R v Michel (CO 71/2014) [2016] SCSC 511 (15 July 2016);

IN THE SUPREME COURT OF SEYCHELLES

Criminal Side:  71/2014

[2016] SCSC 511


THE REPUBLIC


versus


DANNY MICHEL

 

Heard: 8 July 2016


Counsel:Mr. George Thatchett, Assistant Principal State Counsel  for the Republic
            Mr. Joel Camille Attorney at Law for the accused
           

Delivered:15 July 2016

SENTENCE

Burhan J

 

[1] The convict Danny Michel, pleaded guilty to the offence of trafficking in a quantity of 86.8 grams of a controlled drug namely Cannabis (herbal material), 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 The said Act has been repealed by the new Misuse of Drugs  Act 5 of 2016 (hereinafter referred to as the new Act) with saving clauses as contained in section  55 (1) of  the new Act.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 penalty for such an offence was a maximum sentence of 50 years imprisonment with a minimum mandatory term of 16 years.
[4] Under the new Act, there is no minimum mandatory term for the said offence and the convict is liable to a maximum of 50 years imprisonment and a fine of SR 500,000.  Therefore the convict will benefit to the extent that the minimum mandatory term of imprisonment of 16 years will not apply.
[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 86.8 grams of a Class B drug. The convict has pleaded guilty at the tail end of the trial and by doing so expressed remorse. The convict is a first offender. Learned counsel brought to the notice of court that the convict has a family including 4 children and 7 grandchildren. Learned counsel also drew the court’s attention to certain ailments the convict was suffering from and various sentences imposed by courts and moved court that based on the quantity the convict be treated leniently.
[6] Having considered the plea in mitigation and the current law, I observe that although the new Act does away with the minimum mandatory term of imprisonment, it refers to offences aggravated in nature, in sections 6 (4), 7 (4) and section 48 of the new Act.   Court could take notice of the fact which was admitted by the defence that the convict was working as a public officer in the Judiciary as Chief Interpreter at the time of his arrest which according to the evidence before court occurred soon after working hours. In terms of section 48 (1) (e) of the new Act, this would make the offence aggravated in nature which fact, even under the old Act would have been considered by court as an aggravating factor. Under the new Act, an indicative minimum sentence of 15 years imprisonment has been prescribed for the offence of trafficking which is aggravated in nature which would apply to this case.
[7]  However considering all the aforementioned facts. I proceed to sentence the convict to a term of 4 (four) years imprisonment. Considering the family circumstances of the convict and the fact that he is no more in employment, I will not impose a fine.
[8] Time spent in remand to count towards sentence. I make further order that as the offence was committed prior to the amendment to the Prisons Act 6 of 2016 and as the offence even under the new Misuse of Drugs Act 5 of 2016 is aggravated in nature, the convict will not benefit from remission and therefore the convict will not be entitled to remission.
[9] Copy of this order to be attached to the warrant of commitment.

 

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

 

M Burhan

Judge of the Supreme Court