R v Balochizi & Anor (CO 31 of 2023) [2023] SCSC 817 (6 November 2023)

GOVINDEN CJ

[1]       The charges

The convicts pleaded guilty to counts 1 and 3 of the Ameded Information dated the 20^th of September 2023, in which they are jointly charged . These charges are as follows;

                                           Count 1

                                Statement of Offence

Importation of a controlled drug contrary to Section 5 of the Misuse of Drugs Act 2016 as read with Section 22 (a) and punishable under Section 5 and thye Second Schedule of the Misuse of Drugs Act, 2016.

                   Particulars of Offence

Wahid Balochizi aged 45 years old Captain of the Iranian Dhow namely Alhafiz and Mola Balochizi 23 years old Engineer on the Iranian Dhow namely Alhafiz on the 28^th April 2023 were importing into Seychelles a Controlled drug namely Heroin ( Diamorphine) with the total net weight of 622.60 kilograms on board the said Iranian Dhow namely Alhafiz which was displaying no flag , in contravention of the Misuse of Drugs Act, 2016.

                      Count 3

              Statement of Offence

Importation of a controlled drug contrary to Section 5 of the Misuse of Drugs Act, 2016 as read with section 22(a) of the Penal Code and punishable under Section 5 and thye Second Schedule of the Misuse of Drugs Act, 2016.

                          Particulars of Offence

Wahid Balochi aged 45 years old Captain of the Iranian Dhow namely Alhafiz and Mola Balochizi 43 years old Engineer on board the Iranian Dhow namely Alhafiz on the 28^th April 2023 were importing into Seychelles a Controlled drug namely Methamphetamine with Total weight of 388.65 kilograms , on board the said Iranian Dhow namely Alhafiz which was displaying no fag in contravention of the Misuse of Drugs Act.

[2]       The facts of the case as read out by the Prosecution and amitted by the convicts are as follows; on the 29^th April 2023 A report was made to the police by the Coastguard that they had intercepted an Iranian Dhow in Seychelles water and substance suspected to be controlled drugs was found.  Having received this report, the police officer proceeded to the Seychelles Coastguard, Perseverance, for investigation.  A team of officers from SSCRB, Dog Unit and Marine Police Officers also reported there for investigation.  Coastguard vessel Zoroaster then arrived along with the Iranian Dhow and the Dhow was boarded by the police with the company of the translator.  The investigation thereafter revealed that it is on the 27^th April 2023 that it is around 2:30 p.m. during a- surveys and reconnaissance flight by the Seychelles Air Force that a dhow was sighted.  Accordingly, Seychelles Coast Guard was informed about the sighting of the dhow.  The following day, on the 28^th April 2023 the same dhow was sighted at different location by the Air Force as well as by the Coast Guard. At around 08:30 a.m. Zoroaster sighted the dhow visually which was not displaying any flag. 

[3]       Having sighted the dhow, the dhow was held on very low frequency-, but there was no response from the dhow.  Thereafter the dhow was ordered to stop by a public address but the dhow did not heed, did not respond and continue to flee. The crew on board the dhow then started to throw overboard packages as observed by the Zoroaster as well as by the aircraft.  Warning shots were fired and the dhow was pursued.  Eventually the dhow was stopped and boarded by the boarding team and secured the crew on board by the Coast Guard.  On the board they met a person who identified himself as Wahid as the captain of the dhow and 6 other crew members.  The packages which was seen being thrown overboard  were gunny bags.  They were picked up by the Coast Guard and brought onto the vessel Zoroaster.  These 4 packages or gunny bags contained substances suspected to be controlled drugs.  These 4 gunny bags were kept in safe custody under lock and key on Zoroaster for safekeeping.  Search on the dhow were conducted and 48 gunny bags were found on board the dhow which contained substance suspected to be controlled drugs.  The dhow was then escorted to the Seychelles Coast Guard  being towed by Zoroaster coast guard vessel.  On the dhow being brought to the Coast Guard at Perseverance, the police boarded the vessel along with the translator.  The translator assisted in identifying the crew found on board.  Firstly, Wahid Balochizi aged 45 years old, identified himself as the captain of the dhow.  And among the crew Mola Balochizi 43 years old, identified himself as the engineer of the dhow.  And they also informed the police that the dhow is called Alhafish  And there were other crew members on board who were also identified and they were charged and charges subsequently withdrawn.  Tthe 48 gunny bags and the 4 gunny bags together in total is 52 gunny bags; those were seized as exhibits.  On board Alhafish dhow the police also seized several mobile phones including a satellite mobile phone and 2 GPS.  The 52 gunny bags were analysed by the forensic analysis and they were confirmed to contained my Lord heroin diamorphine with a total net weight og 622.60kg and methamphetamine with total net weight of 388.65 grams my Lord.  They were charged  and have pleaded guilty to the charges put to them.

[5]       The Court was informed that the convicts has no previous convictions and they would therefore be taken as 1^st time offenders for the purpose of their sentences.

[6]       In his short mitigation submission Learned counsel for the convicts submitted that they have pleaded guilty at their first opportunities and have saved the precious time of the court. They are first offenders and called upon the court to show leniency.

[7]       In coming to its determination as to what should 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 has been charged. The relevant provision is found in  Section 47 and 48 of the MODA, which provides 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 —

(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 —

(a) the presence and degree of a commercial element in the offending, particularly where 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 offences facilitated by or related to commission of the offence;

(d) the use of violence or weapons by or on behalf of the offender;

(e) 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;

(f) the targeting, involvement, use, or exploitation of children in connection with the offence;

(g) 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

(h) 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.

[8]       As to the mitigating factors under s 49 , I identify the offender's admission of the truth of the charge sthrough a guilty plea; the offender's acceptance of responsibility for the harm or potential harm associated with theur 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 physically  harmed by the offence. I accept these facts are mitigatory that would go some way to reduced their respective sentences. I will give to these facts their due weight in coming to my determination on the sentence.

[9]          However I have aslo identified two agaravting factors under s 48 of the Act in this case and they are as follows; first, the presence and degree of a commercial element in the offending, particularly where controlled drugs have been imported into Seychelles. The facst of the case clearly shows that the convicts imported the controlled drugs charged in this case into Seychelles; secondly the involvement in the offence of an organised criminal group to which the offenders belongs On the facts it is clear to the court that  the convicts acted with common intention and in concert, together with the other members of their crew, when they imported the controlled drugs into this country, they hence acted was an organized criminal group. The very lage amout of controlled drugs also prove the commercial element involved in this crime , the havoc that the drugs would have caused to the society, if they had not been intercepted, would have been, cannot ne understated.

[10]     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 .I am further aware of the need  to individualized the sentences and to render it proportionate so as to fit the circumstances of the case and those of each convicts and I apply this principle here also.Further, the three test 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 would be proportionate to the crimes committed bearing in mind the individual circumstances of the convict.

[11]     Having considered the pleas in mitigation made by learned Counsel for the convict;the mitigatory circumstances; 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. i. On count 1, I impose 25 years imprisonment on  both convicts.
2. ii. On count 3, I impose 25 years’ imprisonment on both convicts.

The sentence under count 1 and 3 shall run concurrently.

Time spent in remand to count towards sentence and all of the convicts.

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

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Govinden CJ