- Case summary
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Sentencing of convicted persons
Adeline J
[1] By reason of an amended formal charge sheet pertaining to CB No: 30211 0/2022, Central
Police Station, dated 25th day of July 2023, the following accused persons, now convicts,
namely;
(1) Kahn Mohammad aged, 42 years old, Iranian National, Captain a/the Iranian Dhow, namely, Basadi
(2) Nasir Nohani aged, 20 years old, Iranian National, crew on board of Iranian Dhow,
namely, Basadi.
(3) Amir Baksh Nohani, aged 27 years old, Iranian National, crew on board of Iranian
Dhow, namely, Basadi.
(4) Abdul Basht, aged 40 years old, Iranian National, crew on board of Iranian Dhow,
namely, Basadi.
(5) Saleem Nohani, aged 28years old, Iranian National, crew on board of Iranian Dhow,
namely, Basadi.
(6) Qasim Azadi, aged 30 years old, Iranian National, crew on board of Iranian Dhow,
namely, Basadi.
(7) Mohammad Hassan, aged 30years old, Iranian Nationality, crew on board of Iranian
Dhow, namely, Bosadi, and
(8) Cui Mohammad, aged 40 years old, Iranian National, crew on board of Iranian Dhow,
namely, Basadi, were all convicted on their guilty plea on the 2nd of August 2023, after
they admitted the facts as narrated by the prosecution pertaining to the offences
specified herein below;
1. Conspiracy to commit the offence of Importation of a Controlled Drug, namely,
Heroin,( Diamorphine) contrary to Section 16 (a) of the Misuse of Drugs Act, 2016
read with Section 5 of the Misuse of Drugs Act, 2016 and punishable under Section 5
of the Misuse of Drugs Act, 2016 read with the Second Schedule referred thereto in the
said Act
Count 2
2. Importation of a Controlled Drug, namely, Heroin (Diamorphine) Contrary to Section
5 of the Misuse of Drugs Act, 2016 read with Section 22 (a) of the Penal Code and
punishable under Section 5 of the Misuse of Drugs Act, 2016 read with the Second
Schedule referred thereto in the said Act.
3. Conspiracy to commit the offence ofImportation of a Controlled Drug, namely, Opium
contrary to Section 16 (a) of the Misuse of Drugs Act, 2016 read with Section 5 of the
Misuse of Drugs Act, 2016 and punishable under Section 5 of the Misuse Drugs Act,
2016 read with the Second Schedule referred thereto in the said Act.
4. Importation of a Controlled Drug namely, Opium contrary to Section 5 of the Misuse
of Drugs Act, 2016 read with Section 22 (a) of the Penal Code and punishable under
Section 5 of the Misuse of Drugs Act, 2016 read with the Second Schedule referred
thereto in the said Act.
PLEA IN MITIGATION
[2] In plea mitigation, Leamed Counsel for the accused, now convicts, urged the Court to take
into account the fact that al1the accused pleaded guilty to the amended charges at the first
available opportunity. This, as submitted by Leamed Counsel, is a mitigating factor under
the Misuse of Drugs Act, 2016 (MODA) which the Court ought to consider in determining
the light sentences in this case. Leamed Counsel also submitted, that by pleading guilty,
the accused have not wasted the Court's time, and furthermore, that they are all first time
offenders.
[3] As for the possible appropriate sentences that the COUlishould consider, Leamed Counsel
cited the case of Republic vs Francis Ernesta & ors SCA 271 2018 (Appeal from the
Supreme Court decisions in CR26 12016) in which case, the four Appellants where charged
under the former Misuse of Drug Acts 1990 with the offences of importation, conspiracy
to commit the offence of importation, trafficking in a controlled drug and conspiracy to
commit the offence of trafficking in a controlled drug, and had their appeal dismissed,
maintaining the sentences varying from 4 - 9 years.
[4] Learned Counsel also cited the case of The Republic vs Fabio Soopromanian and ors CR
113/2021 & CR 115/2021 involving Iranian nationals who on their guilty plea to
conspiracy to commit the offence of trafficking in person contrary to Section 3 (1) (c) (e)
(f) and (g) of the Prohibition of Trafficking in Persons Act 2014 read with Section 38 (1)
of the Penal Code and punishable under Section 3(1) of the said Prohibition of Trafficking
in Persons Act where accordingly convicted for the offence and sentenced to serve a term
of imprisonment of 15 years. I note, however, that the sentence so imposed on the Iranian
Nationals in that case was for a different offence that those they have been charged and
convicted of in the instant case. For that particular reason, 1 find this case tendered as
precedent, unhelpful. Relying on the same case, I also take note of learned counsel's
request for the Court to make an order that the accused/convicts be declared "Prohibited
immigrants" .
THE LAW AND SENTENCING UNDER MODA
[5] The court's approach to sentencing a person or persons convicted of a drug offence under
the Misuse of Drugs Act, 2016 (MODA) is guided by various statutory provisions under
the said Act as well as the recommended sentences for the offences of which the 8 accused
have been charged and convicted under MODA which are;
(i) Two counts of Conspiracy to Commit the Offence ofImportation of a Controlled Drug,
and
(ii) Two counts of Importation of a Controlled Drug.
[6] The offence of Conspiracy to commit the offence of Importation of a Controlled Drug
under Section 16 (a) of MOD A is couched in the following terms;
"16. A person who agrees with another person or persons that a course of conduct shall
bepursued which, ifpursued;
(a) Will necessarily amount to or involve the commission of an offence under this Act by one
or more of theparties to the agreement ".
7] The 8 accused, have also been charged and convicted under MODA for two counts of
Importation of a Controlled Drug. The offence is prescribed under Section 5 of MODA,
and is couched in the following terms;
"5. Aperson who imports or exports a controlleddrug in contravention of this Act commits
an offence and is liable on a conviction to thepenalty specified in the Second Schedule. "
[8] The penalty specified in the Second Schedule of MODA applicable to the offence under
Section 16 (a) and the offence under Section 5 of the MODA for a conviction for a class A
drug is life imprisonment and a fine of SCR 1 million.
[9] Part VI of MOD A specifically provides for sentencing. Section 47 (1) reads as follows:
"47 (1) In sentencing a person convicted of an offence under Part 11of this Act, whether
upon a guilty plea following trial, the Court shall have regard to
(a) The objective of the Act
(b) The decree of control to which the relevant controlled drug is subjected, and
(c) The general objective of transparency and opportunity in sentencing"
[10] Section 48 of MOD A provides for aggravating factors that support a more serious sentence.
They include the following;
"48.(a) The presence and degree of a commercial element in the offending, particularly,
where the controlled drugs have been imported into Seychelles.
(b) The involvement in the offence of an organised criminal group to which the offender
belongs.
(c) The involvement of the offender in other offencesfacilitated by or related to the commission
of the offence.
[11] Section 49 provides for the mitigating factors for consideration that support a reduction in
sentence for the offence. They include the following which I find the most relevant for the
purposes of this exercise;
"49 (a)The offender's admission of the truth of the charge through a guilty plea, particularly
an early guilty plea
(b) The offender's acceptance of responsibility for the harm or potential harm associated
with his or her offence.
(c) .
(d) .
(e) .
(f) The absence of prior convictions orformal caution under this Act
(g) .
[12] I am bound by the provision under Section 47 (2) of MODA that reads as follows;
"where an aggravating or mitigating factor identified in Section 48 or 49 applies to the
circumstances of the offence, the court shall expressly identify that factor and give weight
to it in considering the appropriate sentence ",
[13] A quick reference to the recommended sentencing guidelines made under MODA for a
Class A drug as in the instant case in respect of a first time offender, indicates, that if! am
to follow the recommendation, the starting point should be a term of imprisonment of 20
years given that the weights of the drugs are 1740.40grams containing a purity of Heroin
(Diamorphine) content of 1032.61 grams and 457.80 grams of Opiumboth substantially
more than 600 grams.
[14J It is noted, that through plea in mitigation, learned counsels for the accused/convicts
mentioned few of the mitigating factors spell out under Section 49 of MODA which he
said have to be taken into account for a reduced sentence, notably, the following:
(a) The fact that the accused/convicts admit the charge in an early guilty plea.
(b) The absence of previous convictions or cautions for similar offence.
[15] Is it settled law, that a guilty plea earns an accused/convict credit in respect of a possible
sentence on conviction. The principle that a guilty plea should have the effect of reducing
a sentence is discussed in one of the most authoritative criminal law practice handbook,
Blackstones's Criminal Law Practice. This principle is also supported by case law (see for
example Labiche v Republic SCA 1 (a) 2004 LC 288)
THE SENTENCE
[16] Within the background of the discussion of the law above, and to some extent the facts and
circumstances of which the 8 accused/convicts committed the offences of which they have
been convicted, and in consideration of the other matters raised by defence counsel in plea
in mitigation, I therefore sentence the accused/convicts as follows;
(i.) I sentence all the 8 convicts to serve a term of imprisonment of 20 years in respect of
Count NO 1, and 20 years in respect of Count NO 2. I also sentence all the 8 convicts
15 years imprisonment in respect of Count NO 3, and 15 years in respect of Count NO
4. All the four sentences shall run concurrently, in that, all the 8 convicts shall serve a
term of imprisonment of 20 years.
In accordance with Article 18 (14) of the Constitution, time which the 8 convicts have
spent on remand shall be deducted from their 20 years prison sentence.
(ii.) As to leamed counsel's request for the Court to order that the 8 convicts be declared
Prohibited Inunigrants under the provisions of Section 19 (1) (i) read with Section 20
(1) of the Immigration Decree, this Court declines from making such an order because
it is of the opinion that the same should be left to the executive in exercise of their
prerogative powers conferred upon them by the Inunigration Decree.