R v Larue (CO 70/2013) [2016] SCSC 510 (15 July 2016);


Criminal Side:  70/2013

[2016] SCSC 510





Heard:   4 July 2016
Counsel: Mr. George Thatchett, Assistant Principal State Counsel for the Republic
             Mr. Nichol Gabriel Attorney at Law for the accused

Delivered:   15 July 2016



Burhan J

[1] The convict Nelson Larue pleaded guilty to the offence of possession of a quantity of 0.22 grams of a 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 The said Act has been repealed by the new Misuse of Drugs  Act 5 of 2016  (hereinafter referred to as the new Act) with saving clauses as contained in section  55 (1) of  the new Act.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 and law as contained in the new Act, 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 2 to a maximum penalty of 15 years imprisonment and a fine of SCR 300,000.
[4] Under the old MODA and the new Act there is no minimum mandatory term of imprisonment for Count 2 for a 1st offender. 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.
[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 0.22 grams in total. The convict has pleaded guilty to the lesser charge of possession 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  43 years of age and has expressed remorse and regret by pleading guilty at the first instance. I also take note of the fact that the convict has assisted the prosecution in an earlier case, resulting in the successful conviction of an accused in this very court as brought to the notice of court, by learned counsel for the convict.
[6] I also note that the charge is one of possession of a Class A drug Heroin and the quantity is 0.22 grams. On consideration of all the above factors, I am satisfied that a non- custodial term would be appropriate.
[7] On consideration of all the aforementioned factors, I proceed to sentence the convict to a term of 12 months imprisonment which I suspend for a period of two years. Considering the manner in which the controlled drugs were packeted, I will in addition, impose a fine of SR 7500/. (seven thousand five hundred). In default of payment of fine a term of 3 months imprisonment is imposed. The nature of a suspended term of imprisonment is explained to the convict.


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


M Burhan

Judge of the Supreme Court