Danny Dodin & Ano v R (Criminal Appeal SCA 36 & 37/2016) [2018] SCCA 13 (11 May 2018);

 IN THE SEYCHELLES COURT OF APPEAL

 

[Coram:     B. Renaud (J.A) F. Robinson (J.A), M. Vidot (J.A)]

Criminal Appeal SCA 36 & 37/2016

(Appeal from Sentence Review Tribunal Nos. SRT 204 & 203/2016)

(Supreme Court No. CR 49/2014)

 

Danny Eric Dodin

Kevin Richard Loze

 

1st Appellant

2nd Appellant

 

 

Versus

 

 

The Republic

Respondent                                   

 

Heard:             02 May 2018

Counsel:          Mr. Joel Camille for the 1st Appellant

                       Mr. Nichol Gabriel for the 2nd Appellant

                       Mr. Ananth Subramaniam for the Respondent 

 

Delivered:       11 May 2018

 

JUDGMENT

 

B. Renaud (J.A)

 

  1. On 29th July, 2016, the two Appellants, Danny Eric Dodin and Kevin Richard Loze, were convicted on their own guilty plea in the Supreme Court for the offence of possession of 23 grams of pure heroin, and Appellant Dodin was additionally convicted for possession of 716 grams of cannabis. They were both sentenced to undergo 4 years and 6 months imprisonment for the heroin offence and Dodin was sentenced to an additional 9 months imprisonment for the cannabis offence and his sentence was ordered to run consecutively.
  2. They both submitted their respective application before the Sentence Review Tribunal (the Tribunal) established under the Misuse of Drug Act (the new MODA) for review of sentence in accordance with Section 51(2) of that Act after serving 25 months of their sentences.
  3. The Appellant Danny Eric Dodin was duly heard by the Sentence Review Tribunal on 18th October, 2016 in case No. SRT 204 of 2016. The Tribunal was satisfied that it is appropriate to vary his two sentences and made them to run concurrently.His sentence was effectively reduced by 9 months.
  4. The other Appellant Kevin Richard Loze was also heard by the Sentence Review Tribunal on 18th October, 2016 in case SRT No. 203 of 2016.The Tribunal concluded that there was no ground for reviewing the remaining portion of his sentence and it ordered accordingly.
  5. The Appellants are now appealing against the decisions of the Tribunal seeking remission.
  6. The facts of the case are briefly that both Appellants were in a vehicle driven by 2nd Appellant Loze which was stopped by NDEA Officers at La Misere on 2nd September, 2014.Loze was apprehend at the car whilst Dodin ran from the car carrying a back-pack which he threw into the bushes.He was also apprehended, the back-pack retrieved and found to contain the heroin.Later a search was conducted in the house of Dodin and the cannabis were retrieved along with the sum of SR6,612.00 and a digital scale.
  7. The recommended sentence applicable in the circumstances of the 1st Appellant Dodin who was convicted for having had 23 grams of pure heroin being more than 10 grams of a Class A drugs, is between 5 and 8 years as set out in the sentence guidelines set up by the Supreme Court under new MODA. The learned Judge in the lower Court started with 6 and gave a 25% discount which brought it to 4 years and half years. In respect of the offence of possession of 716 grams of Cannabis, the new MODA recommended a maximum sentence of 3 years imprisonment and the 1st Appellant was sentence to only 9 months. Evidently the Learned Trial Judge was reasonable in his sentencing and showed fairness in meting out the sentences.
  8. The Appellants were arrested and charged before the coming into force of the new Misuse of Drug Act which came into operation effective1st June of 2016.The Trial Judge must have taken into consideration the new sentencing structures provided for in new MODA. The respective final sentences of the Supreme Court are indeed below the range that would likely be imposed under the new Misuse of Drugs Act.The guilty plea and other mitigating factors, in our view, were given due consideration when the sentences were imposed.
  9. The Tribunal also reduced the 1st Appellants sentence of 9 months by making the sentences to run concurrently. Thus both serve a sentence of 4 and half years.
  10. On the consideration of the issue of remission, an important factor which ought to be taken into consideration is the fact that both Appellants were tested positive for heroin use on the very day when their respective application for review was heard by the Tribunal.This is a factor that the Tribunal rightly considered when reviewing the application for remission as it has relevance regarding the conduct of the Appellants.It suggests that the Appellants were not remorseful for their acts and have continued to use drugs even in prison.
  11. As discussed earlier above, and on the basis of the same reasoning we find that the sentence of four and a half years imprisonment meted out on the 2nd Appellant Loze is also squarely within the recommended range set out in the new MODA.
  12. We have diligently reviewed the facts of this case in respect of the two Appellants and the reasoning of the Learned Trial Judge when imposing the respective sentences of the Appellants.We have also reviewed the reasoning of the Sentence Review Tribunal in each case and we agree with the decision of the Tribunal in both case cannot be faulted.
  13. For reasons stated above we dismiss this appeal in respect of both Appellants.

 

 

B. Renaud (J.A)

I concur:.                                            ……………………                            M. Vidot (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 the Appellants’ sentence passed by the Supreme Court on 29 July, 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, (hereinafter referred to as 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