R v Pillay & Anor (CO 3 of 2022) [2023] SCSC 285 (6 April 2023)

Adeline j

1. On the 17th January 2023, Graig Pillay (previously the 1st accused now the 1st convict) pleaded guilty to one count of an offence under the Misuse of Drugs Act 2016, featuring as count No2 in a amended formal charge sheet dated 12th January, 2023.  The statement of the offence reads;

“An owner, occupier or person in charge of any place or premises who permits or suffers such place or premises or any part thereof to be used for the purpose of Possession of a Controlled Drug, contrary to Section 11(2) of the Misuse of Drugs Act 2016, and Punishable under the Second Schedule of the same Act”.

2. The 1st convict was convicted of the said offence after he admitted the facts as narrated by the prosecution.
3. On the same day, Andy, William, Marie (“previously the 2nd accused, now the 2nd convict”), pleaded guilty to one count of Possession of a Controlled Drug contrary to Section 8(1) of the Misuse of Drugs Act, 2016 as read with Section 23 of the same and punishable under the Second Schedule of the said Act.
4. The 2nd convict was convicted of the said offence after he admitted the facts as narrated by the prosecution.
5. The two convicts are now before this Court due for sentencing.
6. In meting out the right sentence that will do justice to the case, the Court has been assisted by two separate pre-sentence Probation Enquiry Reports one in respect of each of the two convicts, upon requests made by Counsels representing the convicts, and commissioned by the Court.
7. In plea mitigation, both Counsels for each of the convict stood by the content of the Probation Enquiry Reports in addition to their plea mitigation made orally.
8. The highlight of the report in respect of the 1st convict, Graig Pillay, is correctly summarised in learned Counsel, Mr. Daniel Cesar’s written plea mitigation part of which is quoted to be  as follows;

“The accused is a family man at this young age of 22, with a child of two years.  His parents are separated and his father is an amputee and lives on Praslin.  The accused has chosen to help his ailing father, Mr. Mancienne, by travelling to Praslin regularly to attend to his fisheries business.  The testimony of his mother, Dorita Pillay, speaks volumes of the character of her son who had struggled with his drugs addiction and had managed to overcome it through “cold turkey” rehabilitation.  The accused explained, that the drugs were solely for his own consumption and that he admits his fault.  He expressed remorse for the offence and asked for a second chance as any incarceration will impact negatively on his young child”.

9. Learned Counsel for the 1st convict recommends a suspended sentence and a fine to reflect the recommendation of the Probation Enquiry Report.
10. As regards to the 2nd convict, Andy, William, Marie learned Counsel, Mr. Pardiwalla, endorses the content of the Probation Enquiry Report and goes by the report’s recommendation which he said he finds it to be a “fair conclusion” given the facts and circumstances the offence was committed and the personal circumstances of the 2nd convict.
11. The highlight of the Probation Enquiry Report in respect of the 2nd convict, Andy, William, Marie is that, he is a 46 year old of Ma Constance, Mahé, Seychelles, one of four siblings brought up by his mother, Dorothy Camille, in a single parent family.  He has a 13 year old daughter.  Educational wise, he is a secondary school leaver who after leaving school joined the world of work as he sought to acquire knowledge and work experience in the electrical field.  He then became self employed as a licensed taxi operator, and later on as an unlicensed taxi driver.  He is currently employed as a driver at Shreeji Group (Seychelles).
12. At the time that he committed the offence, the convict was a heroin dependant person who became dependant on drugs because of peer pressure that in the first place got him involved with drugs.  At the time he was arrested for the offence of which he has been convicted, he had a rented car allocated to him by one of his peers for the purpose of transporting drugs.  According to him, he got involved in this sort of activity because he needed money to buy drugs, and in return for his services he was being paid with drugs.
13. The 2nd convict told Probation Officer, that he is remorseful for what he did, and reckons, that he made a mistake which he thinks has been a “wakeup” call for him.  He has been on the methadone programme at the Division for Substance Abuse Prevention, Treatment and Rehabilitation in the Ministry of Health, but is now no longer on the programme.  He now feels much better, and being engaged in spiritual activities, this is helping him to change his life style.  The support and assistance he has and continue to receive from his mother is also playing a vital role in bringing about the changes he needs for him to live a normal life.  He is presently drugs free and is in employment as a driver, earning a monthly salary that enables him to contribute financially towards the maintenance of his daughter Nyllah, Marie.
14.  The 2nd convict is currently leaving with his mother Dorothy, Camille who told the Probation Officer,that she was shocked when she learned that his son, Andy, was on drugs.  She stated, that she could see the impact which drugs were having on his son’s life and that she did whatever she could to keep him away from drugs.  Ms. Camille told the Probation Officer, that the turning point in his .son’s life came about after he was arrested for the offence he has been convicted because it was only then that he started to seek for professional help to cure his drugs addiction, and that included, spiritual help.  The 2nd convict’s mother is glad that his son has now stopped using drugs and that his life has reverted to normality.  She acknowledges that, her son is now able to maintain his daughter with whom he has a strong bonding relationship.  She reckons that, people deserve a 2nd chance in life.
15.  The offence of which the 1st convict, Graig Pillay has been charged  and convicted under Section 11(2) of  the Misuse of Drugs Act 2016, carries a maximum term of imprisonment of 15 years and a fine of SCR 300,000.  Equally, the offence of which the 2nd convict Andy, William, Marie has been charged and convicted under Section 8(1) of the Misuse of Drugs Act 2016,  carries a maximum prison sentence of 15 years and a fine of SCR 300, 000.
16. In meting out the right sentence that will do justice to this case, I have had regard to Section 47(4) of the Misuse of Drugs Act 2016, particularly relevant to the conviction in respect of the 2nd convict.  Section 47(4) is couched in the following terms;

“47(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.”

17. I have also taken into account the fact that both convicts have pleaded guilty, and that they have shown remorse for the crime they committed as two first time offenders.  The case of Republic v/s Tony Palmyre CR 55 of 2019 offers good guidance as to a possible just desert sentence in this case.  In Tony Palmyre (Supra) the then Chief Justice Twomey sentenced the convict, on a similar charge to that of the 1st convict in this case, to a term of imprisonment of 1 year suspended for two years plus a fine of SCR 10,000.
18. In the circumstances, I therefore sentence the two convicts Graig, Pillay and Andy, William, Marie to a term of imprisonment of 1 year suspended for two years plus a fine of SCR 10,000 each, to be fully paid within 6 months of the date of this sentence failing which they will serve a 6 months prison sentence for default of payment of fine.

Signed, dated and delivered at Ile du Port on 6th April 2023.

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Adeline J