Inferior Court
Appeal No. 19 and 20 of 1978
March 5, 1980
Barrington-Jones, J.

Mr. B. Q. Pitts for the First Appellant
Mr. W. P. Elrington for the Second Appellant
Mr. Quallo for the Crown/Respondent

Criminal Law - Appeal against the sentence of the Magistrate - Grounds of appeal, sentence, excessive and unduly severe - Factors to be considered by Magistrate in determining sentence - Duty of Magistrate to give opportunity to mitigate before sentencing - A plea of guilt must come from the Defendant himself - The notes of the Magistrate should reflect all that was done at the trial.

JUDGMENT

On the application of Mr. B. Q. A. Pitts (for the 1st Appellant) and with the concurrence of Mr. W. P. Elrington (for the 2nd Appellant) it was agreed that these two appeals be heard contemporaneously.

The two Appellants were charged with:-

(a) Illegal entry contrary to Section 21(1) of the Immigration Ordinance; and

(b) Attempting to export shrimp from Belize contrary to Section 5(a) of the Fisheries Ordinance as read with Section 5E of Ordinance No.2 of 1972

before the Magistrate, Toledo Judicial District, on the 30th May, 1978 when the Appellants were convicted in respect of both charges and sentenced to:-

(a) Fined $200 in default 4 months hard labour, and

(b) Fined $500 in default 6 months imprisonment
such sentences to run consecutively.

The Appellants were subsequently granted special leave to appeal against conviction and sentence on the 30th August, 1978; but at the hearing the grounds for appeal were limited to an appeal against sentence in that the sentences imposed were unduly severe.

The record in the Court below is somewhat difficult to follow but it would appear that the Appellants pleaded not guilty to the 1st charge although there is no record of any plea having been taken; and it appears that the Appellants pleaded guilty to the second charge. It is also distressing to note that the second witness for the prosecution appears not to have been sworn before giving his evidence. Moreover there is nothing in the record to show that the Appellants were given any opportunity to cross-examine the prosecution witnesses on the first charge.

However there is contained in the Magistrate's Reasons for Decision (a document presumably prepared after the hearing and determination of the trial) the following statement:-

"The defendants did not question neither of the two witnesses for the prosecution when given time to ask question . . . ."

Were it not for this annotation I would have concluded from the record that the Appellants were not given any opportunity to cross examine the prosecution witnesses. It is, after all, a fundamental requirement that an Accused has the opportunity to cross examine the Crown's witnesses, and it is important that a Magistrate's record should reflect that this has been done.

In regard to the second charge it is recorded that Sgt. Broaster indicated to the Court that all three Defendants pleaded guilty to the charge. This is, of course, quite wrong, any plea must come from the Defendants themselves. Happily, however, it is recorded that after Sgt. Broaster had set out the facts, all three Defendants pleaded guilty.

Mr. Pitts strenuously contended that the sentences in each of the cases were excessive submitted that the maximum fine should not have been imposed in respect of the second offence since the Appellants must be presumed to be first offenders; and pointed out that there was nothing in the Magistrate's Reasons for Decision on this point. Mr. Pitts also took issue with the Magistrate's Reasons where he stated:

"The fine and other measures taken are done so as to sustain and preserve the species of fishes which are often caught and killed needlessly in offences of this nature."

Mr. Pitts took the view that the Magistrate went too far in saying this. Mr. Quallo (for the Crown) was quick to point out that when the Magistrate asked the Defendant Martinez how many were out there fishing, he had replied "about 25 to 30 of us". In my view the Magistrate was entitled to say what he did in his Reasons for Decision.

Mr. Pitts also drew the attention of this Court to the age of the Appellants 18 and 20 years respectively; and felt that the Magistrate had given insufficient consideration to this aspect of the case. He further said that there was nothing in the record which disclosed the nationality of the Appellants. This is true, there is only the statement of Oliva that he is from Morisus.

Finally Mr. Pitts complained that the Appellants appeared to have had no opportunity to say anything in mitigation after their plea of guilty to the second charge. This is so, and although it is not fatal to the case, it is most desirable that a magistrate keeps his record in such a way as to show conclusively that each step in the proceedings has been taken. As is set out in a Magistrate's handbook elsewhere . . .

"Before considering the question of sentence, the magistrate should ask the Accused if he has anything to say in mitigation. It should be explained to him that he is being invited to bring to the notice of the Court such matters as previous good character, family circumstances, or other matter which might persuade the Court to take a more lenient view of his actions. Then the Court will finally be fully in a position to assess sentence."

Mr. Quallo pointed out the historical significance of incursions similar to the present case by Guatemalan nationals. He admitted that he did not have any statistics regarding cases of this nature in the Toledo District but said that the gravamen of the whole offence was a matter of the economic dependency of Belizean fishermen being able to exclusively fish in Belizean waters. He said that deterrence was an important factor, and that if sentences were not sufficiently severe other foreigners might be minded to fish in Belizean waters and perhaps cause an international incident. Finally Mr. Quallo said that it was a compelling factor that the Appellants admitted that they did not know where the border line was.

After the most careful consideration I have come to the conclusion that the penalties imposed by the Magistrate were perfectly proper having regard to the circumstances. I find that the sentences are not in the last analysis unduly severe. It therefore follows that the appeals against sentence in respect of both appeals must be dismissed.

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