Sandul v R (SCA CR 4 of 2023) [2023] SCCA 37 (25 August 2023)

IN THE COURT OF APPEAL OF SEYCHELLES

Reportable [2023] SCCA 37  (25 August 2023) SCA CR 04/2023 (Appeal from CO 06/2023)

 

In the matter between 

Dmitri Sandul Appellant

(rep. by Mrs. Alexia Amesbury)

 

and

 

The Republic Respondent

(rep. by Ms. Luthina Monthy)

 

ORDER 

____________________________________

Appeal against conviction dismissed. Sentence of 2 ½ years’ imprisonment imposed by the Sentencing Court quashed and a sentence of 6 months’ imprisonment substituted. We ordered his release soon after the hearing was concluded. Now we give our reasons.

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JUDGMENT

 

FERNANDO, PRESIDENT

1. The Appellant had appealed both against his conviction and sentence of 2 years and 6 months’ imprisonment imposed on him on being convicted on his own plea of guilt for wilfully neglecting a child which resulted in his death.

 

The Charge:

 

2. The Appellant had pleaded guilty to the following charge as amended:

 

Statement of Offence

Wilfully neglecting, abandoning or exposing a child in a manner likely to cause unnecessary suffering, moral danger or injury to health, contrary to section 70(1)(b) read with section 70(4)(b) of the Children Act, and punishable under section 70(6) of the said Act.

 

Particulars of Offence

Dmitri Sandul holding passport number 763987680 of Russia, on the 21st of January 2023 neglected, abandoned, or exposed their 17-month old child, one Emilian Sandul in a manner likely to cause injury to health by leaving him unattended in a car parked at the Anse Royale’s gymnasium’s car park where the child passed away.

 

      The Law:

3. The relevant part of section 70(1)(b) of the Children Act states as follows:

 

“a person who has the custody, charge or care of a child and who wilfully   neglects, abandons or exposes that child, in a manner likely to cause him unnecessary suffering, moral danger or injury to health (including injury to or loss of sight, hearing, limb or organ of the body an any mental derangement) is guilty of an offence.”

Section 70(2) of the said Act, states: “For the purposes of this section, a person to whom section 4 (Obligation to maintain) applies and who has the custody, charge or care of a child is deemed to have wilfully neglected or exposed him in a manner likely to cause him unnecessary suffering, moral danger or injury to his health if (a) he has failed to maintain that child in accordance with section 4;…”

 

Section 4 (e) of the said Act states: “A person under an obligation, by virtue of the Civil Code or otherwise, to maintain a child must ensure that the child is not neglected or exposed to danger, in the home or elsewhere, in a manner likely to cause the child unnecessary suffering or injury to health; …”

 

Section 70(4)(b) of the Act states: “A person may be convicted of an offence under this section notwithstanding the death of the child.”

 

The punishment for an offence under section 70 is set out at section 70(6) of the Act and states as follows: “A person guilty of an offence under this section is liable to imprisonment for five years and to a fine of R50,000.” 

 

4. In our view section 70(1)(b) is strictly meant to deal with a situation where the act of the accused is deliberate, cruel and continuous and not one necessarily confined to a single reckless act. This becomes clear in view that the heading of section 70 is titled ‘Cruelty to children’ and the words “wilfully   neglects, abandons or exposes a child, in a manner likely to cause him unnecessary suffering, moral danger or injury to health”  Further section 70(1)(b) in our view falls in the same category of offences as those referred to in 70(1)(a), namely those who “assault or ill-treat a child”. Thus the heavier sentences in our view should apply to those offences which are of a nature deliberate, cruel and continuous.  

 

Appeal against Conviction: At the very outset we did state that the appeal against conviction has no merit as according to section 342 (1) of the Criminal Procedure Code, a person cannot appeal against a conviction based on the person’s own plea of guilt. The appeal against conviction is therefore dismissed.

Position of the Republic at the hearing of the appeal: 

 

Counsel for the Republic informed Court at the commencement of the hearing on being questioned by Court that she would leave the issue of sentence to be determined by Court and will not make any submissions.

 

     Facts of the Case:

5. The following facts as narrated by the Prosecutor, reported verbatim herein, were admitted by the Appellant:

 

“On the 21st January 2023 at around 1.36 pm the Anse Royale Police Station received a phone call from a male voice who stated that two tourists being the 1st accused and his wife had reported to him that they had left their baby unattended in the car which was parked at the Goldz gymnasium car park and that when they came back to the car, they noticed that their baby was not responding.  After the accused and his wife were informed that the hospital was not far they took the baby to the Anse Royale hospital. At the Anse Royale hospital, the doctor asked the 1st accused what happened to the child and he stated that the child was vomiting and losing consciousness 10 minutes before he came to the hospital and that he had left the child in the car locked with the AC on and that he had gone to the gym.  The doctor at the Anse Royale hospital tried to resuscitate the child, however it was unsuccessful and the baby was certified dead at around 2.14 pm.  On the 26th January 2023 the body of the child was examined and the forensic pathologist provided a post-mortem examination report.  The report concluded that the death happened due to unattended child in closed vehicle at time and day of high MBM temperature which caused hyperthermia and caused several cerebral and pulmonary edema.  On the 6th February 2023 the accused was subsequently charged and today the prosecution filed an amended charges and the accused has pleaded guilty to count 2 of the amended charge.  These are the facts my Lord.” 

 

          Mitigation by Appellant’s Counsel

6. Counsel for the Appellant in mitigation of sentence had stated that the Appellant, is the father of three children aged 6, 4 and the deceased who was 1 ½ years, a caring parent and had suffered the worst punishment a father could ever suffer, by losing his child and would thus suffer for the rest of his life. Counsel had stated that the Appellant is 39 years old, is the sole bread winner had pleaded guilty at the first opportunity and has not been convicted in any part of the world. The Appellant is a Russian national who was on holiday in the Seychelles with his wife and two other children and the deceased child.

 

7. It is clear from the prosecution facts admitted by the Appellant that when the child was brought to the Anse Royale Hospital the child was vomiting and losing consciousness. This clearly shows that the child who was conscious would have been suffering inside a locked car at midday for some time, until he was taken to the hospital. The Appellant’s version that he had put the AC on is questionable when taking into consideration that they had gone to the gym and the fact that according to the post mortem findings, the cause of death was hyperthermia, which is abnormally high body temperature caused as part of treatment by an infection, or by exposure to heat. According to the post mortem findings, death was due to unattended child in a closed vehicle at time and day of high MBM temperature which resulted in hyperthermia. There is no evidence of any treatment to the child or an infection in the child which could have otherwise caused the hyperthermia. According to the post mortem report as narrated by the Prosecutor, death happened due to unattended child in closed vehicle at a time and day of high MBM temperature which caused hyperthermia and caused several cerebral and pulmonary edema. There was no evidence before the Sentencing Court as to how long the child had been inside the locked car.

 

8.  The learned Sentencing Judge had in passing sentence taken into consideration all the mitigating factors submitted by the Appellant’s Counsel, noting in particular that losing a child is a very traumatizing punishment for the Appellant. However, he had noted that all of the mitigating factors have to be balanced against the seriousness of the offence that has been committed, namely leaving a 17-month old child unattended alone in a car park outside a gym whilst the Appellant and his spouse went to the gym for at least an hour or more, amounted to gross negligence or recklessness. The facts as narrated by the Prosecutor do not however state the time period the Appellant and his spouse were at the gym with the child locked inside the car. However, the fact that the cause of death was hyperthermia shows that the child would have been locked in the car for a considerable period of time. It is also possible that the Appellant, being a tourist from Russia, was not fully conscious of the sweltering heat in the Seychelles during the month of February, a factor the learned Sentencing Judge appears not to have taken into consideration. 

 

9. We do not fault the Sentencing Judge for determining that the conduct of the Appellant amounted to gross negligence or recklessness, as that is his opinion. In sentencing in cases under section 70 of the Children Act, a court undoubtedly needs to deter other would be offenders from behaving in a grossly negligent and reckless manner. We note however that the Appellant was a tourist, who had come to the Seychelles on holiday with his wife, two children and the deceased child. We are certain he would not have, in his wildest imagination ever thought that his holiday would end up in a tragedy of this nature, an experience he would have to live with for the rest of his life. For the Appellant to know that his wife and two other children have to live away from him in Russia, at a time when they need each other’s solace is itself sufficient punishment for him. We have to season justice with mercy in the given circumstances and take into consideration the welfare of the family of the Appellant. We are not certain that the learned Sentencing Judge had given sufficient consideration to these matters and the real purport of section 70(1)(b), as stated at paragraph 4 above. Not a single case of a similar nature was cited before us. 

 

10.  In the circumstances we decided to quash the sentence of 2 ½ years’ imprisonment imposed on him by the Sentencing Judge and impose a sentence of 6 months’ imprisonment. We were informed that the Appellant has already spent 6 months in prison and therefore should be considered to have already served his sentence. We therefore ordered his release soon after the hearing of the appeal. 

 

 

Fernando President

 

I concur: _________________

Dr. M. Twomey-Woods JA 

 

I concur: _________________

Dr. L. Tibatemwa-Ekirikubinza JA

 

Signed, dated and delivered at Ile du Port on 25th August 2023.