R v Azemia & Anor (CO 90 of 2021) [2024] SCSC 64 (17 May 2024)

GOVINDEN CJ

The charges

1. The offences with which the two accused persons has been charged and pleaded not guilty to is as follows;

Count 1

Conspiracy to commit a terrorist act contrary to Section 4 (b) of the Prevention of Terrorism Act, read with section 20 (c) of the said Act, and punishable under Section 4(b) of the said Act.

Particulars of offence

Jimmy Roy Azemia of Glacis and Andrew Estrale of Maldives on or before 28th June 2021, in Seychelles agreed together with persons unknown, to commit a terrorist act namely to cause an explosion at the Grand Anse Petroleum Station, Mahe, by using a Homemade Explosive Device / Improvised Explosive Device, with the aim of causing death or serious harm to a person, or causing damage to property with the intention of intimidating the public or a section thereof.

Count 2

Attempt to commit a terrorist act contrary to Section 4(b) of the Prevention of Terrorism Act read with section 20(b) of the said Act, and punishable under Section 4(b) of the said Act.

Particulars of Offence

Jimmy Roy Azemia of Glacis and Andrew Estrale of Maldives on 28th June 2021 in Seychelles attempted to carry out a terrorist act namely to cause an explosion at the Grand Anse Petroleum Station in Mahe by using a Homemade Explosive Device / Improvised Explosive Device with the aim of causing death or serious harm to a person, or causing damage to property with the intention of intimidating the public or a section thereof.

Count 3

Possession of Explosives contrary to and punishable under section 17 of the Explosives Act.

Particulars of Offence

Jimmy Roy Azemia of Glacis and Andrew Estrale of Maldives, on 28th June 2021 at La Misère Mahe, knowingly had in their possession or under their control explosives, namely Homemade Explosive Device / Improvised Explosive Device in Vehicle S22762 belonging to the 24/7 Bus Company Limited, without lawful object.

2. Both accused were found guilty and convicted for the offences set out in count 1 and count 3.
3. Counsels for the two convicts requested for a Probation (Pre-Sentencing) Report on behalf of their clients. These were duly made available to counsels and the Court and they have greatly assisted the Court’s determination of the sentence. The Court takes notice of the contents of the Reports, including their recommendations, which are that both convicts be given custodial sentences.
4. For the purposes of the sentence, I would consider the 2^nd Convict as a first offender. The 1^st convict was however on the 10^th of September 2021 sentenced to two years imprisonment in Supreme Court case CR 83/20 for the offence of Possessing of and of having under control of, firearm, ammunition, offensive weapon and incendiary material without lawful authority or reasonable excuse, in circumstances which raise a reasonable presumption that such firearm, offensive weapon, ammunition or incendiary material is intended to be used for a purpose prejudicial to public order contrary to and punishable under S84 (1) of the Penal Code (CAP 150 ) .
5. The law under section 4 (b) of Prevention of Terrorism Act provides for a minimum mandatory custodial  sentence of not less  than seven years and a maximum not more than 30 years for someone convicted under Section 17(1) of the Act. Whilst the sentence for the charge under the 3^rd count one liable is a liability of imprisonment for fourteen years in case of a conviction.
6. Counsel for the 1^st Convict in mitigation submitted that his client has been proven guilty, however, he believes that the Court should take into consideration that the Convicts passed by the station up and down but they did not go inside or in any way do anything to put effect to what according to the evidence said was their plan. He submitted that they were caught at La Misere, very well away from the spot where it is said that they were supposed to do the act. He urged the Court to take this into consideration and not to put a sentence that is harsh and excessive. He was of the view that his client has been incarcerated on remand for over 2 years and that this should be enough considering that the “agent provocateur” the one who in fact initiated all this has not been charged but instead came to be a witness when he is the one who did all the preparation in his establishment. Finally, he referred this Court to the recommendation of the Probation Report where it is recommended by the Probation that a minimum custodial sentence be imposed on the accused.
7. On the other hand, Learned Counsel for the 2^nd Convict submitted that the 2^nd Convict in this case have been convicted on Count 1 and Count 3 of the Charges. Count 1 is one of conspiracy to commit a terrorist act, which is a Count made under Section 4(b) of the Prevention of Terrorism Act. He argued that, though, the sentence for the offence is imprisonment for a period of no less than 7 years and not more than 30 years, a sentence even below the 7 years has merit as per the case of Ponoo versus Republic as enunciated by the Court of Appeal. With regards to the 3^rd Count, he agreed that the sentence is for 14 years. However, he urged the Court to consider a term that will be commensurate to both the circumstances in which these offences were committed and in line with sentencing practices relating to some of these offences.
8. Similar to Counsel for the 1^st Convict, Counsel, with respect to the offence of conspiracy to commit a terrorist act, submitted that there is an element of an agent provocateur, in regards to his client. He argued that though his client cooperated with the authorities by giving a statement admitting to his involvement in the case, the offences were committed at the instance of another person, a third party, who was not brought before the Court on charges. According to him, his client cooperated with the authorities and that Court should consider this to his credit when considering sentence.
9. He further submitted that this case was a preparatory act and that the final result was not fulfilled. According to him, true it is that there was a plan involving the accused person along with the 3^rd party to go and put the explosive and to allow it to explode but as pointed out by his client, however, both of them had a change of heart and they decided not to carry out this plan, but to pull away.
10. With regards to the personal circumstances of his client, Counsel submitted that he suffers from chronic medical conditions such as high blood pressure and blood circulation, spondylosis, heart problems, gastritis and eye vision problems and he produced Medical Reports to the Court in support of this submission. He further submitted that his client is a man of 47 years of age, is a father of 4 children including a foster son and at the material time he was a sole bread winner. He is a first time offender, he has never been charged with any criminal offence before. He used to work with the ANB at one point in time, he used to be the ex-body guard of the current President and he has a history of working in the force. According to Counsel, as the facts of this case shows, both accused, as all human being sometimes do, fell as a result of a 3^rd party who influenced them and that his client was a man who trusted a third party who treated him as a friend and for some reason led him into committing the offence. He prayed that this be considered to his credit.
11. He  urged the Court to consider the case of Republic versus Panagary SLR 59/2010, when considering the appropriate sentence for the 3^rd count, where the accused person in this case were caught red-handed with Molotov cocktails in the early hours of the day shortly after midnight and the Court imposed a sentence of 3 years. Considering that in this case both accused persons had been remanded for 3 years, he submitted that any terms of years around 3 to 4 years will be an appropriate terms of imprisonment.
12. I have considered the submissions in mitigation made on behalf of both convicts; the content and recommendations of the Probation Reports; the facts and circumstances of this case and the law with established legal principles with regards to sentencing, including the totality of sentencing principle and the fact that sentences should be individualised in order to meet the magnitude of the culpability.
13. With regards to the 1^st offence of Conspiracy to commit a terrorist act. The Court notes that offences of terrorism are by their very nature serious. Terrorism is universally acknowledged as being an extraordinary act of violence. As the Ontario Court of Appeal stated in R v Khawaja (2010) ONCA 862 at [231]:

“To be sure, terrorism is a crime unto itself. It has no equal. It does not stop at, nor is it limited to, the senseless destruction of people and property. It is far more insidious in that it attacks our very way of life and seeks to destroy the fundamental values to which we ascribe – values that form the essence of our constitutional democracy.”

14. In distinguishing terrorism from ordinary criminal acts, two primary points emerge. Firstly, terrorists operate with intentions that surpass personal motives like revenge or financial gain. Their actions are geared towards advancing a broader systematic and public agenda. Secondly, for an act to be classified as 'terrorist act', it is necessary that an individual intend to: (a) advance a political, religious and ideological cause; and (b) coerce or influence by intimidation a government or the public. In this case it is abundantly clear that both convicts had a political agenda, namely to destabilize the country in an attempt to oust the President.
15. I further note that the offences, of which the Convicts have been convicted, carry a maximum penalty of 30 years and 14 years, which is an indicator of the seriousness with which the legislator views offending of this type.
16. Moreover, though the offence charged is not one of actually carrying out a terrorist act but one of conspiracy to commit such an act, the court in assessing the seriousness of the case must look at the nature of the harm that the planned terrorist act is intended to cause. The intended harm of blowing up the Grand Anse Petroleum Station could have led to loses of properties and lives and interfere with, disrupting or destroying the petroleum product distribution in the west Mahe region, with the economic repercussion that would have followed. In the United Kingdom case of R v Byrne (1975) 62 Cr App R 159at 163, the Court held that ‘[c]learly conduct which is likely to endanger life is more grave than conduct which is likely to cause serious injury to property’. Moreover, the fact that convicts intended to use explosives to commit an act of violence, combined with their extremist mindset, meant that they must at the very least have ‘contemplated’ (R v Lodhi (2006) 199 FLR 364 at [36]) or ‘countenanced’ (R v Elomar and Ors [2010] NSWSC 10 at [60]) the causing of physical harm.
17. When it comes to the specific crime of  conspiracy to commit a terrorist the issue of proximity between the conspiracy and the commission of the actual crime is another factor in determining the seriousness of the offence, ‘any considerations which advert to the content and duration and reality of the conspiracy are to be taken into account’ (R v Kane [1975] Vic Rp 64; (1975) VR 658 at 661 (Gowans J, with whom McInerney and Nelson JJ agreed)). Here I note that the conspiracy was complete, with the explosive device being conveyed to the target when the convict was arrested and that it appears that they would not have desisted have they not been arrested. Hence, there was very close proximity both in term of content and time to the commission crime.
18. Another serious element in this offence was that it was grouped based rather than the act of one individual. The group was three individual, including the two convict, with one co-conspirator desisting and turning into a state witness. I note that the fact that this further enhanced the crime as it was committed as a group.
19. With regards to the charge of possession of explosives, the court notes that R v Bouch [1982] 3 WLR 673 confirmed that a petrol bomb (a bottle containing petrol with a wick) was an explosive substance. In this case the facts shows that the explosive was not in illegal possession of the two convicts as a result of lack of a permit or that it was explosive substance that had a dual civilian used, such as fireworks. Rather it was explosive purposely designed from commercially available precursors with the intention of causing harm and damages to civilian infrastructures. As a result the finding and decision above with regards to the 1^st count is also applicable to the 3^rd count.
20. Given the nature of this crime I am further conscious that there should be a deterrent sentence aimed to dissuade the individual offenders from committing further offences of a similar nature by imposing sanctions which demonstrate the adverse consequences of this criminal activity.
21. On the other hand, in mitigation of the facts of this case are the following features. Firstly, the fact that the two convicts did not form part of a formal ideology driven terrorist group. Secondly, the improvised explosive device made by the convicts was crude and somewhat amateurish and would have caused an explosion with reduced damaging effect. Thirdly, there was a person that was also involved in the initial stage of the commission of the offence and was not charged. Lastly, the fact that that the offence involved the unlawful agreement to commit terrorism and that the manifest intention was not fully executed.  
22. Having considered all the above, the Court imposes the following sentences:

1. 8 years imprisonment on the 1^st Convict under Count 1; and 4 years imprisonment under Count 3, both terms of imprisonment sentences are to run concurrently and;
2. 7 years imprisonment on the 2^nd Convict under Count 1; and 4 years imprisonment under Count 3, both terms of imprisonment to run concurrently.
3. Time spent on remand will count towards sentence.
4. The convicts have a right to appeal to the Seychelles Court of Appeal against both convictions and sentences.

Signed, dated and delivered at Ile du Port on 17^th day of May 2024.

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Govinden CJ