Clive Gurzhii and Julia Gurzhii v R - Summary Court Appeal (SCA) Judgment

¶ 250616 Clive Gurzhii and Julia Gurzhii v R.: SCA 15/24 to 20/24 - Coram: Richards J. K.C. - Summary Court Appeal (SCA) Judgment Page 1 of 21 IN THE GRAND COURT OF THE CAYMAN ISLANDS 1 CRIMINAL DIVISION 2 Neutral Citation Number: [2025] CIGC (Crim) 25 3 Case No: SCA0015 to 0020/2024 4 5 6 CLIVE FREEMAN (AKA CLIVE FITZPATRICK, AKA CLIVE GURZHII) 7 AND JULIA GURZHII 8 9 V. 10 11 REX 12 13 Appearances: Mr. Nicholas Dixey of Nelson Legal for the Appellant Clive 14 Freeman (Aka Clive Fitzpatrick, Aka Clive Gurzhii) 15 Appellant Clive Freeman present 16 Appellant Julia Gurzhii in person -Refuses to Attend 17 Mr. Ben Brown Crown Counsel of the Office of the Director of 18 Public Prosecutions for the Respondent 19 20 Before: The Hon. Justice Cheryll Richards KC 21 22 Submissions Heard: 23rd May 2025 23 Judgment Delivered: 16th June 2025 24 25 Criminal Law – Appeals against convictions and sentences pursuant to s.181 of the Criminal 26 Procedure Code (2021 Revision. Elements of the offence of Human Smuggling contrary to s.66 of 27 the Customs and Border Control Act (2024 Revision, whether complicit dishonesty with passengers 28 is a requirement for the offence. Illegal Landing contrary to s.105 (1) of the Customs and Border 29 Control Act (2024 Revision). Defence of Duress of Circumstances, Evidential burden. Failing to 30 Complete a Disembarkation Card contrary to s. 98 (1) of the Customs and Border Control Act (2024 31 Revision), whether requirement for immediacy. Sentences for Human Smuggling, whether manifestly 32 excessive where two migrants on board vessel. 33 34 250616 Clive Gurzhii and Julia Gurzhii v R.: SCA 15/24 to 20/24 - Coram: Richards J. K.C. - Summary Court Appeal (SCA) Judgment Page 2 of 21 SUMMARY COURT APPEAL JUDGMENT 1 2 PRELIMINARY MATTERS 3 4

¶ [1] There were four preliminary matters upon the commencement of the hearing of this 5 appeal. The Court was advised by Prison Officers from HMP Fairbanks that the second 6 appellant Julia Gurzhii refused to attend in person or by video link. The Court noted that 7 this had been her position on all previous dates for this appeal. Counsel for the first 8 appellant Mr. Clive Gurzhii confirmed that he had previously spoken with Ms. Gurzhii 9 at the request of the Court and advised her of her right to have legal representation. The 10 Court concluded that Ms. Gurzhii had waived her right to be present for her appeal. The 11 position today on delivery of this judgment is that she has also refused to attend. 12 13

¶ [2] Counsel for the appellant Mr. Gurzhii raised two points. Counsel indicated that an 14 application that the appeal proceed by way of a rehearing had been considered and 15 foreshadowed but that his specific instructions are now that no such application is to be 16 made. 17 18

¶ [3] Counsel said that a second point is that from his research, the Human Rights Commission 19 Report on Cuban Migrants of 2013 records consultations involving this tribunal in 20 another capacity. Counsel said that this was noted but no application for recusal was to 21 be made. The appellant was asked to indicate his position in open Court and he stated 22 that he consented to the appeal hearing proceeding before this tribunal. 23 24

¶ [4] The fourth preliminary matter is that the Court noted that in March 2025 at a preparatory 25 hearing, Mr. Gurzhii then appearing in person had asked for certain closed circuit 26 television footage. This was of the areas of the holding cells and corridors of the Court 27 for the dates of the trial 5th, 12th and 30th July 2024 and 9th August 2024. He said that 28 these may have recorded how he and his wife Ms. Gurzhii were treated by officers when 29 they were being taken from the cells to the Court room. The response from inquiries 30 made is that these records are no longer available. Due to data storage capacity these 31 250616 Clive Gurzhii and Julia Gurzhii v R.: SCA 15/24 to 20/24 - Coram: Richards J. K.C. - Summary Court Appeal (SCA) Judgment Page 3 of 21 records are usually kept for no more than ninety days if they are not requested within 1 that period. 2 3 INTRODUCTION TO THE APPEAL 4 5

¶ [5] The appellants appeal their convictions and sentences following trial before the 6 Summary Court. On the 4th September 2024, they were each convicted of three offences 7 as follows: 8 9 i. Charges 01143/24 and 01145/24 charged the appellants separately with the 10 offence of Illegal Landing contrary to s.105 (1) of the Customs and Border 11 Control Act (2024 Revision). The particulars are that each on or before the 12 14th May 2024 landed in the Cayman Islands where such landing was in 13 contravention of the Customs and Border Control Act (2024 Revision). 14 15 ii. Charges 01144/24 and 01146/24 charged the appellants separately with the 16 offence of Failing to Complete a Disembarkation Card contrary to s. 98 (1) 17 of the Customs and Border Control Act (2024 Revision). The particulars 18 are that each on or before the 14th May 2024 having disembarked in the 19 Cayman Islands, failed to complete and hand to an officer immediately on 20 arrival a disembarkation card. 21 22 iii. Charges 01343/24 and 01344/24 charged the appellants separately with the 23 offence of Human Smuggling contrary to s.66 of the Customs and Border 24 Control Act (2024 Revision). The particulars are that each on the 14th May 25 2024, assisted or facilitated in the transportation, harbouring or movement 26 of Tilahun Asseffa Bruke and Kedir Osama Musa into the Islands. 27 28

¶ [6] The trial was heard over three days before the Learned Chief Magistrate (“the 29 Magistrate”). The prosecution called eight witnesses. The appellants declined to 30 participate in or give evidence during the trial. They declared that they did not consent 31 to the jurisdiction of the Court and left the Court room. Arrangements were made for 32 video connections in their cells so that they could hear the evidence. The Prosecution 33 250616 Clive Gurzhii and Julia Gurzhii v R.: SCA 15/24 to 20/24 - Coram: Richards J. K.C. - Summary Court Appeal (SCA) Judgment Page 4 of 21 confirmed to the Summary Court that all relevant papers, bundles and exhibits had been 1 served on each of them. The Magistrate rendered verdicts and sentences on the 5th 2 September 2024. 3 4

¶ [7] On the charge of Human Smuggling, the first appellant was sentenced to 4 years (48 5 months) imprisonment and the second appellant 40 months imprisonment. 6 7

¶ [8] For the offence of Illegal Landing the first appellant was sentenced to 18 months 8 imprisonment and the second appellant to 12 months imprisonment and for the third 9 offence the sentences were 6 months and 4 months respectively. 10 11

¶ [9] Money found on the vessel was ordered confiscated to be returned in part to the two 12 passengers. The appellants were ordered to pay a costs contribution of US$946 with the 13 remainder. The vessel was ordered confiscated. 14 15 NOTICES OF APPEAL 16 17

¶ [10] Both appellants filed Notices of Appeal in person on the 12th September 2024. These 18 were identical as to grounds of appeal as follows: - 19 i. No due process of law. 20 ii. No evidence of a crime. 21 iii. Unsafe conviction. 22 iv. Miscarriage of justice. 23 v. Breach and or incompatibility of s.7 when read together with s.3 of the Cayman 24 Islands Constitution Order 2009. 25 vi. Against Human Rights. 26 vii. Missing full disclosure. 27 viii. Sentence is manifestly excessive and wrong in principle. 28 ix. Magistrate failed to follow statutory guidelines. 29 30 31 32 33 34 250616 Clive Gurzhii and Julia Gurzhii v R.: SCA 15/24 to 20/24 - Coram: Richards J. K.C. - Summary Court Appeal (SCA) Judgment Page 5 of 21 SUMMARY OF THE EVIDENCE 1 2

¶ [11] The evidence may be summarised as follows. The appellants are foreign nationals. At 3 about 10:30am on the morning of the 14th May 2024, Customs and Border Control 4 officers on Cayman Brac received information about a foreign vessel, a yacht which was 5 moored to the dock on the West End of the Islands. It bore the name “Moon Dancer” 6 which was not a name in the Cayman Islands Border Control system. The officers 7 attended the dock and as there was no visible activity on board, they went into the town 8 in search of the occupants of the vessel. They found the two appellants in the deli of a 9 supermarket having a meal. They had a young child with them. Mr. Gurzhii identified 10 himself as the captain of the vessel and confirmed that he had not undertaken the 11 clearance process. 12 13

¶ [12] He was advised that he should have stayed on board and contacted Border Control and 14 that they would have to be taken back to the vessel and the clearance process completed. 15 16

¶ [13] Mr. Gurzhii was handed a blank form which he filled out and signed as the master of the 17 vessel. It listed himself and Ms. Gurzhii as the only two passengers. Both appellants 18 were given disembarkation cards which they completed. They indicated that their 19 passports and travel documents had been stolen. When asked for the registration 20 documents for the vessel, Mr. Gurzhii said that there were on board. When the officers 21 indicated that they would be boarding the vessel, both appellants became agitated. Ms. 22 Gurzhii repeated the things that Mr. Gurzhii was saying. The evidence of officer Claude 23 Terry is that they started to accuse the officers of wanting to steal their child and of 24 operating outside their jurisdiction. Both said that they wanted to leave, and according 25 to the witnesses it became almost hostile. The two attempted to leave and the officers 26 prevented them from doing so. 27 28

¶ [14] On boarding the vessel, the officers found that there was a padlock to the entry way. 29 They removed the padlock and entered. Two Ethiopian men Mr. Bruke and Mr. Musa 30 were found inside. The two men gave evidence at trial that they were travelling from 31 Saint Martin to Honduras and had paid the appellants about Euro $5000 to transport 32 250616 Clive Gurzhii and Julia Gurzhii v R.: SCA 15/24 to 20/24 - Coram: Richards J. K.C. - Summary Court Appeal (SCA) Judgment Page 6 of 21 them. Ms. Gurzhii had been a part of the discussion about the amount to be paid. She 1 had told Mr. Gurzhii that he should charge them more. 2 3

¶ [15] The men said that they had made a previous stop in the Virgin Islands and had been 4 locked inside the boat by Mr. Gurzhii who had told them that he did not want them to be 5 ‘shown’ or to be visible. They were told that if any officers came to the boat, they were 6 to say that they were janitors. There was detailed evidence given about the nature of the 7 treatment which they received at the hands of the two appellants while on board. 8 9

¶ [16] The men said that they did not know that they were going to the Cayman Islands. Mr. 10 Bruke testified that neither of the two (Mr. and Mrs. Gurzhii) said anything to them about 11 the reason that they were going to the Cayman Islands, but he noticed when they stopped 12 that there was no fuel and the food was finished. 13 14

¶ [17] When they arrived in the Cayman Islands, they were taken from the outside to the inside 15 of the boat. They usually stayed on the outside of the boat to sleep and travel. They were 16 locked inside the boat and the three of them, Mr. and Mrs. Gurzhii and the child left the 17 boat. Mr. and Mrs. Gurzhii took some bags with them and something to buy fuel. 18 19

¶ [18] Officer Claude Terry testified that in the course of speaking with Mr. Gurzhii, Mr. 20 Gurzhii did say that he was having issues with his vessel with the engine overheating, 21 that they were very low on water and that he essentially drifted to Cayman Brac. 22 23

¶ [19] On board the vessel the officers found the Certificate of Registration and Insurance for 24 the vessel. Both were in the name of Mr. Gurzhii. 25 26 THE LAW 27 28

¶ [20] Section 105 (1) of the Customs and Border Control Act (2024 Revision) (“the Act’) 29 provides for the offence of Illegal Landing. It states: - 30 31 “(1) A person who — 32 (a) lands or attempts to land in the Islands; 33 (b) does any act preparatory to landing in the Islands; or 34 250616 Clive Gurzhii and Julia Gurzhii v R.: SCA 15/24 to 20/24 - Coram: Richards J. K.C. - Summary Court Appeal (SCA) Judgment Page 7 of 21 (c) remains or resides in the Islands, 1 where such landing, preparing, remaining or residing is or would be in 2 contravention of this Act, commits an offence and is liable on summary 3 conviction to a fine of twenty thousand dollars and to imprisonment for five 4 years. 5 (2) A person who — 6 (a) knowingly assists or causes another to land in, or to depart from, the 7 Islands; 8 (b) connives in such landing or departure; or 9 (c) wilfully does an act preparatory to paragraph (a) or (b), whether or not 10 that other person knew that there was a contravention of this Act, in 11 circumstances where such landing or departure is, or would be, in 12 contravention of this Act, commits an offence and is liable on summary 13 conviction to a fine of fifty thousand dollars and to imprisonment for 14 seven years. 15 (3) The court before which a person is convicted of an offence under 16 subsection (2) may order the forfeiture of a vehicle or vessel used or 17 intended to be used in connection with the offence if the convicted person 18 — (a) owned the vehicle or vessel at the time the offence was committed; 19 …” 20 21

¶ [21] Section 2 of the Act provides the definition of “land”. It states: - 22 23 ““land” means to go to, to be, to remain or to reside in any place in the Islands other 24 than — 25 (a) on board a vessel; or 26 (b) in a place under the control of an officer in the officer’s official capacity;” 27 28

¶ [22] Section 98 of the Act imposes a requirement to complete a disembarkation card 29 immediately on arrival: 30 31 “98. (1) Subject to subsection (4), a person who, disembarking in or leaving the 32 Islands, fails to complete and hand to an officer, immediately on arrival or 33 250616 Clive Gurzhii and Julia Gurzhii v R.: SCA 15/24 to 20/24 - Coram: Richards J. K.C. - Summary Court Appeal (SCA) Judgment Page 8 of 21 departure, a disembarkation card or embarkation card, as the case may be, 1 in the prescribed form commits an offence.” 2 3

¶ [23] Arrival is defined in the Act as meaning arrival in a port or in an airport or in an area 4 within the territorial limit of the Islands. 5 6

¶ [24] Section 66 of the Act provides for the offence of Human Smuggling. It states: 7 8 “ (1) A person who, in contravention of this Act and whether for financial or 9 material benefit or not, assists or facilitates the transportation, harbouring or 10 movement into or out of the Islands, of an individual commits an offence 11 and is liable on summary conviction to a fine of fifty thousand dollars and 12 to imprisonment for seven years. 13 14 (2) Subsection (1) applies to anything done — (a) in the Islands; or (b) outside 15 the Islands by a body incorporated under the law of the Islands.” 16 17

¶ [25] The Court’s powers on an appeal from a decision of the Summary Court are set out in 18 s.181 of the Criminal Procedure Code (2021 Revision): - 19 20 “The court may adjourn the hearing of the appeal, and may, upon the hearing 21 thereof confirm, reverse, vary or modify the decision of the Summary Court, 22 including the passing of some other sentence (whether more or less severe) or 23 remit the matter to the Summary Court for retrial, or may make such other 24 order in the matter as it may think just, and may, by such order, exercise any 25 power which the Summary Court might have exercised, and such order shall 26 have the same effect and may be enforced in the same manner as if it had been 27 made by the Summary Court: Provided that the court may, notwithstanding 28 that it is of the opinion that the point raised in the appeal might be decided in 29 favour of the appellant, dismiss the appeal if the court considers that no 30 substantial miscarriage of justice has actually occurred.” 31 32 33 250616 Clive Gurzhii and Julia Gurzhii v R.: SCA 15/24 to 20/24 - Coram: Richards J. K.C. - Summary Court Appeal (SCA) Judgment Page 9 of 21 THE GROUNDS OF APPEAL 1 2

¶ [26] Notwithstanding the absence of the second appellant, I have considered the general 3 grounds of appeal as filed and the specific grounds as argued in so far as they may touch 4 and concern the safety of her convictions and the appropriateness of the sentences 5 imposed upon her. 6 7

¶ [27] The appellants’ first and primary ground of appeal as argued before this Court is that the 8 Magistrate failed to correctly identify the elements of the offence of Human Smuggling 9 and thus the convictions for that offence are unsafe and should be set aside. 10 11

¶ [28] The Magistrate stated that: 12 13 “Accordingly, the Crown needed to prove that the defendants, having facilitated the 14 transportation of an individual, arrived in the Islands with such individuals and they 15 did not declare such individuals on any forms.” 16 17

¶ [29] Counsel for the first appellant submits that in fact the offence requires the following 18 elements: 19 20 i. The agency of the passenger in a scheme of complicit dishonesty or put 21 another way an arrangement with the passengers concerned. 22 23 ii. The identification of a breach or intended breach of a specific immigration 24 provision by the passengers of the vessel. 25 26 iii. The intention by the passengers to enter the Islands whether illegally or 27 otherwise or to breach the Act. 28 29

¶ [30] Counsel submitted that the alternative would mean that any master who provided a false 30 passenger manifest which did not include the names of passengers would be guilty of 31 the offence whether or not it was by arrangement with those passengers. 32 33 250616 Clive Gurzhii and Julia Gurzhii v R.: SCA 15/24 to 20/24 - Coram: Richards J. K.C. - Summary Court Appeal (SCA) Judgment Page 10 of 21

¶ [31] Counsel said that it is an essential element of the offence for there to have been a breach 1 committed by Mr. Bruke and Mr. Musa and for this breach to have been identified in 2 circumstances where they had no intention to land. 3 4

¶ [32] Counsel submitted that the offence under the Act is really about assisting and facilitating 5 illegal immigration into the Islands and that: - 6 7 “…the correct construction requires a scheme, where the offender is a facilitator, 8 assisting passengers to illegally enter the Islands undetected. To help to move a 9 person secretly across a border is a violation of state sovereignty, and that is the 10 mischief the section aims to address.” 11 12

¶ [33] Counsel said that there would be no need for the reference to financial benefit or reward 13 in the section if complicit dishonesty was not required. 14 15

¶ [34] Counsel for the appellant helpfully provided the legislative history of the offence of 16 Human Smuggling as having been first enacted by the Immigration (Amendment) (No. 17 2) Law 2006 before being subsequently placed in the Customs and Border Control Act. 18 Counsel submitted that it is clear from its history that the legislative purpose is to prevent 19 secret illegal immigration. 20 21

¶ [35] Counsel drew an analogy between the section in the Cayman Islands legislation and 22 section 25 of the United Kingdom Immigration Act 1971. Section 25 states: 23 24 “(1)A person commits an offence if he— 25 (a) does an act which facilitates the commission of a breach or attempted 26 breach of immigration law by an individual who is not a national of the 27 United Kingdom, 28 29 (b) knows or has reasonable cause for believing that the act facilitates the 30 commission of a breach or attempted breach of immigration law by the 31 individual, and 32 33 250616 Clive Gurzhii and Julia Gurzhii v R.: SCA 15/24 to 20/24 - Coram: Richards J. K.C. - Summary Court Appeal (SCA) Judgment Page 11 of 21 (c) knows or has reasonable cause for believing that the individual is not a 1 national of the United Kingdom.” 2 3

¶ [36] Counsel submitted that it is accepted that the two provisions are not identical and that 4 perhaps the need for complicit dishonesty is more clearly set out in the United Kingdom 5 statute. Reliance is placed on two cases from the English Court of Appeal, R v Bani and 6 other related cases1 and R v Kaile (Joginder Singh)2. 7 8

¶ [37] In the first case the Court held that proof was required that the defendant knew or had 9 reasonable cause to believe that the migrant passenger had at least a contingent unlawful 10 intention to enter the United Kingdom. In the second that the alleged breach of the 11 immigration law by the passenger has to be stated clearly and it was not. 12 13

¶ [38] Counsel noted the uncontested evidence as to the poor treatment of the two passengers 14 in the instant case but said that from the evidence it is clear that they were in the Islands 15 against their will. They wanted to go to Honduras, and they were not here as part of a 16 plot to smuggle themselves into the Islands. They had no intention of breaching the laws 17 of the Islands. Counsel said in oral submissions that there is no evidence that their 18 passage to Honduras was unlawful and no evidence as to the legality of their arrival or 19 travel to Honduras. Counsel said that a more appropriate offence which may have been 20 charged in this case may have been the offence of Wrongful Confinement. 21 22

¶ [39] Counsel for the Respondent submitted in reply that the Magistrate was correct in setting 23 out the elements of the offence. Counsel said that by s.3(2) of the Interpretation Act 24 (1995 Revision) every local law is to be interpreted according to its plain reading. It 25 states: - 26 27 “ (2) Every local law of the Islands shall be carried out and applied according 28 to the plain reading, and not according to any private construction, and any 29 private construction influencing a decision in any case shall be deemed a 30 sufficient cause for appeal or new trial or counter prosecution.” 31 1 [2021] EWCA Crim 1958 2 [2009] EWCA Crim 2868 250616 Clive Gurzhii and Julia Gurzhii v R.: SCA 15/24 to 20/24 - Coram: Richards J. K.C. - Summary Court Appeal (SCA) Judgment Page 12 of 21

¶ [40] Counsel submitted that the s.66 offence does not require that the transported person 1 intends to breach immigration law, neither is there a requirement for an element of 2 complicit dishonesty between the transporter and the passenger. Counsel said that the 3 offence does not require some evidence of a plot to smuggle passengers into the Islands 4 and that Counsel for the appellant is inviting the Court to read into the legislation 5 additional requirements which are not there. 6 7

¶ [41] I have given consideration to the evidence, submissions and the materials. Counsel for 8 the appellant has provided additional background material in the form of Bills, 9 discussion papers and a Human Rights Commission 2013 Report. While these may be 10 helpful aids to interpretation, I do not consider that these are necessary or ought to be 11 adverted to in a case where the statute is plain on its face. 12 13

¶ [42] The offence in the United Kingdom is an act facilitating the commission or attempted 14 commission of a breach of immigration law by an offender who knows or has reasonable 15 cause to believe that the act which he does will have that effect. The offending therefore 16 focuses on the other person or passenger who is committing the breach of the 17 immigration law. 18 19

¶ [43] The Cayman Islands provision does not speak to assisting or facilitating a breach. The 20 focus is on the offender who acts in contravention of the Act by transporting, harbouring 21 or movement into or out of the Islands. To prove the offence, the section of the Act 22 contravened should be identified and there must have been transportation, harbouring or 23 movement of an individual into or out of the Islands. 24 25

¶ [44] This is not a section focused on smuggling a person into the country as detailed in the 26 cited cases which considered migrant boats entering the United Kingdom with persons 27 seeking asylum. The Cayman Islands provision relates to persons coming into or out of 28 the Cayman Islands in breach of the Act. 29 30

¶ [45] While it would have been helpful to have identified in the particulars of the offences the 31 nature of the contravention of the Act, it was plain on the evidence that it was a failure 32 to declare the two passengers who were transported or moved into the Islands. The 33 250616 Clive Gurzhii and Julia Gurzhii v R.: SCA 15/24 to 20/24 - Coram: Richards J. K.C. - Summary Court Appeal (SCA) Judgment Page 13 of 21 passengers were concealed from the Immigration Authorities by a pre-agreed plan which 1 was effected on arrival. 2 3

¶ [46] Section 86 of the Act places an onus on the Master of a vessel to complete onward 4 passenger and crew manifests. It states: 5 6 “86. (1) Every master, the local agent or the captain of every vessel arriving in the 7 Islands, other than a recreational sport fishing vessel returning from a sports fishing 8 expedition that took place beyond the Islands’ territorial waters, prior to the arrival 9 of such vessel or as soon as practicable thereafter, shall deliver to an officer lists 10 showing separately the names and particulars of — 11 (a) the passengers on board the vessel; 12 (b) the passengers whose intention it is to disembark at the Islands; 13 (c) the crew of the vessel; and 14 (d) any other person on board the vessel. 15 16 (2) A recreational sports fishing vessel arriving in the Islands shall comply with the 17 prescribed arrival procedures. 18 19 (3) Where the master or captain of the vessel transports to the Islands passengers or 20 crew — (a) who are required to have a valid entry visa or proof of citizenship, and 21 are not in possession of such documents; or (b) in respect of whom the master or 22 captain provides false information in relation to the master’s or captain’s duty under 23 subsection (1) and subsection (2), the master or captain is liable to be fined by an 24 officer or a sum of two thousand dollars.” 25 26

¶ [47] The mental element for the offence under s.66 must at the higher end be deliberate or 27 intentional assistance or facilitation of the transportation or movement of people which 28 is in contravention of the Act. 29 30

¶ [48] I accept the submissions of Counsel for the Respondent as to the elements of the offence 31 and the absence of a requirement for complicit dishonesty with the passengers as an 32 essential ingredient. Plainly there will be cases where this is present. There will be others 33 250616 Clive Gurzhii and Julia Gurzhii v R.: SCA 15/24 to 20/24 - Coram: Richards J. K.C. - Summary Court Appeal (SCA) Judgment Page 14 of 21 such as the instant case where all that can be said is that while the passengers had no 1 specific intention to land in a particular country on route to their destination they surely 2 must have implicitly intended stops for fuel and replenishment. 3 4

¶ [49] I have considered the position of the second appellant. I was initially troubled by this. If 5 the responsibility is fixed on the Master of the vessel, how does the second appellant 6 commit the offence? However, I am mindful of the usual principles set out in section 7 18 of the Penal Code (2024 Revision) as to aiding and abetting an offence. On the 8 evidence in this case the non-declaration was underpinned by active attempts to conceal. 9 The Master could only have made the declaration in the confidence that he had the 10 support of the second appellant. This was a joint and agreed plan for financial gain. 11 12

¶ [50] Counsel for the Respondent’s submission which is accepted is that both appellants acted 13 together, in effect that the second appellant aided and abetted the first Appellant and that 14 this is evidenced by the following matters: - 15 16 i. The two passengers Mr. Bruke and Mr. Musa entered into a financial 17 arrangement with both appellants for passage to South America. 18 ii. The appellants instructed both passengers to lie to authorities should they be 19 discovered, by pretending that they were hired cleaners. The passage 20 ultimately resulted in the vessel entering the territorial waters of the Cayman 21 Islands. 22 iii. The passengers’ existence was concealed from the authorities by both 23 appellants, thus completing the offence. 24 iv. Both appellants facilitated the movement of Mr. Bruke and Mr. Musa into 25 the Islands and did so in contravention of the Act by concealing their 26 existence/failing to disclose their details as legally required to do. 27 28

¶ [51] In my view, to these can be added, that from the evidence both appellants sought to 29 prevent the officers from going on board the vessel. The second appellant declared that 30 she was leaving when the issue of boarding the vessel was raised by the officers. She is 31 described as repeating what the first appellant said. The clear intent of both was to 32 conceal the passengers. In my view there is a sufficiency of evidence that the second 33 appellant therefore aided and abetted the concealment. 34 250616 Clive Gurzhii and Julia Gurzhii v R.: SCA 15/24 to 20/24 - Coram: Richards J. K.C. - Summary Court Appeal (SCA) Judgment Page 15 of 21

¶ [52] The conclusion is that there was a sufficiency of evidence in respect of both appellants 1 such that the Magistrate applying the necessary burden and standard of proof could 2 properly conclude that the offence pursuant to s.66 of the Act was proven. 3 4 GROUND 2 – ILLEGAL LANDING 5 6

¶ [53] Counsel for the first appellant’s submission in respect of the offence of Illegal Landing 7 is that the verdict is unsafe. This is submitted to be because there was some evidence of 8 duress of circumstances or force majeure in that the boat was in such poor condition that 9 it could no longer be navigated safely. Counsel relies on the account given to officer 10 Claude Terry by Mr. Gurzhii. The submission is that the prosecution needed to disprove 11 or otherwise address this before the offence could be proved. 12 13

¶ [54] Counsel stated that there was no evidence that the landing was not forced by an 14 overheating engine or the unseaworthiness of the vessel. In oral submissions Counsel 15 drew the Court’s attention to sections of the notes of evidence and several photographs 16 in the hearing bundle which are said to show the possible poor condition and state of the 17 vessel. 18 19

¶ [55] Counsel for the Respondent in reply submitted that the material referred to by Counsel 20 for the appellant falls well short of establishing that the entry was due to duress of 21 circumstances. Counsel asked the Court to note that: - 22 23 i. The evidence is hearsay. 24 ii. Neither appellant gave evidence at the trial, nor did they consent to be 25 interviewed under caution and there was nothing of an evidential nature 26 which emanated from them as to any potential mechanical defect. 27 iii. Neither passenger gave evidence of any mechanical defect. 28 iv. There was no evidence of any radio transmission, calls for assistance, or any 29 such report by either appellant to the authorities upon their arrival of any 30 mechanical defect. 31 32 250616 Clive Gurzhii and Julia Gurzhii v R.: SCA 15/24 to 20/24 - Coram: Richards J. K.C. - Summary Court Appeal (SCA) Judgment Page 16 of 21

¶ [56] Counsel submitted that the appellants failed to satisfy the evidential burden and that there 1 is no evidence of any mechanical defect with the vessel. Counsel said this argument is 2 only being raised following conviction. 3 4

¶ [57] Counsel submitted that any suggestion that the vessel drifted into the territorial waters 5 of the Cayman Islands due to duress of circumstances is not capable of belief, 6 particularly in light of the conduct of both appellants upon initial contact with the 7 authorities. Counsel said that both were adamant from the outset that they did not 8 recognise the laws of the Cayman Islands and maintained this throughout the 9 investigation and proceedings in the Summary Court. 10 11

¶ [58] I have considered the point as to absence of evidence and the evidential burden in 12 relation to duress of circumstances as addressed in R. v Petgrave (Pascoe)3, but in my 13 view the answer is to be found in the definitions of land and arrival in s.2 of the Act. 14 15

¶ [59] Arrival is defined as meaning arriving in a port or in an airport or in an area within the 16 territorial limit of the Islands; Land means “to go to, to be, to remain or to reside in any 17 place in the Islands other than — (a) on board a vessel; or (b) in a place under the 18 control of an officer in the officer’s official capacity”. 19 20

¶ [60] The charge is not arriving illegally in the Cayman Islands, it is landing, this means being 21 at a place in the Islands other than on board the vessel. 22 23

¶ [61] Had the appellants remained on board the vessel as they were required to do, the offence 24 would not have been committed. Instead, they disembarked from the vessel and without 25 permission went off to the supermarket. 26 27

¶ [62] It cannot be said that the defence of force majeure or mechanical failure even if raised 28 on the evidence applies to the trip to the supermarket. 29 30

¶ [63] I conclude that there was sufficient evidence upon which the Magistrate could properly 31 find that the charge was proved to the required standard and that the convictions are safe. 32 3 2018 WL 03232689 (2018) 250616 Clive Gurzhii and Julia Gurzhii v R.: SCA 15/24 to 20/24 - Coram: Richards J. K.C. - Summary Court Appeal (SCA) Judgment Page 17 of 21 GROUND 3 – FAILURE TO COMPLETE DISEMBARKATION CARD 1 2

¶ [64] Counsel for the first appellants’ submission is that the conviction for the offence of 3 Failing to Complete a Disembarkation Card is unsafe and should be set aside. The basis 4 for this is said to be that the Magistrate construed the requirement to complete a 5 disembarkation card too strictly. Counsel’s submission is that the word ‘immediately’ in 6 the statute should have been construed as meaning as soon as practically possible. 7 8

¶ [65] Counsel submitted that there must be many cases where the appropriate forms are not 9 on board a vessel or aircraft and an officer may not be immediately present. The Customs 10 and Border Control officers themselves gave evidence of a practice of allowing twenty- 11 four hours for completion of the forms. Counsel submitted that a passenger aircraft 12 which runs out of forms for its passengers would fall afoul of the law in cases of minor 13 breaches. 14 15

¶ [66] Counsel for the Respondent in a robust response submitted that the requirement to 16 complete disembarkation cards immediately upon arrival serves a critical purpose in 17 ensuring border control, public health, and security screening. 18 19

¶ [67] Counsel said that this is a case involving two people who demonstrated a wilful disregard 20 for the laws of this jurisdiction, and who had no intention of completing a landing card 21 immediately on arrival, as soon as practicable, or otherwise. 22 23

¶ [68] Counsel submitted that approaching this matter on a case by case basis as suggested by 24 Counsel for the appellant, it is of note that the appellants arrived without any prior notice 25 or communication with the authorities. They disembarked and left the dock. They made 26 no efforts to contact the authorities, to provide notice of their arrival, or to complete 27 disembarkation cards. Counsel said that this is not a case where the appellants were 28 simply unable to complete a card and hand it to an officer as soon as they disembarked. 29 Counsel references paragraph 16 of the Magistrates’ verdict ruling which states: - 30 31 “The legislation requires those arriving into the Cayman Islands to complete and 32 hand to an officer a disembarkation card immediately on arrival. There is no 33 250616 Clive Gurzhii and Julia Gurzhii v R.: SCA 15/24 to 20/24 - Coram: Richards J. K.C. - Summary Court Appeal (SCA) Judgment Page 18 of 21 discretion by CBC officers. There is no time window of 24 hours afforded for such 1 cards to be completed. That would be a mockery of the intention of the legislation, 2 if persons landing in the jurisdiction may attend to shopping and having a meal and 3 then perhaps fill out a form.” 4 5

¶ [69] On this point, I accept the submissions of the Respondent. The law is clear. Applying a 6 discretion in particular circumstances is not the same as reading words into the Act which 7 are not there. Plainly had the appellants remained on board and made contact with the 8 authorities as they ought to have done they would have been provided with the necessary 9 forms. 10 11

¶ [70] I conclude that there was sufficient evidence upon which the Magistrate could properly 12 conclude that the charge was proved to the required standard and that the convictions 13 are safe. 14 15 CONCLUSION 16 17

¶ [71] The appeals against the convictions are therefore dismissed in each case. 18 19 APPEALS AGAINST SENTENCES 20 21

¶ [72] Counsel for the first appellant submits that all the sentences imposed were manifestly 22 excessive. Counsel notes that in sentencing for the offence of Human Smuggling, the 23 Magistrate relied on the case on R v Van Binh Le and Rudi Heinrich Stark4, which 24 considered sentences under section 25 of the United Kingdom Immigration Act at a time 25 when the maximum sentence in that country was seven years imprisonment. 26 27

¶ [73] In that case the appellants appealed against sentences of three and a half years' 28 imprisonment and five years' imprisonment respectively. It was held that an offence 29 contrary to s.25(1)(a) “would, in relation to all but the most minor of offences, inevitably 30 attract an immediate custodial sentence, the severity of which would depend upon the 31 4 [1999] 1 Cr App R 422 250616 Clive Gurzhii and Julia Gurzhii v R.: SCA 15/24 to 20/24 - Coram: Richards J. K.C. - Summary Court Appeal (SCA) Judgment Page 19 of 21 presence or absence of aggravating features, bearing in mind that the statutory maximum 1 of seven years had to accommodate the most serious offences.” The Court said that the 2 deterrent effect had to be considered given the increase in offending in the United 3 Kingdon. The sentences were reduced to two and a half years' imprisonment and three 4 and a half years' imprisonment respectively. 5 6

¶ [74] The Court identified the aggravating features as including: - 7 8 • It was a repeat offence. 9 • It was committed for financial gain. 10 • The roles played by the defendants. 11 • It facilitated the entry of strangers rather than family. 12 • It involved a large number of illegal entrants. 13 • High degree of planning and organisation. 14 15

¶ [75] Counsel for the appellant submitted that the instant case is the only case of human 16 smuggling in the Cayman Islands and the sentence should therefore be considerably 17 lower. 18 19

¶ [76] Counsel noted that in referring to the case of Stark, the Magistrate noted that the sentence 20 imposed was five years, but that sentence had in fact been reduced on appeal to three 21 and a half years'. 22 23

¶ [77] By reference to the case of Ahmed Aziz, Mohammed Niaz and Stephen Cronin v R5, a 24 case involving two illegal immigrants, Counsel submitted that the appropriate sentence 25 for the instant case is in the region of twenty-seven months. In that case, the appellants 26 Aziz and Niaz were sentenced to eighteen months imprisonment after guilty pleas. 27 28

¶ [78] In the case of Helmet Ungruh v R6 a sentence of four and a half years was imposed in 29 respect of the illegal entry of fifteen migrants. This was after a trial in which the evidence 30 was that a boat had been hired for the purpose of the enterprise. 31 5 [1996] 2 Cr. App. R. (S) 44 6 [1996] 2 Cr. App. R (S.) 205 250616 Clive Gurzhii and Julia Gurzhii v R.: SCA 15/24 to 20/24 - Coram: Richards J. K.C. - Summary Court Appeal (SCA) Judgment Page 20 of 21

¶ [79] Counsel submitted that all sentences of over three years involved a large number of 1 migrants. Counsel said that even with the aggravating features of financial gain and poor 2 treatment of the two passengers it is difficult to see how the appropriate sentence could 3 be more than thirty months for the first appellant. 4 5

¶ [80] Counsel for the Respondent in reply submitted that the Magistrate correctly identified 6 the aggravating factors as being that: - 7 8 • The appellants’ actions were deliberate. 9 • The appellants acted for financial gain. 10 • There was a significant degree of planning involved, and there appeared to be a 11 network where people are put in contact with boats. 12 • The victims were vulnerable persons fleeing war. 13 • The victims were subjected to physical and mental abuse (they were starved, 14 called racist and abusive names, left to the elements, and locked inside the 15 cabin). 16 17

¶ [81] I accept the submissions of Counsel for the appellant on this aspect. It is evident from 18 the Magistrates’ Sentence Judgment that there was a misapplication of the case of Stark 19 and it does not appear to have been drawn to the attention of the Court that the actual 20 sentence was three and a half years' and not five years. There were some nine migrants 21 involved in that case, and this was after a guilty plea. 22 23

¶ [82] Considering the precedents cited the sentence imposed in the instant case does appear to 24 this Court to be manifestly excessive. The appropriate sentence for the first appellant in 25 light of all the aggravating features in this case is one of 33 months. 26 27

¶ [83] This is arrived at by taking the sentence in Aziz as a starting point, uplifting for the not 28 guilty plea (27 months) (and the other circumstances particular to the instant case) for a 29 sentence of 30 months, adding 6 months for the aggravating factor of the ill treatment of 30 the passengers (and a reduction of 3 months for personal circumstances including no 31 previous convictions and good character). 32 33 250616 Clive Gurzhii and Julia Gurzhii v R.: SCA 15/24 to 20/24 - Coram: Richards J. K.C. - Summary Court Appeal (SCA) Judgment Page 21 of 21

¶ [84] The appeal against sentence for the offence of Human Smuggling is allowed. The 1 sentence of 48 months imposed on the first appellant is set aside and the sentence of 33 2 months substituted. 3 4

¶ [85] The sentence of the second appellant for the offence of Human Smuggling is reduced by 5 the corresponding amount. The appeal against sentence is allowed. The sentence of 40 6 months is set aside, and a sentence of 25 months is substituted. 7 8

¶ [86] In respect of the sentences for the offence of Illegal Landing the submissions of Counsel 9 for the appellant are accepted. The time period between arrival and landing and being 10 found was a short period of hours. The appeals are allowed in respect of those sentences. 11 The sentences imposed on the first and second appellants of 18 months and 12 months 12 imprisonment are reduced to 12 months and 6 months respectively. 13 14

¶ [87] The sentences imposed for the offences of Failure to Complete a Landing Card do not 15 appear to be manifestly excessive or wrong in principle. The appeals against sentences 16 are dismissed and the sentences imposed by the Summary Court are affirmed in respect 17 of each appellant. 18 19

¶ [88] All the sentences are to run concurrently. Time served from the 14th May 2024 is to be 20 deducted in respect of each appellant. 21 22 Dated this the 16th day of June 2025 23 24 Honourable Justice Cheryll Richards K.C. 25 Judge of the Grand Court 26