DC 4076
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE 
SITTING IN ITS GRADE 5 CRIMINAL JURISDICTION]
GFC Cr. 07, 08, 09, & 10 of 2020
BETWEEN
National Fisheries Authority
Informant

AND
Margaret Haket
Defendant

Buka:  S Lavutul

2020: 01st July, 06th, 07th November
        
CRIMINAL PRACTICE & PROCEDURE- Engaging In-Beche-de-mer activities such as -Harvesting – Processing- Storing of dried bech-de- mer products without a valid and applicable License – Breach of section 31 (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, Margaret Haket is  age 43 years old from Matsungan village, on Matsungan Island, Tonsu Constituency in the Autonomous Region of Bougainville in Papua New Guinea.

2. The defendant was charged with four (4) counts under the Papua New Guinea Fisheries Management Act of 1998 & Fisheries Management (Amendment) Act 2015. She was charged with the following counts;

(1)	It was alleged the defendant did between 01st of August, 2020 to 02nd of August 2020 at Rerepa village in Tonsu Constituency, AROB in Papua New Guinea, “Being a natural person, on her own account did engaged in harvesting45.84 kilograms of bech-de-mer products of substantial value, 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 01st of August, 2020 to 02nd of August 2020 at Rerepa village in Tonsu Constituency, AROB in Papua New Guinea, “Being a natural person, on her own account did engaged in processing7.74 kilograms of bech-de-mer products of substantial value, 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

(3)	It was alleged the defendant did between 01st of August, 2020 to 02nd of August 2020 at Rerepa village in Tonsu Constituency, AROB in Papua New Guinea, “Being a natural person, on her own account did engaged in storing 38.10 kilograms of dried bech-de-mer products of substantial value, 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

(4)	It was alleged the defendant did between 01st of August, 2020 to 02nd of August 2020 at Rerepa village in Tonsu Constituency, AROB in Papua New Guinea, “Being a natural person, on her own account did cause namely Sakius, Lawrence and Lucas who were her sons to engage in bech-de-mer of fishing related activities 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

Background

3. By way of background between Saturday 01st of August 2020 to Sunday 02nd of August 2020, the defendant was engaged in harvesting 45, 84 kilograms of beche-de-mer products within Tonsu Constituency in the AROB. In so doing the defendant did engaged her three (3) sons namely Sakius, Lawrence and Lucas to dive in the night and collect sea cucumber for her own gain. The defendant paid her three sons K20. 00 per night for diving for diving for sea cucumber and she also provided food rations and the necessary equipment towards the illegal act and cited for the breach under Section 31 (2) (a) of the FMA 1998.

4. In relation to the second charge between Sunday 02nd of August 2020 and Monday 03rd of August 2020, the defendant did processed 7.74 kg of BDM products within the vicinity of Rerepa village when police and fisheries officers arrived on site on Monday 03rd of August 2020 at around 03: 18 pm, searched and confiscated the BDM products which were smoked on heat of fire tendered by her son namely Sakius.

5. In relation to the 3rd charge in that between Saturday 01st of August 2020 and Monday 03rd of August 2020, the defendant did engage in storing 38. 10 kg of BDM products which were in two bags weighing about 32.25 kg confiscated by police and fisheries officers on Monday 03rd of August 2020 after the search on her tent and uncovered her illegal activities. Another 5.85 kg of processed BDM products were being smoked were confiscated inside her room at Kuri when a search warrant was executed at 07: 00pm on Monday 03rd of August 2020.

6. In relation to the 04th charge the defendant hired her sons namely Sakius, Lawrence and Lucas to dive and harvest sea cucumber at night between Saturday 01st of August 2020 and Monday 03rd of August 2020 and was paid K20.00 per night which is prohibited under the National Beche-De-Mer Management Plan 1998. The defendant charged as well for under Section 58 (1) (b) of the FMA 1998 for causing her sons to engage in BDM related activities.

7. The defendant was issued with seizure receipt numbers ST: 8082, ST: 8083, ST: 8085, and ST: 8087 for all of the BDM products in total of 45. 84 kg. Which carries a market value to around 18, 336 US Dollars on the world market or in PNG Kina it would be about K63, 167. 52.

Law

8. Section 31(2) (a) FM Act 1998 in which the defendant is alleged to have breached stipulates;

“A person who –
(a)	on his own account, or as the partner, agent or employee of another person, does or 
(b)	…
(c)	…
an act prohibited by a notice for the time being in force under section 30 (3), except in accordance with an exemption granted under Section 30 (4), 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 all charges and admitted to all charges. The defendant totally agreed to the statement of facts which were read to her by prosecution. She also confirmed with the court and the police prosecutor regarding the exhibits which were shown to her in a storage container at the JSK Lodge premises, Buka town on the 06th of November, 2020. She 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 four (4) guilty verdicts were also pronounced on all four (4) charges against the defendant.

Antecedent

13. The court noted the defendant is 43 years old, a villager, married with biological children. She is a Papua New Guinean and resides in Buka Town, AROB. The defendant does not have any prior convictions and she is a first offender.

Allocutus

14. The defendant in her address on sentence she pleaded with the court for leniency and she undertakes she will not do it again or reoffend. She told the court she was sorry and shown remorse for actions. 

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 this is due to the fact the defendant was engaged in harvesting a total of 45. 84 kilograms of BDM products of substantial value. And that she was fully aware of the closure of the BDM harvest season but chose to act illegally and for the court to note that this is a prevalent offence in the AROB.

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 four (4) counts for engaging in activities in which a total of 45.84 kilograms of beche-de-mer products with substantial value on the current beche-de-mer market to the sum of 18, 336 US dollars or equivalent to K63, 167.52 were confiscated.

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 Margaret Haket allowed herself and engaged herself and her sons in beche-de-mer activities within a prohibited period for harvesting, drying and storage of beche-de-mer fishery products contrary to section 31 (2) (a) of the FMA 1998. There were exhibits of Bech-de-mer products found in her possession. I am of the view the beche-de-mer population will quickly diminish through illegal activities by people such as the defendant. I am also of the view such illegal activities within the prohibited period 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. The defendant was fully aware in that her activities and that of her sons were illegal yet she allowed herself to engage in such activities.
29. I also consider the fact the defendant is a Papua New Guinea and had lived in the Autonomous Region of Bougainville all her life and acted in ignorance of the law and the measures put in place by the National Fisheries Authority regarding the management of Beche-de-mer products. 
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 has dealt with one could just wonder how many other illegal traders go unnoticed by authorities.
32.  Despite the fact I have set my starting point in court fines at K5, 000.00, I am of the view a head fine of K3, 000.00 for each of the four (4) counts the defendant is charged with is appropriate or in default one year and six months imprisonment with hard labour for each count which 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 Margaret Haket is charged with.
Orders
1.	Therefore defendant Margaret Haket is convicted and fined K3, 000. 00 for each of the four (4) counts in default one (1) and six (6) months each in hard labour for each count.

2.	Sentences to be served concurrently
3.	That the defendant is to pay a total of K12, 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. Margaret Haket for himself