Hoareau v R (SCA 16/2012) [2015] SCCA 55 (17 December 2015)

Heard: 07 December 2015

Counsel: Mrs. Alexia Amesbury for the Appellant

Mr. David Esparon for the Respondent

Delivered: 17 December 2015

JUDGMENT

A.Fernando (J.A)

1. The Appellant appeals against the sentence of 8 years imposed on him after his conviction for trafficking in 76 grams of cannabis (herbal material) on the basis of the presumption in section 14 of the Misuse of Drugs Act. There is no appeal against the conviction.

2. There were no grounds of appeal filed with the Notice of Appeal in this case, as the Appellant had filed his Notice of Appeal on his own from prison. The grounds of appeal are to be found on the Skeleton Heads of Argument filed on behalf of the Appellant by his Counsel on the 17^th of November 2015. As per the Skeleton Heads there are two grounds of appeal, namely that the Learned Trial Judge

1. had failed to call for a probation report prior to sentencing despite Counsel requesting Court to do so, and

2. that the Appellant should have been sentenced to 5 years as he was convicted of possession and not trafficking.

3. Counsel for the Appellant elaborating on ground (i), argued that the Appellant having chosen to remain silent it was imperative on the court to call for a social services report in order to place before the court special circumstances of the Appellant. Counsel had quoted a passage from the Order on Sentence which states: “I am of the view that I couldn’t set all this main facts mentioned by Learned Counsel for the accused without calling for a Probation Report” (verbatim from the Order) to prove her point that there is an admission by Court of its failure.

4. In support of ground (ii) of appeal, Counsel for the Appellant, again quotes a passage from the Order on Sentence which states: “Having accepted all these facts I also proceed to consider the charge for which the accused have been found guilty, namely being in possession of 76 grams of herbal controlled drugs.” (verbatim from the Order).

5. According to the prosecution evidence, the Appellant had been seen by three prosecution witnesses, throwing the parcel containing the herbal material which had been proved on the basis of the evidence of the Government Analyst to be cannabis herbal material. At the close of the prosecution case, Counsel for the Appellant had stated: “My Lord I believe the prosecution had closed. We are not making a submission of no case to answer because Prima Facie there is.” Counsel had also informed Court that the Appellant would elect to remain silent and not call any witnesses. Thus no evidence had been placed before the Court to rebut the presumption of trafficking arising under section 14(d) on the basis of possession of cannabis of more than 25 grams.

6. As regards ground (i) of appeal, we do not think that the Right to remain silent extends up to the time when an accused is called upon to mitigate after conviction and it is imperative on the court to call for a probation report when an accused remains silent, when called upon to mitigate. After the conviction of the Appellant, and when the Appellant was called to plead in mitigation, Counsel representing him had moved for a Social Services Report, that would bear out his family circumstances. The Trial Judge had then called upon the Counsel to mention the facts which the Counsel for the Appellant believed would be contained in a Social Services Report and were necessary to be considered in mitigation. Counsel for the Appellant had then brought the following family circumstances to the attention of Court:

• That the Appellant was a farmer,

• has a young child,

• is the only breadwinner as his wife does not work and stays at home to look after the child,

• is a first offender and had never been involved with the police in any way whatsoever.

7. Court after hearing Counsel had stated “I don’t need a Probation Report because I will accept all those family circumstances as stated by you.” Counsel for the Appellant had then rested her plea in mitigation and placed reliance on the case of Jean Fredrick Poonoo VS The Attorney General SCA 38/2010. The Learned Trial Judge in his Ruling on Sentence had stated that he had taken into consideration all those family circumstances pertaining to the Appellant, that he has no previous conviction and that he had been found in possession of 76 grams of cannabis (herbal material) which is a Class B drug. The learned Trial Judge had also ruled that the period of time spent on remand shall be reduced from the 8 year term of imprisonment imposed on the Appellant. The sentence imposed on the Appellant, is the minimum mandatory sentence that could have been imposed under the law.

8. Having agreed with the Learned Trial Judge as to the procedure he was following in not calling for a Probation Report, it is in our view not proper to find fault now with the manner he decided to impose the sentence. At the hearing before us we called upon Counsel for the Appellant to state to us any facts other than those she had submitted to the trial court in mitigation that would have been dealt with in a probation report and which would have had a bearing on the sentence that was imposed, but she was unable to mention any. What is to be noted is that the learned Trial Judge had imposed the minimum mandatory sentence for trafficking, namely 8 years. We do not think that in the circumstances of this case, especially because no evidence had been placed to rebut the presumption of trafficking under section 14 of the Misuse of Drugs Act, and in view of the mandatory sentence prescribed for the offence of trafficking, the availability of a probation report could have made a difference. Had the learned Trial Judge decided to impose a sentence above the minimum mandatory which could have been up to 30 years of imprisonment, Counsel for the Appellant may have had an argument. We do not find any exceptional reasons for the Trial Judge not to have imposed the minimum mandatory term of imprisonment based on a breach of the proportionality principle as expounded in the case of Jean Fredrick Poonoo VS The Attorney General SCA 38/2010, in view of the facts and circumstances of this case.

9. The passage quoted at paragraph 3 above from the Order on Sentence contains in our view a clerical or typographical mistake for it is not possible to understand it in isolation. However when we read it with the sentence preceding it, namely “I considered the submission and mitigation made by Learned Counsel for the accused”; it can be understood, as follows, that the learned Trial Judge had considered the submission in mitigation but had not set out all those facts in the Ruling on Sentence.

10. It is clear that the Appellant in this case was charged for the offence of trafficking on the basis of the presumption in section 14 of the Misuse of Drugs Act, namely for having been in possession of 76 grams of cannabis (herbal material), i.e. over and above 25 grams which attracts the presumption of trafficking. He had pleaded not guilty to the said charge and had been found guilty and convicted of trafficking after trial. The learned Trial judge in his judgment had said: “For the abovementioned reasons I am satisfied that the prosecution has established the elements of possession and knowledge beyond reasonable doubt. The quantity of Cannabis herbal material detected in the possession of the accused is 76 grams which attracts the rebuttable presumption that the accused was trafficking in the controlled drug. The accused has failed to rebut the said presumption………..Therefore this court finds the accused guilty as charged and proceeds to convict him.” We are of the view that Counsel should not try to take advantage of the language used in a particular sentence, when an overall reading of the Judgment and the Ruling on Sentence is absolutely clear. We therefore see no merit in the second ground of appeal and find it to be frivolous.

11. We therefore dismiss this appeal.

A.Fernando (J.A)

I concur:. …………………. F. MacGregor (PCA)

I concur:. …………………. J. Msoffe(J.A) Signed, dated and delivered at Palais de Justice, Ile du Port on 17 December 2015

4