R v Philoe (CO 99/2015) [2016] SCSC 483 (8 July 2016)


Criminal Side: 99/2015

[2016] SCSC 483




Heard: 27 June 2016

Counsel: Mr. Vipin Benjamin, for the Republic

Mr. Clifford Andre Attorney at Law for the

Delivered: 8 July 2016

  1. The convict Kereena Philoe, pleaded guilty to the offence of trafficking in a quantity of 521.5 grams of a controlled drug namely Cannabis resin, a charge framed under the Misuse of Drugs Act (MODA), CAP 133. The said Act has been repealed by the new Misuse of Drugs Act 5 of 2016 (hereinafter referred to as the new Act) with saving clauses as contained in section 55 (1) of the new Act.

  2. In the case of Cousin v R SCA 21 of 2013 and in the case of Kelson Alcindor v R [2015] SCCA 7, it was held that the Appellant should benefit from the change of law in his favour, along the principle of “la peine la plus douce.”See Aubeeluck Gangasing v The State of Mauritius [2010] UKPC 13. The Appellants’ sentence in both cases were reduced to be in conformity with the amended law which was beneficial to the Appellants. Further Section 51 (2) of the new Act states outstanding sentences under the earlier Act must be reviewed in accordance with the new MODA.

  3. Therefore, based on the aforementioned case law, this court will take into consideration the benefits applicable to the convict brought about by the change of law. Under the old law, the penalty for such an offence was a mandatory term of life imprisonment.

  4. Under the new Act, there is no mandatory term of life imprisonment for the said offence and the convict is liable to a maximum of 50 years imprisonment and a fine of SR 500,000. I further note from the facts before me, that no aggravating circumstances as set out in section 48 of the new Act exists in this case. Therefore, as no aggravated circumstances exist on consideration of the amendment to the Prisons Act brought about by Act 6 of 2016, the convict will benefit from the new amendment to the said Act, in that she will be entitled to remission.

  5. I have considered the plea in mitigation made by learned counsel for the convict. The quantity of controlled drug concerned in this case is 521.5 grams. The convict has pleaded guilty without proceeding to trial, thereby saving the time of court and by doing so expressed remorse. The convict is a 1st offender. Having considered the plea in mitigation made on behalf of the convict, I note she is a young lady who learned counsel states is 20 years of age and has co-operated with the officers of the NDEA at the time of detection.

  6. Considering the fact that the charge of trafficking is based on the presumption and the quantity of controlled drug concerned is 521.5 grams of a Class B drug, I proceed to sentence the convict to a term of 2 ½ (two and a half) years imprisonment and a fine of SR 10,000/ ( ten thousand) . In default of payment of fine, the convict is to serve a term of 6 months imprisonment to run consecutive to the term of 2 ½ years imprisonment imposed herein.

  7. Time spent in remand to count towards sentence. I make further order that the convict is entitled to remission as the offence is not aggravated in nature.

  8. Copy of this order to be attached to the warrant of commitment.

Signed, dated and delivered at Ile du Port on 8 July 2016

Judge of the Supreme Court


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