State v Nongi [2019] PGNC 20; N7693 (18 February 2019)

N7693

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 650 OF 2018

THE STATE

V

MICHAEL NONGI

Kimbe: Miviri J
2018: 05 December,
2019: 14, 15 & 18 February

LAW – PRACTICE AND PROCEDURE – Unseaworthy ship out to sea s331 CCA – Plea – 2 separate occasions – deliberate defiance requirement of law – serious threat to life limb of passengers – first offender – 57 year old man – PSR & MAR favourable – serious offence – cumulative sentences – separated by time & date – totality Principle – deterrent sentence.

Facts
Prisoner was a master of a ship that he took to sea twice on two separate occasions in an unseaworthy status endangering the lives of the passengers.

Held
Plea of guilty
First offender
Good PSR MAR
Deterrent sentence

Cases Cited
PNG Ports Corporation Ltd v Star Ships (PNG) Ltd [2011] PGNC 175; N4586 Public Prosecutor v Kerua [1985] PNGLR 85
Public Prosecutor v Tardrew, [1986] PNGLR 91
The State v Billy [2016] PGNC 24; N6173
The State v Mase [1991] PNGLR 88.
The State v Sharp [2017] PGNC 230; N6813
Counsel:

J Apo, for the State
D Kari, for the Defendant

SENTENCE
18^th February, 2019

1. MIVIRI J: This is the sentence of Michael Nongi of Atiatu, Gloucester, WNBP of taking out to sea an unseaworthy ship pursuant to Section 331 of the Code twice.
   

Short Facts

2. On 19^th August, 2017 and again on the 06^th December, 2017 Michael Nongi took to sea as Master of the ship MV Andewa Star knowing that it was in an unseaworthy status endangering the lives of all the passengers on it. The provisional certificate of registration and interim PNG Survey certificate had expired on the 13^th December, 2016 in each case. He knew and took the ship to sea it encountered engine failure on Saturday 19^th August, 2017. It had 23 persons on board was rescued and towed to a safe location by MV Bison.
   
3. Upon return it was detained October, 2017 there was no certificate of registry and an invalid PNG Survey certificate. Prisoner was told but despite that knowledge he took to sea the Andewa Star on 18^th November 2017. And whilst at sea on the 02^nd December, 2017 the ship encountered engine problem and was adrift with 20 persons on board. It was rescued by the fishing vessel Alpine Pink on Wednesday 6^th December, 2017.
   
4. He was charged with Section 331. SENDING OR TAKING UNSEAWORTHY SHIPS TO SEA which read:
   

“(1) Subject to Subsections (2) and (3), a person who–

(a) sends or attempts to send a ship to sea in such an unseaworthy state that the life of any person is likely to be endangered; or
(b) being a master of a ship, knowingly takes or attempts to take the ship to sea in such an unseaworthy state that the life of any person is likely to be endangered,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 14 years.

(2) It is a defence to a charge of an offence against Subsection (1) to prove that the going of the ship to sea in such unseaworthy state was, under the circumstances, reasonable and justifiable.

(3) It is a defence to a charge of an offence against Subsection (1) (a) to show that the accused person used all reasonable means to ensure the ship being sent to sea in a seaworthy state.”

5. Prisoner has been charged with two counts relating both separated by time and date and therefore for purposes of sentencing will draw their own individual sentences cumulatively but will be proportioned out on the principles of totality: Public Prosecutor v Kerua [1985] PNGLR 85 and Mase v The State [1991] PNGLR 88.
   
6. The ship must be in unseaworthy status. It must be at sea in that status. And that the lives of those who are on board it are likely to be endangered: State v Billy [2016] PGNC 24; N6173 (29 January 2016). The sea is dangerous and can easily claim the life limb of any human being, underlying is that the human being is land bound creature not a water bound creature and therefore is susceptible to be injured maimed or dead if not above and out of the sea. Exposure to the sea and its elements have killed: State v Sharp [2017] PGNC 230; N6813 (28 July 2017). The life of every human being hinges on the seaworthiness of the ship, in this case MV Andewa Star. To be left adrift, drifting without power from the engine means that the ship is at the mercy of the elements, and the sea. It is anybody’s guess whether it drifts to land and survival because it is a matter discretional by the tide and current including wind at sea. Here twice in a row this has happened to the subject ship under master of the prisoner. He knew the incapacities of the ship and was alerted that by National Maritime Safety Authority per Dunstan Kakaia. He did not heed and knowingly took the ship MV Andewa Star to sea in that status culminating in engine failure on each occasion and being adrift at sea putting the lives of the 20 passengers to risk of injury or death and 23 the next. It is a persistent and calculated offence. It is an offence within the Merchant Shipping Act 1975 which Act is administered by the National Maritime Safety Authority established under the Act of the same name of 2003. The requirements for survey under section 18 of the Merchant Shipping Act are mandatory:
   

SURVEY AND MEASUREMENT OF SHIP

“(1) Subject to Subsection (5), a ship shall, before registry, be surveyed by a surveyor and, subject to Subsection (4), its tonnage shall be ascertained by the surveyor in the prescribed manner and notified to the Safety Officer who shall issue a tonnage certificate in respect of the ship.

(2) A tonnage certificate shall–

(a) be in the prescribed form; and

(b) specify the tonnage and build of the ship and such other particulars in respect of the ship as are prescribed; and

(c) before the ship is registered, be delivered to the Registrar or to an assistant to the Registrar.

(3) The fees to be paid by the owner or owners of the ship to a surveyor in respect of a survey under this section are as prescribed.

(4) Until regulations are made by which the tonnage of a ship may be ascertained, the tonnage of a ship may, if the Safety Officer so approves in the particular case, be taken to be the tonnage of the ship as ascertained in, and evidenced in writing in a form generally recognized in, another country, unless, in the opinion of the Safety Officer, the ship has been altered since the tonnage of the ship was so ascertained.

(5) Where an application is made to the Registrar for the registration of a ship that was, immediately before the commencement date, registered at a port in Papua New Guinea under a law other than the Merchant Shipping Acts of the United Kingdom, the Safety Officer may determine the tonnage of the ship and may issue a tonnage certificate for the ship.”

What the National Maritime Safety Authority does under that Act pursuant to the Merchant Shipping Act (supra) is for the safety of all, the tonnage of the ship must be properly ascertained so that loading water level and mark is also properly marked out on the ship, see S 19 Merchant Shipping Act, PNG Ports Corporation Ltd v Star Ships (PNG) Ltd [2011] PGNC 175; N4586 (22 March 2011). These are all on record before it proceeds out to sea. It is safe for the passengers and crew to get on and go on the voyage out to sea to the destination port intended. Not as happened here to take chances as the unlawful discretion of the master to end up adrift as here. It is therefore an aggravated offence when the prisoner commits the offence twice in a row apart. Especially of an experienced seaman and master of his calibre. He cannot be simply given a caution as it is not just one offence but two without heed. It is very serious particularly in the light of the recent events depicting small craft at sea and notably the recent case of State v Sharp (supra). Prisoner must be deterred from this behaviour and others with similar inclinations whether in “ships” and “vessels” as defined under section 1 of the Criminal Code Act or small craft from “casualty “defined under the Merchant Shipping Act as “in relation to a ship, means–

(a) the loss or the presumed loss, the stranding, the grounding or the abandonment of, or damage to, the ship or boat belonging to the ship; or

(b) damage caused by a ship or by a boat belonging to the ship; or

(c) a loss of life caused by–

(i) fire on board; or

(ii) accident to; or

(iii) accident occurring on board,

the ship or a boat belonging to the ship;

7. Death loss of life has not occurred but the court will not wait until that happens. It must stop that from happening again in the light of all set out above. The prisoner is not made an example but is due what is in law called by his facts here not without in the sentence served.
   

Mitigation

8. Prisoner is a 57 year old man married with two wives. He has six children with the first wife who is from Atiatu. The second is from Arove and Siassi. He has 3 grand children from his eldest child. He is a first offender originally from Atiatu Glouster District, West New Britain. He is educated to grade 6 in 1975 at Kaliai Primary School. He could not continue as he had failed but continued to Namatanai Vocational School in New Ireland 1980 to 1981 to do mechanical trade from there went on to do practical in Lae with South Sea Line in the Mechanical Engineering Section. Then joined Poroman Shipping for 6 months and then left. From 1985 to 86 he was employed with the Reef Explorer in Australia and took up diving course for 3 months. In 1987 he worked there as a diver and seaman. He left when he got married and got re-employed in Port Moresby with Western Tug and Budges from 1988 to 1990 resigning in 1991 to come home.
   
9. He is well set in life for a grade six leaver. And has fared and achieved well. The offence arises from attempt to make a living for him but requirements of law under the Merchant Shipping Act drawing financial commitments that come with in running a business have told against him culminating. Which are imposition compliance of law for safety analogous to the Road Traffic Act 2014. When the law is defied without heed as here treating life as nothing but money making devices the law must protect life. It is fortunate that lives were not lost whilst the ship was imperilled before assisted.
   

Allocutus

10. Prisoner took responsibility for the offence. He merely was trying to serve the people of West New Britain but committed an offence in law for so doing.
    

Issue

11. What then is the appropriate sentence for the prisoner here?
    
12. The State submitted that the facts and circumstances are compatible with a non custodial term of 3 to 4 years with strict conditions for compliance. This was also the position maintained by the defence counsel relying on the presentence and the means assessment reports that were filed. Which particulars relevant in this sentence have been given due consideration and drawn out in the finality of sentence. That there is proper material to promote personal deterrence, reformation, rehabilitation entailed with restitution of the victim: Tardrew, Public Prosecutor v [1986] PNGLR 91 (2 April 1986). Part of the sentence will be suspended the initial will be served in jail to reflect the gravity of the offence. The remainder will be suspended by discretion conveyed by section 19 of the Code in the light of all material set out above. The discretion is exercised in this judicially given.
    
13. For the first offence of knowingly taking a unseaworthy ship the MV Andewa Star to sea on the 19^th August ,2017 in such an unseaworthy state that the lives of the persons on board ship were likely to be endangered the prisoner is sentenced to 5 years IHL.
    
14. For the second offence of knowingly taking a unseaworthy ship the MV Andewa Star to sea on the 06^th December 2017 in such an unseaworthy state that the lives of the persons on board the ship were likely to be endangered the prisoner is sentenced to 5 years IHL.
    
15. As both offences are separate offences the sentences will be cumulative effectively 10 years IHL.
    
16. But in the light of totality the sentence will be excessive and almost 2 thirds of the entire sentence under that Section 331 of the Code. Therefore in the exercise of discretion pursuant to that principle of totality the sentence is reduced to 5 years IHL for the offences together. Further taking account of all set out above the formal orders of the court are:
    
1. Prisoner is sentenced to 5 years IHL for Sending or Taking Unseaworthy ship To Sea pursuant to Section 331 of the Code.
   
2. That 2 years IHL of which will be served in jail forthwith;
   
3. 3 years IHL will be suspended after that service on the following conditions;
   

(a)You shall within 48 hours of release from Jail report to the Probation Officer;

(b) You shall be resident at MV Andewa Star Ship Kimbe at all times in the course of the probation period.

(c) He shall not leave this place of resident or Kimbe without leave of this court during the course of the probation period;

(d) You shall perform 600 hours of community work at a worksite to be approved by the Probation Office;

(e) You shall keep the peace and be of good behaviour at all times during the course of your probation period;

(f) You shall not take liquor or any form of intoxicating substance or drugs during the period of your probation;

(g) You shall attend the Kimbe Assembly of God Church every Sunday for worship and fellowship whilst on probation;

(h) You shall undergo counselling from the Local Pastor of the Assembly of God Church for number of times as may be determined by the counsellor;

(i) The Probation officer shall file a report on the responses and progress of the probationer every four months, and at any other time or interval as the National Court may order upon application;

(j) In a breach of any of these Probation Orders your Probation shall lapse and you shall be arrested to serve the whole term of your sentence now suspended.

(k) Bail Money is ordered to be refunded forthwith

Ordered Accordingly,
__________________________________________________________________Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Defendant