R v GB (CR 51 of 2020) [2024] SCSC 65 (17 May 2024)

GOVINDEN CJ

The Convict was convicted under Count 1, Count 2 and Count 3 of the Information, following trial. They are as follows:

Count (1)

Sexual Assault contrary to section 130 (1) as read with section 130 (2) (d) of the Penal Code and punishable under section 130 (1) of the same Act.

Particulars of offence are that GB, 47 years old, [REDACTED] Teacher of [REDACTED] School and resident of [REDACTED] Mahe on the 26^th December 2019 at [REDACTED] Guest House, Mahe, sexually assaulted MB, a 14 year old student of [REDACTED] School, by penetration of her body orifice, namely the vagina of the said MB with his penis for a sexual purpose

Count (2)

Sexual Assault contrary to section 130 (1) as read with section 130 (2) (d) of the Penal Code and punishable under section 130 (1) of the same Act.

Particulars of offence are that GB, 47 years old, [REDACTED] teacher of [REDACTED] School and resident of [REDACTED] Mahe, on the 5^th May 2020 at [REDACTED], Mahe, sexually assaulted MB, a 14 year old student of [REDACTED] School, by penetration of her body orifice, namely the vagina of the said MB with his penis for a sexual purpose

Count (3)

Sexual Assault contrary to section 130 (1) as read with section 130 (2) (d) of the Penal Code and punishable under section 130 (1) of the same Act.

Particulars of offence are that GB, 47 years old, [REDACTED] Teacher of [REDACTED] and resident of [REDACTED], Mahe, on the 11^th May 2020 at [REDACTED], Mahe, sexually assaulted MB, a 14 year old student of [REDACTED] School, by penetration of her body orifice, namely the vagina of the said MB with his penis for a sexual purpose.
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 3^rd February 2024 of which a copy has been provided to the defence. The Probation Services, after considering the whole circumstances of the case has recommended that the Court takes appropriate actions when disposing of it.

The Convict is a first time offender.
He is a father of two who are both depending on him.
The convict displayed positive attributes prior to his involvement in the three offences as he was a well-known volleyball player who has made the country proud both on a national and international level and has also been instrumental in forming young sportsmen in his community and help bring them out of negative influences.
The convict had asked for forgiveness and had shown remorse.
Section 26 of the Penal Code empowers the Court to consider a shorter term sentence for person liable to imprisonment for life or any other period rather than the prescribed sentence under section 130(1) which is not less than 14 years and not more than 20 years.

In sentencing the Convict, the Court is guided by the established sentencing principles as was enunciated in the case of ML & Drs SC Cr 38/19 and applies them to the facts of this case.
It is important to note that there has been no uniformity in sentencing in these cases. The Court is aware of the need to individualise sentences and to ensure it is proportionate to fit the circumstances of the case and those of the Convict of this particular case. In the case of Ibrahim Gilbert Suleman v Republic (Cr. App. No3 of 1995) the following paragraph is to be quoted; “Much as the Court should be guided by a pattern of previous sentences in similar cases, it must be acknowledged that time and circumstances do often combine to make cases dissimilar for the purpose of sentencing”.
The test enunciated in the case of Ponnoo vs R (2011) SLR 424, with regards to totality of sentencing principle has also been followed. Thus, the sentence imposed would be proportionate to the crimes committed bearing in mind the individual circumstances of the Convict.
Having done so, the Court not only considered the circumstances that could mitigate the sentence but also aggravate sentence in this case and these facts are as follows:

The Convict did not plead guilty to the charges brought against him at the very first opportunity nor accepted the harm or potential harm caused by his acts on society which amounts to non acceptance of responsibility.

The Convict was a person of trust and authority over the victim and abused that authority. He was a school teacher at the same school as the Virtual Complainant and was in a position of trust and authority to look after students under his care but not take advantage of that position to prey over the same students for his sexual gratification.
The convict was audacious to perform sexual acts in public.

These are the same facts that weigh unfavorably against the Convict.

The convict’s actions at that time showed that he completely lacked the conscience to feel embarrassed as a person of authority when he decided to not once, not twice but three times take advantage of a child. The lapse of time between the first and second offence was enough for him to deliberate by considering his acts and their consequences and deciding to not follow through with them. He ignored the mental and physical pain and damage he caused or may cause his victim. Despite the fact that the victim has started a new life, the Court should be conscious of the particular and lasting emotional trauma the victim has suffered and will continue to suffer. Society abhors such hideous and irresponsible acts.
Having considered the pleas in mitigation made by learned Counsel for the Convict, the aggravating factors, the contents and recommendations of the Pre-sentencing reports; the facts and circumstances of this case upon which the convictions were based; the sentencing pattern in cases of similar nature rendered by this court and the Seychelles Court of Appeal and the applicable sentencing principles, the Court stresses on the element of retribution in punishment of this crime and determines as follows:

The sentence under Count 2 and 3 shall run concurrently with that imposed under Count 1.

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

Signed, dated and delivered at Ile du Port on of 2024

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Govinden CJ

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