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R v Finau [2008] TOLawRp 21; [2008] Tonga LR 106 (30 April 2008)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

CR 40/2007

R

v

Finau

Andrew J
24 April 2008; 30 April 2008

Sentencing – fish licencing offences – found guilty at trial – naive amateur operator – fine imposed

The accused appeared for sentencing having been found guilty following his trial on one charge of operating a fish processing establishment without a licence contrary to section 33 of the Fisheries Management Act and one count of attempting to export fish product without a fish export licence contrary to the same Act. Each offence carried a maximum sentence of a fine up to $500,000 and, in addition to the fine, Count 1 had an alternative penalty of imprisonment not exceeding one year or both. The accused, who was Tongan, resided in New Zealand but he moved to Vava'u and began processing sea cucumber, which he purchased from local residents, for export. The harvesting and exporting of sea cucumber had been banned for a period of 10 years from 31 December 1997. The court considered that the accused, who had made some inquiry of the Department of Labour and Fisheries regarding the exporting of fish from Tonga, was a rather naive amateur operator rather than a commercial operator. He was 62 years of age and had no previous convictions.

Held:

1. The accused was fined $1000 on each count to be paid within 28 days.

Statute considered:

Fisheries Management Act 2002

Counsel for the Crown : Mr Little
Counsel for the accused : Mr Tu'utafaiva

Judgment

The accused has been found guilty following his trial upon two charges:

1. Operating a fish processing establishment without a licence contrary to s 33 Fisheries Management Act and

2. Attempting to export fish product without a fish export licence. Both offences carry penalties of a fine up to $500,000 and the 1st Count also has an alternative penalty of imprisonment not exceeding 1 year or both.

The facts disclosed that the accused who is a Tongan, resident in New Zealand came to Vava'u 1th September 2006 with a view to operating a business processing and exporting from Tonga, sea cucumber or bechedemer. He did not have a licence. This was held to be an offence of strict liability. The accused had commenced operating in Vava'u and had purchased sea cucumber from local residents and commenced to process it prior to exporting it. After being in operation for about 5 days the police stopped his operation and he was then charged. He had collected some 9,000 sea cucumber. He had apparently gathered some funds from his family in New Zealand with the intention of setting up this business. He apparently spent about $6,000 on the operation. Money which he has now lost.

I do accept that the accused made some enquiry of the Department of Labour and Fisheries as to the exporting of fish from Tonga and may have got some confused advise but that fell short of proper enquiry, in my view, because he did not specifically obtain information about the export of sea cumber but went ahead regardless.

Cabinet had placed a moratorium in the harvesting and exporting of sea cumber in February 2003 — which reaffirmed it's decision of 9th September 1997 which banned such activity for 10 years from 31st December 1997.

Subsistence farming was allowed to continue.

I suppose it can be said that the accused was operating at close to the finish of the ban (in 2007) and I understand that harvesting and export licences have now been granted as the 10 years has passed. To the extent that he was operating at near the end of that period probably means that his activities were less harmful than they might otherwise have been.

I do not consider that the accused was a commercial operator who blatantly set out to plunder a scarce resource but rather he appears as an amateur operator who was a bit naive in doing what he did.

He appears as an otherwise decent person. He is aged 62 and appears not to be in good health. He is married with 2 children and appears to have led a useful and industrious life. He has never been in trouble before.

Nevertheless the offences are serious and in balancing all of the objective and subjective circumstances I propose to pass a fine of $1,000 on each of the two counts.

Penalty. You are fined and ordered to pay $1,000 on Count 1 and $1,000 as well on Count 2 making a total fine of $2,000 to be paid within 28 days from today.