Key issue to be resolved is factual basis of plea, magistrate says
Parties will return to court on Tuesday, 28 August, in the case of Midland Acres Ltd. and company director Suresh Prasad, charged with importing explosives without authorisation.
Attorney George Keightley, continuing the defence begun by colleague Nicholas Dixey, described the offences as regulatory and procedural. “We will plead to the charges as put, if we get that far,” he told Magistrate Valdis Foldats on Wednesday afternoon.
The qualifier “if we get that far” referred to the preliminary point Mr. Dixey and Crown Counsel Candia James had agreed to argue – whether the defence could apply to the magistrate for an indication of what the maximum sentence would be if the defendant pleaded guilty (Caymanian Compass, 20 August).
After hearing submissions for more than an hour, the magistrate ruled that, although the Grand Court hears such applications, he in the Summary Court did not have that jurisdiction. “But I am willing to hear informal discussions,” he added.
The rest of the afternoon was spent analysing the sentencing section of The Explosives Law. This law makes it an offence to import any explosives without written authorisation of the managing director of the National Roads Authority. Conviction for this offence carries a sentence of a $1,000 fine and imprisonment for six months, “and the explosive, with respect to which the offence is committed, shall be forfeited to the Crown unless the court, for good reasons, otherwise directs.”
Mr. Keightley said the issue of forfeiture was “central and crucial”. The value of the items imported was around $150,000, he noted. There was also concern about product deterioration, which could lead to a very expensive clean-up operation, the attorney said. (Mr. Dixey previously advised that the shelf life of the items imported was six months.)
The company, Midland Acres, and the director personally are charged with the same four offences of unauthorised importation between 23-28 February 2012: 100 electric detonators and 2,500 non-electric detonators; 2,000 units of nitro-methane Kinepak Liquid all weighing a total of 480 pounds (net); an emulsion containing Ammonium Nitrate and Petroleum Distillates all weighing a total of 50,000 pounds (net); Ammonium Nitrate – Kinepax Solid all weighing a total of 1,734 pounds (net).
Mr. Keightley argued that forfeiture should be ordered when something illegal was done, such as trying to evade customs duty, or when the goods themselves were illegal, such as drugs. He also said that, with a maximum fine of $1,000, forfeiture of goods valued at $150,000 would be out of proportion.
Ms James said that the wording of the law provides for mandatory forfeiture, so there was presumption in favour of forfeiture and it would be for the defence to say what good reasons exist for the goods not to be forfeited. She explained that the law was passed in 1975 and the fine had not been increased since.
The magistrate noted that the Customs Law provides for forfeiture because the offender is attempting to avoid paying. The Marine Conservation Law provides for forfeiture because the offender is trying to enrich himself by taking marine life. Under the Explosives Law, he asked, what is the person trying to avoid, or how is he trying to enrich himself?
A supervisor from the National Roads Authority was present, along with the police investigating officer, and Ms James was advised that there is no fee for an application to import explosives.
She accepted that in this case there was no evasion of a fee or a tax, but said there was avoidance of a regulatory procedure, whether intended or not.
The magistrate said he was amazed when reading the Explosives Law and Regulations at how comprehensive they are in terms of safety concerns. He said he would have to be sure there was no negligence, nothing to affect the safety of the public.
Mr. Keightley said the court was right to focus on the safety aspect – that the items are not stored improperly, that they are not used by an inexperienced person. He suggested that the court could direct the items be released to the sub-contractor who has the appropriate permits to store explosives for Midland Acres and do the blasting.
After Mr. Keightley gave a chronology of events and Ms James said there might be one point of dispute, the magistrate posited a perfect scenario: A company imports explosives for a legitimate, planned purpose and has in place a sub-contractor with the proper licence and permits, but the only error was the company bringing in the goods because of time constraints, when it shouldn’t have been the company, it should have been the sub-contractor.
“I take on board the perfect scenario,” Ms James responded.
The magistrate said if the background to the charges before him was not a perfect scenario, he would need to be told what the situation is. The key issue to be resolved was whether the Crown and Defence will agree on a factual basis of plea, he summarised.
The matter was adjourned until Tuesday, 28 August, at 2pm.