Rakum v Payac [2005] PGDC 129; DC422 (29 December 2005)

DC422

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 15 OF 2005

BETWEEN

Rodney Rakum
Informant

V

Danilo G. Payac
Defendant

REASONS FOR DECISION ON SENTENCE

28^th; 29th December, 2005

KORONAI, PM: The defendant pleaded guilty to and was convicted of a charge under Section 58 (1) (h) of Fisheries Management Act of 1998 for that, he, between the 13th and 14th of December, 2005, in PNG Fisheries Waters, being a person who did use a Foreign Fishing Vessel namely FFV Sumbermas Sergara 927 to engage in fishing or related activity, namely, trans shipment of fish without a licence while inside Papua New Guinea’s Fisheries Waters which is contrary to Section 46 (1) (c ) of Fisheries Management Act of 1998.

In order to assist me decide on the appropriate penalties to be given to the defendant, I would state the facts of this case here.

The defendant comes from Sarangi Province in the Philippines and is the master of a Foreign Fishing Vessel namely FFV Sumbermas Sergara 927 which is registered in Indonesia as a carrier vessel for Global Fishing Company of Djakarta, Indonesia.

On the 14th of December, 2005, the HMPNGS Tarangau apprehended this vessel, trans shipping fisheries products inside PNG fisheries waters. Upon boarding it, Sub-Lieutenant Libetina seized a Japanese chart and requested the defendant who polled his vessel’s position when it was apprehended. The position of 00.41.8S, 141.51.5E was indicated on this chart by the defendant which was later plotted by vessel monitoring officer, Steven Bionda of National Fisheries Authority and which showed that the apprehension of FFV Sumbermas Sergara was 28.4 miles inside Papua New Guinea’s fisheries waters or exclusive economic zone.

The log sheet from its sister ship, the FFV Eastern Coast indicated that on the 13th of December, 2005, between 0930 hours and 12.15 hours, there was an activity of transshipment of fish between it and FFV Sumbermas Sergara 927. In the record of interview, the defendant admitted that there were three brail of fish transferred from FFV Sumbermas Sergara 927 to FFV Eastern Coast on 14th of December, 2005 and he further admitted to trans shipment of fish on the dates referred to above, from FFV Sumbermas Sergara 927 to FFV Eastern Coast and which indicated that these transhipment took place while they were inside PNG’s exclusive economic zone or fisheries waters. The defendant and his vessel were brought into the Port of Vanimo and charged under Section 58 (1) (h) of the Fisheries Management Act of 1998, which carries a maximum penalty of K100,000.00 fine, under Section 58 (5) (b) and for forfeiture of his vessel, fish and gear upon it, under Section 62 (2) (a), (b) and (c ) of the Act.

In this case the defendant is married, with seven children and is a first offender. He pleaded guilty thus saving time and expenses for holding a trial and co-operated with Fisheries Officers. But offences under the Fisheries Management Act 1998 are very serious as reflected by their penalties and in the case of LAMILLER PAWUT v LEE MEN BEE [1996] PNGLR 26. This type of offence often deprives the rights of the Maritime citizens of this country, through the State, in benefiting from fisheries and other marine resources exploited from PNG’s fisheries waters or exclusive economic zone. Far too often, only a few citizens of high standing within the business community, Government and Multi National Co-operations benefit from exploitation of our peoples’ fisheries and other marine resources to the detriment of our citizens of Maritime Provinces, who under the National Goals and Directive Principles of our Constitution, should equally and equitably benefit from such exploitations.

This Court is not only duty bound but has the responsibility to ensure that fairness applies in the distribution of benefits from such exploitations are shared as equally by all citizens of Maritime Provinces, such as Sandaun Province. It is duty bound to uphold and enforce a constitutional law provision, such as the provisions of the National Goals and Directive Principles as enshrined in our Constitution and other laws such as the Fisheries Management Act of 1998. This Court would be failing in its duty if it did not enforce our citizens rights under the National Goals and Directive Principles and the Fisheries Management Act of 1998, in making orders particularly in relation to forfeiture of this Foreign Fishing Vessel, under Sections 62 and 63 of the Act, if it did not include orders that will enable the citizens of Sandaun to have equal benefit from the proceeds of sale of fish or ownership of Foreign Fishing Vessel FFV Sumbermas Sergara 927 when they are forfeited to the State. The Courts must take a serious view of those Foreign Fishing Vessels and their masters and owners, who breach the provisions of the Fisheries Management Act of 1998.

Although under Section 63 (1) of the Act, this Foreign Fishing Vessel and fish and gear aboard it, when they are forfeited become the property of the National Fisheries Authority, it never the less is the property of the State, which may be retained, leased or sold under Section 63 (3) of the Act. So the State, through, the National Fisheries Authority, has a very wide discretion in the disposal of forfeited Foreign Fishing Vessel, its catch and gear. The term STATE includes Provincial and Local Level Governments established by and under the Organic Law on Provincial and Local Level Governments. So that the Sandaun Provincial Government is the "State" within the meaning of Section 5 of Claims By and Against the State Act of 1998 which was also confirmed in SUPREME COURT REFERENCE NO. 1 of 1998; SC No. 672 of 8th November, 2001. As the offences and apprehension and conviction of the defendant took place in fisheries waters of Sandaun and Vanimo, the Sandaun Provincial Government, as State, who has a sphere of Political and Administrative jurisdiction over these areas, must have preferential right over Foreign Fishing Vessel, their catch and gear aboard it. By virtue of Section 63 (2) of the Act, it through the National Fisheries Authority, may decide to retain ownership of this Foreign Fishing Vessel or lease or sell it by tender.

The benefit of ownership of this Foreign Fishing Vessel by the Sandaun Provincial Government would enable the maritime citizens of Sandaun to use it to meaningfully participate in the exploitation of their fisheries and other marine resources, thus fulfilling the requirement of provisions of the National Goals and Directive Principles and the purpose and intent of the Fisheries Management Act of 1998 as enshrined in its preamble to the said Act.

From the above reasoning I hereby make the following orders:-

ORDERS

IT IS HEREBY ORDERED THAT:-

1. DEFENDANT IS ADJUDGED TO PAY A FINE OF K80,000.00 I/D HE SHALL BE IMPRISONED FOR A TERM OF TEN (10) MONTHS IHL AT CORRECTIVE INSTITUTION AT VANIMO; AND

2. SUCH FINE IS TO BE PAID WITHIN 5 DAYS OF THE DATE OF THIS ORDER I/D A DEFAULT PENALTY OF K1,000.00 PER DAY SHALL APPLY UNTIL THE FINE AND ANY OUTSTANDING DEFAULT PENALTY IS FULLY PAID AND;

3. FOREIGN FISHING VESSEL FFV SUMBERMAS SERGARA 927 AND ANY FISH ON IT AND ITS GEARS ARE FORFEITED TO THE STATE; AND

4. THE NATIONAL GOVERNMENT, THROUGH THE NATIONAL FISHERIES AUTHORITY, USING ITS WIDE POWERS UNDER SECTION 63 (2) OF THE ACT, TAKE NECESSARY STEPS AND TRANSFER OWNERSHIP OF FFV SUMBERMAS SERGARA 927 TO SANDAUN PROVINCIAL GOVERNMENT.

5. DEFENDANT IS TO PAY FOR THE PROSECUTION COSTS.

NFA Legal Services Unit: Complainant
In Person: Defendant