Lamiller Pawut v Lim Men Bee

• Jurisdiction: Papua New Guinea
• Judge: Andrew J
• Judgment Date: 18 March 1996
• Citation: [1996] PNGLR 26
• Court: National Court
• Year: 1996
• Judgement Number: N1411

National Court: Andrew J

Judgment Delivered: 18 March 1996

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

LAMILLER PAWUT

V

LIM MEN BEE

Waigani

Andrew J

12 March 1996

18 March 1996

APPEAL — Right of appeal to the National Court by the State against sentence — District Courts Act Ch 40 ss 132, 219.

FISHERIES — Prosecutions under Fisheries Act — Observations on purpose and intention of the Fisheries Act — Master of foreign vessel — Conditional release not sufficient.

APPEAL — Mandatory provisions for forfeiture of foreign boats — Sentencing principles for fisheries offenders — Section 67 (2) Fisheries Act 1994.

Facts

The respondent pleaded guilty to a charge of illegally being inside PNG Fisheries Water under s 57 (2) (a) of the Fisheries Act 1994 in the District Court. By exercising his discretion under s 132 of the District Courts Act Ch 40, the Magistrate did not proceed to conviction and conditionally released the defendant upon his entering into recognisance with surety of K10,000 for a period of 12 months.

Held

1. Section 219 of the District Courts Act Ch 40 does not bar the State's right to appeal against sentence from the District Court to the National Court.

2. The offence of a foreign vessel being illegally inside PNG Fishing waters under s 57 of the Fisheries Act 1994 is a serious offence hence the intention of the provision is to severely and comprehensively deal with illegal fishing activities in PNG's Fisheries waters. Cheatly v R [1972] CLR 291 and MAF v Dubchack [1994] 12 CRNZ 576 referred to.

3. That the order of the District Court was manifestly inadequate given the fact that this was a serious offence and not a trivial one and given the clear intention discernible in the Fisheries Act to impose severe penalties to ensure detterence for illegal fishing activities for the protection of the nation's natural resources. per Andrew J.

4. Under the circumstances where the respondent has been found guilty, as a master of a foreign boat, he should have been ordered to pay a fine of up to K250,000 as required under s 57 (2) (a) Fisheries Act 1994. Further, the District Court should then have ordered the forfeiture of the foreign boat under s 67 (2) Fisheries Act 1994 as that is mandatory.

5. Appeal allowed. Orders of District Court quashed and substituted.

Cases Cited

Papua New Guinea cases cited

Ada v Bean and Others [1996] PNGLR 172.

Liu v Pawut Unreported decision of the National Court 1st December 1995.

Other cases cited

Cheatley v R [1972] CLR 291.

MAF v Dubchack [1994] 12 CRNZ 576.

Counsel

J Kawi, for the appellant.

A David, for the respondent.

18 March 1996

ANDREW J: This is an appeal from the District Court following charges under the Fisheries Act 1994 and orders made by the District Court on the 23rd February 1996.

The informant at the District Court was an officer of the National Fisheries Authority and the defendant was initially charged with two offences under s 57 of the Fisheries Act 1994 ('The Act']. The defendant initially pleaded not guilty to both charges but one was withdrawn and he then pleaded guilty to the first charge under s 57 (2) (a) of the Act namely:

"Being Master of LIEN FA TSAIR 6, a foreign boat, did on his own account cause the said LIEN FA TSAIR NO. 66 to be in Papua New Guinea Fisheries waters at position lalitude 01 degree o3 minutes south. Longitude 147 degrees 38 minutes East, without the said LIEN FA TSAIR No. 66 being authorised to do so by a licence granted under the Fisheries Act 1994."

Following the defendant's plea of guilty to this charge the District Court proceeded to pass sentence and made the following order:

"The defendant be conditionally discharged on his entering into recognizance with surety in the sum of K10,000 for a period of twelve (12) months at which time and or at any other time he may be called to be convicted."

Although it is not expressly stated in the order, the District Court proceeded not to convict the defendant by exercising its discretion under s 132 of the District Courts Act and conditionally released the defendant upon his entering into a recognisance with surety in the sum of K10,000 for a period of twelve months.

The appellant raises three gounds of appeal as follows:

"1. His Worship erred in law having wrongly exercised his discretion under s 132 of the District Courts Act when he found the defendant guilty of being in PNG fisheries s 57 (2) (a) of the Fisheries Act 1994, thus failing to take into account the fact that the offence of being in fisheries waters is not a trivial offence to warrant such an order."

2. His Worship erred in law having found the defendant guilty of an offence under section 57 (2) (a) failed to convict and enforce forfeiture of the fishing boat which is a mandatory requirement under s 67 (2) of the Fisheries Act 1994 when it is an offence under s 57.

3. His Worship wrongly exercised his discretion...