R v TDA (Criminal 39 of 2022) [2023] SCSC 249 (31 March 2023)

VIDOT J

1. The Accused is charged with, pleaded guilty to and convicted of three charges of sexual assault assaults, two of which happened in January 2021 and the other in August 2021. All such assaults were carried out against the same person. The charges as a follows

Count 1

Statement of Offence

Sexual assault contrary to section 130(1) read with section 130(2)(d) of the Penal Code and punishable under section  130(1) as read with section 130(4)(b) of the Penal Code.

Particulars of Offence

T.D.A, 19 years old, resident of [____] on a date unknown to the Republic in January 2021, in his bedroom at [____], Mahe, sexually assaulted his cousin namely, A.S, a minor of 14 years old at the time, by penetrating the body orifice namely the vagina of A.S with his penis for a sexual pleasure.

Count 2

Statement of Offence

Sexual assault contrary to section 130(1) read with section 130(2)(d) of the Penal Code and punishable under section  130(1) as read with section 130(4)(b) of the Penal Code

Particulars of Offence

T.D.A, 19 years old, resident of [____], on a date unknown to the Republic in January 2021, in the bathroom of his residence at [____], Mahe, sexually assaulted his cousin namely, A.S, a minor of 14 years old at the time, by penetrating the body orifice namely the vagina of A.S with his penis for a sexual pleasure.

Count 3

Statement of Offence

Sexual assault contrary to section 130(1) read with section 130(2)(d) of the Penal Code and punishable under section  130(1) as read with section 130(4)(b) of the Penal Code

Particulars of Offence

T.D.A, 19 years old, resident of [____] on 14th August 2021, at his residence at [____], Mahe, sexually assaulted his cousin namely, A.S, a minor of 14 years old at the time, by penetrating the body orifice namely the vagina of A.S with his penis for a sexual pleasure.

2. After the charges were read, Counsel for the Prosecution proceeded to relate the facts to Court which facts were admitted by the Accused. Briefly these facts are that A.S lived with her mother but as the latter worked night shifts at times, A.S would spend the nights at her uncle’s place at [____]. The uncle is the father of the Accused. In January 2021, at 3 a.m when A.S was sleeping in the same bed as the Accused at her uncle’s home, she felt the Accused starting to touch her after which he had sexual intercourse with her by penetrating her vagina with his penis for a sexual purpose. On another date still in January 2021, in the bathroom at her uncle’s house, the Accused again sexually assaulted her by penetrating her vagina with his penis. On 14th August 2021, A.S was at [____], at her uncle’s residence. At around midnight, when she was in her grandmother’s bedroom sleeping, she heard the Accused called out her name. The Accused was standing in the doorway. He then came to bed and again sexually assaulted A.S by penetrating her vagina with his penis for a sexual purpose. The incidents were later reported to the National Council for Children as the virtual complainant was self-harming herself. She needed professional help. She revealed that she had been sexually abused by the Accused.
3. As above stated, these facts were admitted by the Accused, the Court proceeded to convict the Accused as charged.
4. In his submission in mitigation, Counsel for the Accused pleaded for leniency on his client. He noted that his client has pleaded guilty at the first opportunity, thereby saving the embarrassment of witnesses and in particular A.S from testifying and saving the resources of the Court. He added that the Accused was employed with the Seychelles Coastguard. Counsel accepts that A.S could not have given consent considering that she was only 14 years old at the material time. However, he said that this case should be differentiated from cases where force is exercised to sexually assault a person. He said that when the incidents happened the Accused believed that A.S had consented, though he admitted that ignorance of the law does not provide a defence. He referred to the case Suzette v Republic SCA 21 of 2015. In that case, the Court of Appeal reduced sentence on the basis that the virtual complainant in that case had not been tricked or coerced into having sexual intercourse with that accused. 
5. However, he differentiated the present case from Suzette v Republic (supra) in that in that latter case there was a disparity in age. He referred to R v G [2008] ULHL 37 (on appeal from the Court of Appeal). In that case the appellant was 15 years of age and the virtual complainant 12. In UK the age of consent is 13 years old.  In the present case, there was not a disparity in age; the Accused was 17 and A.S 14. To my understanding both teenagers. The House of Lord held that such cases where there is no disparity in age between the complainant and the accused, the Court should adopt different consideration when passing sentence. Nonetheless, in that case, the complainant had consented and had told the accused that she was 15 years old. The House of Lords stated thus;

“ A heavy responsibility has been placed on the prosecuting authorities , where both parties are of similar young age, to discriminate between cases where the proscribed activity was truly mutual on the one hand and those where the complainant was subject to an element of exploitation or undue pressure on the other. In the former case more harm than good may be done by prosecuting. In the latter case, the threshold will have been crossed and prosecution is likely to be inevitable. But in the former case it is decided to prosecute, the decision still has to be made about the section under which the perpetrator is to be prosecuted.”

6. Indeed this Court recognises that in the present case, the similarity in age between the Accused and A.S is a persuasive consideration towards imposing a lesser sentence, than if the Accused had been much older. The Accused was still a minor at the time the first two incidents of sexual assault happened. In no way condoning the behaviour of the Accused, I recognised that as an adolescent, young men go through a troubled moment where the hormones are playing up and are under pressure to be engaged in such activities. They need guidance as to how to deal with the changes they are going through and the dangers of engaging in sex. It takes a lot of resilience on a young men not to experiment with their sexuality. Unfortunately, in our society parents do not make time to talk and guide young men during that period. Watching the demeanour of the Accused I could see that he is very remorseful as to what happened. I noticed that he was holding back his tears and scared because of the implication of his case. I am convinced that a long period of imprisonment will break him somehow.
7. I will also note that while relating the facts to Court, Counsel for the Republic did not make mention of any violence or coercion having been exerted on the virtual complainant. I somehow feel that we were not given a complete picture of what took place. I ask myself why she left the bathroom door unlocked when the sexual act happened in the bathroom especially after the first incident of assault that happened in the bedroom. There is no evidence that the Accused forced himself into the bathroom. I feel that a major mistake was made by adults of the household in allowing the virtual complainant and the Accused to share a bed. It was unwise to allow a girl to sleep in the same bed as a young whose hormones are playing up. Furthermore, I do not understand why A.S was not asked to share her grandmother’s bedroom as she did when the last incident occurred.
8. However, despite the understanding I have for the Accused, I have to recognise that a crime was committed. A.S. was self-harming herself and she needed professional assistance. The Court needs to do a balancing act in trying to be merciful and at the same time do justice.
9. I shall when meting out sentence consider the age of the complainant and the Accused and the mitigation put forth by Counsel. Mr. Chang-Leng in advocating his position that there was no disparity in age between the Accused and A.S and that on the first two instance of sexual assault he was still a minor relied on two Juvenile Court cases in support for a non-custodial sentences to be imposed on the Accused. These are R v Hansel Constance J13 of 2008 and R v Dorian Chrysostome J5 /2020 [2022] 326. I shall also consider the fact that the Accused is a first time offender.
10. Noting that the Accused has been charged with three Counts, Counsel asked Court to consider imposing concurrent sentence in the event that the Court decides to impose custodial sentences. However, he implored that this Court imposes suspended sentences. He referred to C.L v Republic [2022] SCCA 64 (16 December 2022). In that case, the Court of Appeal cited Archbold 2012 (para. 5-588) wherein it was said: “As a general principle consecutive terms should not be imposed for offences which arise out of the same transaction or incident, whether or not they arise of precisely the same facts…”
11. Counsel for the Accused also submitted on totality and proportionality of sentence. This is a principle that should always be applied when considering sentence to be imposed. In C.L v Republic (supra) the Court of Appeal remarked that 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’.
12. It might be a harsh lesson for the Accused, but any sentence that is imposed should make it clear to him that he has to respect girls and women. He has to know that he cannot engage in sex with a girls below 14 years and that when there is no consent from a woman of 15 years and above, he should never engage in sex.
13. In the event that all the offences were committed when the Accused was below 18 years of age, this Court would have imposed non-custodial sentences by placing the Accused on probation and imposing community service. The last offence was committed when the Accused had just turned 18 years and therefore an adult. Therefore, I impose the following sentences of the Accused;

Count 1; I impose a sentence of 1 year imprisonment suspended for 2 years;

Count 2; I impose a sentence of 1 year imprisonment suspended for 2 years; and

Count 3; I impose a sentence of 18 months imprisonment

14. Any time spend on remand shall be discounted against the sentence.
15. If unsatisfied, the Accused may appeal against sentence within 30 working days from today.

Signed, dated and delivered at Ile du Port on 31 March 2023

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M Vidot J