R v Athanase (CO 66 of 2020) [2024] SCSC 129 (28 June 2024)

GOVINDEN CJ

1. The Convict was initially charged as follows:

Count 1

                                    Statement of Offence

Manslaughter by way of unlawful omission contrary to Section 192 of the Penal Code and punishable under Section 195 of the Penal Code (cap 158.)

 Particulars of offence

Sheldon Michael Ronny Athanase (NIN 0-01-3-1-94) resident of Saint Joseph, Praslin on the 1^st March 2020 at Amitie, Praslin, by unlawful omission caused the death of another person, namely late Dr Bernd Otto Muller, a German national by driving a motor vehicle namely Motor Cycle with registration number S26115 on the road recklessly which was dangerous to the public in culpable negligence to discharge a duty tending to the preservation of life or death.

In the alternative,

Count 2

 Statement of Offence

Causing death by dangerous driving contrary to and punishable under Section 25 of the Road Transport Act (CAP 206).

 Particulars of offence

Sheldon Michael Ronny Athanase (NIN 0-01-3-1-94) resident of Saint Joseph, Praslin on the 1^st March 2020 at Amitie, Praslin, unlawfully caused the death of another person, namely late Dr Bernd Otto Muller, a German national by driving a motor vehicle namely a Motor Cycle with registration number S26115 on the road recklessly or in a manner which was dangerous to the public.

The Convict was convicted on the 1^st Count. However, the Court made no finding on the culpability on the 2^nd Count, which is drafted in the alternative to the 1^st.

2. The Court had requested the Probation Office to prepare a probation report in order to assist the Court in sentencing. This has been duly provided in a Probation of Offenders Report dated the 8^th April 2024 of which a copy has been provided to the defence.

3.  I have considered the facts set out in the Probation Report. The convict is a 23 year old man. He resides at Pascal Village and is presently working as a security officer. He has been in a relationship with his 25 year old partner and at the time of the Probation Report they were expecting their first child together. The convict conveyed that he does not recollect anything about the accident that has resulted into the death of the victim. He is asking the Court and the late victim’s family for forgiveness for what happened on that day. He added that it is also his intention to one day formally address a letter to the victim’s family or to meet with his wife to ask for her forgiveness. The convict’s mother and his partner have both implored the Court for forgiveness on behalf of the convict and are hoping that he is spared from incarceration, especially now that he is a father.

4. The Probation Services, after considering the whole circumstances of the case has recommended that the Court takes appropriate actions when disposing of it.

5. The case of Njue v R (2016) SCCA 12, (at para 14) sets out the principles a court should consider when sentencing which include public interest; the nature of the offence and the circumstances it was committed. The Court at the same time must consider whether there is a possibility of the offender to be reformed; the gravity of the offence; the prevalence of the offence; the damage caused; any mitigating factors; the age and previous records of the accused; the period spent in custody; and the accused’s cooperation with law enforcement agencies. These factors can be grouped into three categories namely - looking at the crime committed, the offender and the interests of society.” (Emphasis added).
6. In the case of Emmanuel Saffrance v R [2020] SCCA 29 (18 December 2020) the Seychelles Court of Appeal enhanced a term of 15 years imprisonment to 20 years imprisonment on the basis of the fact that the accused had previous convictions and was a person of violent disposition and on considering the numerous injuries inflicted on the deceased by the accused. In coming to the decision to enhance the sentence Twomey JA held:

“In a hierarchy of seriousness, where the highest culpability for each of the offences of homicide are considered, the offence of murder would be at the summit, followed by voluntary manslaughter and then involuntary manslaughter committed by an unlawful act and lastly gross negligence manslaughter. These levels of culpability should, in my opinion, be reflected in the penalty imposed for the offence committed.” (emphasis added)

7.       Giving due regard to the aforementioned factors, this Court prior to deciding on the suitable sentence to be imposed in this case will first consider which class or type of manslaughter the accused was convicted of.
8.       Archbold Criminal Pleading and Practice 2008 edition 19-97 states voluntary manslaughter occurs when all the elements of murder are present including an intent to kill or cause grievous bodily harm but the crime is reduced to manslaughter by reason of a) provocation b) diminished responsibility or c) death being caused in pursuance of a suicide pact. Involuntary manslaughter is unlawful killing without intent to kill or cause grievous bodily harm and are divided into two classes namely unlawful act manslaughter and manslaughter by gross negligence involving breach of duty at 19-98.
9. The law in regard to involuntary manslaughter was clarified by the House of Lords in R v Adomoko [1995] 1 AC 171 in which Lord Atkin distinguished the two types of manslaughter comprised in the offence, namely “unlawful” act manslaughter and manslaughter by gross negligence involving a breach of duty.
10. Msoffe JA in R v Sirame (SCA 06/2012) [2014] SCCA 6 (11 April 2014), explained the distinction between the type of manslaughter referred to above voluntary manslaughter and involuntary manslaughter:

“15. The offence of manslaughter is usually divided into two generic types – voluntary and involuntary. Voluntary manslaughter is committed where the accused has killed with malice aforethought, and could be convicted of murder, but there are mitigating circumstances present reducing his culpability. In other words, voluntary manslaughter consists of those killings which would be murder because the accused has the relevant mens rea but which are reduced to manslaughter because one of the defences, like diminished responsibility, provocation, etc., exists in the case.

16. Involuntary manslaughter is an unlawful killing committed by an accused who did not have malice aforethought but who, nevertheless, had a state of mind, which the law treats as culpable. BLACK’S LAW DICTIONARY [Ninth Edition, by Bryan A. Garner] defines it as a “Homicide in which there is no intention to kill or do grievous bodily harm, but that is committed with criminal negligence or during the commission of a crime not included within the felony – murder rule… Involuntary manslaughter is a “catch-all” concept. It includes all manslaughter not characterized as voluntary…”

11. The particulars of offence in this instant case assists us in coming to a finding that the class or type of manslaughter applicable to the facts of this case is manslaughter by gross negligence as the particular of offence state that “… by unlawful omission caused the death of another person..” which involves a breach of duty to preserve life.
12. Having determined the class or type of manslaughter relevant to this case, in accordance with the classification giving in respect of the hierarchy of seriousness as set out in the Saffrance case referred to in paragraph [6] herein, the offence of murder would be at the summit, followed by voluntary manslaughter then involuntary manslaughter committed by an unlawful act and lastly gross negligence manslaughter. It is apparent that involuntary manslaughter relevant to this case occupies the fourth position in respect of seriousness and as held in the case of Saffrance these levels of culpability should be reflected in the penalty imposed.
13. Giving due cognisance to the aforementioned reasoning in the Emmanuel Saffrance case this court will proceed to consider the relevant case law in respect of sentencing in manslaughter cases. In the case of Francis Bakas v R [2021] SCCA 07 a case where the jury verdict of conviction for murder was quashed and the accused was found guilty of voluntary manslaughter, the Seychelles Court of Appeal sentenced the accused to a term of 10 years imprisonment. Therefore, it is the view of this Court that the sentencing range based on these recent cases for voluntary manslaughter ranges from 10 years (Bakas) to 20 years (Saffrance) depending on the aggravating circumstances of each case. It would be also pertinent to mention that in the case of manslaughter by gross negligence the Seychelles Court of Appeal in the case of Barreau v R [2015] SCCA 15 (17 December 2015) imposed a term of 4 years imprisonment. As per paragraph [6] guidelines stated herein as involuntary manslaughter culpability is greater than manslaughter by gross negligence, this court is of the view based on the sentences referred to above that a sentence range of above 4 years and less than 10 years should be considered in cases of involuntary manslaughter depending on the mitigating and aggravating circumstances of each case. Case law indicates that sentencing cannot be based on mathematical deductions but the aforementioned reasoning is based on the guidelines on the culpability of different classes or types of manslaughter referred to in the Saffrance case.
14. Counsel for the Convict in mitigation of sentence relied on the Probation report. He stated that the Convict is a relatively young man of unblemished character with no previous conviction. The convict has asked for forgiveness and has shown remorse. He further stated that after taking all the facts of the case into consideration, the Court should impose a lenient sentence. He supported his statement by providing case laws which he believes would direct the Court in passing a sentence lesser than 4 years.
15. The Court have further looked at the sentencing pattern in this jurisdiction relating to sentence of this nature and the Court sentences in cases similar to the facts in this one. Having done so, the Court not only considered the circumstances that could mitigate the sentence but also aggravate sentence in this case.
16. The aggravating factor in this case is that the victim was a visitor to these shores. Tourism forms the base of the economy of the Seychelles. If the reputation of the country as a safe and comparatively unspoilt haven is damaged, and it will be damaged if acts like this recur, the population of as a whole will suffer. Road traffic accidents is considered an actual pandemic, affecting primarily the vulnerable and young people, which in addition to the trauma of injury and bereavement has also a devastating economic impact for countries, communities and families. Seychelles has not been spared. This Court is of the view that to deter road traffic accidents as a result of reckless driving which poses a danger to the public, the imposition of a strict punishment is needed.
17. Having considered the pleas in mitigation made by learned Counsel for the Convict, the contents and recommendations of the Pre-sentencing report; the facts and circumstances of this case upon which the conviction was based; the sentencing pattern in cases of similar nature rendered and the applicable sentencing principles, the Court determines as follows:

1. On Count 1, I impose a custodial sentence of 4 years’ imprisonment on the Convict.

18. The Convict has a right to appeal against the sentence to the Seychelles Court of Appeal against his Conviction and sentence.

Signed, dated and delivered at Ile du Port on 28^th    of   June    2024

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Govinden CJ