R v Kosiek (CO 83 of 2023) [2024] SCSC 62 (9 May 2024)

ESPARON J

1. The accused has been charged with the offence of Importation of a controlled Drug contrary to section 5 of the Misuse of Drugs Act 2016, The particulars of offence reads as follows;

‘Ernest Cezary Kosiek, a 30 year old male of the Netherlands, holding passport number NRR7J1D49, on 13^th October 2023, on board Quatar Airways Flight QR 678 from Doha, Qatar imported into Seychelles a controlled drug, namely Cannabis Resin  in Seventy Six ( 76) cylindrical shaped packets that was kept inside his body containing a total weight of 776.85 grams.’

2. The accused has pleaded guilty to the said charge and has been convicted on his own guilty plea after admitting the facts of the prosecution case.
3. Counsel   for the accused has put forth in mitigation that the accused is a 30 year old man who had come to Seychelles this year following some traumatic issues he was having at his house and that he comes from a country where smoking cannabis is legal and that he is a heavy smoker and that would have been for his consumption. According to counsel there is no evidence of commercial activity in relation to the case except crossing the border.
4. Counsel also submitted that the accused has pleaded guilty saving the precious time of the Court and he is highly remorseful for having offended the laws of this Country.
5. Counsel relied on the case of Republic V/S Furguson and Lablache  CR 16/2021 where the Court sentenced  the accused for a term of 1 year imprisonment and an fine of SCR 50,000 which was a case concerning 902 grams of cannabis . Counsel also stated that the drugs concerned is a class B drug with only 776. 85 grams of cannabis resin.

The Law

6. At this stage, the Court has to draw its attention to section 47 of MODA which makes provision for the following;

(1) In sentencing a person convicted of an offence under part of this Act, whether upon a guilty plea or following a trial, the Court shall have regard to;

1. the objectives of the Act

(b) the degree of control to which the relevant control drug is subject; and

(c) the general objectives of transparency or proportionality in sentencing.

(2)  Where an aggravating or mitigating factor identified in section 48 or section 39 applies to the circumstances of an offence, the Court shall expressly identify that factor and give weight to it in considering the appropriate sentence…’’

7. Section 49 of the misuse of Drugs Act reads as follows;

‘Mitigating factors (factors that support a reduction in sentence) for offences under this Act     include;

(a) The offender’s admission of the truth of the charge through a guilty plea, particularly an early guilty plea;

(b) The offender’s acceptance of responsibility for harm or potential harm associated with his or her offence;

(c)  Any substantial assistance given by the offender to law enforcement authorities, as an informer or otherwise, in prevention, investigation or prosecution of any other offence under this Act;

4. The absence of commercial element in the offence;
5. The presence of element of coercion, for example from a family member or employee;

(f) The absence of prior convictions or prior formal cautions under this Act; and

(g) The fact that no other person was involved in or directly harmed by the offence’.

8. This Court also draws its attention to section 47(4) of the Misuse of Drugs Act which states as follows;

“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 circumstances.”

Analysis and determination

9. 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.’

10. 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 in 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.’

11. 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.’

12. In 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 agencies.
13.  It is trite law that sentencing is a discretion of the trial Court. In the case of Suki V/S R SCA  10 of 2019, 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.’

14. In the present matter I have considered the following mitigating factors put forth by Counsel for the accused. That the accused has pleaded guilty saving the precious time of the Court and he has shown remorse   for having committed the offence, that the drug concerned is a class B drug with only 776. 85 grams of cannabis resin. That the accused is a first offender as indicated by counsel for the prosecution. Finally I have also considered that the accused may have had some social issues of what counsel termed as some traumatic issues at his home.
15.  This being the case, I cannot shut  my eyes to the fact that of the seriousness of such an offence since the accused has been convicted of  the offence of importation of a controlled drug which carries a maximum sentence of life imprisonment and a fine of 1 million Rupees.
16. I have also considered the case cited by counsel for the accused namely the case of the Republic V/S Andante  Furguson and Kevin Lablache Cr  16/2021 whereby the accused persons were sentenced to a term of 1 year imprisonment and a fine of SCR 50,000 in a case which concerned  the trafficking of a controlled drug in 902.81 grams  of cannabis (herbal materials). However this court shall distinguish the present matter with the case of Andante Furguson (Supra) since it concerned a case of a Trafficking in a controlled drug as opposed to the present matter whereby the accused was convicted with the offence of Importation in a controlled drug in which there is a commercial element being an aggravating factor in terms of section 48 (1)(a)  of the Misuse of Drugs Act, 2016 since the controlled drugs have been imported into Seychelles.
17.  For the above reasons this Court is of the view that a custodial sentence is most appropriate in the circumstances of the case. This Court further notes that the indicative minimum sentence for an aggravated offence relating to the offence of importation of a controlled drug is 15 years imprisonment. However this Court shall apply the principle of proportionality to the present matter in view of the nature of controlled drug which was imported in Seychelles was a class B drug in the amount of 776. 85 grams of cannabis resin and as such is not seen as an aggravated factor as  to the amount of controlled drugs in terms of Section 7(4) of the Misuse of Drugs Act, 2016 since the amount is quite less than 1.5 kg of cannabis resin.
18.  As a result of the above, this Court shall impose a term of 4 years imprisonment against the accused Ernest Cezary Kosiek. For the same reasons as mentioned in paragraph 18 of this sentence, I hold that the accused is entitled to remission in accordance with the law.
19. Furthermore, the time that the accused has spent on remand should be counted as part of the sentence.

Signed, dated and delivered at Ile du Port on 09^th May 2024.

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D. Esparon Judge