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$15.000 Fine, 300 Days Jail: Durbijai Sewnaraine Durbi Construction Subcontractor Amazon Reconstruction Sonesta Maho Beach Resort Casino. LOSES Appeal Court Transcripts

COURT IN FIRST INSTANCE OF SINT MAARTEN Judgment of this Court:

In the criminal case against the accused: Durbijai Sewnaraine

born in 1985 in Guyana,

addess: in Sint Maarten.

Investigation of the case

The trial in open court took place on February 10, 2021 and was declared closed on February 24, 2021. The suspect appeared on February 10, 2021, assisted by his counsel, mr. CHJ Merx, a lawyer in Sint Maarten.

The public prosecutor, Mr. M. Boe rlage, demanded at the hearing that the General Court should declare the charges to be proven and order the accused to pay a fine of $ 40,000.00, of which $ 20,000.00 conditional probationary period of 3 years.

In accordance with his pleadings submitted at the hearing, counsel took the position, among other things, that the initiating summons is null and void. In addition, he is of the opinion that the suspect should be acquitted of the list of 91 persons included in the indictment. For the rest, a declaration of proven evidence shall suffice without imposing a penalty and / or measure under article 1:12 of the Criminal Code.

Indictment

The accused has been charged with the following:

he in or about the period between January 5, 2015 and September 11, 2018 in Sint Maarten, together and in association with another (s), at least alone, one or more person (s), in total approximately 91 person (s) with the [nationality 1] and / or the [nationality 2] and / or the [nationality 3] and / or the [nationality 4] and / or the [nationality 5] nationality, in in each case one or more person (s) with the foreign nationality, including:

which person (s) had (s) unlawful access to or residence in Sint Maarten, (each time) has / has had work performed by virtue of an agreement or appointment, after all, the suspect and / or his co-perpetrator (s) ) have the aforementioned person (s) performed and / or employed, while the suspect and / or his co-perpetrator (s) (each time) knew (s) or had serious reasons for to suspect that entry or stay was unlawful.

Validity of the initiating summons

Counsel has taken the position that the requirements of the indictment in accordance with Article 285 of the Code of Criminal Procedure (hereinafter: Sv) have not been met. The summons is therefore null and void.

The General Court rejects the defense of the defense. In the opinion of the Court of First Instance, the requirements of article 285 CCP have been met. The indictment includes the period, country and group of persons. In addition, the indictment contains a specification by means of the 10 persons mentioned therein. The Court is of the opinion that counsel on the basis of the present indictment has been able to give a proper defense. The summons is therefore valid.

Proven statement

The General Court considers – on the basis of the evidence below and the further considerations of evidence, taken together and in conjunction – to be lawfully and convincingly proven that the accused committed the charges, on the understanding that:

he in or about the period between January 5, June 1, 2015 up to and including September 11, 2018 in Sint Maarten, together and in association with one or other (s), at least alone, one or more person (s), in total about 91 person (s) with the [nationality 1] and / or the Haitian and / or the [nationality 3] and / or the [nationality 4] and / or the [nationality 5] nationality, in each case one or more

perso (o) n ( and ) the foreign nationality, including which press (o) n ( and ) , are unlawful entry or residence is in Sint Maarten ( den ) provides, (each) under contract or appointment are working / have cause to be performed after all have / the suspect and / or his co-perpetrator ( s) said ( e ) , perso (o) n ( and ) , then and there do perform work and / or employed , while suspect and / or his co-perpetrator (s) (each) knewor had serious reason to suspect that entry or stay was unlawful.

The Court finds that it has not been proven that the accused has been charged more or differently than that stated above, so that he will be acquitted of this.

The language and / or clerical errors or omissions occurring in the indictment have been corrected; for the sake of readability, changes have also been made to the proven statement (italics). The suspect is therefore not harmed in the defense.

Evidence

The General Court bases its conviction that the accused committed the proven record on the facts and circumstances contained in the following evidence and which are grounds for the proven evidence.

1.

The official report of findings, number [number 1], pages 23 to 24

of case file [file], insofar as the findings of the obligator include:

On September 11, 2018, the search of the plot located at the [address] [area] in Point Blanche in Sint Maarten ( Durbi Cons h · uction) was opened by the examining magistrate.

Following the search, the following goods were seized:

 Various notes

 Various payroll receipt sheets Durbi Construction BV

 Various SZV documents

 Various employment contracts

2.

The official report of findings, number [number 2], pages 27 to 31 of the case file [file], insofar as containing the findings of the reporting officer:

I conducted an investigation into the confiscated pay rolls / payment slips and labor agreements of the company ‘ Durbi Construction’. Among other things, the following names were found:


3.

The official report of findings, number 2030071000.AMB, including attachments, insofar as containing the findings of the reporting officer:

On September 11, 2018, several searches took place at various construction companies, including:

o Durbi Construction, Sonesta Maho Beach Resort.

o Durbi Construction, [address] Point Blanche.

Durbi Construction

During the searches of the company ‘ Durbi Construction’, the following items, among others, were seized:

o Employee salary slips;

o SZV registrations of employees ;;

o Employment contracts;

o Copies of passports / identification documents;

Brison Tax & Accounting also claimed and obtained the delivery of the accounts of the company Durbi Construction.

The investigation team checked all personal data found with the Immigration and Naturalization Service (IND).

I researched the above information and it showed the following:

o Payments were found to -91- different people;

o Employment contracts were found of -22- different people;

0 SZV registrations were found of -32- different persons;

o -29- copies of Identity Cards have been found;

o Of the 91 persons found, -3- have a residence permit for an indefinite period, -1- have a fixed-term residence permit, 1 have been rejected and the other

86 persons did not appear in the IND registrations.

A matrix in which

it has been made clear what has been received from each employee. Hi ero p include the following employees:


4.

The official report of the interrogation of the suspect, nunmer [number 3], pages 112 to 119 of the case file [file], insofar as containing the statement of the suspect [suspect]:

Q: Who hires the people in your company?

A: Amazon Construction.

Q: What can you say about that?

A: That’s the company that hires, fires, tells people what to do and how to do it. They write the hours for the employees. (…)

Q: How could it be that we found those different documents?

A: As I said before, Arnazon Construction is the one who hires and fires people.

Q: Shouldn’t Amazon have those documents?

A: Because I’m the one who does their administration and pays them.

(…)

Q: How exactly does procedure work between Sonesta Maho Beach and Durbi Construction NV?

A: It’s not between me and Sonesta Maho. It’s between Amazon and Durbi .

They hire and fire people. Amazon sends me a list of

people who have to be paid. I have to make sure everyone is insured and il make sure everyone gets paid. I get a percentage to go to the bank and pay them. That is how it works.

(…)

Q: Employment contracts have been found in your records stating Durbi Construction and signed by you. What can you explain about this?

A: To get insurance for the workers, they must have an employment contract.


Parkeh1 number: 100.00512 / 20

5.

The official report of findings, number [number 4], insofar as it contains the findings of the reporting officers:

On September 11, 2018, a search took place at the Sonesto Maho Beach Resort in Maho. At the time, [name 11] born on [date of birth 9] in 1978 in [place of birth] stated that he works as Financial Controller for the Resort of the World company, better known as the Sonesta Maho Beach Resort. Several companies fall under Resort of the World. Two of these companies are engaged in construction work for the Resort of the World company. These companies include Amazon Construction NV and Amazon Construction Limited. The company Amazon Construction NV is currently working on the construction of the Sonesta Maho Beach Resort. One of the companies hired by them is the company Durbi Construction. Durbi Construction provides approximately 50 to 60 employees to the Sonesta Maho Beach Resort.

Sonesta Maho Beach Resort;

On Thursday, November 29, 2018, around 14:00 hours, we, reporting officers, went to the Sonesta Maho Beach Resort where we spoke with Mr. [name 11]. When asked, he stated that:

– He’s Financial Controller at Resort of the World

Amazon Construction hires Durbi Construction for construction work on the Sonesta Mal10 Beach Resort

– They outsource everything to Durbi Construction

 Durbi Construction itself takes care of employees

– It is not true that Amazon recruits personnel and has these activities carried out

– If this had been the case, they could have done it themselves and would not need Durbi Construction

6.

The official report of the hearing of February 10 , 2021, insofar as it contains the statement of the suspect [suspect]:

The judge asks me if I knew that the 10 people on the charge were illegal. Not all 10 were illegal.

Evidence Considerations

The Court finds that at least the 8 persons in the declaration of proven evidence lived and worked illegally on Sint Maarten. It does not follow from the file – as the defense counsel has argued and stated by the defendant – that there is an employment agency, but rather that the defendant worked as a subcontractor for Amazon Construction through his company. After all, the suspect arranged the employment contracts, SZV registrations and payments with his company Durbi Construction.

of salaries. According to [name 11], Financial Controller at Resort of the World, Amazon Construction outsourced the work to Durbi Construction. Durbi Construction itself took care of employees and they subsequently performed actual work at Amazon Construction, while the defendant, as director of Durbi Construction, knew that the persons named in the charge, except two, were illegally staying on the island. Through his actions, the suspect facilitated the employment of the persons illegally in Sint Maarten through his company and over a long period of time.

In view of the foregoing, it has been legally and convincingly proven that the accused committed the offense charged.

Punishability and qualification of the declared proven

The proven evidence is provided for and made punishable in Article 2: 155, paragraph 2 of the Criminal Code. It is qualified as follows:

make a profession or habit of the act described in Article 2: 155 of the Criminal Code.

No facts or circumstances have become plausible that exclude the punishability of what has been proven.

Punishability of the accused

No facts or circumstances have become plausible that exclude the criminal offense of the suspect. The suspect is therefore punishable for what has been declared proven above.

Imposition of punishment

The punishment imposed on the suspect is based on the seriousness of the offense, the circumstances under which the offense was committed and the person and personal circumstances of the suspect. In particular, the following is taken into account.

The suspect is guilty of employing illegal immigrants through his company Durbi Construction. As a result, the suspect has disadvantaged other companies that do work according to the rules. In addition, the employment of illegal immigrants is often accompanied by the exploitation of these persons. Someone who works illegally on Sint Maarten is not insured, does not pay tax and it is more difficult to defend his or her rights. The suspect cooperated in this.

The General Court took note of the suspect’s judicial documentation, which shows that he has not been previously convicted of a similar offense.

The defense has requested that it suffice with a proven statement without imposing punishment and / or measure. However, according to the General Court, there is for this

no reason. When determining the sentence, it is taken into account that the suspect currently has less work and that he must take care of his three children including his wife, but on the other hand, a signal must also be sent to the suspect and society that such trade and is not allowed. In doing so, a link will be sought with penalties imposed in similar cases and the maximum fine of NAf 25,000.00 that was imposed

such a fact stands.

After weighing the above, the General Court has come to the conclusion that a partially conditional fine is appropriate and warranted. The suspect will therefore be sentenced for this.

Applicable legal regulations

The penalty to be imposed is based on articles 1:19, 1:20, 1:21, 1:54, 1:58 and 2: 155 of the Criminal Code, as they read at the time of the proven statement.

DECISION

The verdict

declares legally and convincingly proven that the accused committed the offense charged;

declares that the accused has not been proven or has been charged differently and acquits him thereof;

does the proven statement qualify as described above;

declares the proven criminal offense and the suspect punishable for this;

sentences the suspect to a fine of NAf 15,000 (fifteen thousand), in the absence of payment and recourse to be replaced by 300 (three hundred) days in custody;

determines that part of this fine, in the amount of NAf 5,000 (five thousand), will not be enforced, unless the judge may later order otherwise because the suspect has passed a probationary period of 2 (two) years before the end of a probation offense is guilty.

This judgment was rendered by the judge MJ de Kort, assisted by mr. D. den Haan, (court clerk), and pronounced on 17 March 2021 in the presence of the registrar at the open court of the Court in Sint Maarten.

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