Andy Monthy v R (Criminal Appeal SCA 41/2016) [2018] SCCA 12 (11 May 2018);

IN THE SEYCHELLES COURT OF APPEAL

 

[Coram:     B. Renaud (J.A), F. Robinson (J.A), G. Dodin (J.A)]

Criminal Appeal SCA 41/2016

Appeal from Review Tribunal No. 148/16

(Arising out of Supreme Court Decision CR 09/2012)

 

Andy Allain Monthy

 

Appellant

 

 

Versus

 

The Republic

Respondent                                   

 

Heard:             02 May 2018

Counsel:          Mr. Nichol Gabriel for the Appellant 

                      Mr. Ananth Subramaniam for the Respondent 

 

Delivered:       11 May 2018

 

JUDGMENT

 

B. Renaud (J.A)

 

  1. The Appellant, Andy Allain Monthy, was charged and convicted for the offence of trafficking in a controlled drug namely cannabis herbal material, contrary to section 5 read with section 14(d) and section 26(1)(a) of the Misuse of Drugs Act Cap 133, punishable under section 29(1) of the Misuse of Drugs Act Cap 133 and second schedule referred thereto in the Act.
  2. On 22nd January, 2012 at St. Louis, Mahe, the Appellant was found in possession of 2,695.7 grams of cannabis herbal material which gives rise to the rebuttable presumption of having possessed the said controlled drugs for the purposes of trafficking.
  3. On 10th April, 2012, the Appellant pleaded guilty to the charge, was accordingly convicted and sentenced to a term of 8 years imprisonment.The time he spent in remand was to count towards the sentence. When he sentenced the Appellant to 8 years imprisonment in April 2012 the Learned Judge took into account –

 

“….. all these facts and mitigating factors such as having pleaded guilty at the earliest time, period under detention, the quantity and other personal and surrounding circumstances”.

 

  1. On 1st August, 2016 the Appellant applied for a review of the outstanding portion of his sentence by the Sentence Review Tribunal in terms of Section 51(2) of the Misuse of Drugs Act 5 of 2016 (the new MODA).His application was duly considered by the Sentence Review Tribunal on 30th September, 2016. The Tribunal concluded that the offence committed by the Appellant was aggravated in nature and therefore the sentence imposed was thus lower than the minimum indicative sentence that would likely be imposed under the new MODA. The Appellant would not accordingly be entitled to the benefit of remission of sentence in view of the aggravating nature of the offence. The Tribunal therefore did not interfere with the sentence and dismissed his application.
  2. The Appellant has now appealed to this Court against the decision of the Sentence Review Tribunal setting out the following grounds:

Ground 1

The learned members of the Review Panel erred in declining the application of the Appellant to have his sentence reduced.

Ground 2

The learned members of the Review Panel erred in grounding their decision on the fact that the drugs in question weighing 2.6 kgs amounted to a large quantity.

  1. The Appellant is now praying this Court to quash the sentence entered against him.

 

  1. Both grounds will be considered together.

 

GROUND 1 & 2

 

Section 7(4) of the new 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. 51 (8) of the same MODA states that in considering the application (application for review), the Tribunal shall take into account:

 

"a) 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. 47 (5) of the said new MODA states:

 

“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 an aggravated offence of that kind.”

 

  1. It was submitted that under the Misuse of Drugs Act 5 of 2016, (the new MODA), a sentence of between 3 and 5 years is indicated for a first offender in possession/trafficking of 1.5 to 5kg of a Class B drugs.Distinction is made in respect of a repeat offender where maximum sentence according to new MODA is 50 years and minimum indicative sentence is 15 years. 

 

  1. The Appellant was sentenced before the coming into force of the new MODA and the sentence meted out on the Appellant was therefore higher that the recommended sentence under the new MODA which is between 3 and 5 years for the offence of trafficking of between 1.5 and 5 kg of Cannabis herbal materials.

 

  1. In the light of the foregoing, we find that in the circumstances the sentence is excessive and ought to be reviewed downwards which we hereby do.The sentence of 8 years is accordingly set aside and in its stead a sentence of 4 years is hereby imposed.

 

  1. The Appellant who is a first offender had in his possession 2,695.7 grams of cannabis herbal materials which is a Class B drug.That being more than 1.5 kilograms of Cannabis and the offence is therefore deemed aggravated in nature in terms of section 7(4) of the new MODA. 

 

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

 

  1. We therefore find that the Sentence Review Tribunal did not err in declining his application to order that he is entitled to any remission in sentence.We would uphold the decision of the Tribunal on that score having considered the deleterious and dangerous nature of this drug on society especially on the younger generation.

 

  1. In the final analysis the sentence of 8 years imprisonment is hereby reduced to 4 years but without the benefit of remission.

 

  1. This Appeal is partly successful.

 

 

B. Renaud (J.A)

I concur:.                                      …………………………                        G. Dodin (J.A)

 

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 Andy Monthy’s sentence passed by the Supreme Court on 10 April, 2012. 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, is subjected to the jurisdiction of the Court of Appeal of Seychelles and the Supreme Court, under the relevant provisions of the Constitution of the Republic of Seychelles. 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