During his trial this month in the British Virgin Islands for the charges of illegal entry, arriving at a place other than a customs port, and operating an unlicensed or unregulated fishing vessel, Michael Foy’s defense attorney argued that his client was innocent of all charges.

On Wednesday the U.S. longline fisherman reversed course, pleading guilty to illegal entry and arriving at a place other than a customs port, after the fishing charge was previously dismissed. On Friday, Magistrate Christilyn Benjamin handed down her sentence for the two remaining charges, ruling that Foy was free to leave the territory after paying a $4,000 fine.

Foy, 60, of Manahawkin, N.J., was arrested in June after BVI officers instructed him to follow them into the port of Road Town on Tortola. Foy’s family and supporters say the captain believed he was legally cleared earlier for entry, as he had done before.

The court resolution means Foy can go home with his boat the Rebel Lady — which had been impounded and in danger of forfeiture when the prosecutors sought conviction on illegal fishing charges and a $511,000 fine.

For the charge of illegal entry, Benjamin decided to forego a fine and imposed a four-month custodial sentence, though she counted his four months in remand as time served.

“When that is taken into consideration, you would have already served your sentence for illegal entry, so no further imprisonment is necessary,” Benjamin said.

In regards to arriving at a place other than a customs port, Benjamin imposed a $4,000 fine on the fisherman.

Given the particulars of Foy’s case, Benjamin decided to start the sentencing for illegal entry at four months behind bars. The charge carries a maximum sentence of twelve months imprisonment and a $1,000 fine.

She then tacked on two additional weeks for each of the cases’ “aggravating factors,” namely the prevalence of illegal entry in the BVI and the seriousness in the offense.

An abrupt surge in BVI covid-19 cases in August was largely attributed to illegal entrants in the territory.

However, for Foy’s “mitigating factor” — his previously clean criminal record — Benjamin decided to subtract a month, bringing the term back to four months, she said.

She noted that Mr. Foy was not afforded any discounts for his guilty pleas, which were submitted after the trial had concluded. The magistrate did not cite any mitigating or aggravating factors for her sentencing of arriving at a place other than a customs port.

“Taking into consideration the totality principle, I find that having already given submission consideration for the aggravating and mitigating factors in this matter on the illegal entry charge, no further adjustments shall be made on the fine…for arriving at a place other than a customs port,” she said.

On Wednesday, Foy’s attorney Patrick Thompson asked that rather than receive the maximum fine of $10,000, his client be fined the amount it cost to stow his boat during his detainment, which he said amounted to $4,628.27.

While handing down her sentencing, Benjamin added that Tiffany Scatliffe-Esprit, the Director of Public Prosecutions, had decided not to forfeit the vessel, the Rebel Lady.

If Foy does not pay the fine by Nov. 10, however, he will be remanded back to prison for an additional 6 months, Benjamin said.

Foy was arrested in BVI waters on June 8, when he was approached by officers with the territory’s joint border patrol task force. While Foy was remanded to prison, his four Indonesian crewmembers were confined for at least a month to his boat, before being put up in hotels in the territory and repatriated at the beginning of this month.

Outcry from members of Foy’s family, who alleged the captain had been mistreated by BVI officials during his detainment, prompted a letter from three New Jersey representatives to the BVI government affirming that they will monitor the case and expect fair treatment of their constituent.

During the trial, Crown Counsel Kael London argued that the defendant had broken the law by not receiving permission from the relevant authorities to enter the territory, not alerting any officials to his arrival, and being engaged in fishing.

Defense lawyer Thompson meanwhile contended that Foy was protected under provisions in the law that state that one must set foot on land to have illegally entered, and that people in certain distressed situations are allowed into the territory.

He also argued that the prosecution’s evidence of Foy’s fishing charge, which rested on the witness from a government official who had only seen a photo of the boat, was not strong enough to hold up in court.

Magistrate Benjamin agreed, and tossed out the fishing charge on Oct. 9.

Joey Waldinger is a staff writer with the BVI Beacon.

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