National Fisheries Authority v Dau [2021] PGDC 237; DC8015 (1 December 2021)

DC8015

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

FISHERIES COURT

DC760 of 2020
BETWEEN

RODNEY RAKUM of NATIONAL FISHERIES AUTHORITY
Informant

AND

RAPHAEL DAU
Defendant

Kimbe: B TANEWAN

2021: December, 1^st

CRIMINAL LAW - Fisheries Management Act – Breach of Provisions under Section 31(2)(a) – In possession of mixed species of Beche-De-Mer- Plea of Guilty - Ruling on Sentence – considerations in sentencing – ignorance of law not an excuse- preservation of species for future generation- mitigating factors as well as aggravating factors considered.

CRIMINAL LAW - Section 58(5) – Fisheries Management Act – Fine imposed with default penalty of imprisonment- Sentencing Principles applied – highest sentence reserve for the worst case scenario – Deterrence sentence appropriate - Fine of K4, 000 imposed with default penalty of imprisonment

Cases Cited
National Fisheries Authority v. Margaret Harket [2020] PGDC 20
National Fisheries Authority v. Taihu [2020] PGDC 19
State v Jason Dungoia N2038.
Kovi v the State SC789;

Legislation
Fisheries Management Act, 1998
Fisheries Management (Amended) Act

Counsel

Bill Mohe, for the Informant

Defendant in Person

1. The Defendant Raphael Dau 36 years of age from Vavua village, stands charged with one count of storing and dealing with Bech de mer prior to the dates approved for the harvesting, selling, buying and dealing with Bech de mer under section 32 (2)(a) of the Fisheries Management Act.

Facts.

2. The facts are that the defendant at Vavua village in Hoskins Local Level government area of Talasea District in West New Britain Province was found on 15^th August, 2020 with 44 kilograms of dried bech de mer within her premises.
   
3. Upon arraignment of the defendant on 12^th May, 2021, the defendant pleaded gaily to the charge and this is now the Court’s ruling on penalty

The Charge

4. The Defendant Raphael Dau stands charged with one count of storing and dealing with Bech demer prior to the dates approved for the harvesting, selling, buying and dealing with Bech demer under section 31 (2)(a) of the Fisheries Management Act.

Section 31(2)(a) of the Fisheries Management Act, provides;

“31. BREACH OF PROHIBITIONS.

(1) Notwithstanding Section section 3(2), this section applies to all persons, all vessels and all fishing and related activities.
(2) A person who –
(a) On his own account, or as the partner, agent or employee of another person, does ; or
(b) Cause or permits a person acting on his behalf to do; or
(c) Uses a vessel to do, an act prohibited by a notice for the time being in force under section 30(3), except in accordance with an exemption granted under Section 30(4), commits an offence.”

5. Upon arraignment of the defendant on 12^th May, 2021, the defendant pleaded guilty to the charge and this is now the Court’s ruling on penalty.

Allocutus

6. During allocutus you told the court that you are married with 6 children and admitted that you did store the marine products but said you did not buy them from people but were harvested from the nearby reefs from the village. You said you are sorry for what you have done and this is the first time you have been court for any offence. You asked for leniency from the Court as ask if you can be placed on good behaviour bond.
   
7. The Prosecutor on the other end submitted that the penalty provision for this offence is stated under section 58 of the Fisheries Management Act, which calls for monetary fine of K500,000 for natural citizens and K5 million for corporate bodies. He further submitted that the courts in Papua New Guinea must give penalties that will teach people who are defying the Fisheries laws by imposing higher fines which can punish offenders and deter to be offenders. He said in similar cases Court fines of up to K10,000 for individuals and K50,000 for corporate bodies have already been imposed therefore the Court can use those precedents and impose similar penalties in this case.

The Law

8. The relevant provision that provides penalties for any offences under the Fisheries Management Act is Section 58 (1) (b) which states;

“58(1) A person who commits and offence who –

(a)......

(b) commits an offence under section 31 in relation to a breach of prohibitions; or.....

Section 58(5) states;

“ The following penalties shall apply in respect of offences described in subsection(1) (b)(c).....:-

(a) in respect of a crew members, a fine not exceeding K25,000; and
(b) in respect of a natural person, a fine not exceeding K100,000; and
(c) in respect of a corporation, a fine not exceeding K1,000,000.

9. Further, section 58(7) provides;

In addition to the penalty determined under Subsection (5) or (6), and any other amounts as may be provided under this Act, or where the penalty is not paid, the Court may order imprisonment for a term not exceeding five years, except where the offence involves a or threatens a Fisheries Officer or observer in which case a term of imprisonment shall not exceeding 10 years.”

10. In arriving at an appropriate the Court has also considered similar cases and the sentences imposed by the Courts. For instance, in the case of; National Fisheries Authority v. Margaret Harket [2020] PGDC 20, His Worship Lavutul imposed a fine of K3, 000(total of K12, 000) each for four (4) counts of illegal harvesting, storing, processing and causing others to engage in the illegal activities in dealing with the bech de mer during the time it was prohibited to do so.
    
11. I another similar case of National Fisheries Authority v. Taihu [2020] PGDC 19, the Court imposed a fine of K15, 000 for seven (7) counts and in default six months imprisonment.
    
12. The principles of sentencing is well settled in this jurisdiction, usual purpose of criminal sentencing such as deterrence, restitution and rehabilitation are are relevant factors to be considered when sentencing a prisoner; see State v Jason Dungoia N2038.
    
13. Further, the highest penalties are reserved for the worst-case scenario in any given criminal offence; see Kovi v the State SC789;

Considerations

14. In this particular case, I now set out the aggravating factors as follows;
    • (a) Total ignorance of the law
    • (b) Threat to marine life
    • (c) No regard for future generation.
15. The factors in mitigation, in my view are;
    • (a) First time offender
    • (b) Guilty plea
    • (c) Remorse shown and apology
    • (d) Plea for leniency and willingness to pay fine.
    • (e) Single offence.
16. The considerations are not limited to the above, and so the Court also take into account that in this case the offender is a natural person in a village setting, propelled by the urge to make fast, and big money as in most cases where there is a bigger organisation that will buy and export such marine commodity at a much bigger price at the world markets.
    
17. Further given the fact that even though awareness has been carried out by Fisheries officers, the natural persons in a village setting still views that the marine products close to shore or reefs are theirs and they can do whatever they want to couple with the lack of close surveillance and scrutiny of the protection of such species, makes it easy for such offences to be committed without detection. The lack of proper co-ordination between the National Fisheries Authority and the Local Level and Provincial Level government with the ward level government in councillors and ward Development Committees is another factor that such offences are committed without detection.
    
18. On the other end, the Bech De Mer is a marine resource that must be protected for future generations and such control mechanism are good and must be understood and given effect by every citizen of this nation. I must put it on record that I have not sighted the exhibits so to appreciate the weight and quantity of the marine product and thus in my view the sighting and the production of such exhibits must be viewed by the Courts to make appropriate orders.

Conclusion

19. Thus, having considered all the submissions on penalty, the law on penalty, the circumstances of this case and the case precedence on fisheries cases in this country, I am of the view that a fine of K4, 000 is appropriate in this case. Failure to pay the fine within a given time frame, an imprisonment term must be imposed.

Court Orders;

1. The offender shall pay a Court fine of K4, 000 within 2 weeks from today’s date.
2. In default of order 1, the offender shall be sentenced to 12 months impoundment.
3. All exhibits shall be forfeited to the State.
4. Bail be refunded forthwith.

Orders accordingly,

Bill Mohe, Fisheries Prosecutor, for the Complainant, National Fisheries Department

Raphael Dau, In Person