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Public Prosecutor v Winslett [2002] VUSC 47; Criminal Case No 033 of 2002 (22 July 2002)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Criminal Jurisdiction)

CRIMINAL CASE No.33 OF 2002

PUBLIC PROSECUTOR

-v-

RAYMOND GEORGE WINSLETT

SEAN GEORGE WINSLETT

Coram: Chief Justice Lunabek

Mr. John Cauchi for the Public Prosecutor

Mr. Robert Sugden for the Defendants

SENTENCE

The defendants, Raymond George Winslett and his son Sean George Winslett are each and both charged initially with three counts, namely:-

1. Making false declaration, contrary to Section 76 of the Penal Code Act [CAP. 135] (Count 1);

2. Providing false information, contrary to Section 22 (1) (a) of the Immigration Act [Cap. 66] (Count 2);

3. Making false statement, contrary to Section 4 (2) of the Business Licence Act [CAP. 173] (Count 3).

On 4^th July 2002, a guilty plea was entered by defence counsel on each of the three counts on behalf of the two defendants. The sentence was adjourned to 19^th July 2002.

On 19^th July 2002, the Prosecution withdrew count 3 against each and both of the defendants. The guilty plea entered was confirmed by counsel on behalf of the defendants in respect to Counts 1 and 2. Each and both defendants as charged separately on the two (2) counts.

The brief facts surrounding this case are that both defendants applied for residency permits (defendant Raymond George Winslett on 18^th October 2001 and defendant Sean George Winslett on 28^th November 2001). Part of the applications for residency contained a statutory declaration under new Section 9 A (2) (b) (i) schedule 2 of the Immigration Act [CAP. 66] (as amended).

Paragraph 2 of the Statutory Declaration requires each applicant to disclose any criminal offences the applicant has been convicted of during the past 10 years.

The charge in Count 1 against the defendant, Raymond George Winslett is of making false declaration, contrary to Section 76 of the Penal Code Act [CAP. 135] and the particulars of which are that:-

“Raymond George Winslett, on the 18^th of October 2001 at Port Vila, made a false declaration to the Principal Immigration officer where he stated that he had no previous criminal convictions thereby inducing the Principal Immigration Officer to issue him with a permit to reside in Vanuatu.”

IN THE ALTERNATIVE

It was particularised in count 2 that Raymond George Winslett, at Port Vila, provided false and misleading information with the intention of deceiving an immigration officer and inducing that officer to issue him with a permit to reside in Vanuatu, contrary to section 22(1) of the Immigration Act [CAP.66].

The charge in count 1 against the defendant, Sean George Winslett, is of making false declaration, contrary to Section 76 of the Penal Code Act [CAP. 135] and the particulars of which are that:-

“On 28^th November 2001 at Port Vila, Sean George Winslett made a false declaration to the Principal Immigration officer where he stated that he had no previous criminal convictions thereby inducing the Principal Immigration officer to issue him with a permit to reside in Vanuatu.”

IN THE ALTERNATIVE

It was particularised in count 2, that Sean George Winslett, at Port Vila, provided false and misleading information with the intention of deceiving an Immigration officer and inducing that officer to issue him with a permit to reside in Vanuatu, contrary to section 22(1) of the Immigration Act [CAP.66].

The following criminal charged and convictions were recorded against EACH OF THE Defendants. The details are contained in the information attached tot he Preliminary Inquiry material.

(1) Defendant Raymond George Winslett:

Court	Charges Heard	Court Results
(a) Downing Local Centre Court N.S.W.	Goods in custody	Offence date: 29/07/1996 Convicted see detailed in the PI information.
(b) Brisbane Supreme Court, Qld. CN: 16/12/1998	Supply dangerous drugs to another	Offence date: 16/02/1997 Sentenced to 2 & ˝ years imprisonment wholly suspended for a period of 3 years. (details in PI information paper)
(c) Sydney District Court N. S. W. CN: 23/10/1998	Make false statement with intent to obtain financial advantage Make false statement with intent to obtain financial advantage. Make false instrument (3 counts)	Convicted (see details on information PI) On each counts convicted (see details in PI as attached)

Court	Charge Heard	Court Results
(d) Melbourne County Court Vic.	Attempted to obtain proports by deception	Sentenced to 2 years imprisonment and suspended. (See details in the PI information paper).
(e) Sydney District Court N. S. W.	Use of false instrument. Attempted to use false instrument Open account in false name Court of criminal appeal, NSW, 1994 application for leave to appeal against convictions and severity of sentence imposed on 26th March 1993	On each counts sentenced to a term of 2 years imprisonment. 30 May 1993. Additional term 8 months imprisonment, 30 May 1993. Sentenced to fixed term 6 months imprisonment, 30 May 1993 Court has ordered that the application for leave is refused whole of time serve to count. (See details in PI information paper).
(f) Parramatta District Court NSW	Obtain benefit by deception Attempted to obtain benefit by deception (4 counts) Obtain benefit by deception (3 counts) Wilfully swear false affidavits	Sentenced to minimum 2 years imp. May 1991. Additional term: 8 months imp. On each count sentenced to fixed term of 18 months imp. Sentenced to fixed term of 6 months imp. 5 November 1990.

Defendant Sean George Winslett

Court	Charges Heard	Court Results
(a) Roochydore Magistrate’s Court Qld.	¨ Possess property that may reasonably be suspected of being tainted property. ¨ Possess property suspected of having been used in connection with the commission of a drug offence. ¨ Possess dangerous drugs. ¨ Possess utensils or pipes	22/07/2000 On all charges: one penalty imposed. No conviction recorded. Fined. (See details in PI information paper).
(b) Averley Local Court N. S. W. 1998	Goods in custody reasonably suspected of being stolen (3 charges) Open bank account in a false name 8 December 1997 custody of false instrument (driver’s licence)	On each charge convicted. See details in information paper. Community service order Fined
(c) Magistrate’s Court 08/1996	Exceed speed limit.	Fined
(d) Sydney District Court	Cultivate prohibited drug (cannabis) Supply prohibited drug	Community service Convicted (see details in PI information paper).

The defence counsel put forward the following mitigating factors.

As to Raymond George Winslett

- He is a police informant by Australian Authority.

- He has arranged to make life here with his son and partner. No steps taken by Australian Authority

- Authority waited 4 months to provide him with a residency permit. It is not his fault. He was expected good treatment by the Government of Australia.

- Apart from imprisonment sentence or fine, Raymond George Winslett is facing a penalty that his residency permit can be cancelled.

Sean George Winslett

He is a drug addict. He came to Vanuatu as curing destination for his drugs problems. He will lose his residency.

In respect to both Defendants, the defence counsel has spent some substantial time to put forward investments made by the two (2) defendants in Vanuatu which are worthy considerable sums of Vatu. The investment constitutes a good opportunity for Vanuatu and its people. They provide local employment, jobs to local people in particular people from Pango Village, Efate, where the Defendants build the “Breakers Resort”, which is one of the seven (7) business activities of the Defendants as it is reflected in the Business Portfolio annexed by the Defence as Exhibit D1. The Business Portfolio sets out the 7 Business activities in more details. It transpires that some of the activities are partly done. Others are development plans agreed on and others are business projections for the future.

The defence counsel provided also to the Court a letter written by some people from Pango Village, Efate, requesting for the Court leniency in the sentencing of the two (2) defendants.

I have taken all that into account. However, the offence as charged in Count 1 carries a maximum penalty of 3 years imprisonment. It is a serious offence. A tem of imprisonment is appropriate sentence for this type of offence. If the matter goes to trial, then, the appropriate sentence shall be 6 months imprisonment. In this case, I take account of the guilty pleas of the defendants. The adequate sentence to be imposed is 3 months imprisonment. I am considering also to suspend the sentence. However, I do not think it will be the right thing to do in the circumstances of this case.

Both defendants are convicted as charged in count 1 and sentenced in the following way:

§ Defendant Raymond George Winslett is convicted and discharged under Section 42 of the Penal Code Act [CAP. 135].

The reason being that on the face of the charge, he did not make any statement on the statutory declaration.

The part of the statutory declaration which he was supposed to fill in by disclosing the criminal charges he was convicted of over the past 10 years, he left it blank. The prohibition or criminal allegation, contrary to section 76 of the Penal Code Act, is that the defendant made a false declaration. The defendant Raymond George Winslett made no declaration. He could not be penalised of what he has not done. In effect, it is for the Immigration Officer to check and require the defendant Raymond George Winslett to write done his answer to the question as asked but not to leave it blank.

§ Defendant Sean George Winslett is sentenced to 3 months imprisonment.

The defendant Sean George Winslett has crossed the part that he was required to fill in by disclosing his criminal convictions over the past 10 years. This means that he has no criminal convictions which is a false information and as such is penalised under section 76 of the Penal Code Act [CAP/135].

Defendant Sean George Winslett shall serve the 3 months imprisonment with immediate effect.

As to Count 2 as charged against each and both defendants as alternative to Count 1, the following convictions and sentences are recorded against each and both of them:-

Ř No conviction entered against the defendant Sean George Winslett under section 43 of the Penal Code Act [CAP.135].

Ř A sentence of 3 months imprisonment against the defendant Raymond George Winslett and with immediate effect.

14 days to appeal.

Dated at Port Vila, this 22^nd day of July 2002.

BY THE COURT

Vincent LUNABEK

Chief Justice