The skipper of a Sri Lankan fishing boat, caught operating unlawfully in the waters of Seychelles, has come off badly from his appeal against the sentence imposed by the High Court. Carmel Rickard notes that the new judgment, by the Court of Appeal of Seychelles, also shows that court’s clear awareness of the serious economic and environmental impact of illegal, unreported and unregulated fishing, and the direct negative consequences for the people of Seychelles and other coast states with fishing industries.
Makavita Dilesh (43), from Sri Lanka, was the master and skipper of the Rankurulla 4, a multi-day fishing vessel – a boat specially adapted for extended operations out at sea. In November 2023, the Rankurulla was spotted by a Seychelles coast guard patrol vessel, operating within the Seychelles exclusive economic zone. It was a foreign fishing vessel, and had no licence to be working there.
At noon on 24 November, officers of the Seychelles police boarded the Rankurulla and searched the boat. They found several GPS navigation devices, and off-loaded 184 whole sharks weighing more than 3 500kg in all, as well as seven gunny bags and a barrel with salted catch of over 200kg. Pending Dilesh’s trial, police kept all these fish and fish products in cold storage.
During an interview after he was formally arrested and cautioned, Dilesh ‘voluntarily admitted’ that he knew the vessel was operating inside the waters of Seychelles.
He pleaded guilty and was convicted on 16 February. The sentence imposed on Dilesh that same day, was a fine of SCR 550 000, (just over $40 000) payable within 60 days, or 18 months in prison if the fine wasn’t paid.
In his appeal, heard in August, six months after his High Court trial, Dilesh argued against the sentence and fine, saying they were ‘harsh and excessive’.
The three appeal judges began their decision by putting the case into context. Seychelles was internationally recognised for its efforts to ‘conserve and manage its fish stocks and ecosystems for future generations of Seychellois’, they wrote. However, ‘illegal, unreported and unregulated (IUU) fishing threatens to undermine those efforts and devalue its natural endowment’.
They also quoted from a UN document that spoke of IUU fishing as one of the greatest threats to the world’s fish stocks and marine ecosystems, with continuing serious and major implications for conserving and managing ocean resources as well as for the food security and economies of many states.
Against this background, what would the appeal judges say about the sentence imposed on Dilesh and his claim that it was harsh and excessive?
They had several problems with this claim.
Dilesh’s legal team argued that he was a fisherman, the sole breadwinner of his family, and unable to pay such an ‘excessive’ amount. In passing the appeal court noted, however, that Dilesh was in a ‘senior position’ on the boat, a skipper and master, not a mere fisherman as his counsel suggested.
More fundamentally, however, they said that simply to state that the sentence was harsh and excessive – as happened here – was ‘inadequate’ as a ground of appeal.
There was no serious attempt to flesh out what made the sentence ‘harsh and excessive’. This was despite previous appeal court decisions stressing that a mere claim along these lines was ‘not a reason to disturb the sentence imposed by the trial court’. What Dilesh, and any other appellant, had to do was specify ‘how the sentence imposed was manifestly harsh and excessive’. Dilesh had not done so.
Added to this, the court’s rules also made clear that no ground of appeal that was ‘vague or general’ would be entertained. This was an approach strictly applied by the appeal court in a series of prior cases, where they refused to consider ‘grounds of appeal that are not formulated in a concise, clear and felicitous manner’. When an appeal infringed these basic requirements, ‘the court has the duty, rather than the discretion’, to strike out such an appeal.
Given these factors, the appeal court dismissed all three grounds of appeal, saying they did not disclose any real basis beyond vague contentions. It also said counsel should take note that the court was concerned about a ‘recurring trend’ for ‘preparation of grounds of appeal’ to be treated as ‘a mere formality’. Though the court had repeatedly asked counsel to follow the rules in preparing an appeal, ‘there is a widespread disregard for these requests’.
Another problem about Dilesh’s complaint on the size of the fine, was that the law provides for a minimum fine of SCR 2 500 000 (just over $182 000). Against this background, his fine could not, by any stretch of the imagination, be said to be harsh and excessive. And even if his family circumstances had been correctly stated, they couldn’t justify what he had done. He ‘should have considered his family circumstances before engaging in criminal activity’, said the court.
The court also dealt with international law, in this case the 1982 UN Convention on the Law of the Sea, UNCLOS. This convention, ratified by Seychelles in 1991, says that unless the two states involved have agreed beforehand, a coastal state may not impose terms of imprisonment for violations of its exclusive economic zone. But the Seychelles law that deals with the rights and jurisdiction of Seychelles as a coastal state, and that might appear to have enacted the UNCLOS non-imprisonment provision, did not actually do so, said the appeal court.
It added that a pending Bill, not yet enacted, would, at least in its present format, not allow imprisonment in such a case.
But ‘imprisonment’ in the Dilesh case, was imprisonment in lieu of payment of the fine, and not in itself the punishment of the sentencing court. In a similar case, an Australian court had held that the penalty imposed as sentence was the fine. The alternative term of imprisonment was merely to ensure that the fine was paid. And the appeal court in Seychelles had reached a similar conclusion in another case when it found that ‘a default sentence of imprisonment is by its very nature not a direct sentence’.
The appeal court agreed with both, saying that the framers of UNCLOS did not envisage that while coastal states could impose fines, they would have no capacity to enforce them.
The fine that Dilesh would have to pay was thus his sentence, and the trial judge’s order of imprisonment in lieu of payment, was valid.
But there was another aspect of the High Court’s sentence dealt with by the appeal court, though it wasn’t raised by Dilesh: The trial judge said that if the fine was not paid within 60 days, the Rankurulla and all its equipment would be forfeited to Seychelles. However, if he settled the fine in time, he would be allowed to leave on his boat.
But the appeal court had other views about where the interests of justice lay, and ordered that the boat and anything used in the commission of Dilesh’s offence were forfeited to Seychelles, along with the proceeds of all the fish and fish products seized from the vessel – regardless of whether he paid the fine or not.
Clearly, the appeal has left Dilesh much worse off than he would have been had he not challenged the outcome of the trial court. But it has been a useful process for the appeal court all the same, giving it the opportunity to make firm decisions on several contentious issues. That’s all the more important given a growing number of infringements of Seychelles waters by foreign fishing vessels, with Sri Lankan boats apparently being the most frequent offenders.
Culled from LegalBrief
