Bistoquet v (3 of 2007) R [2007] SCCA 3 (23 August 2007);

 

IN THE SEYCHELLES COURT OF APPEAL

 

 

IAN BISTOQUET -Appellant

 

v.s

 

THE REPUBLIC ­-Respondent

 

 

SCA No: 3 of 2007

===========================================

Before: Bwana, Hodoul, Domah, JJA

 

Counsel : Mr. Herminie for Appellant

Ms. Carolus for Respondent

 

 

 

J U D G M E N T

 

 

BWANA, JA

 

 

1. This is an appeal against sentence. The Appellant then 18 years old, was charged and convicted of Sexual Assault contrary to section 130(1) and 130(2) (d) of the Penal Code as amended. He was sentenced to a prison term of six years. He has raised two grounds of appeal namely:-

 

    1. The sentence is harsh and excessive.

 

1.2 The learned trial judge failed to take into account the particular circumstances of the case before imposing the sentence.

 

  1. In so far as 1.1 (supra) is concerned, it was submitted that the Appellant, being a young man of 18 years, first offender and who had a steady relationship with the victim (14 year old then) deserved a less severe custodial sentence. A number of recent similar cases by both this Court and the Supreme Court and wherein less serious sentences were imposed, were cited. Comparatively, it was argued, the sentence imposed in this case was “by any standard considered as manifestly harsh and excessive.”

 

3. Concerning the second ground of appeal (para. 1.2 supra), it was submitted that the trial court should have considered that the convict and victim were friends and that they have known each other in a steady relationship for quite a while. Further, the trial judge should have also considered that even though there was no consent in law, there was consent in fact, since this was not a case where the convict raped his victim but a case where both the convict and victim agreed to have consensual sexual intercourse. It was also submitted that being 18 years old, the convict was not mature enough to give thought as to the age of his victim.

 

4. The Respondent, on its part and citing several parts of the trial court’s judgment, is of the view that the sentence imposed was not harsh and excessive, but rather, justifiable. Counsel for the Respondent referred to several issues that the trial judge took into consideration before imposing that sentence. Such issues included:-

 

    1. The offence carries a maximum sentence of 20 years imprisonment.

 

    1. The commission of offence resulted in the pregnancy of the victim.

 

    1. The degree of public revulsion for such offences and prevalent concern for the protection and welfare of children.

 

    1. Mitigating factors.

 

Several decided cases were cited in support of the foregoing views.

 

5. In the case of Raymond Mellie v The Republic (SCA 1 of 2005) at para. 12 we did state and we prefer to reproduce our views hereunder:-

 

We are aware of recent (2005) amendments to the law on offences of this kind. It is obvious that the trend in these frequent amendments send a clear signal that the Government and the public at large want severe punishments to such offenders…”

 

6. In sentencing convicts, courts of law should and are always guided by, inter alia, factors such as character, background of the convict, the seriousness of the offence committed and factors leading to its commission, mitigatory factors and other extenuating issues including but not confined to the uniformity in approach to sentencing policies. We are minded of the words of this court in the case of Ibrahim Gilbert Suleman v Republic (Cr. App. No. 3 of 1995) thus -

 

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 purposes of sentencing.”

 

7. In the much celebrated case of Dingwall v R (1966)SLR 205, it was held that an appellate court will alter a sentence imposed by a trial court when it is evident that either the trial court acted on a wrong principle; the trial court overlooked some material factor; or if the sentence is manifestly excessive in view of the circumstances.

 

What this means, in a nutshell, is that when sentencing a convict, the court must act judicially and observe basic principles of justice. A sentence so meted out must be commensurate with the offence. The court must take into account all relevant factors which are particular and/or peculiar to the offence and to the offender.

 

8. In the instant appeal, we have taken into consideration the foregoing. If anything, it is our view that the sentence imposed is on the low side, given the vulnerable age of the victim, the resultant pregnancy and the overall need for deterrent punishment in offences of this kind.

 

We are therefore, of the view that the six year prison sentence imposed by the trial court is reasonable in the circumstances. We see no reason to disturb it. This appeal against sentence therefore fails. It is dismissed.

 

 

…………………………………….

S. J. BWANA

Justice of Appeal

 

 

 

 

I concur: ……………………………….....

J. M. HODOUL

Justice of Appeal

 

 

I concur: …………………………………….

S. B. DOMAH

Justice of Appeal

 

 

 

Dated this 24th August 2007, Victoria, Seychelles.