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State v Kaloumaira [2007] FJHC 42; HAA48.2006 (27 July 2007)

IN THE HIGH COURT OF FIJI
AT SUVA

APPELLATE JURISDICTION

CRIMINAL APPEAL ACTION NO.: HAA 48 OF 2006

BETWEEN:

THE STATE
Appellant

AND:

TIMOCI COLA
WAISEA KALOUMAIRA
Respondents

Counsel: Ms. A. Driu – for the State
Mr. R. Singh – for the Respondents

Date of Hearing: 24th May, 29th June & 13th July, 2007
Date of Decision: 27th July, 2007

DECISION

Introduction

[1] The first respondent was charged with counseling or procuring the taking of fish without a fishing license contrary to Section 10(1) of the Fisheries Act and Section 21(1(d)) of the Penal Code, Cap.17. The second respondent was charged with one count of taking fish without a fishing license, contrary to Section 10(1) of the Fisheries Act. They were convicted as charged.

[2] Evidence was given at trial that on or about the 20th of September 2003 the second accused with his crew of about four (4) people were found camping on Yagasa Island. The Fishing Group was there at the request of the first accused. As a result of information received from PW.5 a villager who saw the group fishing at Yagasa Island Accused 2 was spoken to. He had no valid license or permits to fish these waters and so he was arrested and charged. Underwater fishing gear was seized. Those items were exhibited by consent and included 41 gas cylinders, 10 regulators, 2 compressors, diving slippers, 12 jackets, 3 containers and some tarpaulins.

[3] At sentence an application was made for forfeiture of the diving and fishing equipment seized in relation to these charges.

[4] The learned Magistrate sentenced each respondent to a fine of $50.00 but considered the application for forfeiture should be declined as it would render the sentence too harsh in the circumstances.

[5] The State has appealed the leniency of this sentence and the failure to make a forfeiture order.

[6] The appellants have cross-appealed against conviction and otherwise vigorously opposed the State’s appeal.

Cross Appeal Against Conviction

[7] It is argued that the learned Magistrate erred in law and in fact in convicting the first respondent on the count of counseling and procuring of taking fish without a license and the second respondent on taking fish without a license. It is primarily submitted that as the first appellant did in fact have both a license and permit to fish the learned Magistrate either overlooked or misconstrued the license (exhibit 3) and permit (exhibit 4).

[8] As a subsidiary matter it is strongly argued by the first appellant that there is insufficient proof that he "counseled or procured" the second appellant to take fish without a license particularly between the "17th and 20th of September 2003 at Yagasa Island".

[9] The learned Magistrate first noted that many of the facts surrounding this offending were not in dispute.

[10] Having first obtained the written consent of the Turaga of Moce Island the accused sought and obtained a license from the Fisheries Department (No. 38481) and a permit to fish in the customary fishing area of Moce.

[11] The license and permit were sought and obtained by the first accused Timoci Cola on behalf of his trading company Fee and Gee Investment Limited (otherwise known as Fee Jee Company). It was therefore submitted that Mr. Cola had an inshore license to allow him to fish in customary fishing grounds in the area known as Moce Island (page 16 of the record evidence of Anare Raiwalu of Lami Fisheries Office). It was submitted that the learned Magistrate misconstrued that fact and wrongly convicted both accused.

[12] I find the learned Magistrate in a well reasoned judgment considered whether or not the first accused in fact had a license and permit to fish in the Yagasa area. In my view based on the available evidence the learned Magistrate made a correct finding that the first accused directed the second accused to fish in Fiji waters when he was not licensed to do so. Further, the learned Magistrate made the correct assessment that even if his license and permit rights were transferable what was counseled or procured was fishing outside of the terms of the license.

[13] I find the learned Magistrate was correct in accepting the Prosecution had proved Count One beyond reasonable doubt.

[14] Regarding the second count against Waisea Kaloumaira for fishing at Yagasa Island without a license. That accused gave unsworn evidence in which he accepted he did not have a license to fish under the Fisheries Act but was relying on Mr. Cola’s license. He was found with diving and fishing gear at Yagasa Island and PW.5 a villager identified him as the leader fishing at Yagasa Island. Accordingly the decision to convict was open on the available evidence.

[15] I reject learned appellant counsel’s submission that somehow the license and permit associated with Mr. Cola or his company, if it was transferable, could allow fishing anywhere other than the customary fishing grounds associated with the Tikina of Moce.

[16] In my view the learned Magistrate was correct in rejecting the argument raised at trial that the Tui Nayau had given verbal consent for this accused to fish at Yagasa. Had such consent been given there was certainly no permit or license in the name of Waisea Kaloumaira for him to undertake the fishing that he was found engaged in at the time of his arrest.

Sentence and Forfeiture

[17] The maximum available penalty under these provisions is a fine of $500.00 in respect of each charge.

[18] I find a penalty of $50.00 for an unlicensed commercial fishing operation manifestly lenient. This offending deserved a starting point of a fine of $250.00. Aggravating that starting point is the sophisticated commercial nature of the unlicensed fishing, the size of the catch taken (assessed by its value of FJ$5888.00) and the scale of the operation.

[19] There is little that can be said for the personal circumstances of each of the accused. I accept, however, that they are of modest circumstances and accordingly make an allowance for that by imposing an overall penalty of $300.00 against each accused.

[20] Accordingly the fine imposed in the Magistrates Court is quashed and substitute with a fine of $300.00 that is to be paid in equal monthly installments of $100.00 commencing with the first payment on the 31st of August, 2007. In default of payment I direct that each of the convicted persons is to appear before the Chief Magistrate at Suva on seven (7) days notice and be liable to such further penalty as maybe imposed for default of payment of the fine on these terms.

Forfeiture

[21] Regarding forfeiture I accept the State’s argument that the learned Magistrate fell into error by considering the withdrawal of Count 3 (charge of collecting, taking and diving of fish using underwater breathing apparatus) prevented his consideration of the application for forfeiture.

[22] The State was entitled to apply for forfeiture as the first accused was charged with counseling or procuring the taking of fish without a fishing license (Count 1) and the second with taking fish without a fishing license (Count 2). The fact that Count 3 was withdrawn is irrelevant to the consideration of whether forfeiture should apply.

[23] The learned Magistrate was bound to proceed on the basis of the crimes with which the accused were convicted (R v Katsoolis 60710/95). As I find there was an error I must now re-consider the forfeiture application made by the State.

[24] I quash the order refusing forfeiture and direct that the State is to renew its forfeiture application with supporting submissions and affidavits filed and served on counsel for the respondents by the 17th of August.

[25] The respondents may reply by the 31st of August and I will hear the application for forfeiture afresh on the 7th of September, 2007 at 9.30am.

Gerard Winter
JUDGE

At Suva
Friday 27th July, 2007

Solicitors
Office of the Director of Public Prosecutions, Suva – for the State
Kohli and Singh, Barristers & Solicitors, Suva – for the Respondents