R v Hertel (CO 29 of 2022) [2024] SCSC 66 (16 May 2024)

 

Adeline, J

BACKGROUND INTRODUCTION

1. The accused, Neaton, Sairish, Hertel of Belombre, Mahe, now a convict, was initially indicted before this court with one count of Causing Death by Dangerous Driving contrary to and punishable under Section 25 of the Road Transport Act, Cap 206 and one count of Driving a motor vehicle on the road recklessly or negligently, or at a speed or in a manner which is dangerous to the public contrary to Section 24 (1) (b) of the Road Transport Act and punishable under Section 24 (2) of the Road Transport Act, pertaining to TAR 23/12/2021, Anse Aux Pins Police Station.

 

2. On the 23^rd November 2023, Learned counsel for the Republic, sought for leave of this court to amend the indictment for count 2, the offence of Driving a motor vehicle on the Road recklessly or negligently, or at a speed or in a manner which is dangerous to the public to be in the alternative to count 1, the offence of Causing Death by Dangerous Driving.

 

3. On the very same day, the accused pleaded guilty to count 1, the offence of Causing Death by Dangerous Driving, and was accordingly convicted before this court after he admitted the facts pertaining to the offence as narrated by the prosecution which as per the particulars of the offence states that;

 

“On the 18 December 2021, on the public road at Anse Aux Pins, Mahe, caused the death of a person namely, one Evind Esparon, a 60 year old man of Anse Aux Pins, Mahe by driving a motor vehicle, namely, a white Hyundai i20, registration number S20220 on the road recklessly at a speed or in a manner which is dangerous to the public whereupon he over took motor vehicle make Hyundai Typoon registration HV S33563 in a bend and lost control and hit the said Evind Esparon who was standing by at the bus terminal”

 

            PRE-SENTENCE PROBATION ENQUIRY REPORT

 

4. To assist the court to decide on the appropriate sentence that will do justice to this case, on the request of learned defence counsel, the court commissioned a Pre-Sentence Probation Enquiry Report which report was duly received and served on the parties to the case, and which report, learned defence counsel relied upon as part of his plea in mitigation.

 

5. The aspects of the Probation Services Enquiry Report which for the purposes of this sentence is most relevant and worthy of consideration, are that the accused/convict is a young man of 21 years old and the father of a child. He has 13 siblings. He has been brought up by his mother in a single parent family until he attained the age of 13 years old when he went to live with his father, a convict, who was released from prison in 2015.

 

6. As regards to his educational background, the accused/convict attended the Bel-Eau and Anse Aux Pins primary school, and then attended the Anse Boileau and Belonie Secondary School. It is reported in the Probation Services Enquiry Report, that according to the accused/convict, as a consequence of the accident, he now suffers from memory loss and therefore forgets easily. It is also reported in the Probation Services Enquiry Report, that the accused/convict feels bad that the victim of the accident has lost his life, and stated, that it was never his intention to cause the accident.

 

7. The accused/convict told the author of the Report, that he now finds it very difficult to have a good sleep at night given that he is always pondering over the prospect of being sent to prison. The author of the Report, reports, that the accused/convict wishes the court to consider alternative sentences rather than a custodial sentence, as this would enable him to maintain his relationship with his child and to participate in his child’s upbringing.

 

8. The author of the Probation Services Enquiry Report, reports, that she was told by the mother of the accused/convict, that the accused is a loving person who is kind hearted and respectful. She confirmed, that the accused/convict has been in her care up to the age of 13 years old when he decided to go and live with his father who had been released from prison.  

 

9. It is reported in the Probation Services Enquiry Report, that the mother of the accused/convict is quite concerned about her son’s behaviour and the likely prospect of him being sent to prison. It is also reported in the Report, that the mother of the accused/convict would wish to have the opportunity to meet the family of the victim of the accident to ask them to forgive her son. The accused/convict’s mother urges the court to consider an alternative sentence to imprisonment.

 

10. As per the Probation Services Enquiry Report, the victim of the accident, one Evind Esparon who passed away as a consequence of the accident, left behind his family members including his son Eddy Esparon, a thirty-year-old. Eddy Esparon told the author of the Report, that he has two siblings, a sister and a brother, all of whom having been brought up by both of their parents. Eddy Esparon also told the author of the Report, that the death of their father has been a lost to the family for several reasons including the fact that he was financially assisting his sister to obtain her own house and to take care with her two children.

 

PLEA MITIGATION

 

11. In plea in mitigation, learned defence counsel, submitted, that the accused/convict, who is the father of a three year old child, was only 19 years old when he committed the offence, and that, he has pleaded guilty at the first available opportunity showing remorse for his action. Learned counsel also submitted, that the inexperience of the accused/convict as a driver contributed to the accident, and as a man of good character he is highly remorseful for what happened.

 

12. Learned defence counsel submitted, that for these reasons, the court should give him credit and exercise leniency when sentencing him. Learned counsel cited the case of the Republic vs Ivan Sinon CR 32 of 2019, in which case, the accused/convict who was charged with similar offence was sentenced to serve a term of imprisonment of one year and a fine of SCR 80,000 of which SCR 70,000 was to go towards compensation for the family of the victims of the offence.

 

ANALYSIS AND CONSIDERATIONS

 

13. As I consider the relevant matters in the Pre-sentence Probation Report and the matters addressed by learned defence counsel in plea in mitigation, I take note, that the accused/convict is a young man who is a first time offender and who should be given a second chance in life. Based on those facts as narrated by the prosecution as those featured in the pre-sentence Probation Report, it has been said, that the court should be slow when sentencing a first time offender to a term of imprisonment.

 

14. I have also take note of the fact, that at the time of the commission of the offence until quite recently, the accused/convict, has been living a stable life with his girlfriend and his child. I also take note that he looks very remorseful for his action and that he is extremely concerned about the prospect of incarceration. He seems to be very worried in recognition of the seriousness of the offence of which he has been convicted, and the fact that the victim of the offence has lost his life. His plea and that of his mother, is for the court not to impose a custodial sentence, but rather, to impose a fine and compensation to the family of the dead victim of the offence.

 

15. The court also notes, that there have been no aggravating factors in the commission of the offence. The facts of the case do not reveal, for example, that the accused/convict was drunk or was under the influence of drugs when he committed the offence, or that he was driving the motor vehicle in excess of the prescribed speed limit. The accident happened because of the accused/convict inexperience as a driver as it was not too long after he had obtained his driving license that the accident occurred.

 

16. Based on the facts and circumstances of this case as narrated by the prosecution, and the circumstances of the accused/convict, to determine the appropriate sentence, the case of the Republic vs Robert Lai-Lam CO 63/2020 [2020] SCSC in which case the convict was charged with similar offence, and the case of the Republic v Gabriel (CO 61/1010) [2021] SCSC in which case the convict was also charge with similar offence, can be used as a guiding precedents. In both cases, the accused/convict was sentenced to serve a term of imprisonment and have their driving license suspended.

 

SENTENCE

 

17. In the light of those considerations, I therefore sentence the accused/convict, Neaton Sairish Hertel to serve a term of two years imprisonment as of today. In addition, I also impose on the accused/convict, a fine of SCR 100,000 which must be paid fully by the accused/convict within a period of two years from the date of his release from prison failing which the accused/convict shall serve a default sentence of imprisonment of one year.

 

18. In accordance with Section 151 of the Criminal Procedure Code, I order payment of SCR 80,000 from such fine to be made to the deceased victim family.

 

19. I also suspend the accused/convict’s driving license for two years as of today.

 

20. The convict may appeal against this sentence within 30 working days from today.

 

21. A copy of this sentence shall be served on the Seychelles Licensing Authority.

 

 

Signed, dated and delivered at Ile du Port 16 May 2024.   

 

____________

B Adeline, J