SUPREME COURT OF SEYCHELLES
Reportable
CO 43/2022
In the matter between:
THE REPUBLIC Prosecution
(rep. by Ms. Marie)
and
ABDUL KARIM KHUDABIN Accused
(rep. by Mr. Rajasundaram)
Neutral Citation: The Republic v Khudabin (CO43/2022) (25 October 2024)
Before: Esparon J
Summary: Sentence
Heard: 14th October 2024
Delivered: 25th October 2024
ORDER
The accused is sentenced to a term of 4 years’ imprisonment and a fine of SCR 100,000 on count 2 of which the fine should be paid within a period of 2 years from the date he finishes serving his sentence in the present matter in default of which the accused shall serve a period of 6 months’ imprisonment in default of the payment of the said fine.
It is further ordered that part of the fine in the sum SCR 90,000 imposed by the court as fine shall be paid as compensation to the victim in relation to count 2.
The accused is sentenced to a term of 2 years’ imprisonment on count 3.
SENTENCE
ESPARON J
Introduction
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The Accused has been convicted by this Court on count 2 and count 3 in this matter after this Court has heard all the evidence and made a determination at the end of the case.
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As regards to count 2 of which the accused has been convicted namely with the offence of wilfully and unlawfully damage a property contrary to and punishable under Section 325(1) of the Penal Code. The particulars of the offence read as follows;
‘Abdul Karim Khudabin of 28 years old, unemployed, of Beoliere, Mahe, on 06th September 2022 at Brilliant Housing Estate, Mahe, wilfully and unlawfully damaged a property namely a Black Hyundai Elantra car belongs to Mrs Katty Jenifer Samson bearing registration number S30320’.
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In relation to Count 3 of which the accused was convicted namely with the offence of wilfully and unlawfully damage a property contrary to and punishable under Section 325 (1) of the Penal Code. The particulars of the offence are as follows;
‘Abdul Karim Khudabin of 28 years old, unemployed, of Beoliere, Mahe on the 6th September 2022 at Brilliant Housing Estate, Mahe, wilfully and unlawfully damaged a property namely a Hyundai Grand i10 car belongs to Hunt Deltel & Company Limited bearing registration number S30657.’
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In this matter, counsel for the accused asked for a probation report to be submitted by the probation services of which the Court kindly ordered.
Mitigation by Counsel for the accused
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Counsel for accused in mitigation has put before the Court that the Court should consider the period spent on remand by the accused which according to counsel it has been more than 2 years. According to Counsel, the offence of which the accused has been convicted is a misdemeanour and hence counsel prayed the Court that the accused should be sentenced in accordance to section 325(1) of the Penal Code of which the accused would be liable to 2 years’ imprisonment.
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Counsel for the accused relied on the case of Allain Clifford Raoudy V/S Republic CN 64/2012 and the case of Republic V/S Lafortune SCSC 369 of which according to counsel one case revolves around 1 year and the other one revolves around 2 years which were cases of damaging property. He also relied on the case of Republic V/S Azemia and Ors where the Court imposed a sentence of 2 years.
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Counsel also referred to the probation report submitted by the probation services and submitted that the Court should consider what the parents of the accused has stated as regards to the accused.
Analysis and Determination
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From the outset, this court would like to expound on the principle of sentencing as laid down in decided cases. In the case of Ponoo V/S Attorney General (2011) SLR, the Court of Appeal held that;
“sentencing is an intrinsic judicial power which involves the human deliberation of the appropriate conviction to be given to the particular offender in the circumstances of the case. It is not a mere administration of a common formula standard or remedy”.
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In the case of Savy v/s R (1976) SLR 54, the Court held that;
“In sentencing, the Court should consider the necessity of punishing crime, the deterrent effect on others of the appropriate punishment, and the need to protect the public from offences especially at the hands of those entrusted with the enforcement of the law, the previous good character of the accused, the motive for the offence and the loss of usefulness to the state by a prison sentence’’.
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In the case of R V/S Aden (2011) SLR 41, the Court held that;
“In sentencing, one relevant factor is the seriousness of the offence and when determining a sentence, the court should take into account previous sentences in similar cases. However, the Court should be aware of the differences between cases”.
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The case of Njue v R (2016) SCCA 12, (at para 14) set out the principles a court should consider when sentencing which includes 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.
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It is trite law that sentencing is a discretion of the trial Court. In the case of Suki v R SCA 10 of 2019, prof Tibatemwa-Ekirikubinza JA, stated the following at paragraph 30 of the of the Judgment:
‘Guarding against unjustifiable sentencing disparity is one of the ways in which Judges avoid the injudicious exercise of their discretion. And I opined that the requirement for consistency in sentencing is one of the underpinning principles of equality before the law enshrined in Article 27 of the Constitution. It is for this reason that I would consider the reference to prior decided cases on sentence a useful aid or tool to assist a court in determining an appropriate sentence. In the final analysis however, each case must be decided on its own merits since no two cases are the same’.
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Her Ladyship further stated at paragraph 33 of her judgment, the following:
“From the foregoing it is clear that consistency of sentences does not mean arithmetic exactness. It cannot therefore be argued that a particular sentence is necessarily wrong merely because it is disparate from previous sentences”.
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In the case of Suki (supra), prof Tibatemwa-Ekirikubinza JA, stated the following at paragraph 25 of the Judgment;
“In exercising discretion to arrive at a sentence, the Judge should balance the mitigating factors with the aggravating factors and then consider the cumulative effect thereof. It may be that in the opinion of the Judge, the aggravating factors outweigh the mitigating factors even to the extent that the-would be mitigating factors have little or no effect on the sentence. In such circumstances, the factors cited in mitigation will necessarily recede into the background. It is only if the mitigating factors carry sufficient weight to tip the scale in favour of the accused that a lenient sentence would be given”.
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It is appropriate to seek guidance from case law in deciding the appropriate sentence in the present matter. In the case of R v Lafortune (C0 11 of 22) SCSC 369 which was also related to a charge of damaging property of which the facts of the case was that the damage to the said vehicle was done by forcing open and denting a driver’s door and inside the car the atmospheric shelf was scratched and dented glove box handle broken to the value of SCR 7989.91. The Court in this case sentenced the accused to a term of 1 year imprisonment and to pay a fine of 5000 SCR of which the said sentence of imprisonment was suspended for 2 years.
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In the case of Allen Clifford Raoudy V Republic CN 34/2016 which was an Appeal from a sentence delivered by the Magistrate whereby the learned Magistrate sentenced the accused to a term of 10 months’ imprisonment for the offence of wilfully and unlawfully damaged one triangular window of a car to a total value RS 2000 of which the sentence of 10 months’ imprisonment was affirmed by the Supreme Court in this matter.
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In the present case, the Court has considered the following mitigating factors namely that the accused is a first offender. I have also considered the contents of the probation report namely that the accused is a young man of 30 years old and that he has a child of 4 years old which before the incident lived with and was maintained by his mother. That the father finds it difficult to take good care of the accused house which is such in a dilapidated state. I have also considered the above case laws cited by counsel for the accused. The probation report recommended that the Court considers a custodial sentence and a fine in relation to the accused.
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I have also considered the following aggravating factors namely my findings at paragraph 112 of the judgment of this Court in the present matter which I stated the following;
‘Further from the evidence led by the prosecution in the case namely the evidence of Terry Louise and Francoise Pierre that unleaded gasoline is highly flammable and volatile and that if the fire was not put out quickly the fire could have spread and could have exploded, and hence by the accused using unleaded gasoline to put the fire, I find that the accused did the damage to the said vehicles with intent to destroy or to render the said vehicles useless in terms of Section 325(6)(g) of the Penal Code which renders such an offence a felony being aggravated by the nature of the offence’.
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I also find as an aggravating factor to the fact that the accused setting fire to the vehicles in a densely populated area as this Court had visited the said scene of the incident during the visit of the locus in quo of which the cars were parked a few metres from where 2 elderly couples were residing and hence by using unleaded gasoline which is highly flammable and volatile and that if the fire was not put out quickly the fire could have spread and the vehicle could have exploded which may have caused serious injuries or could have been fatal for the residents living in such a close proximity to where the fire was set to the said vehicles.
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I have also considered the above case laws cited and hence I accordingly distinguish the present case with the case of R v Lafortune (C0 11 of 22) SCSC 369 and the case of Allen Clifford Raoudy V Republic CN 34/2016 of which in both cases the extent of the damages to the property was very minimal namely denting the door or a small broken widow and a small damage to the interior of the car namely the glove compartment. In the present case, the damages to both vehicles were done by fire by the use of unleaded gasoline which is highly flammable and volatile and the extent of the damages to the car registration number S30320 was quite extensive being that the engine compartment was totally destroyed and the other vehicle owned by Hunt Deltel although less damaged was still quite extensive. Further in the present case, there was the risk to life by setting fire to the said vehicles in such a residential area in close proximity to the residents. In the event that the said fire to the vehicles was not noticed by a passer- by at this late hour of the night when most residents are fast asleep and in the event the fire was not put out quickly by the fire services, it would have spread and the vehicles would have exploded and would have dire consequences as a result of this.
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In the present case, I am of the view that the aggravating factors referred to above outweigh the mitigating factors in favour of the accused even to the extent that the-would be mitigating factors have little or no effect on the sentence. Hence, the factors cited in mitigation by counsel for the accused and considered by this court will necessarily recede into the background (vide: Suki v R SCA 10 of 2019)
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As a result of the above, I find that a custodial sentence is most appropriate in the circumstances of the case. The maximum sentence prescribed by law under section 325(6)(g) of the Penal Code is seven years’ imprisonment. In the circumstances, in relation to Count 2, I accordingly impose a sentence of 4 years’ imprisonment on the accused. I further impose a fine of SCR 100,000 of which the fine should be paid within a period of 2 years from the date he finishes serving his sentence in the present matter in default of which the accused shall serve a period of 6 months’ imprisonment in default of the payment of the said fine.
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I accordingly order that part of the fine in the sum SCR 90,000 imposed by the court as fine shall be paid as compensation to the victim in relation to count 2 namely Mrs Katty Jenifer Samson in accordance to section 151(1) (b) of the Criminal Procedure Code for her loss caused by the offence namely the extensive damage caused to her vehicle.
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In relation to Count 3, I accordingly sentence the accused to a term of 2 years’ imprisonment.
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Both sentences in relation to count 2 and count 3 shall run concurrently to each other.
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The period spent on remand shall be taken as part of the sentence.
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The accused has a right of Appeal within 30 days from the date of this sentence.
Signed, dated and delivered at Ile du Port on 25th October 2024.
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D. Esparon Judge
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