R v Fabien (CO 41 of 2022) [2024] SCSC 114 (24 July 2024)

BURHAN J

1. The convict Harry Barry Fabien was charged with the following offences:

Count 1

Attempt to Murder contrary to and punishable under section 207(a) of the Penal Code.

Harry Barry Fabien of La Gogue, Mahe on 11^th September 2022 at Lo Kan, La Gogue, Mahe attempted unlawfully to cause the death of Mr. Tyrell Robin Hoareau of 18 years old of La Gogue, by an act of stabbing using a knife.

Count 2

Acts intended to cause grievous harm contrary to and punishable under section 219(a) of the Penal Code.

Harry Barry Fabien of La Gogue, Mahe on 11^th September 2022 at Lo Kan, La Gogue, Mahe, unlawfully did Grievous Harm on the person namely Tyrell Robin Hoareau of 18 years old of La Gogue, causing deep lacerations on his back side of the body which caused an internal bleeding and damage to his lungs, by an act of stabbing using a knife.

2. After trial the convict was found guilty and convicted only on Count 2. Prior to sentencing at the request of his learned Counsel Mr Kalyan Karunakaran a probation report was called.

3. It appears from the report that the convict is 26 years of age, single and has no children and resides with his parents and adopted brother.

4. The convict has completed both Primary and Secondary schooling. He has commenced his employment career by being a Barber and thereafter worked as a Stevedore with Hunt Deltel Company on a casual basis. The convict expresses remorse at the incident but he affirms that he too received injuries during the altercation. He has informed the probation services that he wishes to apologize both to the victim and Court for what he had done.

5. The convict further explained that he was following methadone treatment at that time and he was not into heroin use. The convict stated that this cousin and friends started to provoke him into the fight. The convict admits that incident started as a quarrel between his cousin and himself regarding the loss of some drugs belonging to the convict. He had accused his cousin of taking it and a quarrel had ensured. It is clear from the evidence that there was an amount of provocation from the convict’s cousin Eid Florine at the time of the altercation. However, the convict had not stabbed his cousin Eid but the friend of the cousin (the victim) who had intervened in the fight, to prevent the accused harming Eid with the knife he had in his hand.

6. In his plea in mitigation learned Counsel moved that Court consider the fact the convict is a first offender and the facts set out in the probation report. He further submitted that there were three other persons against the convict at the time of the altercation and there was provocation from them as well as the convict himself had been hit with an iron bar.

7. In the case of Republic v Betty-May Michel & Ors [2021] SCSC 140 and the case of Republic v Justin Leon [2023] SCSC 177 this Court considered the fact that provocation though not a defence could be considered as a ground of mitigation at the time of sentencing the convict. However, this does not condone or warrant the action of the convict in stabbing the victim several times on his back close to the spine. Court has already held there was no self-defence as the injuries sustained by the victim are out of proportion to the necessities of the situation.

8. The convict has been found guilty and convicted for the offence of unlawful wounding with intent to cause grievous harm under section 219 (a) of the Penal Code, which attracts a term of life imprisonment. In R v Andy Cesar [2022] SCSC 348 it was held by this Court that in cases of this nature concerning violence and assault, the following factors should be taken into consideration at the time of sentencing:

1. The nature of the injuries caused to the victim;

2. The aggravated nature of the assault;

3. If there was provocation from the victim at the time of the incident;

4. The previous conduct of the accused and his disposition to violent conduct.

9. When one considers the facts of this case, the victim has taken a considerable time to recover from his injuries which still affect him. It is also in evidence that the convict was after alcohol and controlled drugs at the time of the incident and in his state would have continued stabbing the victim, if not for the intervention of others who had to physically hit him to remove him from the victim. The probation services report refers to the serious nature of the offence and recommends deterrent punishment.

10. Giving due regard to all the aforementioned circumstances, I proceed to sentence the convict Harry Fabien as follows:

Count 2

A term of two years’ imprisonment and a fine of SCR 25,000.00 (twenty five thousand). In default of payment of the fine, the convict is to serve a further period of 6 months’ imprisonment to run consecutively to the term of two years’ imprisonment imposed in Count 2.

A sum of SCR 20,000.00 (twenty thousand) to be paid to the victim Tyrel Hoareau as compensation from the said fine, in terms of section 151(1) (b) of the Criminal Procedure Code.

11. Time spent in remand to count towards sentence.

12. Right of appeal against sentence explained.

Signed, dated and delivered at Ile du Port on 24 July 2024.

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M Burhan J