The Republic v Hilda Anena & Or (CO 48/2022) [2023] SCSC 816 (2 November 2023)

Adeline, J

INTRODUCTION

 

1. By way of an amended charge dated 17^th October 2022 pertaining to CB 04/02/22 ANB, the 2^nd Accused, Kevin Gerard Quatre of La Louise, Mahe, Seychelles, now a convict, was indicted with one count of Conspiracy to Commit the Offence of Importation of a Controlled Drug contrary to Section 16 (a) read with Section 5 of the Misuse of Drugs Act 2016 and punishable under Section 5 as specified in the Second Schedule of the said Act (Count 1) and one count of Conspiracy to Commit the Offence of Trafficking in a Controlled Drug contrary to Section 16 (a) read with Section 7(1) of the Misuse of Drugs Act 2016, and punishable under Section 7 (1) as specified in the Second Schedule of the said Act (count 2).

 

2. In the alternative to count 1 and 2, the accused/convict was also indicted with one count of Aiding and Abetting the Trafficking of a Controlled Drug contrary to Section 15(1) (a) and (c) read with Section 7 (1) and (2) of the Misuse of Drugs Act, 2016 and punishable under Section 7 read with the Second Schedule of the said Act, (count 3).

 

3. Pursuant to a judgment of this court delivered on the 5^th July 2023, the 2^nd accused, now a convict, was found not guilty of the offence of Conspiracy to Commit the Offence of Importation of a Controlled Drug, and not guilty for the offence of Conspiracy to Commit the Offence of Trafficking in a Controlled Drug. He was, nonetheless, found guilty for the offence of Aiding and Abetting the Trafficking of a Controlled Drug, and he is now due for sentencing.

 

PROBATION SERVICES ENQUIRY REPORT

 

4. At the request of learned counsel for the accused/convict, the court did commission a Probation Enquiry Report (“the Report”) to shed light on the accused/convict’s antecedent, which Report dated the 15^th August 2023, prepared by one Ms Marie-Antoine Bijoux, a Probation Officer, was duly received by this court and served on the parties to this case. The relevant matters highlighted by the Report for the purpose of this exercise state, inter alia, that the accused/convict has been in employment at few places, and that he has previously been serving a prison sentence. After his release from prison, he worked as a mechanic for two years until he was incarcerated as a consequence of this case.

 

5. It is reported in the Report, that the accused/convict is a past convict who spent four years in prison. As regards to the instant case, he is being remanded in police custody having been denied bail. It is also reported, that the accused/convict maintains, that he is innocent and that he has been targeted simply because he is a past convict. According to him, he has been charged for something he did not do. He is of the view, that “he did not receive a fair trial since he does not see where he has conspired to do aiding and abetting”.

 

6. As to the effect of this case on his life, is it reported in the Report, that the accused/convict is of the view, that this case has significantly impacted on his life, given that he has just completed a four-year jail sentence, and that his six year old daughter was just beginning to adjust to his presence in her life when he was arrested and has since been kept in police custody. It is also reported, that it is the accused/convict’s wish that since he has now been convicted, the court should impose on him a custodial sentence for a term not more than the period he has already served on remand in this case since his arrest.

 

 

7. Quite significant, and compelling for consideration for the purpose of this exercise, is the fact that the author of the Report has this to say;

 

“According to information obtained from the Prison Service, the accused was sentenced to four years in prison in CR 22/16 on the 13^th of August 2018 for the offence of Trafficking in a Controlled Drug, Conspiracy to Commit Trafficking in a Controlled Drug, and Conspiracy to Import a Controlled Drug, Importation of a Controlled Drug. He was scheduled to be released on the 26^th of March 2020. However, he was granted a license to be at large on the 3^rd January 2020, and he was under the supervision of the Probation Services during his term of release on license”.

 

PLEA IN MITIGATION

 

8. In her plea in mitigation, learned counsel for the accused/convict, submitted, that the defence “relies for the most part on the Probation Report”. In addition, learned counsel submitted, that in sentencing the accused/convict, the court ought to give the utmost consideration to the fact that the accused/convict has already spent 17 months in prison as well as the peculiar facts of this case. Learned counsel moved the court to impose a very minimum sentence in the form of suspended sentence.

 

THE RELEVANT LAW FOR SENTENCING UNDER MODA

 

9. The Court’s approach to sentencing a person convicted of a drug offence under the Misuse of Drugs Act, 2016 (MODA) is guided by various statutory provisions under the said Act. As regards to the offence of Aiding and Abetting the Trafficking of a Controlled Drug contrary to Section 15(1)(a) and (c) read with Section 7 (1) and (2) of the Misuse of Drugs Act, 2016 and punishable under Section 7 read with the Second Schedule of the said Act, it is pertinent to have regards to the following statutory provisions;

 

1. Section 15 (1) (a) and (c)

This provision is couched in the following terms;

 

“15(1)(a) A person who

1. Aids, abets, counsels, incites or procure another person to commit an offence under this Act, … commits an offence is liable to the punishment for the offence.

(c) Attempts to commit or does any act preparatory to or in furtherance of the commission of an offence under this Act, commits an offence is liable to the punishment for the offence”. 

 

10. Section 7(1) of MODA reads;

 

“7(1). A person who traffics in any quantity of controlled drug, whether on his or her own behalf, or on behalf of another person, whether the other person is in Seychelles or not, in contravention of this Act, commits an offence of Trafficking and is liable on conviction to the Penalty specified in the Second Schedule” (of MODA).

 

11. Section 7 (2) of MODA reads;

 

“7(2). A person who traffics in a substance, preparation or product which purports to be a controlled drug but is not, or which purports to be a controlled drug, but is so low in purity as not to be usable as such, whether on his or her own behalf or on behalf of another person, whether the other person is in Seychelles or not, also commits an offence of trafficking and is liable, on conviction, to the penalty specified for an offence under subsection (1)”.

 

The Penalty specified in the Second Schedule of MODA application to Section 7(1) and (2) of MODA for a Class A drug prescribed under the First Schedule under Part 1 which include heroin (Diamorphine) is a maximum life imprisonment and a maximum fine of SCR 750,000.00”.

 

12. Section 7(4) of MODA reads;

 

“7(4) Where a person is convicted of an offence of Trafficking in more than 1.5 kilogrammes of cannabis, or cannabis resin, or more than 250 grams of any other controlled drug, the court shall treat the offence as aggravated”.

 

13. In essence, therefore, it is only when the weight of the drug in trafficking offence is over 250 grams that the court should treat the offence committed as aggravated in nature. It is to be noted, that in the instant case, the accused/convict has been convicted for Aiding and Abetting the trafficking of a controlled drug, heroin (Diamorphine) with a purity of a 564.40 grams.

 

14. It is also worth mentioning the provision of Section 47 of MODA that reads as follows,

 

“47(1). 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;

 

1. The objective of the Act
2. The degree of control to which the relevant controlled drug is subject, and
3. The general objective 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”.

 

15. Section 47 (5) is worthy of being taken into consideration in meting out the appropriate sentence that will do justice in this case. Section 47 (5) of MODA provides as follows;

 

“47(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 the aggravated offence of that kind”.

 

16. Section 48 of MODA provides for aggravating factors, and it reads as follows;

 

“48(1) Aggravating factors that supports a more serious sentence for offences under this Act includes;

 

1. The presence and degree of commercial element in the offending, particularly where the controlled drugs have been imported into Seychelles.
2. The involvement in the offence of an organised 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. Prior to conviction (subject to the Rehabilitation of Offenders Act), particularly for similar offences, whether foreign or domestic, or prior formal cautions under this Act”.

 

17. Also worthy of consideration, is Section 48(2) of MODA that provides for the following;

 

“48(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”.

 

It is to be noted, that the accused/convict has prior conviction for similar offence, and that the same had not been spent by virtue of the provision of the Rehabilitation of Offenders Act at the time he committed the offence on the 2^nd February 2022, for which he has been convicted in the instance case. In fact, as is reported in the Probation Services Enquiry Report, the accused/convict was due to be released on the 26^th March 2020, but was released earlier on a license on the 3^rd January 2020.

 

18. It is also necessary to state, that Section 49 of MODA does provide for mitigating factors which the court has to take into account for a reduction in sentence. Section 49 of MODA reads;

 

“49. Mitigating factors (factors that support a reduction in sentence) for offences under this Act, includes;

 

1. The offender’s admission of the truth of the charge through a guilty plea, particularly an early guilty plea. On the facts of the instant case, that was not the case, and the accused/convict, had to go through a full blown criminal trial.
2. The offender’s acceptance of responsibility for the harm or potential harm associated with his or her offence.
3. 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 offence under this Act.
4. The absence of any commercial elements in the offence
5. The presence of any element of coercion, for example, from a family member or employer.
6. The absence of prior convictions or prior formal cautions under this Act, and
7. The facts that no other person was involved in or directly harmed by the offence”.

 

19. I have had a quick look at the recommended sentences for trafficking in a Class A Drug for first time offenders, whilst noted, that the accused/convict is not a first time offender. Given that the purity of the drugs in the instant case is more than 400grams but less than 600 grams, if the accused/convict was a first time offender, the accused/convict would have been liable for a period of 15-20 years imprisonment.

 

SENTENCE

 

20. I have taken a myriad of competing factors into account while applying the law discussed above to the facts and circumstances of this case in meting out the right and appropriate sentence that will do justice in this case, notably, the principle of sentencing, (vide) and the principle that the punishment should fit the crime when considering the principle of proportionality. I have also given particular consideration to the matters raised by learned defence counsel in plea in mitigation.

 

21. Within the background of the discussion of the law in the preceding paragraphs of this sentence, and in consideration of the matters that make the offence of which the accused/convict has been convicted aggravated and thus deserving a sentence that fit the offence and the offender, I hereby sentence the accused/convict, Kevin Gerard, Quatre to serve a term of imprisonment of six years for the offence of Aiding and Abetting the Trafficking of a Controlled Drug Contrary to Section 15(1) (a) and (c) read with Section 7(1) and (2) of the Misuse of Drugs Act, 2016 and Punishable under Section 7 read with the Second Schedule of the said Act.

 

22. In accordance with Article 18(4) of the constitution, the period of time which the accused/convict has spent on remand in police custody shall be deducted from his six year term of imprisonment.

 

23. Given that the accused/convict has been sentenced to serve a long term of imprisonment for an offence committed in contravention of the provisions of the Misuse of Drugs Act 2016 with aggravated nature, Section 30(2) (b) of the Prison Act, Cap 180, shall be invoked, in that, the accused/convict shall not be entitled to remission for good behaviour.

 

24. The accused/convict is informed, that he has thirty days as of today to appeal against both, conviction and sentence.

 

Signed, dated and delivered at Ile du Port 2 November 2023.   

 

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B Adeline, J