R v Fabio Soopramanien and ors (CR 113 of 2021; CR 115 of 2019) [2021] SCSC 740 (2 September 2021)

GOVINDEN   CJ

1. The first three accused have pleaded guilty to count 1; count 3 and count 4 of the further amended consolidated charge in which they are jointly charged. The accused persons have not pleaded to Count 2, which is only alternative to count 3, and it shall remain on record given that it is an alternative count to count 2 only. The three accused who were accordingly convicted on their own guilty pleas shall hereinafter be referred to as “the convicts” or “the 1^st; 2^nd and 3^rd convicts” for the purposes of this sentence.
2. The counts that they have been convicted of are the following;:

                                                           Count 1

                                                    Statement of Offence

Agreeing with other persons that a course of conduct shall be pursued which, if pursued will necessarily amount to or involve the commission of an offence under the Misuse of Drugs Act 2016 namely the offence of Importation of a Controlled Drug, by one or more of the parties to the agreement, contrary to Section 16(a) read with Section 5 of the Misuse of Drugs Act 2016 and Punishable under Section 5 read with Second Schedule of the said Act.

                                                       Particulars of offence

Fabio Soopramanien, 36 year old male, unemployed, of Pointe Larue, Mahe, Dario Daniel Soopramanien, 31 year old male contractor of Pointe Larue, Mahe and Gerard Michel Bastienne, a 52 year old male fisherman of Reunion Estate, La Digue, on or around the 1^st November 2021, agreed with one another to pursue a course of conduct, that if pursued would amount to or involve in the commission of Importation of a controlled drug namely Heroin (Diamorphine) into Seychelles, in a quantity unknown to the Republic, by one or more of the parties to the agreement.

                                                           Count 3

                                                   Statement of Offence

Agreeing with other persons that a course of conduct shall be pursued which, if pursued will necessarily amount to or involve the commission of an offence under the Misuse of Drugs Act 2016 namely the offence of Importation of a Controlled Drug, by one or more of the parties to the agreement, contrary to Section 16(a) read with Section 5 of the Misuse of Drugs Act 2016 and Punishable under Section 5 read with Second Schedule of the said Act.

                                                Particulars of offence

Fabio Soopramanien, 36 year old male, unemployed of Pointe Larue, Mahe, Dario Daniel Soopramanien, 31 year old male contractor of Pointe Laure, Mahe and Gerard Michel Bastienne, a 52 year old male fisherman of Reunion Estate, La Digue, on or around the 1^st November 2021, agreed with one another to pursue a course of conduct, that if pursued would amount to or involve in the commission of an offence of Importation of a controlled drug into Seychelles namely Cannabis resin having a net weight of 130.58 kilo grams, by one or more of the parties to the agreement.

                                                           Count 4

                                                 Statement of Offence

Trafficking of person contrary to section 3(1) (a), (e), (f), (g) read with Section 5(1)(g) of the Prohibition of Trafficking in Persons Act of 2014 further read with Section 22 & Section 23 of the Penal Code and punishable under section 5(2) of the said Prohibition of Trafficking in Persons Act.

                                             Particulars of offence

Fabio Soopramanien, 36 year old male, unemployed of Pointe Larue, Mahe, Dario, Daniel Soopramanien, a 31 year old male contractor of Pointe Larue, Mahe, Gerard, Michel Bastienne a 52 year old male fisherman of Reunion Estate, La Digue, during the period of 28^th October 2021 to 1^st of November 2021, at Mahe and Praslin in Seychelles, recruited, transported, and transferred one Andy Bistoquet from Seychelles to an Iranian Dhow at sea to then be taken to Iran by deception in sending him to Iran to be a drug guarantee, for the purposes of exploitation as a drug guarantee.

 

3. The facts of the case as read out by the prosecution and admitted to by the convicts are as follows:

 On or around October 2021, Fabio Soopramanien, Dario Soopramanien and Gerard Bastienne had agreed with one another to import a substantial amount of controlled drugs namely heroin and cannabis raisin 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 assemble together at La Digue and Praslin and made arrangements for Andy Bistoquet to come with them to execute the plan of importation, the initial plan failed.  The second attempt of the plan on the 31^st of October 2021, at around 04:00 am, Gerard Bastienne, Dean and Andy Bistoquet left Praslin on “the flying fish”. At around 05:00 pm they met with the dhow were Andy Bistoquet was transferred on board the dhow .

For the second attempt of the plan on the 31^st of 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 were Andy Bistoquet was transferred on board the dhow, afterwards Dean Lawrence came on board the dhow and took the drug packets which were in goony 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 were still floating in the sea and c collected by Coast Guard Officers.

A total of approximately one hundred thirty two full packages containing cannabis raisin as well as another sixteen 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 personal 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 charge offences along with the 2^nd accused who was subsequently arrested at his residence. The one hundred and thirty packets seized were recorded and suspected to contain controlled drugs and the same were later analyzed to be namely cannabis raisin, 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 were 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.

 

4. For the purposes of this sentence, the court will take the convicts as first offenders as all past convictions tender by the prosecution appears to have been spent under the provisions of the Rehabilitation of Offenders Act
5. At the request of learned Counsels for the convicts, Probation Services Pre-Sentencing Reports were requested from the Probation Services. With respect of the 3^rd convict, the Principal Probation Officer recommended that the court imposes an appropriate custodial sentence to act as a deterrent and at the same time considering the actual socio-economic situation of his family. The Probation Service recommended that the court imposes an appropriate Sentence on the 2^ne convict. In regard to the 1^st convict, and given that a full comprehensive report could not be submitted on him as a result of him leaving the interview prematurely, the recommendation of the Probation Services is that the court imposes an appropriate sentence on him taking into consideration the impact the incident had on the victim of human trafficking.

 

6. The court has appraised itself with the provisions of the law when it comes to sentencing under the relevant provisions of the law under which they have been charged. For purposes of passing sentences under count 1 and 3, I take into consideration the relevant sentencing provisions in the Misuse of Drugs  Act, hereinafter also referred to as “the MDA”, as  found under Section 47, which provides follows:

 

1. In sentencing a person convicted of an offence under Part II of this Act, whether upon a guilty plea or following trial, the Court shall have regard to —

(a) the objectives of the Act;

(b) the degree of control to which the relevant controlled drug is subject; and

3. the general objectives of transparency and proportionality in sentencing.

2. Where an aggravating or mitigating factor identified in section 48 or section 49 applies to the circumstances of an offence, the Court shall expressly identify that factor and give weight to it in considering the appropriate sentence.

3. Power of arrest

   In sentencing a person who has been identified as a drug user or a drug dependent person, the Court shall follow the process set out in section 38 or section 39.
4. In sentencing a person convicted of an offence under section 8 of this Act, the Court shall not impose a sentence of imprisonment unless satisfied that a non-custodial sentence is inappropriate in all the circumstances.
5. In sentencing a person convicted of an offence under this Act in circumstances where the offence is aggravated in nature, the Court shall have due regard to the indicative minimum sentence for aggravated offence of that kind.

6. Procedure

   Mitigating factors that support a reduction in sentence for offences under Section 48 of the Act  includes,

1. the offender's admission of the truth of the charge through a guilty plea, particularly an early guilty plea;
2. the offender's acceptance of responsibility for the harm or potential harm associated with his or her offence;
3. any substantial assistance given by the offender to law enforcement authorities, as an informer or otherwise, in the prevention, investigation, or prosecution of any other offence under this Act;
4. the absence of any commercial element in the offence;
5. the presence of an element of coercion, for example from a family member or employer;
6. the absence of prior convictions or prior formal cautions under this Act; and
7. the fact that no other person was involved in or directly harmed by the offence.

 

 

7. The provisions of the MDA with regards to aggravating factors are as follows;

48.(1) Aggravating factors that support a more serious sentence for offences under the Act includes —

1. the presence and degree of a commercial element in the offending, particularly where controlled drugs have been imported into Seychelles;
2. the involvement in the offence of an organised criminal group to which the offender belongs;

 

the involvement of the offender in other offences facilitated by or related to commission of the offence; the use of violence or weapons by or on behalf of the offender; the fact that the offender holds public office or a high-profile position in the community, particularly if the offence is connected with the office or position in question; the targeting, involvement, use, or exploitation of children in connection with the offence; prior convictions (subject to the Rehabilitation of Offenders Act), particularly for similar offences, whether foreign or domestic, or prior formal cautions under this Act. (2) Where one or more of the aggravating factors identified in subsection (1) is present to a significant extent, the Court shall treat the offence as aggravated in nature. the fact that the offence was committed in a penal or educational institution, social service facility or in other places related to education, sports, or social activities, or in their immediate vicinity; and prior convictions (subject to the Rehabilitation of Offenders Act), particularly for similar offences, whether foreign or domestic, or prior formal cautions under this Act. (2) Where one or more of the aggravating factors identified in subsection (1) is present to a significant extent, the Court shall treat the offence as aggravated in nature.

7. the fact that the offence was committed in a penal or educational institution, social service facility or in other places related to education, sports, or social activities, or in their immediate vicinity; and
8. prior convictions (subject to the Rehabilitation of Offenders Act), particularly for similar offences, whether foreign or domestic, or prior formal cautions under this Act.

(2) Where one or more of the aggravating factors identified in subsection (1) is present to a significant extent, the Court shall treat the offence as aggravated in nature.

 

8. I have also considered the pleas in mitigation made by learned Counsels for the convicts; the additional dock mitigation statement of the 1^st convict; the contents and recommendations of the Pre-Sentencing Reports; the facts of this case; the sentencing pattern in similar cases render by this court and the Seychelles Court of Appeal and the provisions of the Act above. Having done all this I have come to the following determination.
9. The court is of the view that there are certain mitigating factors that can be identified in this case. In accordance to Section 47 (2) of the MDA, I give to each due weight that would mitigate for a lenient sentence. First, it is to be noted that the convicts have pleaded guilty, though not at the very first opportunity, but at least at the beginning of this case, saving the precious time and resources of this court and the prosecution. This amounts to the offender's accepting of responsibility for the harm or potential harm associated with their offences. Second, the convicts have nothing known against them. Third, the convicts are relatively young offenders with dependents who are minors. However these mitigating circumstances are heavily outweighed by the existence of many aggravating circumstances as described in section 48.

 

10. The aggravating factors can be summarised as follows:

1. The fact of the case shows the presence and degree of a commercial element in the offending, particularly when it came to the importation of the Heroin and the 130.58 kilo grams of Cannabis resin into Seychelles. Commercial elements relates to the existence of facts showing the selling and buying of goods for profits. Sadly in this case the convicts decided to give a Seychellois citizen, Andy Bistoquet, as guarantee in return for the Heroin and Cannabis resin, which would give them profits. To this court this amount to a sale in the spirit of section 48(1) (a) of the MDA, as it amounts to consideration given for the Controlled drugs transferred to them in this case. This commercial element, moreover, takes a particular very vicious twist as it amounts them putting someone into human bondage with little hope of seeking or getting assistance from his country or next of kin.
2. The second aggravating factor is the involvement in the offence of an organised criminal group to which the offenders belong. I find on the facts, that the 3 convicts form part of an organized criminal group. I find this on the basis of their participation in all of the inculpatory acts. All of the accused participated or contributed to the activities of their criminal organisation, whether by act or omission, both in the first failed attempt and in the second successful attempt to rendezvous with the dhow and import the controlled drugs. All of which contributed to the success of their enterprise. The concerted prohibited conducts of the convicts were done wilfully and for the purpose of enhancing the ability of their criminal organisation to facilitate or commit the offences that they have pleaded guilty to.
3. The third aggravating factor is the involvement of human trafficking. In order for them to be able to import the drugs into Seychelles they had to recruit, transport, and transfer Andy Bistoquet from Seychelles to an Iranian Dhow at sea. Andy Bistoquet had to be taken to Iran, under deception, to be a drug guarantee for the purposes of exploitation as such. 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 then held as drugs guarantees.  This amounts to exploitation and it forms part one of the worst forms of human trafficking. The devastating effect on the victim and the family of the victim is well documented. This would have been the fate reserved for Andy Bistoquet if not for the valiant effort of the authorities.
4. The amount of controlled drugs imported into Seychelles is also an aggravating factor. In this case, a sizeable amount of Heroin was discarded by the convicts before they were apprehended. However, more than 130kgs of Cannabis resin were eventually recovered. This appears to be one of the biggest bust of Cannabis resin in the history of this country. The negative impact of these drugs on our society if they had entered the drug market cannot be overstated.

 

11. I am therefore bound to treat this case as one that is aggravated in nature under the MDA, even if the convict have pleaded guilty. Nonetheless, the court is also aware of the fact that it must also give due regards to the Indicative Minimum Sentence set out under the Act and see whether it merits being imposed in this case. In effect the convicts have pleaded guilty to the offences of Conspiracy to import the Cannabis resin and the Heroin. Under Section 16 of the Act, being the provisions under which they have been charged, they are liable to be sentenced for the sentenced provided for the principal offences. In other words, they are to be sentenced as if they had been charged for the offences that they had agreed to commit, hence those that commensurate with aggravated offences of importation of Heroin and Cannabis resin. The Maximum sentences for both offences are life imprisonment and 1 million rupees in the second schedule of the Act.
12. Under Section 47 (5) of the MDA, a person convicted of an offence under the Act in circumstances where the offence is aggravated in nature, the Court shall have due regard to the indicative minimum sentence for aggravated offence of that kind. The indicative minimum sentence for the offence of aggravated importation of Heroin in Seychelles is 20 years imprisonment and Cannabis resin is 15 years imprisonment. However, as the Act itself stipulates these are only indicative minimums, they are not binding on the court. They are only guidelines. To the extent that the court is satisfied that the facts of the case merits it, the court can impose sentences higher than the indicative minimum sentences especially if the facts reveal great seriousness.
13. Moreover, the law provides that the Court can have due regard to the indicative minimum sentence for aggravated offence “of that kind”. In other words, it is the kind of offences that the accused have been convicted of including the facts of each particular case that’s important. This means that a justifiable exception can be made to this provision if the adjudicator feels that the offences before him do not factually fit “the kind” which was previously the subject matter of sentences rendered by the court or does not necessarily fit “the kind” as found in the provisions of the schedule of the Act. For these reasons and given the extremely serious nature of the case as highlighted above, the court can only impose sentences higher than the indicative minimum in this case.
14. As regards count 4, the maximum penalty provided in Section 3 of the Prohibition of trafficking in persons Act 2014, herein after referred to as the “PTPA” is 14 years imprisonment and Rs 500,000 under Section 3. However if the offence is one of aggravated human trafficking it is 25 years imprisonment and Rs 800,000. The Aggravated circumstances are clearly set out in Section 5 of the PTPA and that includes situations where the offence is committed by an organized group. As I have found above the offence committed in the case was by the 3 convicts operating as an organized group. Hence the court is of the view that they have committed an aggravated form of human trafficking and they are liable to be sentenced as such. However, I have to individualise the sentence and bear into consideration the fact that it was 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.
15. The courts in the imposing these sentences is also conscious of the need to apply settled sentencing principles as was enunciated in the case of ML & Ors, Cr  38/19 and the need to individualized the sentence and to render it proportionate so as to fit the circumstances of the case and the three test enunciated in the case of Ponnoo vs R (2011) SLR 424 have been followed. The sentences imposed would be proportionate to the crimes committed bearing in mind the individual circumstances of each convicts.
16. The need to deter the convicts and other criminal is also important in sentencing. The law places the need to afford deterrence as the front and centre of sentencing.  There is a need afford adequate deterrence to criminal conducts if the current sentencing pattern is seen too lenient to deter such conducts. This factor requires consideration of both the need for specific deterrence, which relates to persuading the convict to resist further criminal behaviour, and general deterrence, that is demonstrating to others the costs of committing such crimes and thus discouraging criminal behaviour. In this case in sentencing the convicts, this court feels the particular need to deter both the convicts and others to commit such offences as they are presently apparently not deter by sentences previously imposed for such crimes by the court. Hence the need to impose more severe sentences.
17.  Bearing all these in mind, I order as following
    1. 1. On count 1, I impose 20 years imprisonment on each of the convicts, together with a fine of Rs 300, 000 to be paid by each convict within 14 days of this sentence in default of the payments of their fine they shall serve a further 5 years imprisonment which shall be concurrent to the 20 years imprisonment.
       2. On count 3, I impose 30 years imprisonment on each convict, together with a fine of Rs 500,000 to be paid by each convict within 14 days of this sentence, in default of the payments of their fines they shall each serve an additional 5 years imprisonment which shall run concurrently to the 30 years imprisonment.
       3. On count 4, I impose 20 years of imprisonment on the 1^st convict, together with a fine of Rs 500, 000 to be paid within 14 days of this sentence, in default of the payments of the fine he shall each serve an additional term of 5 years of imprisonment which shall run concurrently to the 20 years. I impose 18 years of imprisonment on the 2nd convict, together with a fine of Rs 300, 000 to be paid within 14 days of this sentence, in default of the payments of the fine he shall each serve an additional term of 5 years of imprisonment which shall run concurrently to the 18 years. I impose 15 years of imprisonment on the 3rd convict, together with a fine of Rs 200, 000 to be paid within 14 days of this sentence, in default of the payments of the fine he shall each serve an additional term of 5 years of imprisonment which shall run concurrently to the 15 years
       4. The terms of imprisonment imposed under count 1; 3 and 4 shall run concurrently with one another.
       5. The victim of the human trafficking offence, Andy Bistoquet, shall be compensated with Rs 500.000 out of any portions of the fines to be paid by the convicts.
       6. I order that the “corpus delicti”, the “flying fish”( together with its gears and equipment), being a vessel belonging to the 3^rd convict to be forfeited to the Republic, the vessel shall be used by the Marine Police or Coast Guard in their official duties, any transfer to a third party shall require the express permission of this court.
       7. Given the extra- territorial nature of the offences I will further issue travel restrictions order under section 50 of the Act and prohibit the three convicts from leaving Seychelles at any time in the period of two years beginning from the date of their release from imprisonment. Their passports shall accordingly be kept by the Registrar of the Supreme Court and shall be released to the convicts after two years from their released from prison. The dates of their release shall be notified to the Registrar by the Superintendent of Prison. No new Passports or Travelling documents should shall be issued to the convicts between now and in the period of two years from their released
       8. Time spent in remand to count towards sentence.

 

18. This order is to be served on the Principal Secretary of the Ministry of Internal Affairs; Registrar of the Supreme Court; the Chief Executive Officer of the Seychelles Licensing Authority; and the Commissioner of Police and the Officer Commanding the Seychelles Coast Guard.

 

Signed, dated and delivered at Ile du Port on 02 September 2022

 

____________

 

R Govinden

Chief Justice