When United States fisherman Michael Foy went to trial early this month, his defence team argued that he was innocent of all three charges against him: illegal entry, arriving at a place other than a customs port, and operating an unlicensed or unregulated fishing vessel.
The fishing charge was dismissed on Oct. 9 by Magistrate Christilyn Benjamin, who agreed with defence counsel Patrick Thompson’s argument that the prosecution, led by Crown Counsel Kael London, did not provide sufficient evidence to prove its case on that allegation.
Until last week, however, Mr. Foy continued to maintain his innocence on the other charges.
But the fisherman changed course Oct. 28, pleading guilty to illegal entry and arriving at a place other than a customs port, while Mr. Thompson asked for lenient sentencing given Mr. Foy’s previously clean record and contention that he did not intend to commit any of the crimes for which he was charged.
Illegal entry carries a maximum fine of $1,000 and a prison sentence of up to 12 months, said Mr. Thompson, who asked that the custodial sentence be lowered for his client.
Having been arrested in June and having received bail early this month, Mr. Foy had already spent about four months at Her Majesty’s Prison, which Mr. Thompson argued should suffice as a custodial penalty for illegal entry.
“In our submission, that is a significant penalty for a man such as Mr. Foy,” the attorney said, adding, “Any further imprisonment, we submit, would be a grave injustice to Mr. Foy.”
Mr. Thompson also argued that his client should not have to pay the maximum fine of $10,000 for arriving at a place other than a customs port.
Instead, he should be fined $4,628.27, the amount it cost to stow his boat during his imprisonment, the lawyer suggested.
Mr. Thompson also asked that the boat be returned to Mr. Foy after he pays that sum.
Should Ms. Benjamin allow the fisherman to pay this fine in exchange for his boat, the lawyer argued, it should be considered as “part and parcel of any fine that is levied against this defendant.”
He added, “We would not wish … for the court, say, to impose a fine of $9,000, and then levy a further $4,468.27 on Mr. Foy.”
No boat forfeiture
Mr. London, however, argued that the fact that Director of Public Prosecutions Tiffany Scatliffe-Esprit does not intend to pursue forfeiture of Mr. Foy’s boat should be seen as a measure of “relief ” for Mr. Foy.
The prosecutor added that he did not have many aggravating factors to list, other than the fact that Mr. Foy’s arrest occurred during the territory-wide lockdown to stem the spread of Covid-19.
According to Mr. Thompson, it is precisely because of the pandemic — and because Mr. Foy’s usual methods of obtaining clearance into the territory failed him — that he unintentionally arrived in the territory when he did.
“It is not as though this is a matter … of noncompliance with the territory’s laws,” Mr. Thompson said, adding, “He is a law-abiding citizen … who has lived and done his level best and simply as a result of this chain of events largely beyond his control, he has found himself before this court.”
Ms. Benjamin is expected to hand down the sentence Friday morning.
Mr. Foy was detained near Norman Island on June 8, after police officers approached his boat, the Rebel Lady.
The next day, he was interviewed at the Road Town Police Station and later sent to Her Majesty’s Prison, where he remained until early October, Mr. Thompson told the court yesterday.
Meanwhile, Mr. Foy’s four Indonesian crewmembers were confined to the boat before being moved to hotels in the territory, and eventually sent back home at the beginning of this month. As Mr. Foy’s case went to trial, Mr. London alleged that Mr. Foy was guilty of all charges, in part because he allegedly arrived in the territory without written permission, failed to alert the authorities upon his arrival, and was operating a fishing vessel at the time of his detainment.
Mr. Thompson, however, initially contended that Mr. Foy was innocent of all charges, claiming that his client never entered illegally because he did not step foot on land, and was protected under a provision in the law that allows people in distress to enter the territory.
He also argued that the Crown did not submit sufficient evidence to prove that Mr. Foy was actively fishing when he was detained, a position with which Ms. Benjamin agreed.
On Oct. 9, Ms. Benjamin dismissed the fishing charge, but ruled that Mr. Foy still must answer for the two others.
Outcry from members of Mr. Foy’s family, who alleged that he experienced harsh conditions at the hands of VI officials, prompted two senators and one congressman from New Jersey to send a letter to Deputy Governor David Archer Jr., warning that they will be monitoring Mr. Foy’s case and that they expect fair treatment.