State v Kaupa [2008] PGDC 114; DC820 (29 April 2008)

DC 820

PAPUA NEW GUINEA
[IN THE GRADE V COURT OF JUSTICE]

GFCr 61 of 2007

BETWEEN

THE STATE
Informant

AND

BUCKLEY KAUPA NO. 1
Defendant

Lae: Iova S Geita

2007: 22 November; 18-20 December,
2008: 4, 26, 28 February; 20 March, 23 April. 29 April

CRIMINAL LAW - Particular Offence, Knowingly making false and misleading statements in relation of export of fisheries products. Fisheries Management Act 1998 s 58 (1) (s).

CRIMINAL LAW- Fisheries Management Act offences – not guilty plea- first time offender, remorse, - co-operated with police – inexpedient to inflict maximum punishment – nominal deterrent punishment imposed with fine -

Cases Cited

References

None

Counsel

Anlus Iwais. For National Fisheries Authority
The Defendant. In Person

29 April 2008

JUDGEMENT ON SENTENCE

I.Geita: PM. Buckley Kaupa pleaded not guilty on a charge of knowingly making false and misleading statements in relation to the export of fisheries products. A provisional not guilty plea was entered and the matter set down for trial. On the trial date the defendant changed his not guilty plea to that of guilty hence this judgment on sentence. After having read the case depositions and the full statements and being satisfied a guilty verdict was confirmed and entered against him.

The Facts

2. The brief facts are that on the morning of Tuesday 02 October 2007 the defendant and Mr Chris Tumi, a Fishery Enforcement Officer with the Morobe Fisheries Management Authority met at the Frabelle yard and discussed about some fishery exports. Mr. Tumi had gone to Frabelle yard on official business when the defendant enquired about his assistance with documentation to export some bech-de-mer as samples to Malaysia. At the time the defendant had no valid export licence, a requirement under the Fisheries Management Act 1998 and was not an authorised fisheries officer.

During the course of discussions the defendant insisted that he would export the fishery products on the strength of an acknowledgment letter from National Fisheries Authority regarding the renewal of his fishery export licence. (NFA from here onwards.) Both men agreed to meet at Mr. Tumin’s office later in the afternoon however only the defendant attended and was seen seated at Tumins office by office staff. Tumin apparently did not return to his office that day.

3. When Mr. Tumin arrived at his office the next day he noticed that the NFA Export Stamp was missing from the stamp rack on his table. That particular stamp is normally used for stamping approved and declared marine products as being fit for export after inspection is done by authorised fisheries inspectors. Upon making enquiries with his office staff Mr. James Tokorsa a senior NFA Fisheries Observer confirmed that the defendant was seen alone seated at his table the previous afternoon.

4. On the 04 October 2007 Mr Tumi contacted the defendant to inspect his fisheries products in the pretext to ascertain that the products has not left the shores of Lae and was told that the products were stored at the Asia Pac Limited’s premises. When Tumi contacted a Susan Pagan from Asia Pac Ltd on the same day she denied the whereabouts of the products but told Tumi that the defendant had earlier requested for a blank copy of an Export Permit and was issued one.

5. Mr. Tumi became more suspicious and called Air Niugini cargo at Nazab the same day and was told that an export comprising 200kg of bech-de-mer was made by Pisces Limited, a company owned by the defendant, had left for Port Moresby in the morning and would be re-routing to Singapore on flight PX 392 at 1500 hours the same afternoon. With the assistance and quick action of NFA Enforcement Officers the shipment of marine products was confiscated and detained in Port Moresby. By letter of 05 October 2007 the defendant’s company Pieces Limited was notified of the seizure and detention of the products.

Observation.

6. The defendant is currently employed by Frabelle Fishing Corporation as its assistant human resources manager. Prior to joining Frabelle Fishing Corporation he worked with Morobe Province Division of Fisheries and Marine Resources in various capacities as Fisheries Officer, counterpart officer, field extension officer for over 20 years. He also operates a company that purchases and exports marine products such as bechdemer and shark fins.

7. With his vast experience in the field of fisheries and marine resources and the rigorous processes and procedures required to meet export standards of marine products the defendant knew exactly what documents and stamps were required. When the opportunity presented itself he illegally removed the export stamp from Mr. Tumin’s office, affixed the stamp to his export documents with fictitious export approval number 050205 and fictitious signature of the authorised fishery officer. He than presented his documents to Swift Customs Limited who acted upon them in good faith and had the documents signed and cleared for export. Swift Customs Limited officer Mr. Mahi Motu admitted being misled by the defendant into believing that he was a fisheries officer and had obtained proper clearance prior to export. He said he knew the defendant when he was a fisheries officer with the Morobe Provincial fisheries division. He said he went ahead and signed the documents for export, without knowing that they were illegal and that the stamp was stolen from fisheries office and affixed to the defendants documents.

8. In his statement the defendant admitted affixing the NFA Export Stamp and signing the export documents. He however remained mum as to who issued the export number, who inspected the products and who approved the export.

9. This offence was committed under the Fisheries Management Act 1998. As a result of making false and misleading statements in relation of export of fisheries products to Swift Customs Agency such marine products were signed and cleared for export.

Procedure.

10. Offences against the Fisheries Management Act 1998, (FMA here onwards) shall be prosecuted summarily before a Principal Magistrate, except where administrative proceedings are taken in accordance with Part VII. The limitations of laying of information imposed by s 36 of the District Courts Act 1963 and s 132 of the same act shall not apply to offences committed under the Act. s 65 of the FMA allows for the Managing Director, after consultation and with the consent of the Public Prosecutor to initiate Summary Administrative Proceedings against persons in violation of this Act. Where the person admits in writing to the violation, the Managing Director may handle this matter under the Summary Administrative Proceedings provision in s 66.

11. In this instant case the court’s attention was not drawn to this administrative proceeding. I only became aware of this proceeding as I was researching for this judgment especially to work out a punishment option to equate the offence. During the cause of my research it became apparent that there are no known cases or precedents before the Principal Magistrates Courts. I am now left with no other aid but to seek recourse to the punishment options available to the National Courts under the Criminal Code Act.

12. The defendant has maintained his innocence all along until the date of trial when he changed his not guilty plea to that of guilty. This court now is left with its own devices to formulate a penalty which must not only be fair and just but must also be proportionate to the offence committed.

13. In this case the aggravating circumstances pleaded in submissions on sentence were the stealing of the NFA Export Stamp; the permanent damage PNG fishery and marine products likely to have suffered due to the shipment of uncertified products on the International markets and the falsifying of export documents enabling customs clearance. The defendants single overt action of stealing the NFA Export stamp and could have catastrophic long term effects on PNG fishery and marine products had his overt scheme gone undetected. That in my view is the gravity of the offence and is clearly reflected in the law to protect the interests of the general public and to deter would be perpetrators.

Mitigation.

14. The prisoner’s remorse, first time offender, good family background and length of public service are a credit to him. He has also presented to me a long list of references from friends and the clergy who have rated him very highly as being a very dedicated Christian. The prisoner has co-operated with NFA enforcement officer which are amongst other mitigation circumstances in his favour. I must add here in passing that your good deeds although praiseworthy have little bearing on the case.

Sentence.

15. The prisoner was invited to make submissions on sentence. During submissions he pleaded for leniency and asked court not to impose a custodial sentence saying this was his first appearance in a court of law. I have also considered the prosecutions view that this court has jurisdiction to impose a sentence proportionate to the seriousness of the charge.

16. The offences described in s 58 (1) (s) Fisheries Management Act 1998. carries the following penalties:-

1. In respect of a crew members, a fine not exceeding K2,000.00;
   
2. In respect of a natural person, a fine not exceeding K50,000.00;
   

100. In respect of a corporation, a fine not exceeding K100, 000.00.
     

The offences provided for very serious penalties. These tough penalties are a reflection of how seriously the legislature views this offence. Furthermore the legislators have removed conditional release powers available to District Courts under s132 of the District Courts Act. This is contained in s57 (5) of Fisheries Management Act 1998.

17. In the exercise of my discretion and having considered all the facts before me, I consider that the imposition of a maximum penalty is the appropriate sentence under the circumstances. I find the charge proven however having regard to the character, antecedents and the extenuating circumstances under which the offence was committed it is inexpedient to inflict a maximum punishment save for a nominal deterrent punishment.

18. The penalty in respect of this count is as follows: - The prisoner is convicted and fined K5000 in default 12 months hard labour at CS Major Buimo. All fish products confiscated are forfeited to the State forthwith. Orders accordingly.

Anlus Iwais: For the National Fisheries Authority
Defendant in person: