Scholes and Another v Republic (SCA No: 01 of 2010) (01 of 2010) [2011] SCCA 10 (28 April 2011);



IN THE COURT OF APPEAL OF SEYCHELLES



STEPHEN SCHOLES

TERENCESTEWART ….......................................................................................APPELLANTS

v.

THE REPUBLIC ….......................................................................................RESPONDENT

SCA No: 01 of 2010

Before: MacGregor PJA, Domah and Fernando JJA

Counsel for Appellants: Mr. F. Elizabeth for No. 1

Mr B. Hoareau for No. 2


Counsel for for Respondent: Mr. D. Esparon


Date of Hearing: 20 April 2011

Date of Judgment: 29 April 2011



JUDGMENT



DOMAH. 3A.



[1] The two appellants, accused in the court below, were convicted by the Supreme Court on Count 9 of a charge sheet for uttering a false document contrary to section 339 read with section 23 and punishable under section 333 of the Penal Code. The particulars of the offence were that they had on the 5,h of September 2009, at Victoria, Mane, knowingly and fraudulently uttered a false document to Barclays Bank, namely an Agreement between Gestion Gupo Guardian S.L. and Fast Trading Group dated 27 April 2009 purporting to offer a credit line of USD 900 million.


[2] They were both duly represented by counsel. They had pleaded Guilty to the charge and were each sentenced by the learned Judge to pay a fine of USD225.000, in default of which each was to undergo 6 months' imprisonment. Aggrieved by that outcome, they have appealed to this Court against both the conviction and the sentence.


[3] Their grounds are 6 in number as set down hereunder.


Against conviction, the grievances are that:

1. the learned Judge erred when he accepted the pleas of the Appellants since the same were equivocal and not unequivocal;

2. the learned Judge erred when he failed to ascertain whether the pieas of the Appellants were voluntary and unequivocal;

3. In all the circumstances of the case, the conviction of each Appellant is unsafe and unsatisfactory.

And against sentence, they are that:

  1. the fine of USD 225,000 each was manifestly excessive or wrong in principle in all the circumstances of the case;

  1. the fine of USD 225,000 each is out of proportion to the gravity of the offence and is manifestly excessive;

  2. the learned Judge failed to investigate and have regard to the Appellants' means before imposing the fine.


Three above grounds on conviction were argued together. So were the three grounds on sentence. We are happy to follow that order.



ETHICAL ISSUE


[4] The respondent who is resisting the appeal questioned, at the very start of the hearing of this appeal, the ethics of the counsel who appeared before the Court below and assisted the two clients all through the process of plea bargaining which lasted for some days and which led to the plea of Guilty offered by both appellants; yet same counsel are appearing before the Court of Appeal to challenge the regularity of what had taken place there. When requested to respond to this comment, learned counsel who was leading the case for appellants remained content by stating that no advice was tendered to the clients for them to plead Guilty but that the clients had chosen to do so on their own. It would appear that learned counsel had still not grasped that there was an ethical issue involved. It was, inter alia, the propriety of raising such a ground based on ambiguous and equivocal plea when the record shows that both counsel were involved fully and actively in the denouement of the case as it did.

[5] However, since learned counsel for the respondent did not insist on a pronouncement on the matter, we are happy to refer the matter to the professional conscience of learned counsel, all the more so when he himself has stated at one stage in the proceedings before the trial court that the Bar is an honourable profession in the hope that walk will go with the talk in subsequent situations.

With this remark, we move now to the grounds of appeal.

APPEAL AGAINST CONVICTION

Grounds 1, 2 and 3


[6] Grounds 1, 2 and 3 question the nature of the pleas offered by the appellants to the effect that they were not voluntary and were equivocal. We have stated enough above to question the very propriety of learned counsel to invoke such a ground before us in the circumstances stated above. That should dispose of the matter. None the less, we consider it befitting to give a couple of short answers to the grounds raised.


[7] Learned counsel submitted that the guilty pleas were forced upon the appellants and that so much of pressure was brought to bear on them that they had no choice but to plead guilty to allow them to enjoy their constitutional right to liberty and security so that they could reunite with their family and children in their home country. The written arguments speak of an alleged strategy adopted by the Respondent to continuously pile on more and more charges in order to scare the appellants and induce them to plead guilty in return for their freedom.


[8] He refers to the fact that the appellants were originally charged on one count of making a false document on 6 October 2009; on the same day, the respondent added three further charges. On 9 November 2009, the charges were brought to a total of 11 with an application for a Restraint Order against Appellant No. 1 and his company. While this was happening in Seychelles, the businesses in the home country were going bankrupt and their houses were in danger of repossession the longer they remained in

Seychelles. The appellants moved for bail to attend to their overseas trials and tribulations but were refused. That increased the pressure on them to plead Guilty.


[9] There are two short answers to those submissions which we find unsupported. The first is that Learned Counsel is giving evidence from the Bar. He should have known better. If his argument is that he had nothing to do with the pleas, then we do not need the word of counsel for same. We should have the word of the two appellants. There is no affidavit from the appellants in support of the inferences so gratituously made. As the record stands, for all one could say, the appellants should be all too happy with the outcome. In the absence of evidence by the appellants, the submissions seem to be a mere dramatization by counsel rather than by clients.


[10] Secondly, and more seriously, if what both learned counsel are submitting is true, it is a reflection of their own incompetence and inability to advise properly since it is they who appeared before the court below. However, we are persuaded that that is not true. In our assessment, if the 11 charges were brought down to one, it was much more a pressure-relieving and facilitation process rather than a pressure-building and repressive process. The objective of the plea bargaining exercise where counsel and client participated fully, enabled the appellants to regain their homeland and be united with their family. This is where they are today. They are not incarcerated in Seychelles.


[11] Learned counsel speaks of a strategy employed by the prosecution. One is more inclined to discern a strategy by the appellants. They engaged in a protracted plea bargaining exercise that took a couple of days and frequent consultations between the parties concerned even on the material day, at the end of which they pleaded guilty to one count. The other ten counts were then dropped as part of that bargain. The agreement also comprised the sentence which was to be a fine, the sum of which was agreed. They then made good their exit from this country. Once outside jurisdiction, they launched a collateral attack on a judgment given in this jurisdiction which binds them to pay the fine for a serious offence committed against the law of this land. This they are doing at arm's length through the cover of counsel. Grounds 1, 2 and 3 have no merits at


APPEL AGAINST SENTENCE



Grounds 3,4, 5


[12] Grounds 3, 4 and 5 challenge the sentence imposed upon the appellants. Learned Counsel submitted that under section 28(a) of the Penal Code, the legislator had specifically legislated against the imposition of excessive fine. He agreed, though that the sentence should be commensurate with the seriousness, or the lack of it, of the offence, citing Danny Labiche & Anor v The Republic SCA 3 of 1988, Agathine v The Republic 1983-1987 2 SCAR 45 and Rose line v The Republic (1982-1987) 2 SCAR 271


[13] His argument has been that the fine imposed for an offence under the Penal Code was not simply excessive but manifestly excessive so that it should be reduced. He has referred to the sentencing guidelines and principles laid down in English law and the prime need of securing uniformity in sentencing. He cited, inter alia: R v De Havillard 5 Cr. App. R. 109 as per Lord Dunn L.J. at 114; R v Waddington 5 Cr. App. 66 (1983); R v Bibi 71 Cr. App. R 360. According to him, the principles that should have been applied are those for burglary or theft. He considered that it would be a mockery of the criminal justice system if the sentence was maintained.


[14] In our consideration, the dispute is not on the sentencing Guidelines and the principles applicable but on the proper application of the Guidelines and the principles to the facts of this case in our law. First, if our law did not set a limit to the fine that may be imposed upon an offender who has uttered a false document, the legislator has done so in his wisdom. The Guidelines, be it noted, were themselves the result of a public outcry on the need for the imposition of appropriate sentences in serious cases. Until then, there was no formal system for bench-marking in the exercise of judicial discretion for sentencing. Empirical data showed a lot of disparity between courts as well as in some cases undue leniency. That state of affairs could not continue. The Judiciary, the Bar, the Legislature and the public were equally concerned. It is then that the Judiciary took the bull by the horns so to speak, and set up a formal system with the assistance of experienced judges and other knowledgeable in criminal justice system through an open, transparent and rational process to structure the discretion within which the courts would sentence offenders in a way that could be intelligible to all concerned. The end result was the production of Guidelines. They are meant not to interfere with the absolute discretion of the courts but only to assist them in reaching an intelligible decision. It is based on the principle of proportionality and rationality in the regime of punishment to be meted out in individual cases taking into account the broad factors that are relevant to the offence concerned. Thus, the acts and circumstances of an offence which fall in the category of the worst case scenario will fetch a sentence on the highest side provided by law. On the other hand, the acts and circumstances of the same offence which are much less reprehensible will fetch a lighter sentence. Within the worst case and the least reprehensible, there are a number of other categories where the Guidelines assist in reaching a credible sentence. They also take into account the conduct of the offenders such as: a timely plea of guilty, the previous record of the offenders and his personal circumstances.


[15] Learned counsel, in his submission has made abstraction of both the objective of the Guidelines and the gravity of the offence committed by the two appellants. The one charge on which they pleaded Guilty shows the enormity of the sum involved. Two foreigners given hospitality in the country to set up a business and assist in the healthy growth of the country's economy uttered a false document purporting to offer a credit line of USD900 million on the name of a reputable bank in Seychelles. What were they up to? Implicit in that was the criminal courage in thought, the astuteness in planning and organization, the design to bring into disrepute an established bank and the financial system of the country. In short, it was not the simple burglary that learned counsel is arguing. It is an offence falling among the worst case scenario. Even taking their guilty plea in mind, the court would have been correct in sentencing the appellants to a long term of imprisonment. Considering that the law provides for a maximum of 3 years, the appellant should have received a custodial sentence of at least two years. That would have been in tine with the very principles of rationality and proportionality in sentencing underlying the Sentencing Guidelines referred to by learned counsel. In this sense, the learned judge exercised his discretion on the lenient side to impose a fine.


[16] Knowingly and fraudulently uttering a false document to Barclays Bank, namely an Agreement between Gestion Gupo Guardian S.L. and Fast Trading Group dated 27 April 2009 purporting to offer a credit line of USD 900 million is discrediting a whole financial system of a small economy like Seychelles. A fine of USD225,000 was richly deserved. There was rationality and proportionality in the sentencing. It should also send a message to all those who want to dent the international image of this country to think twice. Those who come from more stable economies should know with their supposed superior intelligence what it makes to construct fragile economies and what it takes to jeopardize them.


[17] It is our considered view that the sentence errs on the side of leniency for having imposed a fine instead of a custodial sentence. However, since there is no cross-appeal and the appellants are out of jurisdiction, we consider that it would not be practical to substitute it with an appropriate prison sentence.


[18] A point was also canvassed that account was not taken of their ability to pay. The least said about it the best. The record of proceedings clearly shows that they had agreed to pay the fine. And counsel had joined in the agreement. The record showed that funds were available for payment.


[19] This is a frivolous appeal. We maintain both the conviction and the sentence. We dismiss it with costs.

F. MacGregor


President




S. B. Domah

Judge of Appeal



A. Fernando

Judge of Appeal




Dated this 29 April 2011, Victoria, Seychelles