R v Agathine & Ors (CO 2 of 2021) [2023] SCSC 178 (9 March 2023)

SENTENCE

1. The convicts were jointly charges with the following  offences
2. Count 1

Statement of offence

Conspiracy to commit the felony namely theft contrary to section 381 of the Penal Code read with section 264(f) of the Penal Code and punishable under section 381 of the Penal Code.

Particulars of offence

Achille Christian Agathine, Julious Sebastien Zialor and Jean-Paul Marius Marie, during the course of their duty as Police Officers on 09th to 10th January 2021 at Mahe, conspired among with them to commit the felony namely theft.

3. Count 2

Statement of offence

Breaking into building and committing felony namely theft contrary to section 291 (a) and (b) of the Penal Code read with section 260 of the Penal Code and section 22 (a) of the Penal Code and punishable under section 291 of the Penal Code.

Particulars of offence

Achille Christian Agathine, Julious Sebastien Zialor and Jean-Paul Marius Marie, during the course of their duty as Police Officers on the early hours of 10th January 2021 at Hangar, Anse Etoile, Mahe, broke and enter into the store situated at the construction site belongs to Mr. Kevin Selby Marie and stole the construction materials such as orange coloured metal bolt cutter, yellow coloured water hose, black plastic, measuring tape and padlock big chain from the said store,which are the properties of Mr. Kevin Selby Marie.

4. Count 3

Statement of offence

Breaking into building and committing felony namely theft contrary to section 291 (a) and (b) of the Penal Code read with section 260 of the Penal Code and section 22 (a) of the Penal code and punishable under section 291 of the Penal Code.

Particulars of offence

Achille Christian Agathine, Julious Sebastien Zialor and Jean-Paul Marius Marie, during the course of their duty as Police Officers on the early hours of 10th January 2021 at Hangar, Anse Etoile, Mahe, broke and enter into the store situated at the construction building belongs to Mr. Andy Jude George Jean-Louis and stole the construction materials such as padlock and three grinders from the said store, which are the properties of Mr. Andy Jude George Jean-Louis.

5. They have pleaded guilty to the said charges.
6. The court had upon the request of their counsels sought  Pre- Sentencing Probation Reports for the purposes of mitigation of sentence in this case and the Reports were made available to the court and counsels.
7. The probation services has in the said Reports recommended a minimal custodial sentence for count 1  and a suspended sentence coupled with compensation for the victims to be imposed on count 2 and 3 as the sentences for the 1st convict.  A minimu custodial sentence and a suspended sentence for count 1 and 2 for the 2nd convict and a minimum custodial sentence coupled with victim compensation on count 1 and 2 for the 3rd convict.
8. Learned counsel for the 1st  convict, in mitigation submitted that he is a 1st offender and that by pleading guilty he has saved the precious time of the court and that this is a sign of remorse.  She submitted that the offence goes back 3 years and all of them were committed during the course of the same transaction. She confrmed that he was a police officer at the material time and has since then been interdicted and put on half payand that they would be likely terminated. She recounted on the convict personal circumstance and the fact that his family consist of three young children and that his client spouse and mother are police officers, who all stand to be affected by the sentence. Counsel also related to the dire consequence on the family that this case has brought about and the further difficulties that a custodial sentence would impose. Counsels reminded the court that the Virtual Complaianant has made peace with the accused. With respect of the complainant Mr Marie, she submitted that the recovered his hose and the other materials were recovered by the police. As far as Mr Jean-Louis properties care concerned she submitted that they were all recovered the same night as the theft after they were voluntarily handed over by the accused to a person who was keeping an eye over the said the former’s property.  Finally, she made references to a number of court decisions on sentences that she submitted should guide this court at this hour.
9. On the other hand Learned counsel for 2 convict submitted that the 2nd convict is  is a 1st offender and by pleading  guilty  he has shown remorse in respect of the offences to which he is charged.  He is a young man and has always attended the Court whilst on bail. He has  4 year old son of which he has custody and he is properly taking care of the minor. He made reference to the case of Ponoo which according to him is authority for considering lenient sentences when the law prescribe for certain sentences and all said that this case is applicable here . He also submitted that all the items have been recovered and that his client  voluntarily brought all the items that were in their possession to the said premises of the guardian of the property of one of the Virtual Complainant.
10. According to counsel the convicts have spend 6 months and 19 days on remand and that  this already  a punishment despite the fact that he would move the Court to consider a non-custodial sentence and or a suspended sentence or otherwise a suspended senrence, all to be imposed on both of his client..He submitted that a fine and an order of compensation would do justice in this case and that Vitual Complainant Marie has already forgiven the accused and that the latter had written to the Ag and pleading for leniency on behalf of the accused. 
11. Finally, with regards to the 3rd convict, counsel made the following submissions in mitigation. That  he is a young man of 20 years . He  was in the Police Force when he was detailed to assist in the performance of duty on that particular day. He was asked to do what he did but he did not personally take anything that was later on returned to Madame Guilyame and  that is Mr. and Mrs Marie has written a letter forgiving him.  He has accepted any mistakes that he made.  He is a first offender.  Never has he committed any offences before.He  believe this lesson, would teach that when he decides to settle down and bears children he would know that at all costs you need to guide your children so that they becoame law-abiding citizens in respective of what they may think about the law if it is illegal then they should not break the law. He aslo moved that the court consider  the Ponoo case heavily in imposing a non-custodial sentence or a fine on the 3rd convict. His participation has been minimal, negligible. That he gets a sentence that is proportionate to his participation or non-participation or forced participation in this set of events that had happened. He is prepared and willing to work, to compensate for the mistake that he made.  His parents are prepared to continue to guide him in the right direction.  It was a mistake made.  He took the wrong side of the law..  His only mistake  was not to report the incident when he went back to base which he should have done.
12. I  have given careful consideration to the submissions in mitigation made by the learned defence counsels and i have scrutinise the facts of the case before me  and the content of the Probation Reports. Having done I find that there are certain mitigating factors in this case and these are as follows;
13. The convicts are all young first time offenders . They have pleaded guilty and save the precious time of the court  and through this have shown remorse for their crimes They have young families and are bread winners of children of tender years. Most of the items stolen has either been recovered or returned tro their rightful owners. The latters have forgiven them for their criminal breaches.
14. However, in this case it is fact that the convicts were police officers on duty when they committed the offences  in my  view is a seriously aggravating circumstances. They were instead of abiding to their duties to serve and to protect, breaking and stealin into buildings. They in doing so destroyed the trust that the public had put in them . The aggravation is enhanced due to the fact that they acted in concert and with one mind to do their dispecable acts and also the fact that the offences were commited in the dead of the night.
15. In the case of R v ML & Ors (CR 38/2019), this court in sentencing a police officer for offences of Sexual Assault reiterated that the  court must consider sending a clear message to police officers who may be tempted to break the law as opposed to upholding it. In Jumeau v R (Criminal Appeal SCA 22/2018) [2019] SCCA 30 (23 August 2019); the Court held that a factor it should take into account before assessing whether a sentence was manifestly excessive was the position of trust held by the offender (see also Simon v R [1980] SCAR 557).
16. Hence the court is concerned with the public interest in seeing to it that those that in which they put their most profound trust to combat criminality does not turn out to be the ones that commits the crimes, if they do there has to be retribution . In the same vein public interest calls for the same group of persons to be deterred to commit those crimes by the imposition of a deterent sentence. It is those two factors that aggravates those crimes.
17. The severity that courts meets to convicted police offenders can be seen in the following South African cases.

In  the case of S v Setlholo 2017 JDR 0488 (NCK) the police solicited a bribe from a person lured into a fake illicit diamond transaction. The court emphasised that the fact that the accused was a police officer, was in itself an aggravating factor and accordingly confirmed the sentence of 10 years. At Paragraph 20 the Court stated the following:   

“The fact that the appellant was a policeman when he committed the offences is aggravating. He was supposed to be vigilant and protect the community he served against the crime. There can be no doubt that the corrupt and fraudulent activities executed in this case were carefully planned”.

18. In  S v Phillips 2017 (1) SACR 373 (SCA) where a 35-year old police constable was convicted in a regional court for soliciting and accepting a bribe involving R900 in contravention of section 4(1)(a)(i)(aa) of the Prevention and Combating of Corrupt Activities Act 12 of 2014, the appeal court reduced the trial court sentence of 7 years’ imprisonment (of which two years were suspended) to four years’ imprisonment, but emphasised that such a sentence would nonetheless serve as deterrent to other police officers from committing such offences.
19. In S v Mogale 2010 JDR 1510 (GNP), the police officers who received R2000 cash in a corruption case were subsequently convicted and sentenced to fifteen years’ imprisonment. Lastly, in S v Mahlangu and Another 2011 (2) SACR 164 (SCA), the accused who were police officers, were sentenced to six years’ imprisonment (of which two were conditionally suspended) for demanding a bribe of  about R600.
20. Bearing all the above in consideration I will impose the following sentences on the convicts:

For committing the offence of Conspiracy to commit the felony of theft contrary to section 381 of the Penal Code read with section and punishable under section 381 of the Penal Code in Count, they are to serve 3 years imprisonment.

For committing the offence of Breaking into building and committing felony namely theft contrary to section 291 (a) and (b) of the Penal Code read witjh section 260 of the Penal Code and section 22(a) of the Penal Code and punishable under section 291  of the Penal Code, they are to serve 5 years imprisonment.

For committing the offence of Breaking into building and committing felony namely theft contrary to section 291 (a) and (b) of the Penal Code read witth section 260 of the Penal Code and section 22(a) of the Penal Code and punishable under section 291  of the Penal Code, they are to serve 5 years imprisonment.

All the terms of imprisonment are to run concurrently and time spent on remand shall be taken in the sentences.

The convicts have a right of appeal both against their convictions and sentences.

Signed, dated and delivered at Ile du Port on 9th March 2023

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Govinden CJ