Republic v Eulentin (CR 67/2014) [2016] SCSC 36 (01 February 2016);

Counsel for Plaintiff: Mr George Tachette Counsel for Defendant/Respondent: Mrs Alexia Amesbury

IN THE SUPREME COURT OF SEYCHELLES

Criminal Side: CR 67/2014

 

       [2016] SCSC 36

 

 

THE REPUBLIC

 

 

versus

 

 

PATRICK GILBERT EULENTIN

Les Rocher

Mahe

Accused

 

 

Heard:                         18th January 2016.

Counsel:                      Mr. George Tachette for the Republic

                                    Mrs. Alexia Amesbury for the Accused

 

Delivered:                   Monday 1st February 2016.


SENTENCE


McKee J

 

[1] The Accused, Patrick Gilbert Eulentin was originally charged with the substantive charge of Trafficking in a Controlled Drug contrary to section 5 of the Misuse of Drugs Act as read with section 14[1][c][ii] and section 26[1][a] of the said Act. Following his first appearance in the Supreme Court on 30th October 2014 he was remanded in custody. The allegation was that he was found in possession of a substance containing heroin having a net weight of 6.9grams, with a purity of 34% and a total heroin content of 2.3grams. He entered a plea of Not Guilty.

[2] There was delay in fixing the trial date which was eventually set for 16th September 2015. The trial proceeded on the original charge. The drugs seized in this matter, after analysis, were produced to the court. The thrust of the prosecution case came from the evidence of a National Drug Enforcement Agent Jack Tirant. Agent Tirant entered a dwellinghouse occupied by the Accused and his girl friend at Les Rocher, Mahe. In a bedroom the Agent found the Accused and apprehended him adjacent to a bed where the Agent found the drugs and close by an amount of Seychelles currency amounting to Rs10,750. Agent Tirant also observed the Accused attempting to dispose of a digital scale. The Accused was arrested and the above items were retained by the Agent and produced to the Court.

[3] The matter proceeded. On 10th December 2015 the Prosecution submitted an amended set of charges. Count One remained the same but an alternative charge of Possession of a controlled drug contrary to section 6 of the said Act [“simple possession”] was added. T the Accused was invited to plead to the amended charges. He maintained his plea of not guilty to the substantive charge of trafficking but entered a plea of Guilty to the alternative charge of possession of a controlled drug which plea was acceptable to the Prosecution. The brief facts were read to the Accused. He agreed the brief facts subject to the deletion of the sentence that he had given a cautioned statement in which he admitted the money seized from his house related to a drugs offence. Following his plea and agreement to the amended brief facts I found the Accused Guilty and convicted him of the alternative and lesser charge of simple possession, i.e., Possession of a controlled drug contrary to section 6 of the Misuse of Drugs Act as read with section 26[1][a] of the Act. The Accused, up until this conviction, was a man of clear record. Defence Counsel mitigated on behalf of the Accused. I was advised by the Prosecutor that he intended to apply for forfeiture of the funds seized by the Drug Enforcement Agents at the house of the Accused. There was discussion as to whether a period of treatment at a drug rehabilitation centre could be a suitable method of disposal. In all the circumstances I requested a Probation Officer’s Report to provide details of the personal circumstances and family background of the Accused. I, however, made it clear to the Accused that all sentencing options remained available to me.

[4] In considering sentence I took into account the nature of the amended charge, the facts and circumstances surrounding the offence as disclosed in the brief facts and the evidence before the court prior to the Accused entering his plea of guilty to the lesser charge, the plea in mitigation, the probation officer’s Report and the fact that up to his conviction for the present offence the Accused had been a man of clear record.

[5] The main mitigating factors in favour of the Accused are that he tendered a plea of Guilty and that up to his conviction he was a man of clear record. While the plea was tendered during the trial to the lesser offence I have noted that Defence Counsel had advised this course of action prior to the hearing of evidence but this suggestion had met with a limited response from the State Prosecutor. Be that is it may, the Accused stands convicted of the lesser offence following his plea of guilty. I would also have to say that the weight of the heroin mixture at 6.9 grams was not especially high but, of course, we are dealing with a “hard” drug in this instance.

[6] I also have considered the terms of the Probation Officer’s Report. The Accused is forty five years of age, The Report sets out his family circumstances. He has not had an easy life and has been known to Social Services for many years. Prior to his arrest he was unemployed other than taking casual work. He admitted to being a drug user He told the Probation Officer that he was harassed by the police and the drugs seized were not his and had been planted on him to set him up for a charge of trafficking. He maintained his innocence. He was willing to adhere to a probation order and a detoxification programme.  With this information I cannot find that the Accused is expressing remorse in respect of the offence. I also discount the suggestion that he was, in some way,”set up” for this offence.

[7] The Probation Officer recommends a non-custodial sentence and suggests a community based sentence with a detoxification programme. In my view a detoxification programme is inapplicable in this case. The Accused has been detained in prison on remand for over twelve months and, as a result, I would expect that he is now no longer drug dependent. In view of his age and the nature of the offence, in my opinion, a probation order is not an appropriate method of disposal.

[8] I intend to deal with the matter by way of a term of imprisonment. I take as a starting point five years imprisonment but give the accused discount of 25% for his plea of guilty and other mitigating factors.

[9] CONSEQUENTLY the Accused is sentenced to a term of three years and nine months imprisonment. I also order that time spent on remand will be taken into account when the date of his ultimate release is calculated.

[10] The drugs will be confiscated.

[11] There is a further matter which requires finalization. I accept the evidence of Agent Tirant that when he entered the room in the house the Accused attempted to throw away a digital scale. It is within my knowledge from experience that a set of scales can be used in the preparation of drugs for sale. I also accept the evidence of Agent Tirant that he found the drugs on a bed and that a quantity of money was in close proximity. The money amounted to Rs 10,750/-. Possession of this amount of money was inconsistent with the information in the Probation Officer’s Report that this Accused was generally unemployed save for casual jobs and that he had to maintain a family.

[12] The Prosecution seeks forfeiture of these items. It is resisted by the Defence although no real explanation is offered by the Accused for his possession of the funds and the scale either in the Probation Officer’s Report or in mitigation. I consider the application according to the doctrine of “the level playing field”. While bearing in mind the offence for which the Accused stands convicted, I find on the balance of probabilities that this money, namely the Rs 10,750/-, came into the possession of the Accused as a result of illegality on his part and I order its forfeiture. The digital scale will also be confiscated.

Signed, dated and delivered at Ile du Port on Monday 1st February 2016.

 

 

 

 

C Mckee

Judge of the Supreme Court