Roy Julius Julienne v R (Criminal Appeal SCA 47/2016) [2018] SCCA 10 (11 May 2018);

IN THE SEYCHELLES COURT OF APPEAL

 

[Coram:     F. MacGregor (PCA) , B. Renaud (J.A), F. Robinson (J.A)]

Criminal Appeal SCA 47/2016

(Appeal from the Review Tribunal SRV No. 207/2016)

 

Roy Julius Julienne

 

Appellant

 

 

Versus

 

 

The Republic

Respondent                                   

 

Heard:             02 May 2018

Counsel:          Mr. Clifford Andre for the Appellant

                       Mr. Ananth Subramaniam for the Respondent 

 

Delivered:       11 May 2018

 

JUDGMENT

 

B. Renaud (J.A)

 

  1. The Appellant Roy Julius Julienne along with another accused were charged before the Supreme Court in CR. 10/15 under the Misuse of Drugs Act Cap 133 on the charges of conspiracy to commit the offence of trafficking in a controlled drug and trafficking in a controlled drug on or around 1st December 2014 to 28th January 2015.The amount of drug involved is 16,863.9 grams of cannabis herbal materials.

 

  1. Pending his trial the Misuse of Drugs Act 5 of 2016 (the new MODA) came into force.  The Appellant pleaded guilty to the charges under the new MODA, namely conspiracy to commit the offence of trafficking in a controlled drug and trafficking in a controlled drug contrary to Misuse of Drugs Act Cap 133.

 

  1.  The Appellant was convicted upon his guilty plea for the offence of trafficking in a controlled drug and sentenced to imprisonment for a total of 7 and 6 months and also a fine of SR 25,000.00 in default of payment of the fine, Appellant will serve 6 months imprisonment consecutive to the term of sentence imposed on him.

 

  1. The Appellant filed his application before the Sentence Review Tribunal (the Tribunal) under Section 51 (2) of the new MODA to have the outstanding portion of his sentence reviewed. By its order dated 18th October 2016, the Tribunal dismissed his application on the grounds that the offence was aggravated in nature and that the sentence imposed was lower than that of the minimum indicative sentence that may likely to be imposed under the new MODA.  The offence in this case falls within the aggravating factors stated in Section 7(4) of the Act and as such the Appellant is not entitled to remission.

 

  1. The Appellant being dissatisfied with the decision of the Tribunal has appealed to this Court setting out two grounds of appeal as follows:

 

      (i) To grant remission

      (ii) To grant court order not to pay the fine of SCR 25, 000/-

 

  1. Section 7(4) of MODA states that –

 

 “where a person is convicted of an offence of trafficking in more than 1.5 kilograms of Cannabis or Cannabis Resin, or more than 250 grams of any other controlled drug, the Court shall treat such offence as aggravated in nature.

 

  1. Section 47 (5) of the said MODA states that –

 

 “In sentencing a person convicted of an offence under this Act in circumstances where the offence is aggravated in nature, the Court shall have due regard to the indicative minimum sentence for aggravated offence of that kind.”

 

 In addition, Section 48 of the new MODA makes reference to other aggravating factors that support a more serious sentence for drug offences. Section 48(1)(a) of the new MODA provides that –

 

 “ … the presence and degree of a commercial element in the offending …”, particularly where controlled drugs have been imported into the Seychelles. (emphasis mine)  

 

  1. Section 51(8) of the new MODA states that in considering an application for review), the Tribunal shall take into account –

 

  • Whether the offence in question would be treated as an offence of an aggravated nature under this Act, in which case there shall be a presumption against review.

 

  1. The Appellant is not entitled to remission in view of the amendment made by Act 6 of 2016 to Section 30(2)(b) of the Prisons Act CAP 180.  The said Section restricted the granting of remission to persons serving imprisonment for an offence of an aggravated nature under the new MODA.

 

  1. Under the old MODA Cap 133, the penalty for an offence such as the instant one was a mandatory term of life imprisonment.Under the new MODA, there is no mandatory term of life imprisonment but the convict is liable to a maximum sentence of 50 years imprisonment and a fine of SCR 500, 000/-.When the quantity of the controlled drug is over 1.5 kg in the case of Cannabis (a grade B drug) the offence is deemed aggravated in nature and this carries a minimum mandatory of 15 years imprisonment.

 

  1. From the facts and circumstances of the case, the Appellant case falls under Section 7(4) of MODA as the quantity of the controlled drug involved e is over 16kgs of Cannabis Herbal Material. This makes the offence against the Appellant aggravated in nature. It also suggests a commercial element.The Appellant is therefore, not entitled to remission.

 

  1. The Second Schedule of the said Act prescribes the punishment of minimum indicative sentence of 15 years for the offence which falls under aggravated circumstances. However, in the present case, the trial Court despite considering all the facts and circumstances and also having regard to the sentencing guidelines under new MODA, a term of 7 and a 6 months was imposed which is way lower than the minimum indicative sentence of 15 years.

 

  1. As per the recommended sentence guidelines formulated by the Tribunal, if the controlled drug involved more than 10kg to 20kg of Cannabis Material, a sentence of 8 to 12 years imprisonment and a fine is recommended. In the instant case, the quantity of controlled drug is 16,863.9 grams and the sentence imposed against the Appellant is 7 years and 6 months which is much lower than the recommended sentence.The absence of the Superintendent of Prison at the Tribunal hearing, in our considered judgment, was not prejudicial to his case.

 

  1. With regards to payment of the fine of SR25,000.00 the Tribunal suggested that the matter be taken up with Prison Authorities to make necessary arrangements to facilitate the payment of fine by the Appellant.

 

  1. We find no merit in the grounds of appeal and the appeal is accordingly dismissed.

 

 

B. Renaud (J.A)

I concur:.                                ………………….                                           F. MacGregor (PCA)

 

Signed, dated and delivered at Palais de Justice, Ile du Port on 11 May 2018

 

F. Robinson (J.A)

 

  1. I had the advantage of reading in draft the judgment prepared by my learned Brother, Justice Renaud who has set out the facts in the judgment. I hold the view that the appeal should be dismissed. I give my reasons.

 

  1. The issue in question is whether or not the Sentence Review Tribunal (hereinafter referred to as the ″Tribunal″) established under section 51 (1) of the Misuse of Drugs Act, 2016, has the jurisdiction, under section 51 (2) of the said Act, to review the outstanding portion of Roy Julienne’s sentence passed by the Supreme Court on 10 August, 2016. I have considered this jurisdiction issue in question in the case of Eric Njue v The Republic SCA15/2016, delivered on 7 December, 2017, after having considered learned Counsel’s oral arguments. I held the view that the Tribunal had no jurisdiction to review the outstanding portion of the sentence being served by Eric Njue, the Appellant, which sentence was maintained by the Court of Appeal of Seychelles, in the exercise of its appellate jurisdiction, and gave my reasons for that view. It stands to reason that the Tribunal, being a subordinate tribunal, under the Constitution of the Republic of Seychelles, (hereafter the ″Constitution″), is subjected to the jurisdiction of the Court of Appeal of Seychelles and the Supreme Court, under the relevant provisions of the Constitution. In the judgment, I made reference to Attorney General v Tan Boon Pou (1 of 2005) [2005] SCCA 21 (24 November 2005). There it was said by the Court of Appeal of Seychelles, in paragraph 23, that the ″Supreme Court is not an inferior court. Nor is it a court of limited jurisdiction…″. I also considered material to the question in issue the following extract from Halsbury's Laws of England (5th Edn) (2010) para 623), which may aptly be reproduced ―

 

″Where a court takes it upon itself to exercise a jurisdiction which it does not possess, its decision amounts to nothing... Jurisdiction must be acquired before judgment is given Thompson v Shiel (1840) 3 Ir Eq R 135.″.

 

It had been held in the case of Attorney-General v Lord Hotham (1823) 3 Russ 415, 37 ER 1077, [1814-23] AA ER Rep 448 Judgment Date: 12/06/1823), that where a limited tribunal takes it upon itself to exercise a jurisdiction which it does not possess; if it decides upon matters with respect to which it has no authority, its decision is a nullity and does not create any necessity for an appeal.

 

  1. Having considered the English authorities in the light of the relevant constitutional provisions, I concluded that where a subordinate tribunal or a subordinate court exercises a jurisdiction by virtue of a written law, which is unconstitutional and consequently void, its decision is a nullity. I declared section 51 of the Misuse of Drugs Act unconstitutional and dismissed the appeal.

 

  1. The matter has been argued afresh on the day of hearing of this appeal. I see no reason based on the arguments to alter the conclusion that I earlier expressed and the reasons which I then gave.

 

  1. In the circumstances, I have no hesitation in declaring section 51 of the Misuse of Drugs Act unconstitutional and dismissing the appeal.

 

F. Robinson (J.A)

 

Signed, dated and delivered at Palais de Justice, Ile du Port on 11 May 2018