R v SWM (CO 101 of 2023) [2023] SCSC 422 (7 June 2023)

ADELINE J

1. By way of a formal charge filed in Court on the 22nd October 2021 pertaining to C.B.No:224/10/21 Anse Aux Pins, the accused, S W M, now a convict, was charged with one count of Sexual Assault contrary to Section 130(1) read with Section 130(2) (d) of the Penal Code, punishable under Section 130(1) read with Section 130(4) (a) and (b) of the Penal Code, Cap 158 as amended by Act 5 of 2012.
2. The particulars of the offence as featured in the charge sheet are that the accused (now a convict) on the 19th October 2021, at [____], sexually assault one AM, “aged 14 years old by penetrating the body orifice, namely, the vagina of the said AM with his penis for a sexual purpose”
3. Following a plea of “not guilty” by the accused/convict, he went on trial, and on the 17th February 2021, this Court found him guilty for the offence of which he had been charged and therefore, accordingly convicted him for one count of Sexual Assault.
4. Learned Counsel for the accused/convict sought for a pre-sentence Probation Enquiry Report (“the report”), which was called for, and the same dated 14th March 2023 received by this Court.  In the report, the author, one L Nancy, Senior Probation Officer reporting for the Principal Probation Officer, states, that the accused/convict is a 45 year old man, 2nd born of four siblings and the father of seven children born of different relationships with different women.  He lives at [____], Mahe, Seychelles together with his partner and three of his seven children.
5. As to his educational background, it is reported, that the accused/convict dropped out of school when he was only 14 years old and was in Secondary two then.  He then decided to join the world of work as a mechanic.  He started to learn his trade in a private garage for four years, and then moved to different private garages until he decided to setup and operate his own garage. For the past 14 years he has been operating a self-owned garage situated at [____], Mahe, Seychelles. 
6. The accused/convict, also owns and operate a farm at [____].  The accused/convict version of the facts and circumstances that led to his arrest, prosecution, and conviction for the offence of Sexual Assault as told by him to the Senior Probation Officer is different from the findings of this Court on account of the evidence laid before it. Succinctly, he stated, that he did not commit the offence he has been convicted of.  According to him he first got to know of the girl who accused him of the offence after he had given her a ride in his car on the way to his farm at [____].  On their way, he and the girl entered into a conversation in which conversation, he had told her of the importance of going to school and to stay away from negative influences.
7. The accused/convict told the Senior Probation Officer that the following day he did receive a phone call from the girl’s mother who accused him of having Sexually Assaulted her daughter, and told him that she would like to meet with him to discuss the matter for a possible settlement.  According to the accused/convict, the girl’s mother demanded from him SCR 50,000.  The accused convict also stated, that on the same day he did go to the girl mother’s house accompanied by a friend of his. During the conversation between him and the girl’s mother, the latter demanded from him SCR 50,000 for her not to get the Police involved.  According to him, he asked the girl’s mother to take her to the Doctor for proof and that it will be only after the girl has been medically examined, and that it is proved that he has abused the girl, that he will pay the SCR 50,000, being asked for.
8. The accused/convict told the Senior Probation Officer, that he is innocent and that he has been falsely accused and wrongly convicted for an offence he has not committed.  He stated, that he would not commit such a crime knowing the seriousness of it, and that if he had committed such a crime, he would have accepted the blame and the consequences of his actions.  According to him, he does not deserve to be punishable for an offence he never committed.
9. As per the report, few people connected with the accused/convict were interviewed, including his mum, his partner, the girl/victim herself as well as the girl’s mother. The accused/convict’s partner CP who is a 38 year old, has been in the relationship with him for the last six years.  She told the Senior Probation Officer, that she knows that the accused/convict will not do what he has been accused of doing, and that if he had done what he has been accused of, he would have ended their relationship.  She stated, that the accused/convict has a very good heart and is someone who is always willing to help.  According to her, she was present when the accused/convict received the phone call from the girl’s mother demanded SCR 50,000 and that she did tell him to go and report the matter to the Police but he chose not to.  She maintains, that the accused/convict is innocent, and that a miscarriage of justice is taking place.
10. Also interviewed, was the victim AM, and her mother, JO.  AM is now a 16 year old girl who is currently attending S5 [____] School.  She said that she doesn’t like to talk about the incident but reassured the Court that the accused/convict did sexually assaulted her.  She also stated, that this was the 2nd time she had been sexually assaulted.  The perpetrator who did that to her the first time she became a victim was never apprehended by Police.  According to her, as a result of the incident, she has been suffering emotional pain, and sometime after the incident, she was bullied at school.  She hopes that the Court will impose a serious punishment on the accused/convict.
11. The girl’s mother, JO, was also interviewed.  She stated, that she was hurt to learn that her child/daughter had sexually been assaulted.  She continued, stating, that this was the 2nd time that someone sexually assaulted her daughter, and that it is unfortunate, that the person who did it on the first occasion managed to get away with it.  The girl’s mother told the Senior Probation Officer, that the accused/convict did come over to her house, and did admit that he did sexually assaulted her child’s daughter  offering her money, and imploring her to forgive him and not to report the incident to the Police. 
12. According to her, she felt hurt because of what happened to her child/daughter, and that she did not accept the money because she is of the view that such a serious offence should not go unpunished.  She reckons, that, that incident has had a negative effect on her child/daughter who has been depressed although she has noticed some improvement in her behaviour lately.  She maintains that the accused/convict has to be punishable for the serious offence he has committed against her child/daughter.
13. At  the conclusion of the Probation Enquiry Report, the author of the report has this to say;

“Having outlined all the relevant factors of the case, the Probation Services recommends that an appropriate sentence be imposed”

Plea in mitigation

14. In plea in mitigation, made partly orally and in writing, learned Counsel for the accused/convict, urged the Court to consider the personal and family circumstances of the accused/convict as borne out by the Probation Enquiry Report in meting out the sentence in this case.  Learned Counsel also called on this Court to take into account the principles of sentencing as well as the facts and circumstances that mitigate against the imposition of a severe sentence on the accused/convict.  Learned Counsel argued, that the Court should not simply be guided by statutory guidelines in sentencing a convicted person.  Instead, in meting out the appropriate sentence, it ought to give careful thought to all the relevant factors and weighs them all to come up with a sentence that is fair and proportionate, and also fit both, the crime and the offender.
15. It was further submitted by learned Counsel in plea in mitigation, that the Court should not be over-influenced by the seriousness of the offence thus paying less attention to factors that are in favour of the offender for a less severe sentence.  She reckoned, that proportionality has to be a factor for consideration to arrive at a just and deserving sentence, and that the right balance has to be struck when sentencing a convicted person, between “the needs of society and the interest of the offender”.
16. It was the view of learned Counsel, that sentencing has to be individualised, and that “the trend in our jurisdiction has been to spare first time offenders from effective imprisonment unless the circumstances are such that imprisonment is the only suitable option”.  Learned Counsel submitted, that first time offenders should only be sentenced to imprisonment “where for good reasons imprisonment cannot be avoided”.  According to Counsel, in the instant case, a portion of the sentence, if the Court is minded to impose a sentence of imprisonment, must be suspended.  This proposition is not feasible given that by virtue of Section 282 read with the Seventh Schedule of the Criminal Procedure Code, the offence of which the convict has been convicted is an excepted offence that cannot, therefore, be suspended.
17. It was further submitted in plea in mitigation by learned Counsel, that sentencing a convict to prison is a serious matter, and that it is even a more serious matter to sentence a convict who is in employment to prison, and more so, as in the instant case, the accused/convict who is in employment, has seven children who are financially dependent on him as well as some foreign workers.  With these information in mind, it is the submission of learned Counsel that the personal and family circumstances of the accused/convict must be taken into account to come to the right sentence, which in the instant cases she said are;

“(i) Compassion for his seven children.

(ii) His employees all of whom depends on him.

(iii) His health status, hypertension and kidney problem.

(iv) A first time offender.

(vi) Victim not a vulnerable witness admit happened before.

(vii) What was she doing on the road why not at school”

18. As per learned Counsel’s submission, these considerations point to the facts and circumstances of the offender as well as the circumstances the offence was committed that warrant a distinction to be drawn compared to other cases when it comes to sentencing.  Learned Counsel cited the case of Ibrahim Gilbert Suleman v Republic (Cr. App. No3 of 1995 quoting from the case the following paragraph;

“Much as the Court should be guided by a pattern of previous sentences in similar cases, it must be acknowledged that time and circumstances do often combine to make cases dissimilar for the purpose of sentencing”.

19. In the end, learned Counsel recommended the imposition of “ a suspended sentence, or sentenced to time already served, or if the Court is so minded to impose a custodial sentence then half of the term imposed is suspended”.

The law and its application

20. As I reflect on the sentence that will do justice in this case, and bring this matter before this Court to a closure, I am reminded, that sentencing a person convicted of an offence is a matter for the Court in exercise of its discretion to come to a “just deserts” sentence.  In exercise of such discretion, I am well aware, that there is no common or standard formula to be applied (see Poonoo v/s Attorney General [2011] SLR 423.  What is known, however, is that sentencing has to be individualized taking into account several considerations (see Lawrence & another v/s Republic [1990] SLR 47).
21. In sentencing this accused/convict, I am also bound by law to give due regard to the guiding principles of sentencing so as to decide the appropriate sentence to be imposed in the instant case (see H Savy and Ors vs Republic SLR 1976).  In Francis Crispin v Republic, SLA, Criminal Side No 16/13, the Court of appeal confirmed those guiding principles to be “retribution, deterrence prevention and rehabilitation”.
22. In sum, retribution in the sense that the guilty ought to suffer the punishment which he deserves.  Deterrence in the sense that the sentence so imposed is aimed to dissuade the offender from reoffending as well as others who have been made aware of the punishment inflicted upon the offender from offending.  Prevention in the sense that it aimed to prevent many crimes particularly those involving foresight or planning as opposed to those committed impulsively, and rehabilitation in the sense that rehabilitative approaches to punishment emphasize the changes that can and should be brought about in the offender’s behaviour in the interest of the society and the offender himself.
23. Furthermore, in sentencing a convict for an offence that is very serious, the principle of Denunciation should be borne in mind.  That is to say, that this is achieved by the imposition of a sentence the severity of which makes a statement that the offence in question is not to be tolerated by society in general or in the specific instance (see Flore v Republic (SCA CR 12 of 2020) [2021] SCA CR 12 of 2020 [2021] SC CA 74 917th December 2021).
24. In deciding the appropriate sentence in this case, I also need to have regard to the principle that where there is a sentencing pattern for a particular offence, a departure from that pattern can only be justified in special circumstances (see Low Hong v Republic SCA 1993, LSC 224.  In R v/s D.S. [2019] SCSC 55, Twomey JA, had this to say about the sentencing pattern for the offence of which the accused/convict has been convicted in this case;

“[13] I note the recent trends of 7 or 8 years sentences for such offences (see for example R v Crispin CR 58/2008, EC v Republic [2016] SCSC 788 (29 September 2016), R v DR (CR 50/2014) [2018] SCSC 185 (22 February 2018), E.S. v/s Republic, CR App 3/2017).  They are simply not strict enough sentences to reflect the gravity of such offences and the specific indicative sentences of the Penal Code.  In my view such light sentences do nothing more than to accentuate such degenerate behaviour, perpetuate the suffering of victims and perniciously normalise such deviant behaviour in an already very dysfunctional society”.

25. In the case of H. Savy and Ors v Republic, SLR 1976, the Court cited the English case of Kenneth Ball, 35 Criminal Appeal R.164 quoting the judgment of Hilbery j who had stated the following herein

“In deciding the appropriate sentence, a Court should always be guided by certain considerations.  The first and foremost is the public interest.  The criminal law is publicly enforced not only with the object of punishing crime, but also, in the hope of preventing it.  A proper sentence passed in public serves the public in two ways.  It may deter others who might be tempted to try the crime … Such a sentence, may also deter the particular criminal from committing a crime again or induce him to turn from a criminal to an honest life.  The public interest is indeed best served, if the offender is induced to turn from criminal ways to honest living.  Not only in regard to each criminal, the Court has the right and duty to decide whether to be lenient or severe”.

26. As amended by Act 5 of 2012 of the Penal Code, the prescribed minimum mandatory sentence for the offence of which the accused/convict who is over 18 years and that is his first conviction, and his victim under 15 years (14 years at the time the offence was committed against her) is 14 years imprisonment.  The maximum term of imprisonment on a first conviction is 28 years. It is to be noted, however, that this Court is not hound by the minimum mandatory sentence (see Poonoo vs Attorney General [2011] SLR).
27. Having taken into account all the relevant considerations, including the protection of vulnerable children, and balancing these with other considerations such as the accused/convict personal and family circumstances, as well as other matters raised by defence Counsel in plea in mitigation, I am of no illusion, that the appropriate deserving sentence is a custodial sentence which indeed cannot be avoided.
28. For the reasons discussed in the preceding paragraphs of this sentence, and notwithstanding the observations and comments by Twomey Cj (as she then was) in R v D.S. 2019 SCSC 55 that the sentencing trend shows that those convicted of such offence are being sentenced to 7 or 8 years imprisonment and that is a too lenient sentence, based on the whole facts and circumstances of this cases, I am persuaded and is convinced, that a term of imprisonment of 7 years is one that this convict deserves and no more.
29. I therefore sentence S W M of [____], Mahe to serve a term of imprisonment of 7 years for his conviction for the offence of 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) (a) 2 (b) of the Penal Code as amended.
30. In accordance with Article 18(4) of the Constitution, the period of time which the convict has spent on remand in Police custody shall be deducted for this 7 years term of imprisonment.
31. The convict has a right to appeal to the Seychelles Court of Appeal against both, conviction and sentence.

Signed, dated and delivered at Ile du Port on 07th June 2023

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Adeline J