R v Faiz Mubarak and Ors (489) [2023] SCSC 489 (5 July 2023)

GOVINDEN CJ

[1] The charges:

The 2nd and 3rd convicts pleaded guilty to counts 5 and 6 of the Amended Information dated the 17th of March 2023, in which they are jointly charged as accomplices to the principal offences in this case.

[2] Count 5 reads as follows:

Aiding and abetting the trafficking of a controlled drug contrary to Section 15 (1) (a) read with Section 16 (a) & Section 5 of the Misuse of Drugs Act, 2016 and punishable under Section 5 and the Second Schedule of the Misuse of Drugs Act, 2016.

Particulars of the offence are that Micky Paul Barbier of Glacis, Mahe, and Francois Richard De Letourdie of La Gogue, Mahe, both being citizens of Seychelles, on the 22nd may 2021, whilst on board a Seychelles registered fishing vessel namely Baba Ali bearing Registration No . SZ 1419, aided and abetted one Faiz Ali Mubarak of La Gogue, Mahe, to traffic in a controlled drug namely Heroin (Diamorphine) with a total net weight of 8019.40 grams and an average percentage purity of 47% amounting to 3839.31 grams of Heroin (Diamorphine).

[3] Count 6 reads as follows:

Aiding and abetting the trafficking of a controlled drug contrary to Section 15 (1) (a) read with Section 16 (a) & Section 5 of the Misuse of Drugs Act, 2016 and punishable under Section 5 and the second schedule of the Misuse of Drugs Act, 2016.

Particulars of the offence are that Micky Paul Barbier of Glacis, Mahe, and Francois Richard De Letourdie of La Gogue, Mahe, both being citizens of Seychelles, on the 22nd May 2021, whilst on board a Seychelles registered fishing vessel namely Baba Ali bearing Registration No . SZ 1419, aided and abetted one Faiz Ali Mubarak Of La Gogue, Mahe, to traffic in a controlled drug namely Hashish (Cannabis Resin) with a net weight of 8917.60 grams.

[4] The Amended Information of the 17th of March was, with the leave of the court, again amended on the 13th of April 2023 and the 1st convict pleaded guilty to counts 2 and count 4 of the this new Information; counts 1 and 5, being alternatives to count 2 and 4 being not subjected of pleas were allowed to remain on the Information by the court.

[5] Count 2 reads as follows:

Committing the offence of trafficking of a controlled drug by virtue of organizing the importation of a controlled drug into Seychelles, contrary to Section 10 of the Misuse of Drugs Act, 2016, and punishable under Section 7 read with second schedule of the said Act.

[6] Particulars of the offence are that Faiz Ali Mubarak  of La Gogue a Seychellois citizen being the owner and in charge of Seychelles registered fishing vessel Baba Ali bearing Registration No. SZ 1419, ON THE 22ND DAY OF May 2021 committed the offence of trafficking of a controlled drug by virtue of organizing the importation of a controlled drug into Seychelles namely Heroin ( Diamorphine) with a net weight of 8019.40 grams and an average percentage purity of 47 % amounting to 3839.31 grams of Heroin ( Diamorphine) , on board the said vessel Baba Ali.

[7] Count 4 reads as follows:

Committing the offence of trafficking of a controlled drug by virtue of organizing the importation of a controlled drug into Seychelles, contrary to Section 10 of the Misuse of Drugs Act, 2016, and punishable under Section 7 read with second schedule of the said Act.

Particulars of the offence is that Faiz Ali Mubarak of La Gogue a Seychellois citizen being the owner and in charge of Seychelles registered fishing vessel Baba Ali bearing Registration No. SZ 1419, on the 22ND day of May 2021 committed the offence of trafficking of a controlled drug by virtue of organizing the importation of a controlled drug into Seychelles, namely Hashish (Cannabis resin) with a net weight of 8917.60 grams on board the said vessel Baba Ali.

[8] The facts of the case which the 2nd and 3rd convicts have accepted are as follows:

They were part of a team including the 1st convict and some Indonesian crew members.They went out of the Seychelles Exclusive Economic Zone and to the high seas on or around the 22nd of March 2021.On their way they met with a foreign vessel and for the purpose of importing drugs into Seychelles. And upon receipt of the information the Seychelles Coast Guard conducted a joint operation whereby the movements of the vessel, Baba Ali bearing registration number SZ 1419, was monitored. Upon the vessels return to Seychelles waters it was intercepted by the Coast Guard and when approached they saw that gunny bags were being thrown out of the vessel.The gunny bags were retrieved and the vessel was boarded by the Coast Guard team and the accused were arrested. Later the gunny bags were opened it was found containing controlled drugs, which after analysing was found to be Cannabis resin, having a net weight of 9817.60 grams and Heroin having a net weight of 8019.40 grams, the purity amounting to 3893.31 grams of pure Heroin.During the course of the prosecution the convicts were offered a conditional offer contingent on a plea of guilty to lesser charges in return of testifying for the prosecution.

[9] The facts of the case with regards of the 1st convict is as follows:On the 19th of May 2021, the Accused left Port Victoria on board the vessel Baba Ali, bearing registration number SZ1419, being the owner of the vessel. Just before approaching the location where they were to meet with the Iranian vessel, the Accused handed over a coordinate to the skipper of the vessel and switched off the vessel monitoring system.On the 22nd of May 2021, the Accused met with the Iranian vessel and there was the exchange of foreign currency namely dollars and the exchange of the drugs.  In particular, the Accused transferred the cash to the Iranian vessel and in turn the Iranian vessel transferred the drug to the vessel Baba Ali.  Thereafter the crew made their way back to Mahé, based on the information received by the Seychelles Coast Guard, an operation was mounted that resulted in the interception of the vessel Baba Ali, upon interception the Seychelles Coast Guard observed gunny bags being disposed into the sea.  Although there was a total of three gunny bags, only one was retrieved by the Seychelles Coast Guard.In total, the Seychelles Coast Guard retrieved a total of 17 packets in the said gunny bag, and the crew of the vessel was escorted back to Mahé Island.No fish was found on board the vessel Baba Ali.  On the 23rd May of 2021, the Accused was arrested.  The drugs had been analysed and tested positive for controlled drugs, namely Heroin and Cannabis resin, the net weight of the Heroin was 800019.04 grams with a percentage of 47% amounting to 3839.3g (three thousand eight hundred and thirty-nine point three one grams).  As for the net of amount of the Cannabis resin, it amounted to 8970.60 g (eight thousand nine hundred and seventeen point six zero grams).  The convict was arrested together with two other persons known to the Republic who have pleaded guilty already before the Court and as well as the Indonesian Crew members that were employed by the Accused person.  The prosecution submits to the Court that the Accused person was not alone in his endeavour to have the drugs imported into Seychelles.

 

[10] Mitigation

Mr Andre, learned counsel for the 1st two convicts submitted in mitigation of their sentences the following:

1. Both convicts pleaded guilty to the charges against them at the first opportune time and that this is a mitigatory circumstance under Section 49 of MODA 2016; that by so doing the offenders have accepted responsibility of harm associated with their offenses and they are remorseful.
2. Section 49 (c) is of the MODA is a very important element in this case, this provision relates to any substantial assistance given by the offender to law enforcement authorities as an informer or otherwise in the prevention, investigation, or prosecution of any other offenses under the Act.
3. In this respect Counsel brought to the attention of the Court the conditional offer that was duly signed by both Mr. Barbe and Mr. Deletourdie.
4. Furthermore, counsel submitted that the absence of commercial element is present in the case is also regarded as an element to be taken into consideration in respect of the mitigation of the sentence. According to him no evidence or issue has been brought before the Court in respect of either of the two convicts benefiting from any of such activities. Though Mr Barbe decided to work for the 1st convict, it was only when he was out at sea that he discovered the nature of their trip and was in disapproval thereof. As a result, an argument ensued between the two of them and though he wanted to leave the vessel, the nature of the circumstances prevented it. According to counsel as a result he was compelled by the 1st convict to carry out his orders. He went on to state that the same situation existed with regards to Mr Francois Richard Deletourdie.
5. Other mitigatory circumstances under S 49 of the Act includes, the absence of prior conviction or prior formal caution; absence of harm.

[11] As to the personal circumstances of his client, counsel submitted the following:

1. The 2nd convict is 49 years of age, he has a 17-year-old daughter and he lives currently with his mother and his nephew at Glacis.
2. The 3rd convict is 34 years of age, he has four daughters and his last child was born when he was under arrest in this case. He lives with his partner in a three-bedroom house at La Gogue.

 Mr Andre also made references to a number of sentences decided before this court and the Seychelles Court of Appeal, which according to him have facts and circumstances similar to this case, which can assist the court in coming to an appropriate sentence.

[12] The learned counsel for the 1st convict on the other hand, also mitigated in favour of a reduced sentence for his client as follows:

1. He adopted the content of the Probation Report in favour of his client.
2. According to him his client is still a relatively young man 45 years of age currently working on a semi-industrial vessel for over 12 years now.
3. He is a father to 2 children aged 24 and 18 years old respectively, He supports his children economically and emotionally.
4. He has provided a timeless plea of guilty at the earliest opportunity to the amended charge dated 13th day of April, demonstrating his genuine remorse in the commission of the offence of trafficking of a controlled drug contrary to Section 10 of the Misuse of Drugs Act 2016. Therefore, he pleads to the court to afford him full credit for his guilty plea.
5. According to him the events surrounding the particulars of the offence were completely out of character for Mr Mubarak and should be sentenced as a man of previous good character with no criminal record which reinforces or highlights the isolated nature in the commission of the offence charged.
6. Learned counsel invited this court to temper justice with mercy in the imposition of sentence. According to him his client’s, his family including his wife and children are heavily reliant on him and he has supported them during their individual developments and any further absences in their lives will venerably have a negative social economic impact. His submission is also that the sentence be commensurate with what has taken place at a lower end of the range that will achieve the aim of punishment.
7.  Mr Laporte submitted that his client has co-operated with the Police in providing details of the main culprits who has induced them in a moment of weakness while his business was not performing well, albeit be it those investigations are yet to complete or to profess a charge against such individuals. According to him, whilst it is no excuse that the business of Mr Mubarak was not doing well, a momentary lapse of judgment for which the Convict is truly remorseful and desirous to rehabilitate and reintegrate into society, goes in his favour.
8. Finally, similarly to Counsel for the other convicts, leaned counsel made reference to a number of court decisions, which according to him contain sentences that can guide the court in imposing the appropriate sentence in this case.

 

[13] At the request of learned Counsels for the convicts, Pre-Sentencing Reports were requested and made available by the Probation Services. These reports were received by the Court and provided to Counsels and has greatly assisted them in their submissions.

[14] The Court was informed that the convicts have no previous convictions and they would therefore be taken as first-time offenders for the purpose of their sentences.

[15] Analysis and determination:

In coming to its determination as to what would be the appropriate sentences in this case, the Court has appraised itself with the provisions of the Misuse of Drugs Act (MODA), under which the convicts have been charged. The relevant provision is found in Section 47 and 48 of the MODA, which provides as follows:

47. In sentencing a person convicted of an offence under Part II of this Act, whether upon a guilty plea or following trial, the Court shall have regard to —

                     (a) the objectives of the Act;

                    (b) the degree of control to which the relevant controlled drug is subject; and

                   (c) the general objectives of transparency and proportionality in sentencing.

 

(2) Where an aggravating or mitigating factor identified in section 48 or section 49 applies to the circumstances of an offence, the Court shall expressly identify that factor and give weight to it in considering the appropriate sentence.

 

(3) In sentencing a person who has been identified as a drug user or a drug dependent person, the Court shall follow the process set out in section 38 or section 39.

 

(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.

 

(5) In sentencing a person convicted of an offence under this Act in circumstances where the offence is aggravated in nature, the Court shall have due regard to the indicative minimum sentence for aggravated offence of that kind.

 

48. (1) Aggravating factors (factors that support a more serious sentence) for offences under this Act include –

1. the presence and degree of a commercial element in the offending, particularly where controlled drugs have been imported into Seychelles;
2.  the involvement in the offence of an organized criminal group to which the offender belongs;
3. the involvement of the offender in other offences facilitated by or related to commission of the offence;
4. the use of violence or weapons by or on behalf of the offender;
5. the fact that the offender holds public office or a high-profile position in the community, particularly if the offence is connected with the office or position in question;
6. the targeting, involvement, use, or exploitation of children in connection with the offence;
7. the fact that the offence was committed in a penal or educational institution, social service facility or in other places related to education, sports, or social activities, or in their immediate vicinity; and
8. prior convictions (subject to the Rehabilitation of Offenders Act), particularly for similar offences, whether foreign or domestic, or prior formal cautions under this Act.

 

(2) Where one or more of the aggravating factors identified in subsection (1) is present to a significant extent, the Court shall treat the offence as aggravated in nature.

 

[16] As to the mitigating factors under s 49 of the Act, The Court identifies the offender's admission of the truth of the charge through a plea of guilty; the offender's acceptance of responsibility for the harm or potential harm associated with their offences; the absence of prior convictions or prior formal cautions under this Act; and the fact that no other person was involved in or directly harmed by the offences. Of particular importance with regards to the 1st convict, is additionally also the fact of substantial assistance given by him to law enforcement authorities, as an informer, something that is not denied by the prosecution. I accept these facts are mitigatory and would go some way to reduce their respective sentences. I will also give to these facts their due weight in coming to my determination of the appropriate sentence.

 

[17] However, I have also identified two aggravating factors under s 48 of the Act in this case and they are as follows:

1. the presence and degree of a commercial element in the offending, particularly where controlled drugs have been imported into Seychelles. The facts of the case clearly show that the convicts imported the controlled drugs charged in this case into Seychelles for the purposes of economic gains.
2.  the involvement in the offences of an organised criminal group to which the offenders belongs, despite the 2nd and 3rd convicts saying otherwise, I find that all of the convicts acted with common intention and in concert when they imported the controlled drugs into this country, they hence acted as an organized criminal group.

 

[18] In imposing the sentences, the Court is also conscious of the need to apply settled sentencing principles to the facts of this case as was enunciated in the case of ML & Ors, SC Cr 38/19. I am further aware of the need to individualized the sentences and to render them proportionate, so as to fit the circumstances of the case and those of each convicts and I apply this principle here also. It is on this basis that the 1st convict being charged with more serious offences and having a greater involvement in the culpable facts, his sentence would be more severe, albeit that there is an extra mitigating factor in his favour. Further, the ‘three test’ as enunciated in the case of Ponnoo vs R (2011) SLR 424, with regards to totality of sentencing principle have also been followed. The sentences imposed should be proportionate to the crimes committed bearing in mind the individual circumstances of the convicts.

[19] Having considered the pleas in mitigation made by learned Counsels for the convicts; the mitigatory circumstances; the contents and recommendations of the Pre-Sentencing Reports; the facts and circumstances of this case upon which the convictions were based; the sentencing pattern in cases of similar nature rendered by this court and the Seychelles Court of Appeal and the applicable sentencing principles I have come to the following determination:

1. On count 2, I impose 12 years’ imprisonment on the 1st convict.
2. On count 4, I impose 12 years’ imprisonment on the 1st convict.

The sentence under count 4 shall run concurrently with that imposed under count 2.

3. On count 5, I impose 5 years’ imprisonment on the 2nd and 3rd convicts, respectively.
4. On count 6, I impose 5 years’ imprisonment on the 2nd and 3rd convicts, respectively

The sentences under count 5 shall run concurrently with that imposed under count 6.

[20] Time spent on remand to count towards sentence of all of the convicts.

[21] The convicts are not entitled to remission due to the aggravated circumstances of the case.

The fising vessel Baba Ali shall remain under seizure until  the issues arising out of the motion CM 47 OF 2023 has been fully and finally settled by this court.

1.  
2. All of the accused persons have, since being charged, been remanded by the order of this court and in its Ruling dated the 21st of June 2021. In that decision the court motivated its pre- Sig                        Signed, dated and delivered at Ile du Port on the …… July 2023

 

 

 

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Govinden CJ

 

 

3.  

 

4. high.
5. In imposing the sentences, I am also conscious of the need to apply settled sentencing principles to the facts of this case as was enunciated in the case of ML & Ors SC Cr 38/19
6.  pattern in cases of similar nature before this Court and the Seychelles Court of Appeal; and, the applicable sentencing principles, I have come to the following determination:
   1. On count 1, I impose 5 years’ imprisonment on the 1st convict.
   2. On count 2, I impose 3 years’ imprisonment on the 2nd convict.
   3. On count 3, I impose 3 years’ imprisonment on the 3nd convict
   4. On count 4, I impose 3 years’ imprisonment on the 4th convict.

 

7. Time spent in remand to count towards s