Court name
Supreme Court of Turks and Caicos Islands
Case number
CR-APM 12 of 2010

Perez and Another v. The Crown (CR-APM 12 of 2010) [2010] TCASC 9 (10 August 2010);

Law report citations
Media neutral citation
[2010] TCASC 9
Coram
Ward, CJ

IN THE SUPREME COURT OF TURKS AND CAICOS ISLANDS Appellate Jurisdiction

Case No CR-APM 12/10

BETWEEN

ENGLISH PEREZ

AND JOSE LUIS CARIAJO

Appellants

AND

THE CROWN

Respondent

A Hamilton for appellants

S Glinton for respondents

Hearing: 27 July and 4 August 2010

Judgment: 10 August 2010

Judgment

1.             On the 25th of May 2010, following a report from an air patrol of a large vessel in the area of the Breakers which appeared to be anchored and fishing, officers of the Police Marine Branch went in the fast response boat, Hurricane, to investigate. As they approached they saw two dinghies alongside the vessel but, as they closed with it, they saw both dinghies making off in a southerly direction towards the fisheries limits. The officers gave chase.

2.             They were able to catch one dinghy but the other escaped. The large vessel, Hardier Still, and the intercepted dinghy were taken to Providentiales with thirteen men who had been on board the dinghy or the larger vessel. The police found that the vessel contained 500lbs of lobster and 1100lbs of scale fish together with spear guns, lobster hooks, a bag and a bucket of nylon line, extended hooks and a scoop net

3.             Checks with the Department of Environmental and Coastal Resources (DECR) showed that no licence had been issued to the Hardier Still and none of the detained men possessed any licence. Some days later all thirteen men were interviewed through an interpreter and said that the Master and Chief Engineer of the Hardier Still had been in the dinghy which escaped.

4.             All appeared before the learned Chief Magistrate on 1 June 2010. Each was charged with three offences; taking marine products without a licence, contrary to regulation 4 (1) (a); taking marine product during the close season, contrary to regulation 12 (3) (a) and using an unlicensed vessel for commercial fishing, contrary to regulation 5 (1) of the Fisheries Protection Regulations. All pleaded not guilty to all the charges.

5.             The case was adjourned to the following day by which time the men were represented by Mr Hamilton. The record shows that the prosecutor told the court that the two appellants wished to re¬plead and Mr Hamilton concurred. They then pleaded guilty to all three charges, the facts were opened and the defence admitted them. The record continues, "Prosecution offers no evidence against other 11 defendants; dismissed and discharged".

6.             Mr Hamilton then mitigated behalf of the present appellants. The record includes the following passages:

"In terms of his (Perez's) actions, both he and Mr Cariajo had relied on their captain obeying the laws of the sea and keeping them out of trouble.... The offence was one of error of judgement as they relied on their captain....

Both men ask that the court be as lenient as court can. The 13 men got together, acknowledge whether misled by Capt, they were in TCI waters and a price had to be paid for that. So got together and after being advised by counsel of possible route of action the Crown might take, decided amongst themselves, the two would plead guilty. This was done voluntarily by consensus of opinion among men themselves, without any solicitation."

7.             The court took into account their guilty pleas and cooperation with police and continued, “However the court is cognisant of marine products as the only natural resources of the TCI along with the economic hardship that presently exists in TCI”.

8.             Each appellant was fined as follows:

-               taking marine products without a licence - fined $10,000 or six months imprisonment forthwith

-               taking marine products during close season - fined $3,000 or four months imprisonment forthwith

-               using unlicensed vessel for commercial fishing - fined $15,000 or nine months imprisonment concurrent.

The Hardier Still, the dinghy, all fishing and diving equipment and all marine products were forfeited to the Crown. The court also recommended that the appellants be departed “at the expiration of sentences or on full payment of fines”.

9.             Notice of appeal was filed by Mr Hamilton on behalf of the appellants five days later on the following grounds:

1.             The appellant's desire the Honourable Supreme Court to grant the release of the vessel and all the equipment on the vessel.

2.             Further consideration and review of the law as it relates to seizures and forfeiture.

10.          At the first hearing of the appeal, the appellants were unrepresented and told the Court that they had always understood the appeal was against the penalties imposed on them personally. They told the court they had never been asked whether they wish to appeal against the forfeiture of the vessel because, as they pointed out, the vessel was nothing to do with them apart from providing them with an opportunity of employment.

11.          Because of the unusual nature of this case and the manner in which the pleas of guilty were apparently obtained, I adjourned the hearing and requested that Mr Hamilton, who was still on the record as counsel for the appellants, and Ms Glinton, who prosecuted at the Magistrate's Court, should attend,

12.          At the adjourned hearing, Mr Hamilton advised the Court that he had appeared in the lower court pro bono. I enquired as to who had instructed him to appeal against the forfeiture as the only persons interested in that ground of appeal would be the owner or skipper of the Hardier Still Counsel advised the Court that he did not know the identity of the owner or skipper and had not been instructed by either. It would appear, that he is suggesting he filed that ground of appeal on his own initiative. His position on that aspect of the case causes me some concern.

13.          In my discretion, I allowed the appeal to proceed against the sentences imposed on these two men and also asked counsel to address me on the issue of whether or not these pleas could be regarded as unequivocal.

14.          It has long been accepted that the court will only consider the validity of a conviction following a plea of guilty if there is some evidence on the record that tire plea entered was or might have been equivocal.

15.          Ms Glinton, in a well presented submission, suggested that these offences were all absolute offences and, therefore, as the men had been on the vessel and it was equally clear that the vessel had been used for fishing within the fishery limits, neither of which issues was contested, they had no choice but to plead guilty. The fact that their mitigation included reference to lack of knowledge of the illegality of their actions was not, she submitted, a defence validly open to them.

16.          Counsel directed the Court's attention to regulation 34 (1) and (2):

“34 (1) Where any marine product is found upon any vessel -

(a)           all persons found aboard that vessel shall be deemed to be in possession of that product; and

(b)           that product shall, unless the contrary is proved, be deemed to have been taken within the fishery limits.

(2) Where any apparatus or equipment is found aboard any vessel that has been used in contravention of these Regulations all persons found aboard that vessel shall be deemed to have used the apparatus or equipment, unless the contrary be proved."

17.          I cannot accept that regulation makes offences under regulations 4 and 5 absolute in the sense that there is no need to prove knowledge.

18.          Regulation 34(1) deems the marine products to be in their possession and to have been taken within the fishery limits (although the latter maybe disproved by the defence) and Regulation 34(2) deems them to have used the equipment or apparatus on board (although it allows the defence to disprove that also) but it does not deem everyone on board has knowledge of the lack of a licence which is the essence of the offence under regulation 4. The licence referred to in that regulation will not have been issued to everybody on board the vessel and, in the present case, the appellants, through their counsel, appeared specifically to be denying knowledge of any wrongdoing.

19.          Similarly, regulation 34 does not deem knowledge, in everyone on board, of the absence of a licence for the vessel which is the core of the offence under regulation 5(1). In addition, the words under regulation 5 “causes or permits” must involve an element of knowledge and deliberation, and therefore, allows a defence on that basis also.

20.          Thus, it is open to the defendants to plead not guilty on some or any of those grounds. Regulation 12, on the other hand, would appear to create an absolute offence

21.          However, having considered the statements made in mitigation by Mr Hamilton, I consider, with some hesitation, that they show sufficient acceptance of the illegality of the fishing operation in which they were engaged to leave the pleas of guilty standing.

22.          It should be noted that the prosecution position, as stated by counsel, was that the suggestion put forward by all thirteen detained men that the Captain and Chief Engineer had escaped was unlikely to be true. Ms Glinton pointed out that the Captain and Chief Engineer, in particular, would almost invariably remain on the main vessel and not be involved in active fishing in the dinghies. Therefore, the men who escaped in the second dinghy were unlikely to include those two men. As a result, if I understand her submission correctly, the prosecution assumes that one of the thirteen men was the captain and another the engineer.

23.          Whilst one might accept the logic of such a suggestion, the facts as outlined to the court in this case did not support it. It was stated that, when the Hurricane first approached the Hardier Still, the dinghies were both alongside. It was the approach of the police which caused the men to get into the smaller but faster dinghies with the clear intention of escaping. The facts outlined to the court gave no indication which, if any, of the thirteen men had still been on the Hardier Still when arrested.

24.          My concern arises in particular over the manner in which these two men appeared to have been chosen by a process described as "voluntarily by consensus of opinion among the men themselves". That was stated clearly by defence counsel and appears to have been considered acceptable by the prosecutor and the court. In the case of the prosecutor, having presented the facts of the prosecution case and those having been accepted by the two men who pleaded guilty, the prosecution offered no evidence against the remainder. It is clear, however, that the evidence against each would be identical to that offered against the two men who now appear before this Court In the case of the court hearing such an account, I would expect, at the very least, a careful examination of how this occurred and whether these men were genuinely and voluntarily admitting the offences and/or had been told and plainly understood that their doing so was part of an apparent arrangement with the prosecution by which the others would be released without penalty if these two maintained their pleas. It leaves the question whether, if the prosecution had not let the other eleven out, these men would have sought to change their pleas. Certainly the fact that the prosecution offered no evidence only after these men had accepted the prosecute facts lends support to this having only been a consequence of their guilty pleas.

25.          Both counsel suggested that these actions could be justified by the lack of prison accommodation in this country. It is not, and has never been, the courts* responsibility to tailor a sentence which would otherwise be proper by law and precedent simply because the Executive has not provided adequate facilities for the implementation of the sentences prescribed by law.

26.          It was also suggested to the Court, that the undoubted importance of fisheries as one of our natural resources required the court to order fines of such a size that the sentenced men would not be able to pay them and have to serve the default term of imprisonment It was necessary to send a message to countries such as the Dominican Republic and Haiti that anyone stealing this country's marine resources was likely to go to prison.

27.          There is some support for the suggestion that that was the approach taken by the court in the last line of the court record which states, "Deportation recommended at expiration of sentences or on full payment of fines". It is necessary for the court to state when the recommended deportation should take place but it is an unfortunate use of the word ’sentences’ when dealing with imprisonment in default of payment of fine and also in stating it before the reference to the fines.

28.          The impression that the court possibly regarded the default period as the principal penalty is strengthened by the suggestion that the last default term was to be concurrent with the others. That could be appropriate if the terms were sentences of imprisonment but periods ordered in default of payment of a fine cannot be made concurrent because each is a separate remedy relating to the failure to pay a particular fine.

29.          I recognise, as did the learned Chief Magistrate, the need to pass sentences which will deter others from coming into our fishery waters illegally. I also accept that imprisonment will send back the clearest message to others considering a similar offence. If that was the intention of the learned magistrate, the sentence should have been to order imprisonment and not a fine.

30.          The penalty for the offences under both regulations 4 and 5 is a fine of $50,000 or imprisonment for 12 months or both. The penalty for an offence under regulation 12 is the general penalty of a fine of $5000 or (inconsistently with regulations 4 and 5) 6 months imprisonment or both.

31.          Had the magistrate passed sentences of imprisonment instead of fines, it would be unlikely that those sentences would have been made consecutive, especially in respect of the offences under regulations 4 and 5 because of file close relationship between those offences. If they were ordered to be concurrent, the total sentence would be measured by the maximum imprisonment allowed under each of those two regulations, namely 12 months. As that would be the maximum term that could be passed on the captain or owner of the vessel, it seems, possibly, inappropriate as a penalty for individual fishermen employed by them. I repeat, whatever the prosecution view of the possibility the captain and chief engineer were amongst the thirteen men, there was no evidence to identify them as such and the court would have been wrong, in its absence, to sentence on that basis.

32.          If these two appellants are, as was stated in mitigation in the Magistrate's Court and stated by them to this Court, simply fishermen employed by the owner or captain of the larger vessel, it is unlikely they will be able to find a fine of $28,000 each. However, as I have stated, that does not appear to have formed part of the rationale of the fines. The rationale would appear to have been the length of time they would be serving in default on the apparent assumption that they would not be able to pay the fines. As a result, the effective term of imprisonment each will serve, when corrected in accordance with paragraph 28 (above), is 19 months - more, I would suggest, than would have been ordered in this case had the decision been to imprison rather than fine.

33.          However in the present case, I find it hard to accept there is a real deterrent effect in sentencing two out of thirteen and deporting the remaining eleven without conviction or penalty. The suggestion that a plea by one or two will allow the majority to avoid any penalty at all, which will no doubt be the message passed to others in the country to which these men were returned, will have a very limited deterrent effect

34.          The appeals against sentence are allowed. The penalties for taking marine products without a licence and using an unlicensed vessel for commercial fishing are quashed and replaced by sentences of six months imprisonment on each concurrent The penalty for taking marine products during the close season which is an additional aggravating aspect of the offences and one which would have been apparent to any experienced lobster fisherman remains as a fine of $3000 but the default term of imprisonment for failure to pay before the other sentences are served is reduced to 2 months.

35.          The result is that each appellant will serve six months imprisonment and in addition must pay a fine of $3000 or serve an additional two months imprisonment in default of payment The sentences will start from 2 June 2010.

Gordon Ward

Chief Justice