Regina v Mamuala [2015] SBMC 3; Criminal Case 157.2015 (26 May 2015)

IN THE CENTRAL MAGISTRATES COURT
OF SOLOMON ISLANDS AT HONIARA
(Criminal Jurisdiction)

Criminal Case No. 157 of 2015

REGINA

V

FELIX RAY MAMUALA AND KASA OLOGA RAMO

Coram: AULANGA (Magistrate of the First Class)
Prosecution: Mr. Tebakota of Police Prosecutions Officer
Defence: Mr. Kausimae for Mamuala and Mr. Rarumae for Ramo
Plea date: May 11, 2015
Sentence delivered: May 26, 2015

SENTENCE

1. On 11th of May 2015, both of you, Felix Ray MAMUALA and KasaOloga RAMOwere convicted after pleading guilty to your respective charges of one count of fishing with explosive contrary to section 30 (1) (a) and one count of in possession of dynamite fish contrary to section 30 (3) of the Fisheries Act 1998.
   
2. Sections 30 (1) (a) of the said Fisheries Act makes it an offence for any person who fish with explosive such as in this case a dynamite. It has a maximum penalty of a fine of $3,000. Subsection (3) of the same Act also makes it an offence for any person who possesses fish caught by the use of any explosive. The maximum penalty for this is $53,000 or twelve (12) monthsimprisonment.
   
3. Having pleaded guilty, you admitted that in the morning of the 17th of February 2015, you used dynamite to catch fish known as pelagic mackerels or roma and were in possession of those fish caught by the used of that explosive. That occurred at Rara reef area in the Central Islands Province.
   
4. Those fish were stored in two eskies which were confiscated when both of you were interrupted by Tulagi police on the same day.
   
5. There is no dispute that both of you were co-offenders and your involvements in the commission of the offence were similar to each other. The only issue for this Court is to determine the appropriate sentence to be imposed on you after considering the aggravating and mitigating features of your case.
   
6. There are several obvious aggravating features in this case in respect to both of you. They are:
   
   • (i) The health risk that is posed to those who buy the dead fish caught by the use of the dynamite;
     
   • (ii) There is a high risk of very serious and fatal injury to those who use the dynamite and also those around them; and
     
   • (iii) No doubt that both of you had planned to carry out this offence by going to the Rara reef with the dynamite device and successfully used it to catch the mackerels or roma.
     
7. Besides the aggravating features, I find the following mitigating features in favour of Mamuala:
   
   • (i) You pleaded guilty to these offences which shows that you are not only remorseful but honest to your actions;
     
   • (ii) You cooperated well with the police during police investigation;
     
   • (iii) That you are a 23 year old young adult with good prospect of rehabilitation;
     
   • (iv) You are a first time offender who prior to this offence has been a law abiding person; and
     
   • (v) You are a family man who has a wife with six months old baby to look after.
     
8. In the case of Ramo, I find the following mitigating features in your favour:
   
   • (i) You pleaded guilty to these offences which show you are remorseful to your actions;
     
   • (ii) You cooperated well with the police during police investigation;
     
   • (iii) You are a first time offender with no prior convictions; and
     
   • (iv) You are a 20 year old young person.
     
9. Those mitigating features in your favour were well considered and taken into account by this Court in determining the appropriate sentence.
   
10. The maximum penalties provided for these offences show the intention of the parliament to discourage people from committing these offences. In Regina v Kemakeza[1]CJ Palmer stated:
    

"the level of the seriousness of offences is reflected on a prima facie basis by what the law imposes as the maximum penalty. The more serious an offence the greater the maximum penalty imposed."[2]

11. Both of you involved in fishing with dynamite which is very serious. It exposes yourselves to high risk of very serious and fatal injuries and likelihood of prematurely ending of your lives. Besides, it also exposes innocent people who buy the fish to health risks. Not only that, but it also destroys the marine life for a long time and the fishing ground of those who use the reef including your own family members. Both of you aware of these obvious risks, yet you continue to fish with the dynamite. If this practice is to be discouraged this Court must make protection of our marine lives and the public through its deterrent message that those who indulge themselves in committing this type of offence (s) will be punished appropriately. This deterrent message should not be reserved until the next generation or decade but if we are to protect the public and our marine lives from destructive fishing methods then in my view, this is the appropriate time and age to do so.
    
12. I am mindful that each case must be considered on its own unique facts and circumstances. Past cases can only be used as a guide in determining the appropriate sentence. This Court is empowered to utilise the maxim penalty provided by the legislation and can impose sentence that is fair and appropriate in light of the circumstance of each case.
    
13. In considering the appropriate sentence, the Court has to take into account issues of deterrence, retribution and rehabilitation (see R v Oge[3]).
    
14. In Ngina v Reginam[4], CJ Ward stated "Fishing with explo is a very serious offs offence; the statutory sentence is woefully inadequate; the courts are right to imprison, and would be justified in imposing the maximum together with a fine and fture where appr appropriate."[5]This Court must also impose a sentence that sends a message to our community that person(s) wmmittese same offences will be punished. Neither the Cthe Courtsourts nor the community can tolerate such offending and an appropriate sentence must be imposed.
    
15. On the other hand, this Court must also ensure that your families won't suffer much in your absence and more importantly, enabling the prospect of reforming your characters and attitudes and thereafter upon your release, to be responsible and good citizens of this country.
    
16. Having carefully taking all these into account and balancing them with the aggravating and mitigating features, the appropriate sentences[6]in this case are as follows for both accused persons:
    
    • (i) Count 1 (fishing with explosive) – A fine of $ 800 to be paid by each accused persons by 29/5/2015. In default, 40 days imprisonment; and
      
    • (ii) Count 2 (possession of dynamite fish) – 7months imprisonment. I order that this sentence is reduced by 1 month to reflect their guilty pleas.
      
17. The resulting sentences therefore are that both accused persons will pay a fine of $800eachand serve 6 months imprisonment. In default to count 1 by any of the accused person, the default sentence of 40 days will run concurrent to the 6 months imprisonment term. Time spent in custody is to be taken into account.
    
18. Accused persons have their right to appeal these sentences within 14 days pursuant to section 285 (1) of the Criminal Procedure Code.
    

ORDERS OF THE COURT

(a) Impose fine of $800 and 6 months imprisonment to each accused person.
(b) Time spent in custody is to be taken into account.

THE COURT

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^[1] HCSI-CRC 467 of 2007
^[2] At paragraph 19
^[3][2004] SBHC 72
^[4] [1987] SBHC 13
^[5] At page 1
^[6] See section 24 (3) of the Penal Code