R v Julienne (CO 24/2016) [2016] SCSC 509 (15 July 2016);

IN THE SUPREME COURT OF SEYCHELLES

Criminal Side:  24/2016

[2016] SCSC 509


THE REPUBLIC


versus


CLIFFORD JULIENNE

 

Heard:            11 July 2016

Counsel:Mrs. Langsinglu Rongmei,  Assistant Principal State Counsel for the Republic
            Mr. Nichol Gabriel Attorney at Law for the accused

Delivered:        15 July 2016

SENTENCE
Burhan J

 


[1] The convict Clifford Jean Juilienne, pleaded guilty to the offence of trafficking in a quantity of 3.46 (pure quantity 2.11) grams of controlled drug namely Heroin, a charge framed under the Misuse of Drugs Act (MODA) CAP 133. The said Act has been repealed by the new Misuse of Drugs  Act 5 of 2016  (hereinafter referred to as the new Act) with saving clauses as contained in section  55 (1) of  the new Act.
[2] In the case of Cousin v R SCA 21 of 2013 and in the case of Kelson Alcindor v R [2015] SCCA 7, it was held that the Appellant should benefit from the change of law in his favour, along the principle of “la peine la plus douce.” – See Aubeeluck Gangasing v The State of Mauritius [2010] UKPC 13.  The Appellants’ sentence in both cases were reduced to be in conformity with the amended law which was beneficial to the Appellants. Further Section 51 (2) of the new Act states outstanding sentences under the earlier Act, must be reviewed in accordance with the new MODA.
[3] Therefore, based on the aforementioned case law, this court will take into consideration the benefits applicable to the convict brought about by the change of law. Under the old law  the convict was liable on Count 1 to a term of 60 years imprisonment and a fine of SR 500,000. The old law also specified a minimum mandatory term of 20 years imprisonment for Count 1.
[4] Under the new Act, there is no minimum mandatory term of imprisonment for Count 1 and therefore in sentencing, it is the duty of this court to ensure that this benefit accrues to the convict. I further note from the facts before me that no aggravating circumstances, as set out in section 48 of the new Act, exist in this case. Further as the quantity is below 250 grams, the offence cannot be considered to be aggravated in nature. Therefore, as the offences are not aggravated in nature on consideration of the amendment to the Prisons Act brought about by Act 6 of 2016, the convict will benefit from the new amendment to the said Act in that he will be entitled to remission.
[5] I have considered the plea in mitigation made by learned counsel for the convict. The quantity of controlled drug concerned in this case is 3.46 grams in total, containing 2.11 grams of pure Heroin. The convict has pleaded guilty without proceeding to trial, thereby saving the time of court and by doing so expressed remorse.  The convict is a first offender. Having considered the plea in mitigation made on behalf of the convict, I observe the  convict in this case is 44 years of age and has expressed remorse and regret by pleading guilty at the first instance.
[6] On consideration of all the aforementioned factors, I proceed to sentence the convict to a term of 3 (three) years imprisonment and a fine of SR 20.000/ (twenty thousand) on Count 1.  In default of payment of the fine of SR 20,000/, the  convict is sentenced to a further term of 6 months imprisonment which would run consecutive to the term of 3 years imposed herein.
[7] Time spent on remand by the convict to count towards sentence.  Further the convict will be entitled to remission as the offence is not aggravated in nature.
[8] Copy of this sentence to be attached to warrant of commitment.

 

Signed, dated and delivered at Ile du Port on 15 July 2016

 

M Burhan

Judge of the Supreme Court