Bonogo v Regina [2006] SBHC 82; HCSI-CRAC 554 of 2005 (12 April 2006)

HIGH COURT OF SOLOMON ISLANDS

Criminal Appeal Case No: 554 of 2005

PATTESON HARRY BONOGO

-v-

REGINA

(Mwanesalua, J)

Hearing: 7th April 2006
Judgment: 12th April 2006

R. Talasasa for the Crown
C. Baker for the Appellant

JUDGMENT

(Mwanesalua J). The Appellant was convicted on his own plea of guilty by the Central Magistrates Court in Tulagi for one count of possession of an explosive in circumstances which raised presumption that it was intended for killing fish and two counts of possession of fish reasonably suspected of being taken by use of explosives, contrary to sections 30(1)(b) and 30(4) of the Fisheries Act 1998 (the Act) respectively. On 3rd October 2005, he was sentenced to six months imprisonment suspended for one year for the offence under section 30(4) the Act. His OBM was ordered to be forfeited for the offence under section 30(1)(b) of the Act.

He appealed to this court against conviction and sentence on the following grounds:

1. The Learned Magistrate erred in law and in fact that the penalty imposed was manifestly excessive.

2. The Learned Magistrate erred in law and in fact by not allowing the Appellant sufficient time to obtain legal advice and representation to allow mitigation factors to be presented to the court.

3. The Learned Magistrate misdirected himself in relation to the mitigating circumstances, relevant and irrelevant circumstances.

Facts

On 16th July 2005, the Appellant went to Bola village on Big Ngella with two other persons by canoe and OBM owned by the Appellant. At about 2pm. the Appellant went out to sea in a dug out canoe and used an explosive to kill fish. He was charged and convicted of possession of fish suspected of being taken by use of explosive under section 30(4) of the Act. He pleaded guilty to the charge.

On 22nd July 2005, the Appellant again went to Bola village with two other persons by canoe and OBM owned by the Appellant. At about 6am, he used an explosive to kill fish at the reef outside the village. He was charged and convicted of possession fish suspected of being taken by use of explosion under section 30(4) of the Act. He pleaded guilty to the charge.

He was also charged with one count of fishing with explosive. The particulars of the charge as shown in the charge sheet indicated that "on 10th August 2005, did have in his possession an explosive in circumstances which raised a reasonable presumption that the said explosive was intended to be used for the purpose of killing fish." The Appellant pleaded guilty and was convicted of this charge. It was in respect of this charge that the Learned Magistrate ordered the forfeiture of the Appellant’s OBM under section 46 of the Act. According to the transcript of the Magistrates court proceedings, there was no record of the Appellant’s canoe being forfeited under section 46 of the Act.

Decision

I reject the Appellant’s first ground of appeal. The use of explosives to kill fish is dangerous to people, it causes destruction to fish, reefs and fish habitants. The courts are entitled to impose steep sentences on accused persons who possess and use explosives to kill fish. These were the reasons which the Learned Magistrate considered when he imposed sentence on the Appellant.

The Appellant’s second ground of appeal had no merits. It was clear from the court transcript that the Learned Magistrate did suggest to the Appellant that he should seek assistance of a Solicitor to help him in view of the seriousness of the charges and the possibility of imposition of custodial sentence on him. But instead of acting in pursuance of that sound advice, the Appellant asked the Learned Magistrate to deal with his case without the assistance of a Solicitor.

This court noted that Counsel for the Appellant did not deal with the third ground of appeal when he argued the appeal. I assume from that, that the third ground of appeal was abandoned by the Appellant.

I stated earlier in this judgment, that the Appellant pleaded guilty to the offence charged under section 30(1)(b) of the Act. The Appellant was charged with having committed the offence at sea adjacent to Bola village. However, the Prosecutor in the court below did not provide facts to prove this offence, in the typed facts which he tendered to the court. There was absolutely no evidence upon which to convict the Appellant of the charge under section 30(1)(b) of the Act. It is obvious that he was convicted without any evidence. He was not represented by Counsel in the court below and did not understand that he was convicted without evidence. The appeal against conviction for the offence charged under section 30(1)(b) of the Act is allowed.

Appeal against sentence of six months imprisonment suspended for twelve months in respect of the two charges laid under section 30(4) of the Act is dismissed. The sentences are not excessive in view of the seriousness of the offences.

ORDERS OF THE COURT:

1. Appeal against sentence dismissed.

2. Sentence of six months imprisonment suspended for twelve months imposed by the Magistrates Court on 3rd October 2005 confirmed.

3. Appeal against conviction on charge under section 30(1)(b) of the Act allowed. Conviction entered by the Magistrates Court on 3rd October 2005 quashed and set-aside.

4. Order made by the Magistrates Court on 3rd October 2005 to forfeit the Appellant’s canoe and OBM quashed and set-aside.

The Court