State v Hurtado [2016] FJMC 6; Criminal Case 2033.2015 (26 January 2016)

IN THE MAGISTRATE'S COURT AT SUVA

Criminal Case No. 2033/2015

STATE

-v-

AIDEN ALEX HURTADO

For State: Mr.Delony M.(A/DPP)
For the accused: Ms. Vanigi S.

SENTENCE

1. You, Aiden Alex Hurtado, are here, to be sentenced on admission of guilt on your own accord for the following offence namely:

GIVING FALSE INFORAMTION OR MISLEADING ANSWERS: Contrary to Section 5(4) of the Immigration Act 2003.

2. As per the charge the Particulars of Offence are you Aiden Alex Hurtado on the 7th day of February 2014 at Nandi in the Western Division, presented to the immigration officer, passenger Arrival Card E-877452-9 which you knew or ought to have known contained false or misleading answers to question 1.3- permeant address and 1.18-usual country of residence.

3. This court is satisfied with your plea is unequivocal and that you understand the repercussion of your plea.

4. According to the facts, (which you have admitted), accused's date of birth is 8th November 1990. He was born in Florida, USA. He is the holder of an USA Passport No. 444040458. The accused also holds Republic of Columbia Passport No. 1144041712.On the 7th February 2014 at approximately 8.00pm, the accused arrived at Nadi Airport on flight FJ910 from Sydney, Australia. Upon arrival the accused presented to Jolame Lawebuka, the Immigration Officer the Arrival Card E877452-9 ("The Card").The card was filled out and signed by the accused except for the word 'Castaway' which was inserted after enquiry by the said Immigration Officer. In the Card at 1.3 the Accused stated in writing that his permanent address was 619 Westfield Avenue Zip Code 07028. State as written is illegible and country is written as USA. At 1.18 in the card the accused stated in writing that his usual country of residence was USA.As a result of the representations made by the accused, he was given a 4 month visa to enter Fiji. In the Court trail HAC 73 of 2014 in November 2015, the accused gave sworn testimony that he was born in USA and left that country when he was 2 years old. Further that he had lived in Columbia ever since and that his address was 13, 72-93 Call, Bosquez, Columbia.Further the accused gave evidence that prior to arriving in Fiji, he had spent several months in the USA between March and October 2013 in the USA.

3. Section 5(4) of Immigration Act 2003 stats as follow;

"Powers of immigration officers

Sec 5 (4) A person who-

(a) refuses to answer any question or inquiry in the course of interrogation under subsection (1)(b);

(b) gives to any such question or inquiry an answer which the person knows or ought to know is false or misleading; or

(c) when required under subsection (1)(c) to produce a document which is in the person's power to produce - refuses or fails to produce it within a reasonable time, or produces a document which the person knows or has reasonable cause to believe to be false or misleading,

Commits an offence."

4. Further the same Act provides;

" Penalties

Sec 65. (1) A person who commits an offence under this Act is liable on conviction to the fine or imprisonment or both specified for respective sections in the third column of Schedule 2."

5. The schedule 2 of the same Act as below;

"Section Offence Penalty

5(4)(a) Refusing to answer questions $2,000 or 2 years imprisonment

5(4)(b) Giving false or misleading answers $100,000 or 7 years imprisonment

5(4)(c) 6(1) Refusing or failing to produce documents

Entry or departure without lawful authority

or without reasonable excuse $20,000 or 5 years imprisonment

6. There is no set tariff for this offence under Immigration Act.
7. There are no aggravating factors.

8. You are nil with previous convictions. This court formally convicts you as charged.

9. Section 4(2) of Sentencing and Penalties Decree 2009 No: 42 of 2009 provides; "In sentencing offenders a court must have regard to:—

(a) the maximum penalty prescribed for the offence;

(b) current sentencing practice and the terms of any applicable guideline judgment;

(c) the nature and gravity of the particular offence;

(d) the offender's culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) the offender's previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option."

10. Further Section 15(3) of Sentencing and Penalties Decree 2009 No: 42 of 2009, the main object of the Sentencing.

"As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this Part."

11. Considering your early plea, this court selects 2 years imprisonment as starting point of sentence.

12. You pleaded guilty for the charge at the first instance. Therefore, you are entitled for reduction of your sentence. I am giving the benefit of ⅓ as set out in Veretariki Vetaukula vs The State, High Court Crim App Case No: HAA057/07, now your sentence is 16 months.
13. In mitigation, you have stated that you are 25 years old single unemployed. You sought non-custodial sentence. You further stated that since you have USA pass port you gave USA address due to misunderstanding of fact. You have being remanded for 21 days for this matter.

14. For you mitigating factors including remand period you spent this court reduce another 4 months. Now your sentence is 12 months imprisonment.

15. Considering fact that your 1st young offender this court thinks you deserved partial custodial sentence. In the case authority Nariva v The State [2006] FJHC 6; HAA0148J.2005S (9 February 2006) learned Judge Nazhat Shameem stated:

"The Courts must always make every effort to keep young first offenders out of prison. Prisons do not always rehabilitate the young offender. Non-custodial measures should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preferences to imprisonment".

16. Therefore you will serve 3 months out of 12 months sentence and remaining 9 months will be suspended it for 2 years. If you committed another offence during the operation of suspended sentence, this sentence will be activated and will run consecutively with next sentence.

17. In addition, under the section 31(1) of the Sentencing and Penalties Decree No 42 0f 2009 I impose fine of FJD 200 on you in default 20 days imprisonment. 28 days to pay the fine.

18. Summary of your Sentence:

12 months imprisonment; 3 months to be served and remaining 9 months to be suspended for 2 years. In addition $200 fine to be paid . I/D 20 days imprisonment.
19. 28 days to appeal.

On 25th January 2016 at Suva, Fiji Islands

Neil Rupasinghe
Resident Magistrate