Kuwahara v Pawut [1995] PGNC 40; N1382 (27 October 1995)

Unreported National Court Decisions

N1382

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL NO 208 OF 1995
BETWEEN:
MAMORU KUWAHARA and AKIRA ABE - Appellants
And:
LAMILLER PAWUT - Respondent

Waigani

Doherty J
27 October 1995

FISHERIES ACT 1994 - primary offence - forfeiture of boat and equipment.

The Appellants pleadled guilty to 1 count each under S. 66 (2) Fisheries Act 1994 and were each fined K70,000 and each boat was forfeited. This was an appealnst sent sentence.

Held:

(1) &##160;fine itse itself wasf was not excessive.

(2) ـ Deci onftariff unde under repealed legislation do not apply in the ithe instant case.

(3) ;ټ The proe provisionisions of the Districtt Act0 app the Fisheries Act 1994.

(4)&#16) <  S. 67 (1h Fiss rie appliesplies to all fisheries off.

5) <; S. 67 (es does not apply tply to an offence under S. 66.

(6) ҈ S.2) ap2) ap onlyhose off nces stated in S

Counsel:

Mr Payne for the Appellants

>

Mr SaMr Samson mson for the Respondent

[1985] PNGLR 238. I accept that the inte of n of the legislature was to protect, among other things, the ecological species and also to promote fishing. I have re-readpreamble seve several times. Thia have made clear us alus all aware of the effects of over-fishing to ecological balance, however, whilst the Court is obliged to uphold the law it is also obliged to strive to uphold justiceeen the parties.

Thep>The grounds of appeal on behalf of each appellant are in similar terms. The grounds were not argued separately but evolved around severity of sentence. On the ouI will over-rule rule the last ground of appeal, that is thalties under the old Act were not taken into account as it is clear to me the intention of n of Parliament is to impose higher penaltnd this is what the Court iurt is bound to act on. The principlt a Court shou should not increase penalties by leaps and bounds will not apply in this instant case as the intention of Parliament is clearly set out in the Act and is to be applied.

Tin thrust of argument theretherefore is that the forfeiture is discretionary and forfeiture combined with the fine becomes an excessive penalty. There was no ece or argumergument in either Court as to whether the appellants were the owners as well as the masters of the vessels and if the loss of the vessels amounted to personal loss and I must assume therefore on the facts that they were merely masters.

There is no guidelines for first and subsequent offences in the Act and no guidelines in the Act on how the fine is to be attributed. It is common ground between the Counsel that the maximum that applies in this case to a master is a fine of K250,000. Mr refers to this being eing economical loss to both appellants and the duty of the Court to der economical loss to the the individual. He has referred me to a deecedent by Sheehan, J. in Investment Promotion Authority v Niugini Lumber Pty Ltd but unfortunately, like himself, I am unable to find any reasons for decision.

I have considered the wing as relevant in the case case before me:

(1) &##160;; was thes the fine fine excessive, if so why was it imposed and what matters were taken into account;

(2) &##160; coatidersiderationstions were given and what conatione proper in the cthe case;

(3) ټ was thes the forfeiture mandatory or was it discretionary and if s disonaryit, and, and the the fine fine together, excessive.

I have noted that it conceded the maximum is a K250,000 fine the learned magis had idelines. H60; He cone considere plee plea and he considered the principle of deterence. Mr Paas submitted that dett deterrence may not be relevant in this case.

I also agree with his submission that the provisions of District Court Act Ch 40 appl its options were available to the learned magistrate to coto consider.

I consider that the learned magistrate was correct in considering deterrence as one aspect of the crime before him. He speaks of other offences that have occurred but I have no record of any other offences under this Act so this Court cannot properly say there were a lot of offences under this Act and tore a deterrent sentence was required. However I cons consider t is the intention of the legislature that some form of deterrence be considered in this particular Act.

I therefore consider deterrence is an aspect that may be considered but I adviction in view of the fact thct that there are no records before us of how many and the nature of offences under this Act. Deterris usually emphasiseasised when the incidences of a particular offence are excessive or increasing. In deciding the amount fine the 1970 Edition of the text Principles of Sentencing by Thomas says at p. 219 “#8220;fines are primarily governed by the principles as fixed term sentences of imprisonment, although it will be shown a strong elem element of individualisation as represented by the general principle that the amount of a fine must be related among other things to the offender’s ability to pay. Fines in effect constitut the lower ranges of the tariff”.

I must adopt some caution in accepting this in full as no term of imprisonment is provided for in the Fisheries Act under the relevant Sections. A fine only is provided hence a fine in this Act is not a real alternative to imprisonment that the Court can consider. It isonly immediate form oorm ofshment provided (subject to the District Court Act), I consider the learned magistrate corr correctly considered the lack of precedene plea of guilty, the co-operation between the appellants ants and the Fisheries officers, and their lack of prior convictions. I agree that it certainly should have been less than the maximum. I consider that less than the maximum was imposed in fact it was less than half.

The powers of this Court are only to change a finding or a ruling of a District Court if there has b substantive miscarriage of justice. Given the facts acts before the learned magistrate and the nature of the offence I cannot find that the fine in itself constituted a substantive miscarriage of justice and I confirm the fine in relation to each of the lants and I make no change ange to this order.

I now turn to the question of forfeiture. The respondent says in his submissions before this Court that there cannot be an information laid under both Sections 66 and 57. He himself says in submi that S. 66 (2) is “as if it was a primary offence”. I d agree with with the sehe second leg of his argument but I ree with the first, there cannot be an information under both Sections. I do not cons consider that S. 66 (2) is a primary offend I reach this conclusion sion because S. 66 (1) is worded as follows:

“In this Section ‘a primary offence’s an offence against this Act other than an offence againstainst this section.”

S. 66 (1) and S. 66 (2) may at first seem confusing. But on carefuding it is nois not. A primary ce provides only only for a fine not a term of imprisonment and not forfeiture. So primary offeprovide onle only fines and they are provided for in S. 57 and the analogous Sections.&#160 further penalties (other ther than a fine) the provisions of S. 67 must apply. S. 67 (2) applies on S. 56S. 56 (2), 56 (3), 57, 59. They do not apply to S. 66. Iider that the law is clea clear. S. 67 (2) does not apply to S. 66 because it sa.

This must be the intention of the Parliament and iand its intent is not to have S. 67 (2) apply to S. 66, hence S. 67 (1) is discretioand permits the Court to forfeit any fish for any fishery oery offence but S. 67 (2) applying to boats and equipment is intended to be limited and clearly excludes S. 66. S. 67 (2) is mandatod is l is limited to certain Sections only. Therefore, there wamandatondatory obligation on the District Court to forfeit the vessel, it was a discretion which they could consider.

Lawyers for the Appellants: Blake Dawson & Waldron Lawyers

awyers for the Respondent: State Solicitor