Soopramanien and ors v The Republic (SCA CR 18 of 2022) [2023] SCCA 8 (26 April 2023)

IN THE COURT OF APPEAL OF SEYCHELLES

Reportable

[2023] SCCA 8 (26 April 2023)

SCA CR18/2022

(Appeal from CR 113 & 115/2021)

In the matter between

Fabio Soopramanien 1^st Appellant

Dario Soopramanien 2^nd Appellant

Gerard Bastienne 3^rd Appellant

(rep. by Joshua Revera)

and

The Republic Respondent

(rep. by Mr. George Thachett and

Mrs. Nissa Thompson)

Neutral Citation: Soopramanien and Others v R (SCA CR 18/2022) [2023] SCCA 8 (Arising in CR 113 & 115/2021)

(26 April 2023)

Before: Fernando President, Twomey-Woods JA, Robinson JA

Summary: Appeal against sentence for importation of controlled drugs, heroin and cannabis resin.

Heard: 11 April 2023

Delivered: 26 April 2023

ORDER

Appeals of the three Appellants against sentence partially allowed. Fines imposed in respect of all three counts and the default sentences prescribed for non-payment of fines are quashed. Order made for the compensation of the victim quashed. Sentences of imprisonment imposed on all three Appellants in respect of count 1 maintained. Sentences of imprisonment imposed on the Appellants on count 3 quashed and instead all three Appellants are sentenced to periods of 25 years. Sentences of imprisonment imposed on 1A and 2A on count 4 quashed and instead 1A and 2A, sentenced to periods of 15 years. Sentence of imprisonment imposed on 3A in respect of count 4 maintained. All sentences to run concurrently and thus all three Appellants to serve a total period of 25 years of imprisonment. The orders made by the learned Sentencing Judge in respect of the “corpus delicti” and the travel restrictions under section 50 of MODA are maintained.

JUDGMENT

FERNANDO, PRESIDENT

1. The 1^st, 2^nd and 3^rd Appellants (referred to hereinafter as 1A, 2A ,and 3A) have appealed against the sentences imposed on them on their conviction under the Misuse of Drugs Act [MODA], for conspiracy to import of a controlled drug (contrary to section 16(a) read with section 5 and punishable under section 5 read with the Second Schedule of MODA), namely heroin (diamorphine) in a quantity unknown to the Republic, which was count 1 in the Indictment, and cannabis resin (contrary to section 16(a) read with section 5 and punishable under section 5 read with the Second Schedule of MODA), having a net weight of 130.58 kilo grams, which was count 3 in the Indictment. They have also appealed against the sentences imposed on them on their conviction for trafficking of a person, under the Prohibition of Trafficking in Persons Act, [PTPA] (contrary to section 3(1) (a), (e), (f), (g) read with section 5(1) (g) and punishable under section 5(2) of PTPA) by recruiting, transporting and transferring Andy Bistoquet from Seychelles to an Iranian Dhow at sea to be taken to Iran for the purposes of exploitation as a drug guarantee by way of abduction and deception, which was count 4 in the Indictment. All three Appellants had been convicted on their own guilty pleas. The trial had not proceeded on counts 2 and 5 as they were alternative counts.

2. The maximum sentence for an offence under section 5 of MODA under which the Appellants were charged is life imprisonment and a fine of SCR 1 million. The indicative minimum sentence for an aggravated offence under the said section 5, where a Class A drug (Heroin) is involved is 20 years and where a Class B drug (Cannabis Resin) is involved is 15 years. As stated at paragraph 1 above, count 1 was in relation to a class A drug (Heroin) and count 3 was in relation to a class B drug (Cannabis Resin). The maximum sentence for an offence under section 3 of PTPA is 14 years and a fine of SCR 500,000 and where the said offence is committed under aggravating circumstances the prescribed sentence is 25 years and or a fine of SCR 800.000. Count 4 was under section 3 of PTPA.

3. On count 1, 1A, 2A, and 3A have each been sentenced to 20 years’ imprisonment together with a fine of SR 300,000 to be paid within 14 days of this sentence and in default of the payments of their fines to serve a further 5 years’ imprisonment which shall be concurrent to the 20 years’ imprisonment.

On count 3, 1A, 2A, and 3A have each been sentenced to 30 years’ imprisonment together with a fine of SR 500,000 to be paid within 14 days of this sentence and in default of the payments of their fines to serve a further 5 years’ imprisonment which shall be concurrent to the 30 years’ imprisonment.

On count 4, 1A has been sentenced to 20 years’ imprisonment together with a fine of SR 500,000 to be paid within 14 days of this sentence and in default of the payments of their fines to serve a further 5 years’ imprisonment which shall be concurrent to the 20 years’ imprisonment. 2A has been sentenced to 18 years’ imprisonment together with a fine of SR 300,000 to be paid within 14 days of this sentence and in default of the payments of their fines to serve a further 5 years’ imprisonment which shall be concurrent to the 18 years’ imprisonment. 3A has been sentenced to 15 years’ imprisonment together with a fine of SR 200,000 to be paid within 14 days of this sentence and in default of the payments of their fines to serve a further 5 years’ imprisonment which shall be concurrent to the 15 years’ imprisonment.

The terms of imprisonment imposed under count 1, 3, and 4 to run concurrently with one another.

The Sentencing Judge had ordered that the victim, Andy Bistoquet shall be compensated with Rs.500.000 out of any portions of the fines to be paid by the convicts.

4. The Appellants have raised the following grounds of appeal:

“1. The sentences imposed are manifestly harsh and excessive in all the circumstances of the case, especially considering: the sentencing pattern of courts for similar offences; Default sentences should be no more than 6 months. Section 295(1) of the Criminal Procedure Code.

2. In handing down the above sentences the learned trial judge failed to be fair and impartial and relied on facts that the prosecution had not placed before the court and which were not admitted by the Appellant.

3. The trial judge failed to accurately and impartially state mitigatory facts prior to sentencing the Appellant.

4. The trial judge erred by misstating the “aggravating factors” (proceedings of 2^nd September 2022 page 10) showing a very biased mind set:

a) The Appellant did not import (as defined in the Interpretation and
General Provisions Act) into Seychelles any heroin.

b) In the absence of evidence the judge erred in finding that the Appellant was part of an “organized criminal group” as defined in section 2 of the interpretation section of MODA 2016.

c) The judge erred when he found that a sizeable amount of heroin was discarded by the Appellants. In the absence of evidence being led to prove this.

d) The judge erred when he completely failed to refer to any and all of the cases referred to, in mitigation one of which was the case of R v Percy Samson where the quantity of cannabis resin was 180 kgs. The convict pleaded guilty at the first instance as in the present case and he was sentenced to 8 years’ imprisonment.”

As against the 1^st Appellant there is an added ground under 4 as (e) to the effect: “The Judge erred when he found that the Appellant even threatened to kill him (meaning Andy Bistoquet) if he does not do their bidding.” In the absence of any evidence led to prove this.

All three Appellants have prayed for the quashing of their sentences and to impose a fair and proportionate sentence.

5. All three Appellants have admitted the following facts as narrated by the Prosecutor:

“My Lord on or around October 2021, Fabio Soopramanien (1A), Dario Soopramanien (2A) and Gerard Bastienne (3A) had agreed with one another to import a substantial amount of controlled drugs namely heroin and cannabis resin into the Republic. The drugs were to be imported into Seychelles from Iran by a foreign dhow. It was agreed between them that Gerard Bastienne would use the boat “the flying fish” to get the drugs that came from the foreign dhow. It was further agreed that they would recruit Andy Bistoquet from Seychelles to then be transferred to Iran as a drug guarantee for the purpose of exploitation as a drug guarantee. Around the third week of October 2021, the accused assembled together at La Digue and Praslin and made arrangement for Andy Bistoquet to come with them to execute the plan of importation, the initial plan failed. For the second attempt of the plan on 31^st October 2021, at around 04:00 am, Gerard Bastienne, Dean Lawrence and Andy Bistoquet left Praslin on the “flying fish”, at around 05:00 pm. They met with the dhow where Andy Bistoquet was transferred on board the dhow, afterwards Dean Lawrence came on board the dhow and took the drug packets which were in gunny bags from the dhow and handed over to Gerard Bastienne who loaded it on his boat “the flying fish”. Upon the return, the Seychelles Airforce Dornier was flying overhead filming the entire operation and observed packages being thrown overboard by the two persons on board the speed boat “flying fish” which was then intercepted by Coast Guard Officers. Gerard Bastienne threw the satellite phone in the sea and along with Dean Lawrence disposed of several packets suspected to have contained controlled drugs that was still floating in the sea and collected by Coast Guard Officers. A total of approximately 132 full packages containing cannabis resin as well as another 16 empty packets of what was suspected to be containing heroin were recovered near the “flying fish”. Meanwhile, the second vessel “vally” was also intercepted by the Coast Guard and there were personnel on board, namely one, Dylan Padayachy and the 1^st Accused Fabio Soopramanien. The two vessels and the 1^st and 3^rd Accused were later brought to Mahe and were arrested for the charged offences along with the 2^nd Accused who was subsequently arrested at his residence. The one hundred and thirty-two packets seized were recorded and suspected to contain controlled drugs and the same were later analysed to be namely cannabis resin, having a net weight of 130.58 kg. The samples collected from the vessel “flying fish” and some of the empty packets seized were tested positive for the presence of heroin. On being alerted about the transferring of Andy Bistoquet to the foreign dhow, international assistance was sought for and Andy Bistoquet was rescued with the assistance of foreign navies and brought back to Seychelles on the 25^th of November 2021. My Lord based on the above facts, accused number 1, accused number 2 and accused number 3 has been charged with counts 1, 3 and 4 to which they have pleaded guilty. My Lord this is as per the amended charge of the 11^th of August 2022.” (verbatim)

6. In relation to grounds 1 and 4(d) of appeal I state that most of the cases referred to by Counsel for the Appellants at pages 127 -129 of the appeal brief and the Skeleton Heads of Arguments have no relevance to counts 1 and 3, as some of them are sentences meted out in cases relating to ‘trafficking’ in dangerous drugs and in those cases in relation to ‘importation’, the facts and circumstances are different to the facts and circumstances of this case. This was a case where the amount of drugs involved were very much higher than in the other cases of importation, where the offences were committed in the mid ocean and where a person was transferred to an Iranian dhow at sea as a guarantee for payment of drugs, the second of its kind since October 2020 to happen in the Seychelles. The case of Republic V Percy Samson relied on by the Appellants to show that the weight of the drugs was higher, than in this case, was one of cannabis herbal material and the charge therein was one of trafficking which took place on land. Courts in Seychelles should be very much concerned where drugs are imported into the country and where the transhipment takes place in the mid ocean between foreign vessels and local boats. If our courts do not adopt a very strict stance as regards this type of offences Seychelles will soon be inundated with dangerous drugs that will affect the social and economic stability and well-being of this country. As regards past sentences on trafficking in persons, cited by the Appellants, the facts in Justin Leon are very much different to this case. In the case of Vincent Samson heard during this session, a sentence of 10 years had been imposed for trafficking in persons under section 3 of the Prohibition of Trafficking in Persons Act and the charge did not make reference to any aggravated circumstances. The other charge laid under the Prohibition of Trafficking in Persons Act was struck out by this Court as it was defective.

7. The learned Trial Judge, in the present case, had certainly erred by imposing sentences of 5 years in default of the payment of the fines imposed in respect of counts 1, 3 and 4, and by ordering that such imprisonment shall be concurrent to the jail terms imposed. Section 295 (1) of the Criminal Procedure Code states: “No sentence of imprisonment in default of payment of a fine …shall exceed six months in all…”. section 295 (2) of the Criminal Procedure Code states: “when imprisonment is imposed in lieu of the payment of fine…such imprisonment shall be in addition to, and shall begin after, any such term of imprisonment so decreed.” I therefore quash all orders imposing sentences of 5 years in default of the payment of the fines and the order that such imprisonment shall be concurrent to the jail terms imposed.

8. The allegation in ground 2 of appeal that in handing down the above sentences the learned Trial Judge relied on facts that the prosecution had not placed before the court and which were not admitted by the Appellant appears to have been elaborated at ground 4 (b), (c) and (e) and thus linked to ground 2, for the Appellants have not referred to any other facts that had been relied upon by the Sentencing Judge that had not been placed before the court and which were not admitted by the Appellant.

9. In response to ground 4 (b) of appeal the learned Trial Judge had at paragraph 10(b) of the Judgment, set out in detail why he came to the conclusion, that the three Appellants were part of an organized criminal group as defined in MODA. This is clearly borne out by the prosecution facts that were admitted by all three Appellants as referred to at paragraph 5 above. In my view, the Appellants were indeed members of an organized criminal group as defined in section 2 of MODA read with section 3(9) of the Anti-Money laundering Act (AMLA), 2016. Section 2 of MODA states: “organised criminal group" means a Structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more act which constitutes criminal conduct as specified in paragraph (a) to (d) of section 3(9) of the Anti-Money Laundering Act, 2006;” Section 3(9) of AMLA states: “In this Act, "criminal conduct" means conduct which - (a) constitutes any act or omission against any law of the Republic punishable by imprisonment for life or for a term of imprisonment exceeding three years, and/or by a fine exceeding R50,000 and,…” It is clear that the offences under counts 1 and 3 that the Appellants had been charged with and to which they had pleaded guilty comes within the definition of section 3(9) of AMLA.

9. In response to ground 4 (c) of appeal all three Appellants had admitted to the facts as narrated by the Prosecutor when he said: “sixteen packets of what was suspected to be containing heroin were recovered at sea near ‘the flying fish’. The samples collected from the vessel ‘flying fish’ and some of the empty packets seized were tested positive for the presence of heroin.” The learned Sentencing Judge was therefore justified in making the statement: “a sizeable amount was discarded by the convicts before they were apprehended.”

10. Ground 4 (e) as stated earlier, is only in relation to 1A. The learned Trial Judge had individualised the sentences against the Appellants, in relation to count 4 on the basis that “the 1^st and 2^nd convicts, passing themselves as friends of the victim, lured him into captivity, with the 1^st convict even threatening to kill him if he does not do their biddings”. The learned Trial Judge had increased the sentence of 1A by an additional 2 years, than, what he had imposed on 2A by wrongly taking into consideration that 1A threatened to kill Andy Bistoquet, if he did not act according to their bidding, in the absence of any evidence. The Prosecution facts referred to at paragraph 5 above makes no mention of such a threat being made. Also the prosecution facts do not make mention of the 1^st and 2^nd convicts, passing themselves as friends of the victim, luring him into captivity. Reliance cannot be placed on a Probation Report which sets out what the victim has said to the Probation Officer, as argued by the Respondent in their Heads of Argument, despite the fact that the Probation Report had been called for by Court at the instance of the Appellants. This is because this fact has not been admitted by 1A and 2A, and further, the victim has not been subject to cross-examination on this matter. While holding with 1A on ground 4(e), I quash the sentences of 20 years and 18 years of imprisonment imposed on 1A and 2A as there had been no basis for individualising their sentences and impose instead a sentence of 15 years on each of them, like that of the sentence imposed on 3A in respect of count 4.

11. The allegation in ground 3 of appeal is misconceived as the learned Sentencing Judge had at paragraphs 4, 5, 8, and 9 of the judgment accurately and impartially stated the mitigating facts prior to sentencing the Appellant, incorporating the submissions of Counsel for 1A, 2A, and 3A at pages 125 to 131of the court brief, in mitigation of sentence. He had also taken into consideration the dock mitigation statement of the 1^st Appellant and the contents and recommendations of the Probation Reports. In doing so he had taken into consideration all mitigating factors set out in section 49 of MODA applicable to the facts of this case and the circumstances of the Appellants. The learned Sentencing Judge had stated that the Appellants are first offenders as all past convictions had been spent under the provisions of the Rehabilitation of Offenders Act. He had considered the recommendations in the Probation Services Pre-Sentencing Reports in respect of all three Appellants. He had considered that all three Appellants had pleaded guilty almost at the beginning of the case and that they were young offenders, with dependants who are minors.

12. In relation to ground 4, I do not find any “misstatement of the ‘aggravating factors’ showing a very biased mind set” as alleged by the Appellants. Ground 4 (a) of appeal, is misconceived as the charge to which all three Appellants pleaded guilty was not for importing heroin into Seychelles, but for conspiracy to commit an offence under section 16(a) of MODA namely, agreeing with other persons that a course of conduct shall be pursued which, if pursued will necessarily involve the commission of an offence under MODA, namely the offence of importation of heroin by one or more of the parties to the agreement. All three Appellants had admitted to the facts as read out by the Prosecutor which stated: “that on or around October 2021, had agreed with one another to import a substantial amount of controlled drugs namely heroin and cannabis resin into the Republic.” To prove an offence under section 16(a), importation into Seychelles need not be proved, as the agreement itself suffices. The fact that the Learned Sentencing Judge made reference to the fact that an amount of controlled drugs was imported into Seychelles was borne out by the prosecution facts admitted by the Appellants as referred to at paragraph 5 above.

13. This was undoubtedly a case where more than one aggravating factor as set out in section 48(1) of MODA, were present to a significant extent as borne out by the charges and the prosecution facts admitted by the Appellants and referred to at paragraph 5 above. This necessitated the Court to treat the offence as aggravated in nature, namely; the presence and degree of a commercial element in the offending, the involvement in the offence of an organised criminal group to which the offenders belong, and the involvement of the offenders in other offences related to the commission of the offence, namely human trafficking.

14. The learned Sentencing Judge had at paragraph 10 of his judgment elaborated on the aggravating factors which are summarised as follows:

(a) Importation of Heroin and 130.58 kg of Cannabis Resin into Seychelles on the basis of an agreement reached amongst them, which is clear evidence of the presence and degree of a commercial element in the offence committed.

(b) That the three Appellants were members of an organized criminal group.

(c) The involvement of the Appellants in the offence of human trafficking. In order to import drugs into Seychelles they had to recruit, transport and transfer Andy Bistoquet from Seychelles to an Iranian dhow at sea, to be a drug guarantee, under deception. I am in total agreement with the statement of the learned Sentencing Judge: “This seems to be an increasingly worrisome trend in this country where offenders recruit, transport and then transfer young Seychellois men to foreign lands where they are held as drug guarantees. This amounts to exploitation and it forms one of the worst forms of human trafficking.” If this trend is not nipped in the bud the consequences will be disastrous and soon we will be slipping into a modern form of slavery.

15. I am in agreement with the learned Sentencing Judge that the offence in count 3 committed by the Appellants does not warrant an indicative minimum sentence and calls for a harsh sentence in order to deter similar offenders and prevent similar offences being committed. The courts certainly have to move away from the sentencing pattern adopted in the cases cited by Counsel for the Appellants, as in all of those cases save two, the offenders were not involved in human trafficking in order to achieve their objectives. The learned sentencing Judge had given due consideration to the principles enunciated in the case of ML & Ors Cr 38/19 and the case of Poonoo V R 92011) SLR 424.

16. None of the well-known principles where an appellate court may consider reducing the sentence passed by the Trial Court exist in this case in relation to the prison sentences imposed under counts 1 and 4, save the ones referred to at paragraphs 7 and 10. I have in respect of count 4 adjusted the sentence to that in passing sentence irrelevant matters are not taken into consideration.

17. I have however some difficulty in understanding the 30 years sentence of imposed in respect of count 3. No doubt there is a commercial element therein in offending taking into consideration that 130.58 kilo grams of Cannabis resin had been imported into the country and the fact that “this appears to be one of the biggest bust of cannabis resin imported into the country” as stated by the Sentencing Judge. I do appreciate that the indicative minimum sentence of 15 years for an aggravated offence of importation set out in MODA is not binding on the Court and only a guideline and where the court is satisfied that the facts of the case merits it, the court can impose a sentence higher than the indicative minimum sentence as correctly stated by the Sentencing Judge. I am however of the view that the sentence of 30 years’ imprisonment imposed in respect of count 3 is manifestly harsh and excessive taking into consideration that the Appellants had pleaded guilty at the early stages of the trial and they do not have criminal records that could be taken into consideration in sentencing. Further taking into consideration the ages of 1A, 2A and 3A, at the time of their release from prison under the present sentences imposed on them, respectively 70, 67 and 83 years, there will be no hope left for them to commence a new life. I therefore quash the sentences of 30 years imposed on 1A, 2A, and 3A and instead impose on each of them a sentence of 25 years’ imprisonment in respect of count 3.

18. In sentencing in a case where multiple offences are charged, a Judge should take into consideration the principle of ‘Proportionality’ and the principle known as ‘Crushing Sentence’, which have been identified as being two limbs of the ‘Totality Principle’. Under the proportionality principle as stated in the Australian case of Woods V The Queen [1994] 14 WAR 341 the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case including those referable to the offender personally. See also Adams V Western Australia [2014] WASCA 191 and Roffey V Western Australia (2007) WASCA 246. According to the ‘totality principle’ the accumulation of sentences, in other words the total sentence should not be disproportionate to the total criminal conduct. Under the crushing sentence principle, a court should bear in mind as stated in Martino V Western Australia [2006] WASCA 78, that the sentence should not induce a feeling of helplessness in the offender and destroy any reasonable expectation of a useful life after release. Also see [Sayed v The Queen [2012] WASCA 17, (Buss JA, Martin CJ and Hall J agreeing); Azzopardi v The Queen [2011] VSCA 372, (Redlich JA, Coghlan and Macaulay AJJA agreeing); R v MAK [2006] NSWCCA 381, (Spigelman CJ, Whealy and Howie JJ); and R v Baker [2011] QCA 104, (Atkinson J, McMurdo P and Lyons J agreeing)].

19. It has been held that sentencing is about achieving the right balance between the crime, the offender and the interests of the community (S v Zinn 1969 (2) SA 537 (A) at 540G-H). A court should, when determining sentence, strive to accomplish and arrive at a judicious counterbalance between these elements in order to ensure that one element is not unduly accentuated at the expense of and to the exclusion of the others (see S v Banda 1991 (2) SA 352 (BG) at 355A). The question is essentially whether, on a consideration of the particular facts of the case, the sentence imposed is proportionate to the offence, with reference to the nature of the offence, the interests of society and the circumstances of the offender. See Yose and Another v S (04/2021; A230/2021; RCA 199/2008.

20. As regards the fines imposed in addition to the prison sentences on the Appellants, I find that no inquiry has been made by the Sentencing Judge as to the financial circumstances of the Appellants as to their means to pay within 14 days of the sentence. I am also of the view that the learned Sentencing Judge had not looked into the practicality of making such an order. I therefore quash all fines that have been imposed in relation to counts 1, 3 and 4 and the consequential order made for the compensation of the victim Andy Bistoquet. I take this opportunity to request the relevant authorities to consider amendments to PTPA to include provisions to forfeit the known assets of the accused on their conviction and order payment of compensation for the victim of trafficking. In that respect provision will have to be made for an order of seizure of the assets of the accused on being charged and pending conviction.

21. There were no submissions on orders made by the learned Sentencing Judge in respect of the “corpus delicti” and the travel restrictions under section 50 of MODA, and thus they are maintained.

22. The appeals of 1A, 2A, and 3A against the sentences imposed on them, are thus partially allowed.

In order to avoid any doubt:

The sentences of 20 years’ imprisonment imposed on 1A, 2A, and 3A in respect of count 1 is maintained,

The sentence of 30 years of imprisonment imposed on 1A, 2A an 3A in respect of count 3, is quashed and instead a sentence of 25 years’ imprisonment is imposed on each of them,

The sentence of 20 years of imprisonment imposed on 1A in respect of count 4 and the sentence of 18 years of imprisonment imposed on 2A in respect of the said count, is quashed and instead a sentence of 15 years’ imprisonment is imposed on 1A & 2A in respect of count 4. The sentence of 15 years of imprisonment imposed on 3A in respect of count 4 is maintained.

1A, 2A and 3A will each serve a total period of 25 years’ imprisonment as sentences in respect of counts 1, 3 and 4 shall run concurrently with one another.

All fines imposed and the default sentences prescribed in the event of the non-payment of fines is quashed.

The orders made by the learned Sentencing Judge in respect of the “corpus delicti”

and the travel restrictions under section 50 of MODA are maintained.

Fernando President

I concur: _________________

Dr. M. Twomey-Woods JA

I concur: _________________

F. Robinson JA

Signed, dated and delivered at Ile du Port on 26 April 2023.