The balance between proper punishment and costs to the state was debated in Summary Court on Tuesday when a Jamaican national pleaded guilty to overstaying for six years. After passing a sentence of eight months imprisonment, Magistrate Valdis Foldats wondered if amnesty would encourage overstayers to leave.
Joseph Milton Messan, 59, was charged with remaining in Cayman from 2012 to 2018 after his work permit expired and was not renewed.
Senior Crown counsel Candia James said Immigration officers were on patrol in West Bay on June 19 when they saw Mr. Messan. He resembled “a person of interest,” so they asked him for identification. A check with Immigration headquarters revealed that Mr. Messan had no status on the island.
In interview, he admitted being in Cayman illegally and working “sporadically.”
In court, Mr. Messan declined the offer of an attorney to assist him. He told the magistrate he had worked in the water sports industry as bus driver, boat captain and mechanic. He said when his boss got sick, the business stopped and never started back.
Asked how he had supported himself for six years, he said he did “side work” as a mechanic. He also advised the court that he had two children in Cayman that he had to pay maintenance for until they are 18.
Ms. James said the maximum penalty for overstaying is five years and a fine of $30,000. In this case, it did not seem that the defendant was able to pay any penalty. She said a deportation order was contemplated rather than keeping him here.
The magistrate asked, “What message does it send to other people if he goes home and says, ‘Hey, I overstayed for six years and got a free ride home!’ There should be some penalty.”
He pointed to a tension between competing values – paying to keep someone in prison versus not having a deterrent. He urged authorities to think outside the box. Maybe there could be a sentence that would impose full-time community service, with the guilty person being kept at the Immigration Detention Centre but allowed out to work.
“I think we can all agree there are a number of people who have overstayed and not been caught,” he commented later. “There might be an amnesty. People might be encouraged to give themselves up.”
Ms. James said the officers present could take that idea back to their superiors.
Speaking to the defendant, the magistrate said, “Your case presents a number of difficulties. You were breaking the law for six years. The court wants to send a message to you and to other like-minded individuals. The court normally sends the message through a jail sentence. The difficulty the court struggles with: keeping you in jail costs money. If we keep you, we have to feed and shelter you at significant costs. But if we send you home, there is no punishment.”
The magistrate decided that the offense was grave and there had to be a deterrent. It would cost the country, but there had to be punishment. He hoped that news of what happened in court would get back to the defendant’s home country. With a starting point of 12 months’ imprisonment, he gave a one-third discount for the guilty plea. The result was a sentence of eight months.
Mr. Messan said what really had kept him here was paying maintenance for his children.
The magistrate replied, “You should have gone to Immigration and got a stamp in your passport.”
An informal check of Cayman Compass archives indicates that an overstayer amnesty was held in July 2010. The newspaper reported that 67 males and 20 females were allowed to leave without prosecution. Of that total of 87, 50 were from Jamaica, 10 from the U.S. and the rest from 13 other countries.
There was also an amnesty in December 2005, which was extended to Jan. 6, 2006. A complete figure was not readily available, but as of Dec. 23, 2005, 39 people had left without prosecution.
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