Serious offences involved numerous deceits, judge says on appeal
A woman sentenced to serve 74 days in prison for immigration offences had her appeal dismissed when she took the matter to Grand Court.
Josefina Protacio had pleaded guilty in Summary Court, where Magistrate Kirsty-Ann Gunn took into account the stated motive for committing the offences — the defendant, a native of the Philippines, said she wanted to come to Cayman to see her daughter and granddaughter.
The matter was dealt with in Summary Court on 19 November and Justice Charles Quin heard the appeal nine days later. He released his reasons last week.
He pointed out that, although Protacio said that her reason for visiting Cayman was to see her daughter and granddaughter, considerable preparation went into creating the irregular passport and then great care and planning were put into applications for a temporary work permit and then for a 12-month work permit. The judge said these were serious offences and involved deceit on more than one occasion.
Protacio admitted using her sister’s genuine documents and submitting them with her own photo in order to get a passport in her sister’s name, Estrellita Marturillas, with a birth date in October 1956. She arrived in Cayman in September 2011 with this passport issued by the Republic of the Philippines.
Meanwhile, a Caymanian woman had applied in July 2011 for a temporary permit for a domestic helper named Estrellita Marturillas. The permit was granted and was valid until December 2011.
In March 2012, the Caymanian woman applied for a one-year permit for Estrellita. As part of the application Protacio signed her sister’s name to a declaration that the contents of the application were true. The permit was granted until March 2013.
Meanwhile, in May 2012, Protacio’s husband came to Cayman on his own work permit.
The Immigration Department received information in July 2012 and as a result went to the home of Protacio’s daughter. The defendant answered the door and initially identified herself as Estrellita. However, when interviewed under caution, she admitted she was Josefina. She said she had used her sister’s documents because her own birth certificate was inaccurate and she had been told it would take several years to rectify.
Authorities learned that Protacio’s daughter had been in Cayman since 2007. She married a Caymanian in 2009 and the couple had a child in 2010. The daughter had been unable to return to the Philippines because of financial constraints.
Protacio pleaded guilty to using an irregular passport, entering Cayman illegally, making a false representation on the work permit application and failing to answer truthfully when an immigration officer asked her name.
Attorney Ben Tonner argued that the prison term was wrong in principle, partly because of exceptional circumstances. Two months after Protacio’s arrest, her husband suffered a seizure and was rushed to hospital, where it was discovered he had a tumour on his brain. He was airlifted to the Philippines in Early October 2012, underwent surgery and was now convalescing.
Mr. Tonner said a custodial sentence prevented Protacio from immediately returning to her husband, making the sentence disproportionately harsh, unfair and unjust.
Crown Counsel Matthew Coles responded, citing local and UK laws and submitting that the magistrate did not err in imposing the term of imprisonment. In the UK, he noted, possession of false identity documents with improper intent has a maximum sentence of 10 years.
Justice Quin noted that the magistrate had followed the general principles pertaining to passport offences. One is that possession of a false passport with intent to gain entry to a jurisdiction is more serious than having a false passport to get a job or open a bank account. In cases of possession to gain entry, a deterrent sentence is required.
Another principle is that custody is appropriate even following a guilty plea by a person of good character.
Third, passport offences are considered serious because they undermine proper immigration control. This is of particular importance for the Cayman Islands given its size, economy and population.
Justice Quin added that the sentencing magistrate did consider the medical condition of Protacio’s husband, but recorded that she was advised he had received the necessary medical treatment and was soon to be released from hospital. While expressing some sympathy, the magistrate did not consider the circumstances so unusual or exceptional as to justify suspending a custodial sentence.
He agreed with the immediate prison sentence and repeated the magistrate’s statement: “A deterrent sentence must be appropriate to send a strong message to others that offences of this type will not be tolerated.