R v Faingata'a [2022] TOSC 24; CR 11 of 2022 (21 April 2022)

IN THE SUPREME COURT OF TONGA

CRIMINAL JURISDICTION

NUKU’ALOFA REGISTRY

CR 11 of 2022

REX

-v-

SIAOSI FAINGATA’A

BEFORE HON. JUSTICE NIU

Counsel : Mr. T. ‘Aho for the Crown.

: Mr. S. Fili for the accused.

Plea : Guilty on 6 April 2022.

Mitigation and submissions : 6 and 13 April 2022.

Sentencing : 21 April 2022

SENTENCING

Offence

[1] Siaosi Faingata’a, you have contravened regulation 18 (1) (a) and 18 (2) of the Fisheries (Coastal Communities) Regulations. That regulation prescribes that only residents of Manuka who are registered or persons approved and registered by the Manuka Coastal Community, may fish in the Manuka Special Management Area. You are from Navutoka, or you were in Navutoka instead and were not registered or approved by the Manuka Coastal Community to fish in their special management area.

[2] You went and fished in the Manuka Special Management area whilst you were not registered to fish in that area, on the 20 November 2021.

[3] You and 2 other accused persons, Taulango Militoni and Losipeli Taufa, were found with 1 porcupine fish (sokisoki), 2 stone fish (nofu), 22 other types of fish, 4 sea urchins (tukumisi), 2 octopus (feke) and 2 baby octopus (ngu feke) as you came out of the Special Management area.

[4] Section 102 of the Fisheries Management Act provides that every person who contravenes any regulation made for conservation and management of any special management area of a coastal community, commits an offence and shall be liable upon conviction to a fine not exceeding $250,000.

[5] You were all fishing at the time which was about 1:43 am at night and you were using torches as light which were observed from the shore of Manuka. You were fishing in the special management area of Manuka for about 1 hour and then you all came ashore and were all arrested with your said catch by the police.

[6] You admitted to the police that you were fishing unlawfully in Manuka’s special management area.

[7] You appeared before me and pleaded guilty on 6 April 2022 to fishing in the Manuka special management area without authorisation and I convicted you of this offence and you now appear before me for sentence.

[8] I was concerned that what you did was properly provided for by the law as an offence, and having heard Mr. ‘Aho for the Crown and Mr. Fili for you on 13 April 2022, I am satisfied that the law has properly provided that what you did was an offence. I will briefly explain it.

[9] Section 102 of the Fisheries Management Act provides as follows:

“102. Breach of regulations

Every person that contravenes any regulation made under this section commits an offence and shall be liable upon conviction to a fine not exceeding $250,000.”

[10] It is clear that the words “this section” in that provision were inserted in error by the draftsman, and that he had meant to put in the words “section 101” instead. That is because the regulations which are provided to be made are provided for in section 101 of the Act, not section 102. Section 102 only provides for the penalty to be imposed for the contravention of the regulations made under section 101. There is no provision in section 102 for the making of any regulation because regulation 101 has made the provision for the making of the regulations. And it is clear that S.102 is the provision which makes the breach or contravention of a regulation made under regulation 101 an offence, and it provides for the penalty to be imposed for such breach or contravention.

[11] It is clear that the draftsman had meant to say in section 102: “Every person that contravenes any regulation made under section 101 commits an offence and shall be liable upon conviction to a fine not exceeding $250,000.” But he instead wrote “under this section” instead of “under section 101” in the provision of section 102, which as a result makes no sense because section 102 does not provide for the making of any regulation. It is clear that he had meant “any regulation made under section 101”.

[12] This Court must interpret and apply the enacted provision of a law in the way that it makes sense especially when it is clear that a simple mistake had been made by the draftsman and that the Legislature has overlooked it when it enacted the provision as law. A simple mistake should not be allowed to nullify a clear provision of an enacted law. The clear provision of this law is that the penalty for the contravention of a regulation made under S.101 is a fine of up to $250,000. Authority for this is the judgement of the Court of Appeal in R v Ikamanu AC7/2020.

[13] I then ask myself whether you, the accused, have breached or contravened regulation 18 (1) (a) and (2) of the Fisheries (Coastal Communities) Regulations which have been made under section 101 of the Act for Manuka Special Management area which I have outlined above, and I have no hesitation in finding that you have. Whilst you were not a resident of Manuka and were not registered and you were not a person who has been registered to fish in the Manuka special management area, you went and fished in that area. You thereby contravened regulation 18 which provides only for registered residents of Manuka and for registered outside persons to fish in that area.

Submissions as to sentence

[14] Your counsel, Mr. Fili and Crown counsel, Mr. ‘Aho, both agreed that there was no need to require a probation report because the penalty prescribed by law for your offence is a fine, and Mr. ‘Aho submitted that a fine of $400 to be paid within one month would be appropriate for you. He said that you had no previous conviction and that fines for similar offences have been imposed in the Magistrate’s Court in the sum of $400. He said that the fine was commensurate with the fish which you caught.

[15] Mr. Fili said that you had had a previous conviction when you were 14 years old of stealing a bicycle and that that was 10 years ago. He said that he agreed with the sentence proposed by Mr. ‘Aho.

Your circumstances

[16] I then asked you questions and you told me you are 24 years old and that you are married, that you have 5 children and fishing has been your source of income. You told me that you fish by diving using full goggles, and snorkel, flippers and a fibre glass spear with 3 prongs with an elastic band tied to the end of the spear for propelling the spear through the water. You said you had a vehicle tyre inner tube blown up with air and floated on the surface of the water with a bag attached to it where you put your catch whilst you continue fishing.

[17] You said that you have been fishing like that for sale to support you and your family for 4 years, going on 5 years now. You said you do not have any land or house of your own yet and you were living with your wife’s parents at Navutoka and that now you are living with your parents at Haveluloto. You said that you were able to buy a vehicle of your own for $7,000 and that you have paid it off by end of November last year.

[18] You said that when you were arrested, all your fishing gear were taken, as well as the fish caught, by the police up to now and so you have not been able to fish anymore. You said all you do now is to help your wife with her weaving by looking after the young children whilst she does her weaving which is now your only income. You said she makes about $400 per fortnight. You said that when you were fishing you would be making up to $1,000 per week.

[19] You said that the prohibited fishing area of Manuka was marked with flags planted about 40 meters from the shore which were above the water by about 1 meter at high tide and about 100m to the other flag on the shore side, and that 2 corresponding floats were anchored and floated about 50 meters on the sea side from the 2 flags. You said you knew of the area and that it was prohibited for you to fish inside it and it was controlled by the Manuka committee. You said that the purpose of your fishing that night was for food and for sale and that you fished there for about an hour.

[20] You said that it was alright for you to pay the $400 fine for this offence but that you needed your fishing gear back for you to use to catch fish to sell to pay that fine.

Further submissions

[21] At the end of my questions to you, Mr. Fili submitted that in view of the circumstances, you be granted a suspension or probation and not a fine. Mr. ‘Aho did not agree to that. He said that the Act expressly provides for a fine to be imposed and that the fine of $400 was a reasonable sum for you to pay. He said that there is nothing to stop you from fishing at all elsewhere that is not a prohibited area.

Consideration

[22] In considering the appropriate sentence for your offence, I have to consider and to bear in mind the importance and the purpose of the law for which the penalty was enacted. That penalty was enacted by Parliament itself in S.102 of the Act and it set a fine of a maximum of $250,000.

[23] I also have to consider the importance of the fishery resources in this particular area of the sea adjoining Manuka village to the people of Manuka. This Act gives to the coastal communities the responsibility to conserve and manage the fishery resources of the sea area adjoining the coastal communities in order that the people of the coastal communities have sufficient sea produce for their use. They are required to keep a register of the persons whom and of fishing vessels which they approve to fish in their special management areas.

[24] I also have to consider whether or not you were fishing for you and your own family’s consumption or for sale. That is because if you were fishing for sale, you would catch as much as you possibly can and you would thereby deplete the resources of these areas and thereby defeat the purpose of the conservation and management of these areas.

[25] I must consider a penalty that is commensurate with the offence you have committed.

[26] At the same time, I must also take into account your ability and your means to pay that penalty.

[27] Mr. ‘Aho has referred to a case of one Tupou (Cr96/2019) whom he said was fined in the Magistrate’s Court for a similar offence in the sum of $400. He therefore recommended that you be fined the same amount of $400 and that you be ordered to pay it within 1 month.

[28] Unfortunately, he did not provide any information as to the amount or weight or type of fish that was caught by Tupou in that case or whether he was fishing for his own consumption or for sale. The only information I have are the number and type of fish you caught. No information is given as to the weight of the fish or of the octopus.

[29] I also have to consider that there were 3 of you fishing and that you jointly caught those fish. I have to assume in absence of any other information before me, like which catch was whose, that the catch jointly belonged to all 3 of you and that you are to share them equality, as best as that that could be done.

[30] Looking at the list of the catch given in the summary of facts, I would think that some 3 way division amongst the 3 of you may be as follows:

Fisher 1 Fisher 2 Fisher 3

1 porcupine fish 1 stone fish 1 stone fish

1 octopus 1 octopus 2 baby squid

1 sea urchin 1 sea urchin 2 sea urchins

7 fish 7 fish 8 fish

[31] And looking at that list for each of you, that is not a lot of fish or catch at all. It would only have been sufficient for your own individual family’s consumption.

[32] If I was to put a value on the catch, I would put a value of not more than $100 for each of those 3 divisions of the catch, making a total of not more than $300 if the whole catch was sold. So that if you were to be fined $400 as counsel has suggested, you would be paying only a little more than the value of the whole catch. I would think that a fine of twice the value the catch, that is $600 would normally be warranted. I consider that a fine of $500 would be appropriate in this case.

[33] I have to consider and accept that you contravened the fishery protection law of this special management area and that the sentence I impose on you would reflect the need for deterrence in order that the purpose of the law is achieved.

[34] Furthermore, because you have caught these fish, there is then that less fish for the registered persons of Manuka to catch.

[35] And considering that you are able to catch up to $1000 worth of fish per week, and that you were able to buy a vehicle for $7,000 as a result, I consider that a fine of $500 would be warranted for this, your first offence.

Sentence

[36] Accordingly, I sentence you to a fine of $500 which you shall pay within 1 month from today. In default of payment of said fine you shall be imprisoned for 2 months.

The catch and the fishing gear

[37] I have looked through the regulations and the Act and I find laws that direct the confiscation of fishing vessels and fishing gear and fish caught in contravention of the provisions of the Act, but I find no law that authorises the confiscation and forfeiture of fishing gear used and fish caught in a special management area such as in the present case.

[38] I consider that if the Parliament had considered that the law with regard to confiscation contained in the Act was to be applied in respect of vessels, gear and catch in the special management areas as well, it would have said so but it has not. I therefore have to accept that Parliament had only intended that confiscation be only ordered and made in respect of the matters specified in the Act.

[39] You have told me that you had no objection to the fine of $400 proposed by the Crown but you asked that the fishing gear be given back to you. I have no authority to order that they be confiscated.

[40] However, as to the fish and things you caught, I consider that they were fish and things of the special management area of Manuka and that they properly belong to them.

Orders

[41] Accordingly I make the following orders:

(a) The spear, flippers, inner tube, goggles and snorkel belonging to you, Siaosi Faingata’a, shall be returned to you forthwith.

(b) The fish and things which are listed in paragraph 30 under Fisher 1 above, namely, 1 porcupine fish, 1 octopus, 1 sea urchin and 7 fish shall forthwith be given back to the Manuka Special Management Area Committee.

Niu J

NUKU’ALOFA: 21 April 2022. J U D G E