DC 4075
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE 
SITTING IN ITS GRADE 5 CRIMINAL JURISDICTION]
GFC Cr. 31 & 32 of 2020
BETWEEN
National Fisheries Authority
Informant

AND
Pais Taihu
Defendant

Buka:  SLavutul

2020: 01st July, 06th, 07th November
        
CRIMINAL PRACTICE & PROCEDURE- Buying of dried bech-de- mer products without a valid and applicable License – Breach of section 32 (2) (a) FMA 1998 & FM (Amendment) Act 2015 – Section 58 (1) (b) FMA 1998 & FM (Amendment) Act 2015 – Storage of fishery products at an unlicensed premises, an act for which a valid and applicable license is required in breach of section 31(2) (a) of the FMA 1998 & FM ( Amendment)Act 2015 –Breach of Section

CRIMINAL LAW- Fisheries Management (Amendment) Act-Offences, Penalties and Costs (2015 Amendment of Section 58) - Increase in penalties-Maximum penalty in respect of a natural person, a fine not exceeding K500, 000.00. In default imprisonment for a term not exceeding five years- Sentence-Sentencing Guidelines discussed-Starting point-Relevant considerations are identified and considered. 
Cases Cited
1.	National Fisheries Authority v Nguyen Van Phuc [2017] PGDC 27; DC 3040 (03 March 2017)
2.	State v Joe Sekin (2006) CR 1592 of 2000
3.	Kenneth Andrew v Dennis Kokowei & 5 Ors NF 01-06 (5/02/16)
4.	National Fisheries Authority v Peter Momona, GFC 14/2017
5.	NFA v Kong Chiong Lik, GFC Cr.20/ 2018
6.	State v Jason Dungoia (13/12/00) N2038
7.	National Fisheries Authority v Wen Qing Chen [2020] PGDC5; DC4067 (August 2020)

References

National Fisheries Management Act 1998.
National Fisheries Management (Amendment) Act 2015
Papua New Guinea National Fisheries Authority Judiciary Bench book 2015

Counsel
 
Mr. C. Markoe for Prosecution
Defendant Appeared in Person Defendant
                                               
                                                              SENTENCING
12th  November, 2020.

Samuel Lavutul, Principal Magistrate; Defendant, Pais Taihu is  age 67 years old from Tasman Island, Atolls District in the Autonomous Region of Bougainville in Papua New Guinea. The defendant is currently the Manager of Katsingkuri Trading in Buka District, AROB, Papua New Guinea.

2. The defendant was charged with two (2) counts under the Papua New Guinea Fisheries Management Act of 1998 & Fisheries Management (Amendment) Act 2015. He was charged with the following counts;

(1)	It was alleged the defendant did between 24th of May, 2020 to 24th of June 2020 at Katsingkuri premises in Buka, AROB in Papua New Guinea, “Being a natural person, on his own account did buy dried bech-de-mer products, an act prohibited by National Gazette No. G368 for the time being in contrary to section 31 (2) (a) of the Fisheries Management Act of 1998”. Thereby contravening section 58 (1)(b) of the Fisheries Management Act 1998 &FM (Amendment) Act 2015
 
(2)	It was alleged the defendant did between the 24th May 2020 and 25th day of June 2020 at the Katsingkuri premises in Buka, AROB being a natural person on his own account engaged in storing dried bech- de- mer products of substantial value, act prohibited by National Gazette No. G368 for the time being in force contrary to Section 31 (2) (a) of the Fisheries Management Act of 1998. Thereby contravening section 58(1) (b) of the Fisheries Management (Amendment) Act 2015.

Background

3. By way of background the defendant was previously licenced by the National Fisheries Authority to buy, store and export beche –de-mer fishery products in the Autonomous Region of Bougainville between the 01st of August 2018 to the 31st of December 2018 when the beche -de-mer buying season was open. The beche –de –mer fishery harvesting, buying, storage and selling season was closed at the time the offence was allegedly committed by the defendant that prohibits the harvesting, processing, having in possession, exporting and any aspect of the beche-de-mer fishery as of the 01st of January 2019 until 16th August 2020 after the National Fisheries Authority Board decision to close the fishery as management measures for sustainability by way of a National Gazettal Notice No. G368 dated Wednesday 06th of June 2018 in Port Moresby.

4. It was alleged the defendant did between the Sunday 24th of May 2020 to Wednesday 24th of June 2020 engaged in buying beche-de-mer products from local fishermen and fisherwomen from within the Tsitalato Constituency in the Autonomous Region of Bougainville.

5. It was revealed through the Buying Invoice Book Receipt Numbers 0333751 to 03333799 dated 24th May 2020 to 23rd June 2020 respectively recorded a total weight of 187.43 kilograms purchased with money totalling and recorded as K7, 325.01. And it was also further revealed through the Buying Invoice receipt number 0350551 to 030560 dated 14th of May 2020 to 24th of June 2020 respectively recorded a total of 82.12 kilograms of beche –de-mer products purchased with total money spent in the sum of K4, 167.80. And the total monies spent as recorded on both invoices amount to K11, 492.81. Thus then between the 24th of May and 24th of June 2020 the total recorded purchases of beche- de-mer product was 269. 55 kilograms which were stored in the Katsingkuri premises in a storage container.

6. On Thursday 25th of June 2020 at 11.52 am, when Fisheries Officers entered the Katsingkuri premises, a total of 379. 59 kilograms of beche-de-mer products were stored in the containers which were then removed from the 20 foot container in the premises and taken by the Fisheries Officers as exhibits. A Seizure Receipt of MCS 1556 and MCS 1557 were issued to the defendant on the beche- de-mer products seizure from the Katsingkuri premises.

7. The total market value of the 379.59 kilograms of beche-de-mer fishery products confiscated from the defendant’s premises is estimated to achieve a potential market value to around 189, 7898 US dollars on the world market which would be equivalent to about K649, 583. 66.

Law

8. Section 32 (2) (a) (3) FM Act 1998 in which the defendant is alleged to have breached stipulates;

“No person shall –
(a)	Land, display for sale, sell, deal in, transport, receive or possess any fish or fish product taken by any means which contravenes this section
(b)	…

(3)	Any person who contravenes this Subsection (1) or (2) commits an offence

9. Section 58 (1) (b) of the Fisheries Management Act 1998 prior to the 2015 Amendment Act stipulates;

“The following penalties shall apply in respect of offences described in Subsection (1) (b), (c), (d), (f), (g), (h), (n), (p), (r), (x), (y), (z), (bb) and (cc):-

(a)	in respect of  a crew members, a fine not exceeding K5, 000.00; and
(b)	in respect of a natural person, a fine not exceeding K100, 000.00; and
(c)	in respect of a corporation, a fine not exceeding K1, 000, 000.00” 

10. And as per the Fisheries Management (Amendment) Act 2015 under which the defendant is charged the above penalties were amended and increased in the following;

Section 58(1) (b) in subsection (5)

(i)	…
(ii)	repealing Paragraphs (a), (b) and (c) and replacing them with the following;

(a)	in respect of a crew member, a fine not exceeding K25, 000.00
and
(b)	in respect of a natural person, a fine not exceeding K500, 000.00
(c)	in respect of a corporation, a fine not exceeding K5, 000, 000.00” ; and 

Plea

11. The defendant appeared unrepresented and was arraigned on the 06th of November 2020 on both counts under Section 58 (1) (b) of the Fisheries Management Act 1998 and Fisheries Management (Amendment) Act 2015. The defendant did not raise any defence on both charges and admitted to both charges. The defendant totally agreed to the statement of facts which were read to him by prosecution. He also confirmed with the court and the police prosecutor regarding the exhibits which were shown to him in a storage container at the JSK Lodge premises, Buka town on the 06th of November, 2020. He did not raise any disputes regarding the exhibits, or the number of bags which contain the beche- de-mer products. 

Verdict

12. Based on the defendant’s admissions the court pronounced the charges were proven on plea and two guilty verdicts were also pronounced on both charges against the defendant.

Antecedent

13. The court noted the defendant is 67 years old, married with 5 biological children and 9 adopted children. He is a Papua New Guinean and the Manager of Katsingkuri a company operating in Buka Town, AROB. The defendant does not have any prior convictions and he is a first offender.

Allocutus

14. The defendant in his address on sentence pleaded with the court that he will not afford the maximum fine of K500, 000. 00 if imposed by the court. He told the court he was sorry and he did what he did base on the humanitarian needs of his people and families despite the fact he was fully aware it was wrong. The monies he paid to them were to cater for their needs. He pleaded with court to impose a penalty which would best fit the crime he has committed. 

15. Prosecution in its submission on sentence pleaded for the court to consider the following aggravating factors in that the offence is profoundly serious generally in nature due to the fact the defendant;

(a)	The beche- de –mer fishery products was closed at the time the offence was committed in which it prohibits the harvesting, processing, exporting, and any aspect of beche –de-mer fishery as of the 01st of January 2019 to 16th of August 2020 after the National Fisheries Board’s decision to close the fishery as management measures for sustainability by way of a Gazettal Notice number G368 for the time being in force contrary to section 31 (2) (a) of the Fisheries Management Act 1988.

(b)	 Between June and July 2020 an extensive survey was carried out by the National Fisheries Authority to determine the stock of sea cucumbers and the rate of harvestable sizes. The defendant did engage in fishing during this premature stage of this season.

(c)	Science has found that Sea Cucumbers act as filters of the ocean. This fish is able to cleanse the sea of natural dirt and oxygenate the water for coral life and a disable habitat for fish.

(d)	Did engage in buying dried beche –de-mer products of substantial value, an act prohibited by the national gazettal Notice No. G368 for the time being in force contrary to section 31 (2) (a) of the FM Act 1998.

(e)	 Did engaged in storing a total of 379.59 kilograms of beche-de-mer products of substantial value stored at Katsingkuri premises in a storage container for the time being in force contrary to section 31 (2) (a) of the Fisheries Management Act 1998.

(f)	The defendant was previously issued a license by the National Fisheries Authority to buy, store and export beche-de-mer fishery products in the Autonomous Region of Bougainville between the 01st of August 2018 to the 31st of December 2018 when the season was open and was fully aware that fishery was closed.

16. However Prosecution also pointed to the court the following mitigating factors for considerations in that;

(a)	The defendant is aged 67 years old, married with five (5) biological children and nine (9) adopted children and resides with his family in Buka.
(b)	 The defendant is a first offender and had pleaded guilty to both charges and freely confessed he did commit the offences. And that he did cooperated well with the Investigators.

18. Prosecution in its concluding remarks for sentence submits that the aggravating factors above outweigh the mitigating factors. And that the court should consider an appropriate penalty which will stand as a deterrent against the defendant and other would be offenders. It submits for the court to impose the maximum penalty of K500, 000.00 and for the court to forfeit all exhibits to the state and disposed of pursuant to section 62 (1) subject to section (3) (a) of the Fisheries Management Act of 1998. 

Deliberations

19. I have given careful consideration to both submissions and in considering an appropriate penalty against the defendant I adopt the view of Cannings J in the matter of the State v Joe Sekin (2006) CR 1592 of 2000 in which his Honour did set out the following questions as considerations;

Step 1: What is the maximum penalty?
Step 2: What is a proper starting point?
Step 3: What is the head sentence for the offence?
Step 4: Should the pre-sentence period in custody be deducted from the term of imprisonment?
Step 5: Should all or part of the sentence be suspended?
STEP 1: WHAT IS THE MAXIMUM PENALTY?

21.The maximum penalty for the offence for which the defendant has been found guilty of pursuant to section 58 (1) (b) of the Fisheries Management (Amendment) Act 2015 - in respect of a natural person, a fine not exceeding K500, 000.00 in default imprisonment for a term not exceeding five years.  

STEP 2: WHAT IS A PROPER STARTING POINT?

22. For the purposes of uniformity and consistency in sentencing I restate the persuasive comments of my brother and former magistrate now Justice John Kaumi in a similar fisheries matter of Kenneth Andrew v Dennis Kokowei & 5 Ors NF 01-06 (5/02/16), he stated “Again here I am handicapped by the paucity of appropriate relevant sentencing guidelines, trends and proper starting points in our jurisdiction which would be very helpful in terms of what I should consider as pertinent considerations in contemplating what sentence would best befit this crime. And the predicament I find myself in is largely due to the failure, reluctance or sheer indifference by courts in our jurisdiction to appreciate the importance of such aspects of sentencing and publish judgments in like offences if for two reasons, UNIFORMITY AND CONSISTENCY in sentencing! I am for the want of a better phrase “left to my own devices” so to speak”. 

23. In the matter before me my starting point would be K5, 000.00 in default two years in hard labour to K30, 000.00 in default two (2) years and six months in hard labour based on the facts and evidence before me. Thus the mid-point would be K15, 000.00 in default two (2) years in hard labour.

24. In similar cases; in the Kokopo District Court in the matter of National Fisheries Authority v Peter Momona, GFC 14/2017; the defendant was found guilty and fined K5, 000. 00 in default two (2) years for trading 26.4 kilograms of Beche-de –mer to the value of K1190. In the matter of National Fisheries Authority v Kong Chiong Lik, GFC Cr 20 of 2018; the defendant was convicted and fined K15, 000.00 in default two (2) years in hard labour over 100 kilograms of beche-de-mer products. In another Kokopo District Court matter of National Fisheries Authority v Ye Weixiong, GFC 06, 07, 08 & 09 of 2020 traded for 36.4 kilograms of Beche – de –mer and shark fins at 1.55 kilograms unfortunately National Fisheries Officers did not specify the value of the fishery products that were confiscated from the defendant in order to assist the court in this regard. In this matter I refused to do an estimate due to my lack of knowledge on the different species of Beche – de mer and its current market value. It would be of great help to this court should due diligence in calculation of monetary value of the products be done against the weight of the total fishery products confiscated in order to secure a desired penalty. In this matter the defendant was fined K10, 000.00 each for each count totalling K40, 000.00 in fines. In the current 2020 Buka District Court case of National Fisheries Authority v Wen Qing Chen, DC 4067 of 2020, the defendant was charged with four (4) counts for having in his possession a total of 194.12 kilograms of beche-de-mer and was fined K10, 000.00 for each count totalling K40, 000.00 in default two(2) years in hard labour.

25. Likewise the Waigani District Court in the matter of National Fisheries Authority v Nguyen Van Phuc, NFA 36/16, the defendant was found guilty and fined K50, 000.00 in default four (4) years in hard labour for harvesting Beche-de- mer in Papua New Guinea waters weighing 3158.85 tonnes to the commercial value of K1, 438, 606.10 equivalents to $467, 079.90 US dollars in which Beche –de-mer species were specified and valued which resulted in the above total in cash and weight.
26. In the matter before me the defendant was charged with two (2) counts for buying and storage of beche-de-mer products totalling 379. 59 kilograms valued at a potential world market value of 189, 798 US Dollars equivalent to about K649, 583.66

STEP 3: WHAT IS THE HEAD SENTENCE FOR THE OFFENCE?

27. In arriving at what the head sentence should be for the offence I take into consideration matters I consider to be aggravating in nature. 
28. The defendant Pais Taihu traded for the fishery products without a valid license and he was unlicensed to trade for fishery products. He traded for a total of 379. 59 kg of beche-de-mer products. The defendant was fully aware in that what he did was unlawful and illegal as he was formally a legal trader as he had a valid license in the 2018 Beche-de-mer buying season. I am of the view the beche-de-mer population will quickly diminish through illegal trade by people such as the defendant. I am also of the view such illegal trade would also encourage citizens to sell fishery products on the black market as in the case of the defendant and such poses a threat to the fishery products population and for generations to come.
29. I also consider the fact the defendant is a Papua New Guinea and had lived in the Autonomous Region of Bougainville all his life, a senior citizen, and married with children he stated clearly in his submission on sentence he stated he was fully aware what he was doing was illegal and against the law. I wish to remind the defendant and those would be offenders that ignorance of the law is no excuse. If you are fully aware what you about to do or what you have been doing is illegal and against the law stop it.
30. I also consider the fact that the offence was committed in the Autonomous Region of Bougainville where policing and monitoring of such activities by National Fisheries Officers is a difficulty. With such circumstantially one would wonder how many others who are there that are involved in similar activities such as the defendant without being noticed by authorities of government.
31. Moreover the court is also mindful of the fact that the demand for beche-de-mer products on the world market is huge and it also pays good money both on the legal and black markets. And with the stringent management mechanism put in place by the National Fisheries Authority and through the statistics of the cases the district court deals with one could just wonder how many illegal traders go unnoticed by authorities.
32.  I am of the view a head fine of K15, 000.00 is appropriate for each count or in default one year and six months imprisonment with hard labour for each count would stand as a deterrent against the defendant and other would be offenders.
STEP 4: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM TERM OF IMPRISONMENT?

23. It may not apply in this matter as the defendant Pais Taihu was allowed on K5, 000.00 police bail and currently on bail

STEP 5: SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

24. The defendant is currently on a K5, 000.00 police bail in the event the court orders a fine equivalent or less than the bail it may not warrant part of or the sentence to be suspended. 

25. I am guided by the view in State v Jason Dungoia (13/12/00) N2038 as Kandakasi. J stated that “The usual purpose of criminal sentencing such as deterrence, restitution or rehabilitation are also relevant factors for consideration and so are requirements to carefully consider and take into account the factors for and against a prisoner before sentencing him or her”.
26. I have given careful consideration to the respective submissions and I consider a fine would best suit the offence defendant Pais Taihu is charged with.
Orders
1.	Therefore defendant Pais Taihu is convicted and fined K15, 000. 00 for each count in default one (1) and six (6) months in hard labour for each count.

2.	Sentences to be served concurrently
3.	That the defendant is to pay a total of K30, 000.00 in court fines to be paid by and 
no later than the 30th of November, 2020 
4.	In the event of default after the 30th of November, 2020 a warrant of commitment to be issued by the Clerk of Court.
5.	 That the defendant’s bail of K5, 000. 00 is to be refunded.
                                                          ……………….
Mr. C. Markoe of Buka Police Prosecution
Mr. Pais Taihu for himself