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Kuwahara v Pawut [1995] PGNC 40; N1382 (27 October 1995)

Unreported National Court Decisions

N1382

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL NO 208 OF 1995
BETWEEN:
MAMORU KUWAHARA and AKIRA ABE - Appellants
And:
LAMILLER PAWUT - Respondent

Waigani

Doherty J
27 October 1995

FISHERIES ACT 1994 - primary offence - forfeiture of boat and equipment.

The Appellants pleadled guilty to 1 count each under S. 66 (2) Fisheries Act 1994 and were each fined K70,000 and each boat was forfeited. This was an appeal against sentence.

Held:

(1) The fine itself was not excessive.

(2) Decisions on tariff under repealed legislation do not apply in the instant case.

(3) The provisions of the District Court Act Ch 40 apply to the Fisheries Act 1994.

(4) S. 67 (1) Fisheries Act applies to all fisheries offences.

(5) S. 67 (2) does not apply to an offence under S. 66.

(6) S. 67 (2) applies only to those offences stated in S. 67.

Counsel:

Mr Payne for the Appellants

Mr Samson for the Respondent

27 October 1995

DOHERTY J: These are 2 appeals against the decision of the District Court at Lorengau when the 2 appellants pleaded guilty and were found guilty of an offence under S. 66 (2) Fisheries Act 1994.

I note there appears to be a typographical error in the notice of appeal in as much as the name Mamuru Kuwahara seems to be named on both but this does not go to the substance of the case and I say no more about it.

Similar facts applied in each case and similar decisions were made relating to each appellant. The cases were heard on the same day and were heard together.

Initially there was no appearance by the State in this appeal and it proceeded ex-parte. The State on behalf of the respondent appeared later and, on leave, was heard. It is common ground between the parties that this is the first appeal to the National Court under the Fisheries Act 1994 and there are no precedents on the Act to assist this Court or the learned magistrate in the lower Court.

Both appellants were charged under the provisions of S. 66 (2) of the Fisheries Act. This is clear from the information that was laid in the District Court which specifically states “pursuant to S. 66 (2)”. That particular provision provides as follows:

“The operator of a boat on which, or by the use of which, an offence against this Act is committed, is guilty of an offence against this Section punishable on conviction as if it were the primary offence.”

The primary offences are provided for in S. 66 (1) which says “In this Section ‘primary offence’ means an offence against this Act other than an offence against this Section”.

The statement of facts before the learned magistrate show that in the case of Mamoru Kuwahara he was seen to be fishing without a licence and within fisheries waters on the 26th May 1995. Detailed description of his location by way of latitude and longitude, of the fish etc. found on board and of the observations of the fisheries officers are made in the statement of facts. He was charged with being a master of a vessel fishing in fishery waters without a licence.

The other appellant Akira Abe was subject of a similar charge, a similar detailed statement of facts shows that at 1600 hours on the 26th May he was found to be fishing in fishery waters without a licence, again details are to the longitude and latitude of his location were given. He was also charged as a master.

Both appellants pleaded guilty after the Court adjourned to allow them to take legal advice and find an interpreter. It appears to me from the records of the learned magistrate, both in his reasons for decision and in the Court record itself that some form (I use the word guardedly) of “plea bargain” took place as it is on record that the defendants/appellants in this Court wished to plead guilty to one count of fishing illegally in PNG waters. They pleaded guilty and in mitigation it was said that there had been confusion as to the licences which they thought had been renewed but both accepted that they should have had licences in place and there was some confusion about the re-issue. It was shown, and the magistrate agreed, that they had co-operated throughout, they pleaded guilty.

They were then each fined K70,000 in default 12 months. Subsequently each vessel was forfeited to the State.

In the reasons for decision the learned magistrate found the charge was proven under Subsection (2) of S. 66. He found as a fact that relatively small vessels were involved. He found that there were relatively small catches. He spoke of the adverse effect on future fishing, he noted that this was a new Act of Parliament and therefore a new maximum penalty. He reflected on the legislative intent, he decided that the maximum that applied was a K250,000 fine, he decided on the balance that such a maximum was too much he proceeded to half it and then reached a decision on a fine of K70,000.

In his reasons for decision no real reason, in fact no reason at all, is given for the forfeiture of the vessel and none is recorded. The Counsel for the respondent says that the forfeiture is automatic Counsel for the appellant says it is not. The penalty therefore imposed on each appellant was a fine plus forfeiture of a vessel.

Mr Samson in submission before this Court, while agreeing that there was no precedent to assist either here or the learned magistrate says this is a primary offence under the Act. He speaks in some rather emotive terms that the Court cannot be seen to sanction people taking fish of very high value and he refers to other countries actions in such situations “blasting such ships out of the waters”. I have not personally heard of such actions by other nations and the Court cannot condone Papua New Guinea breaking international treaties.

However Mr Samson also urges the Court not to lose sight of the clear intention of the Parliament and refers to the case of Singarom v Kalaut [1985] PNGLR 238. I accept that the intention of the legislature was to protect, among other things, the ecological species and also to promote fishing. I have re-read the preamble several times. The media have made clear us all aware of the effects of over-fishing to ecological balance, however, whilst the Court is obliged to uphold the law it is also obliged to strive to uphold justice between the parties.

The grounds of appeal on behalf of each appellant are in similar terms. The grounds were not argued separately but evolved around severity of sentence. On the outset I will over-rule the last ground of appeal, that is the penalties under the old Act were not taken into account as it is clear to me the intention of Parliament is to impose higher penalties and this is what the Court is bound to act on. The principle that a Court should not increase penalties by leaps and bounds will not apply in this instant case as the intention of Parliament is clearly set out in the Act and is to be applied.

The main thrust of argument therefore is that the forfeiture is discretionary and forfeiture combined with the fine becomes an excessive penalty. There was no evidence or argument in either Court as to whether the appellants were the owners as well as the masters of the vessels and if the loss of the vessels amounted to personal loss and I must assume therefore on the facts that they were merely masters.

There is no guidelines for first and subsequent offences in the Act and no guidelines in the Act on how the fine is to be attributed. It is common ground between the Counsel that the maximum that applies in this case to a master is a fine of K250,000. Mr Payne refers to this being economical loss to both appellants and the duty of the Court to consider economical loss to the individual. He has referred me to a precedent by Sheehan, J. in Investment Promotion Authority v Niugini Lumber Pty Ltd but unfortunately, like himself, I am unable to find any reasons for decision.

I have considered the following as relevant in the case before me:

(1) was the fine excessive, if so why was it imposed and what matters were taken into account;

(2) what considerations were given and what considerations were proper in the case;

(3) was the forfeiture mandatory or was it discretionary and if it was discretionary was it, and the fine together, excessive.

I have noted that it conceded the maximum is a K250,000 fine the learned magistrate had no guidelines. He considered the plea and he considered the principle of deterence. Mr Payne has submitted that deterrence may not be relevant in this case.

I also agree with his submission that the provisions of District Court Act Ch 40 apply and its options were available to the learned magistrate to consider.

I consider that the learned magistrate was correct in considering deterrence as one aspect of the crime before him. He speaks of other offences that have occurred but I have no record of any other offences under this Act so this Court cannot properly say there were a lot of offences under this Act and therefore a deterrent sentence was required. However I consider it is the intention of the legislature that some form of deterrence be considered in this particular Act.

I therefore consider deterrence is an aspect that may be considered but I advice caution in view of the fact that there are no records before us of how many and the nature of offences under this Act. Deterrence is usually emphasised when the incidences of a particular offence are excessive or increasing. In deciding the amount of a fine the 1970 Edition of the text Principles of Sentencing by Thomas says at p. 219 “fines are primarily governed by the same principles as fixed term sentences of imprisonment, although it will be shown a strong element of individualisation as represented by the general principle that the amount of a fine must be related among other things to the offender’s ability to pay. Fines in effect constitute the lower ranges of the tariff”.

I must adopt some caution in accepting this in full as no term of imprisonment is provided for in the Fisheries Act under the relevant Sections. A fine only is provided hence a fine in this Act is not a real alternative to imprisonment that the Court can consider. It is the only immediate form of punishment provided (subject to the District Court Act), I consider the learned magistrate correctly considered the lack of precedent, the plea of guilty, the co-operation between the appellants and the Fisheries officers, and their lack of prior convictions. I agree that it certainly should have been less than the maximum. I consider that less than the maximum was imposed in fact it was less than half.

The powers of this Court are only to change a finding or a ruling of a District Court if there has been a substantive miscarriage of justice. Given the facts before the learned magistrate and the nature of the offence I cannot find that the fine in itself constituted a substantive miscarriage of justice and I confirm the fine in relation to each of the appellants and I make no change to this order.

I now turn to the question of forfeiture. The respondent says in his submissions before this Court that there cannot be an information laid under both Sections 66 and 57. He himself says in submission that S. 66 (2) is “as if it was a primary offence”. I do not agree with the second leg of his argument but I do agree with the first, there cannot be an information under both Sections. I do not consider that S. 66 (2) is a primary offence and I reach this conclusion because S. 66 (1) is worded as follows:

“In this Section ‘a primary offence’ means an offence against this Act other than an offence against this section.”

S. 66 (1) and S. 66 (2) may at first seem confusing. But on careful reading it is not. A primary offence provides only for a fine not a term of imprisonment and not forfeiture. So primary offences provide only fines and they are provided for in S. 57 and the analogous Sections. For further penalties (other than a fine) the provisions of S. 67 must apply. S. 67 (2) applies only to S. 56 (2), 56 (3), 57, 59. They do not apply to S. 66. I consider that the law is clear. S. 67 (2) does not apply to S. 66 because it says so.

This must be the intention of the Parliament and its intent is not to have S. 67 (2) apply to S. 66, hence S. 67 (1) is discretionary and permits the Court to forfeit any fish for any fishery offence but S. 67 (2) applying to boats and equipment is intended to be limited and clearly excludes S. 66. S. 67 (2) is mandatory and is limited to certain Sections only. Therefore, there was no mandatory obligation on the District Court to forfeit the vessel, it was a discretion which they could consider.

I consider that the learned magistrate when making an order made an error in concluding that he had to forfeit the vessels although he does not have any reasons for reaching his decision. I consider that the forfeiture order constituted a substantial error and an excessive penalty. I therefore order return of the vessels or their value. If the value is not agreed it will be assessed by this Court on a date to be agreed by the parties.

Lawyers for the Appellants: Blake Dawson & Waldron Lawyers

Lawyers for the Respondent: State Solicitor