prior convictions.

Counsel also submitted to the circumstances of the offences and urged the Court to seriously take into account those circumstances. He submitted particularly to the circumstances of prisoners entry into the country and fishing activities they were engaged in, basically he submitted that their entry and the fishing activities they were engaged in were made possible by the citizen of this country.

He submitted in relation to penalty and urged court to consider a penalty; which should not exceed K20, 000.00.

Counsels’ other submission is in relation to s 132 of the District Court Act.
Section 132 provides for conditional release, etc.

"s 132(1) where a person is charged before a court with a simple offence or an indictable offence faxable summarily, and the court thinks that the charge is proved that is of opinion that, having regard to -

(a) .......................

(b) ........................

(c) the extenuating circumstances under which the offence was committed, it is inexpedient to inflict punishment, or that it is expedient to release the offender on probation, the Court may, without proceeding to conviction make an order,

(d) dismissing the charge; or

(e) discharging the offender conditionally on his entering into a recognizance with or without sureties, to be of good behaviour and to appear for conviction and sentence when called on at any time during such period, not exceeding three years, as is specified in the order."

9. With respect, to counsel, I do not consider that application of s 132 provisions is appropriate to the circumstances of these cases. I reject those submissions.

10. Counsel for the National Fisheries Authority in her submissions referred to the penalty provision under s 58 of the Act as well as some cases.

She referred to the case of Max Weman v Hasan Ramli (2004). This was a decision of Daru District Court. The defendant was an Indonesian national caught fishing in the Dog Leg area and was a shark longliner. Defendant pleaded guilty and was fined K50, 000.000, vessel, gear and fish forfeited. She also referred to the case of Max Weman v Lo Cheng Chun who was charged with two counts. He pleaded guilty and fined K30 000.00 and K50 000.00. She also referred to case of Cassian Saroya v Albetus Wangai which was decision of Vanimo District Court. The defendant was an Indonesian citizen. He pleaded guilty and was fined K5000.00 and vessel and fish forfeited. Counsel submitted that the forfeiture under s 62(2) is mandatory requirement.

11. In all the circumstances, I sentence the prisoners in the following manner:
Prisoner Mudiadin Cubo

(1) First Charge: Using Diplomat Jaya IV to engage in longline fishing for sharks between 4 to 6 July 2004, the prisoner is fined K5000.00 in default six (6) months in hard labour.

(2) Second Charge: Using Diplomat Jaya IV to engage in longline fishing for sharks between 17 to 31 July 2004, the prisoner is fined K5000.00 in default six (6) months in hard labour.

(3) Third Charge: Using Diplomat Jaya IV to engage in longline fishing for sharks between 27 to 28 October 2004, the prisoner is fined in the sum of K5000.000 in default six (6) months in hard labour.

Prisoner Rama Baso

(1) First Charge: Using vessel Sumber Rejeki to engage in longline fishing for sharks between 4 to 6 July 2004, the prisoner is fined in the sum of K5000.00 in default six (6) months in hard labour.

(2) Using vessel Sumber Rejeki to engage in longline fishing for sharks between 17 to 31 July 2004, the prisoner is fined in the sum of K5000.00 in default six (6) months in hard labour.

12. Court allows the prisoners a period thirty (30) days to pay up their fines. If the fines are not paid within the stipulated period, the prisoners shall serve their default penalties concurrently.

13. Court further orders pursuant to s 62(2) of the Fisheries Management Act that, the vessels Diplomat Jay IV and Sumber Rejeki, together their gear, and equipment, all fish and fish products shall be forfeited to the National Fisheries Authority.

14. The prisoners are sentenced accordingly.

________________________________

Legal Officer National Fisheries Authority, for the Complainant
William Akunai Lawyers, for the Prisoners