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ORDER
I proceed to sentence the accused Neil Azemia as follows:
Count 1- to a term of three years imprisonment and a fine of SCR 25, 000.00 (twenty five
thousand rupees). I make order that in default of payment of fine the accused serves a term
of six months imprisonment consecutive to the said term of three years imprisonment.
BURHAN J
[1] The accused Neil Azemia was found guilty after trial of the charge of manslaughter and
convicted on the 05 August 2022.
[2] The details of the charge read as follows;
Count 1
Statement of Offence
Manslaughter by way of unlawful omission contrary to Section 192 of the Penal Code and
punishable under Section 195 of the Penal Code (Cap 158).
Particulars of Offence
Neil Garry Azemia (NIN 988-0955-1-1-64) of Barbaron, Mahe on the 6th September 2020
at Darros Island, caused the death of another person namely late Michelle Anacoura of
Les Cannelles, Mahe by unlawful omission while recklessly driving a motor vehicle namely
a Pick-up Truck with no registration number which was dangerous to the public in culpable
negligence to discharge a duty tending to the preservation of life or health.
[3] Section 195 of the Penal Code states;
Any person who commits the felony of manslaughter is liable to imprisonment for life. "
[4] Thereafter at the request of learned Counsel for the accused Mr Andre a probation report
was called prior to mitigation and sentence.
[5] I have considered the facts set out in the probation report. The accused is 34 years old and
has three children from earlier relationships. Prior to being remanded the accused was
residing with his partner at Anse Loius together with his partner's child who is four years
old. The accused has completed his secondary studies and then pursued his post -secondary
education at the Seychelles Tourism Academy.
[6] The accused has worked as a cook throughout his career in numerous hotels in the
Seychelles. It appears from the report that though his usual job was as a cook, he states he
had volunteered to drive the said vehicle on the instructions of the victim in order to assist
her and at her request. It is apparent he provides financial assistance to his children as per
a Family Tribunal Order. It also appears from the report that the accused is a daily smoker
of Cannabis.
[7] The father of the victim informs the probation that the 10 year old child of the victim is
emotionally suffering at the loss of his mother. The victim's mother too had informed the
probation officer that when she heard about the incident she went into shock. She had
become distressed and disturbed when she had seen the wheel marks on the back of her
daughter's body. She had been unable to go to work for two weeks due to the distress
caused to her at the loss of her daughter. The probation recommends a deterrent punishment
and recommends at the end of the report that the minimum custodial term be given.
[8] Learned Counsel Mr Andre stated that from the moment the vehicle of the accused had
struck the victim, he had got down and expressed remorse at what he had done and began
to call for help and began to assist in different ways in the taking of the victim to Victoria
hospital for treatment. Mr Andre referring in detail to the subsequent conduct of the
accused after the incident submitted that the accused acts, soon after the incident, clearly
indicate that the accused wanted the victim to live. He moved court that the accused be
given a suspended sentence and fine.
[9] The case of Njue v R (2016) SCCA 12, (atpara 14) set out the principles a court should
consider when sentencing which include public interest; the nature of the offence and the
circumstances it was committed. The Court at the same time must consider whether there
is a possibility of the offender being reformed; the gravity of the offence; the prevalence
of the offence; the damage caused; any mitigating factors; the age and previous records of
the accused; the period spent in custody; and the accused's cooperation with law
enforcement agencies. These factors can be grouped into three categories namely - looking
at the crime committed, the offender and the interests of society." (Emphasis added).
[10] In the case of Emmanuel Sa/lance v R {2020j SCCA 29 (18 December 2020) the
Seychelles Court of Appeal enhanced a term of 15 years imprisonment to 20 years
imprisonment on the basis of the fact that the accused had previous convictions and was a
person of violent disposition and on considering the numerous injuries inflicted on the
deceased by the accused. In coming to the decision to enhance the sentence Twomey JA
held:
"In a hierarchy of seriousness, where the highest culpability for each of the offences of
homicide are considered, the offence of murder would be at the summit, followed by
voluntary manslaughter and then involuntary manslaughter committed by an unlawful act
and lastly gross negligence manslaughter. These levels ofculpability should, in my opinion,
be reflected in the penalty imposed [or the offence committed. " (emphasis added)
[11] Giving due regard to the aforementioned factors, this Court prior to deciding on the
suitable sentence to be imposed in this case will first consider which class or type of
manslaughter the accused was convicted.
[12] When one consider the facts off this case it is clear that this is a case of gross negligence
manslaughter.
[13] Having determined the class or type of manslaughter relevant to this case, in accordance
with the classification giving in respect of the hierarchy of seriousness as set out in the
Saffance case referred to in paragraph [10] herein, the offence of murder would be at the
summit, followed by voluntary manslaughter then involuntary manslaughter committed by
an unlawful act and lastly gross negligence manslaughter. As held in the case of Saffance
these levels of culpability should be reflected in the penalty imposed.
[14] , Giving due cognisance to the aforementioned reasoning in the Saffance case, this court will
proceed to consider the relevant case law in respect of sentencing in manslaughter cases. It
would be also pertinent to mention that in the case of manslaughter by gross negligence,
the Seychelles Court of Appeal in the case of Barreau v R {2015]SCCA 15(17 December
2015) imposed a term of 4 years imprisonment.
[15] Although the accused in this case was not charged under the Road Transport Act, in my
view it would be relevant to consider sentences imposed by this Court in relation to
incidents resulting in the death of a person under similar circumstances to this case.
[16] In the cases of R v Chetty [2018J sese 244, R v Oreddy [2018J sese 57, R v Lai Lai
Lam [20201 sese 301. R v Gabriel [2021J sese 544, the range of sentences imposed in
these cases were between two years six months and three years for causing death by
dangerous driving which is a lesser offence to Manslaughter.
[17] Giving due consideration to the sentencing pattern of this Court, the mitigating factors
urged by learned Counsel for the accused, the facts set out in the probation report and the
reasoning set out herein, I proceed to sentence the accused Neil Azemia as follows:
Count 1- to a term of three years imprisonment and a fine of SCR 25, 000.00 (twenty five
thousand rupees). I make order that in default of payment of fine the accused serves a term
of six months imprisonment consecutive to the said term of three years imprisonment.
[18] Time spent in remand to count towards sentence.
[19] Right of appeal explained.
Burhan J