…For arriving illegally on yacht, sentence Thur
By ASSUMPTA BUCHANAN
SENTENCING of the three expatriates accused of illegally entering the country on board a yacht last month will be made in the Honiara Magistrates’ Court tomorrow afternoon.
This was after Matthew Adam Carter, Charles James Ewan Glenny and Braeton Hunter Mitchell pleaded guilty to the charges of the prohibition of entry of non-citizens contrary to clause 4 of the Emergency Powers (Covid-19 (Prohibition of Entry of Non-Citizens) Order 2020 as read with Regulations 8 (1) (2) and (3) of the Emergency Powers (Covid-19) Regulations 2020 yesterday.
Carter who is the master and owner of the yacht Mo Chuisle also pleaded guilty to the charge of restrictions to passengers contrary to section 90 (1) (2) of the Customs and Excise Act.
Private lawyer Andrew Radclyffe who represents the trio in mitigation asked the court to impose a fine for his clients.
He said imprisonment should be reserved for the most serious example of this offence.
He submitted that the most serious case would be where someone enters the Solomon Islands knowingly carrying coronavirus and then it spreads to others.
For this case Radclyffe said his clients were tested negative in New Caledonia and again negative in Solomon Islands.
“So it is my submission that this offence should be on the lower scale and not one for a custodial sentence,” Radclyffe submitted.
“Ignorance of the law is not a defence but I asked the court to accept that none of these defendants have any intention of breaking Solomon Islands laws.
“They have problems with the yacht and needed a safe harbour in order to carry out the repair.
“They mistakenly rely on pre-virus information as to what they should do on their arrival here so the mistake that was made was the failure to notify Solomon Islands authorities in advance and apply for a special exemption to enter the country under the COVID -19 regulations,” he added.
Radclyffe asked the court to consider that the defendants were on a yacht on high seas in Solomon Islands waters and have mechanical problems.
“If they remain at sea, who knows what might happen?
“If they got into severe difficulties no doubt they would have to radio the authorities for assistance and that could have involved a very expensive search and rescue operation,” Radclyffe further submitted.
Radclyffe said on their arrival in the country, they hoisted the yellow quarantine flag on the yacht and he was informed that is the requirement so whenever these yachters arrive in the country, they are supposed to hoist the yellow flag to alert authorities.
He added that our law also has 24 hours to comply with procedures and in the accused’s case, they were detained by customs and police at 10.30 pm on June 19 and therefore don’t have the opportunity within that 24 hour period to go through the normal procedure.
The trio arrived at 6.30 pm on July 19, anchored their yacht at the Mbokona Bay just next to the Police Patrol boat wharf, and went to the yacht club to ask how to contact relevant authorities such as customs and immigration.
Radclyffe said the trio then returned to the yacht intending to contact authorities on the following morning but around 10.30 pm, police boarded the yacht asked questions, took their passports, and the trio were taken to quarantine.
He said they were also tested for coronavirus but were negative.
Radclyffe said his clients were sorry for any concern caused to people at yacht club.
The court heard that Carter who owns the yacht bought it in November 2019 and went to Mexico to fetch it in January early this year.
He and his two friends were planning on undertaking an adventure across the sea on a 45 to 55 day nonstop sailing to New Caledonia.
However, the trip turned into an 85-day voyage due to bad weather and mechanical problems.
They left Mexico on 21 January 2020 and by the time they reached New Caledonia on 15 April 2020; they were in the worst state of affairs.
They had collected rainwater to drink and used up the emergency food rations stored in the lifeboats.
Their initial plan was on their arrival in New Caledonia they will fly to Europe and then to Spain leaving the yacht in New Caledonia.
It was heard that Carter intends on returning to New Caledonia with his family and then go on a cruise on the yacht.
Radclyffe said their client did not know about coronavirus when they left Mexico in January as at that time the virus was not known outside of China.
New Caledonia police came to their assistance and it was at that time they learnt about the coronavirus.
On 16 April 2020, New Caledonia police took their passports and told them to remain on the yacht.
The trio were tested for the virus but were negative and were quarantined for some 21 days on the boat.
They were denied entry but were later allowed only to designated areas such as to the bank, shop, fuel station including boat repair.
There were no flights out of Noumea at that time expect for French nationals and so the trio after consulting the pacific crossing guide book thought Solomon Islands would be a suitable destination because of UK connections and that the country has an international airport.
Radclyffe said the defendants were not aware of the public emergency or special exemption needed to enter the country.
On their way to Honiara, they experienced electrical problems on board and therefore had to stop somewhere.
Radclyffe said as Honiara being the capital is the best place, and relying on information in the pacific crossing they hoist the yellow quarantine flag and anchored few meters away from the police patrol boat wharf.
He said had the defendants were not detained, Carter would have complied with the requirements under the Customs and Excise Act on the following day.
He said if his clients are to be fined, they would need time to carry out repairs on the yacht and provision it for their return to Spain.
“They, therefore, need permission to remain in-country for reasonable amount of time and stay on the yacht and not to be a liability to Solomon Islanders taxpayers.”
Public Prosecutor Andrew Kelesi did not go through the whole of his sentencing submission but highlighted the fact that the defendants spent 21 days in New Caledonia and while there they were aware of the pandemic.
He submitted that the three men were at the wrong place at the wrong time and that Solomon Island is part of the global community that also experienced the impacts of the virus.
He highlighted the seriousness of the offending and said it would be a different story if they were tested positive or risk the spread of the virus in the country.
In relation to the issue of forfeiture of the boat, Radclyffe had submitted that there were no powers under the Covid-19 regulations and also under the Customs and Excise Act for forfeiture of boats.
Radclyffe said if the Customs Controller wants to proceeds with the forfeiture, he will file submission in the High Court.
The prosecution agreed with the defence on this issue adding that there are cases of forfeiture under the Customs and Excise Act but only for a serious offence such as if the boat was involved in trafficking or arms smuggling.
Kelesi however said the office of the Director of Public Prosecutions refers the issue of forfeiture to the Comptroller to deal with the Attorney General.
The Attorney General is now acting Director of Public Prosecutions as the Director of Public Prosecutions is currently vacant.