The 1^st Accused, now a convict, convicted of a single count of Importation of a Controlled Drug, Heroin (Diamorphine) on her guilty Heroin (Diamorphine) purity content 564.60 grams – 1^st Accused/convict pleaded guilty to the  charge at first reasonable available opportunity – 1^st Accused/convict is sentenced to serve a term of imprisonment of 10 years in respect of count No.1, the offence of Importation of a Controlled Drug – The offence convicted of an aggravated nature in contravention of the provisions of the Misuse of Drugs Act 2016 – Section 30 (2) (5) of the Prison Act, Cap 180 shall be invoked, in that, the 1^st accused/convict shall not be entitled to remission for good behavior – Time which the 1^st accused/convict has spent on remand shall be deducted from her 10 years prison Sentence.

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SENTENCE

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1. The 1^st accused, now a convict, one Hilda, Anena of Kampala, Uganda was charged before this Court with one single count of Importation of a Controlled Drug Contrary to Section 5 of the Misuse of Drugs Act 2016, and punishable as specified in the second schedule of the same Act. In the alternative, she was also charged with one single count of Trafficking in a Controlled Drug Contrary to Section 7 (1) of the Misuse of Drugs Act, 2016 and punishable as specified in the Second Schedule of the same Act.
2. The particulars of count No 1, the offence of Importation of a Controlled Drug as per the amended Formal Charge Sheet pertaining to CB 04/02/22 ANB, dated 13^th April 2022, reads as follows;

“Hilda Anena of Kampala, Uganda, on the 2^nd Febraury 2022, at the Michel Holiday Apartment, Les Mamelles, Mahe was found importing into Seychelles a controlled drug, namely, Heroin (Diamorphine) with a net weight of 999.98 grams and Heroin (Diamorphine) purity content amounting to 564.60 grams.”

[3]        The particulars of count No 2, the alternative to count No 1, reads as follows:

            “Hilda Anena of Kampala, Uganda, on the 2^nd February 2022, at the Michel Holiday of Apartment, Les Mamelles, Mahe was found trafficking in a controlled drug namely, Heroin (Diamorphine) with a net weight of 999.98 grams with Heroin (Diamorphine)’ purity content amounting to 564.60 grams by way of selling, brokering, supplying, transporting, sending delivering or distributing the said Drug.

[4]        On the 27^th April 2022, the 1^st accused/convict, pleaded guilty to count No 1, the offence of Importation of a Controlled Drug, and was accordingly convicted on her guilty plea. Count No2, the offence of Importation of a Controlled Drug, as an alternative count No 1 became irrelevant.

[5]        The facts pertaining to the arrest and indictment of the 1^st accused/convict as admitted by her, are that on the 2^nd February 2022, Hilda Arena, a Ugandan national, the 1^st accused/convict, holder of passport number B 1389254, arrived in Seychelles on Flight ET 879 from Addis Ababa after landing at the Seychelles International Airport. ANB Officers had received prior reliable information, that two Ugandan nationals are expected to arrive in Seychelles on that flight and that they had booked the Michel Holiday Apartment for their stay in Seychelles. As per the information received, they carry with them Controlled Drugs.

[6]        At the Immigration exit point, Hilda Anena informed Immigration Officers, that she has come to Seychelles for a seven day holiday and that she would stay at Michel Holiday Apartment. She told Immigration Officers, that it was her first visit to Seychelles. Upon clearing the Immigration, the 1^st accused/convict was granted a three day stay in Seychelles as Officers retained her passport. A taxi was hired to take the 1^st accused/convict to her hotel holiday apartment, the Michel Holiday Apartment.

[7]        ANB Officers, then arrived at room No 18 of the Michel Holiday Apartment which was being occupied by the 1^st accused/convict. As they knocked the door of room no 18, a female individual who identified herself as Hilda Anena opened the door and allowed them in. After ANB Officers had identified and introduced themselves to the 1^st accused/convict, she was asked by them whether she had swallowed any drugs. Her answer was “Yes, I have already excreted some”.

[8]        Later on, at around 1949 hours, Hilda Anena handed over to ANB Officers a black liner. Inside, there were 14 cylindrical shaped bullets made of cling suspected to be controlled drugs removed from a black trolley bags. When asked whether that were all the cylindrical shaped bullets she had swallowed, the 1^st accused/convict answered that she has swallowed 100 bullets. The Principal Officer of ANB was informed of the matter, and thereafter, leave of the Commissioner of Police was sought to carry out a controlled delivery operation, which leave was duly granted. The drug was substituted by a decoy.

[9]        In a WhatsApp International call that was on speaker phone, ANB Officers heard the voice of a female whilst she spoke to the 1^st accused/convict in the Ugandan language. The 1^st Accused/convict, informed ANB Officers, that it was Soya from Uganda talking to her, and that she wanted to know what she needs the guy from Seychelles to bring to her hotel apartment, and that she had told her, that she needs juice, milk water and bananas. Then the 1^st accused/convict received another WhatsApp call which she said was from her brother-in-law, Alur. All telephone WhatsApp calls were in the Ugandan language which was then translated by the 1^st accused/convict.

[10]      Instructions received through WhatsApp calls from Soya, instructed the 1^st accused/convict to go on the main road and then head left where there were someone in a white car who will stop next to her and call her as “Ania” to identify her. When the car was outside waiting, Soya informed the 1^st accused/convict, that she should be on her way given to meet that person that person was there waiting in the car outside. The 1^st accused/convict proceeded to the car whilst ANB Officers proceeded to the main road to take their position.

[11]      The 1^st accused/convict, was there waiting near the boundary wall of the Michel Building Apartment, when the white Kia Picanto car bearing registration number S 7643 came from the east of Mahe (from the direction of the Seychelles Breweries) heading towards Victoria, stopped close to the 1^st accused/convict. As ANB Offices silently walked towards the white car, they heard a man’s voice from inside the car shouting “Ania get in, get in”. As the 1^st accused/convict was about to get inside the car, ANB Officers quickly and unexpectedly, removed the car key from the ignition, and the car was disabled and could not be driven away.

[12]      On the 3^rd February 2022, the 1^st accused/convict first excreted 21 cylindrical shaped pellets, then another 16 cylindrical shaped pellets, then 7 cylindrical shaped pellets, then 15 cylindrical shaped pellets, then 1 cylindrical shaped pellet, then 3 cylindrical shaped pellets, then 11 cylindrical shaped pellets, then 8 cylindrical shaped pellets then 2 cylindrical shaped pellets, and another 1 cylindrical shaped pellet which were counted  adding to a total 99 cylindrical shaped pellets and seized in the presence of the 1^st accused/convict.

[13]      On the 4^th February 2022, the 1^st accused/convict who was complaining about having a palpitation and that she was not feeling well, was taken to the Seychelles hospital to be examined by a doctor. A CT scan was carried out on her body that showed, that 1 cylindrical shaped pellet was stuck in her stomach area. She had to undergo surgery to have it removed. A total of 100 cylindrical shaped pellets made in cling film were seized, with a net weight of 999.98 grams heroin (Diamorphine), purity content amounting to 564.60 grams.

[14]      To decide on the right and appropriate sentence that will do justice to this case, I have given due consideration to the punitive objective of sentencing in the light of the following factors balance against each other, notably:-

            (i)         the circumstances of the accused now a convict.

(ii)        the nature of the offence including the gravity and extent thereof, at the same time identifying the objective seriousness of the offence.

(iii)       the interest of the community, and

(iv)       the relevant sentencing legislation, guidelines and case law.

[9]        The case of Lawrence & Anor v The Republic [1990] SLR 47, reminds me, that, amongst other things, sentencing must also be directed at addressing the traditional purpose of punishment which has been said to be deterrence, prevention, retribution an rehabilitation.  I will add to the list the word denunciation.  Given the seriousness of the offence committed by the accused, these terms have to be put in the right perspective.  That is to say, (i) deterrence in the sense that the sentence being contemplated should dissuade the convict as well as others who may be tempted to commit similar offence from committing such offence.  Retribution in the sense, that the convict ought to suffer the punishment which he rightly deserves, and denunciation in the sense that this is achieved by the imposition of a sentence, the severity of which makes a statement, that the offence in question is not to be tolerated by the society we live in. 

The circumstances of the accused (now a convict).

[10]      In his submission in the plea mitigation, learned counsel submitted, that the right sentence to be imposed must be one based on the consideration, that his client, who is a first time offender, has pleaded guilty at the first available opportunity, and in doing so, she has not wasted the court’s precious time.  Learned counsel also submitted, that his client is remorseful for the offence she has committed, both towards the state and the public at large.  He stated, that his client who is a mother of three children, has co-operated fully with all the authorities, and for these reasons, the court should exercise leniency in considering the right sentence that will do justice in this case, taking also into account, the amount of drugs in question, and the sentencing precedents and guidelines. 

[11]      In a pre-sentence Probation Report, dated 23^rd May 2022, commissioned by Learned counsel for the 1^st accused/convict, it is reported, that the 1^st accused/convict is a born again Christian, a widow and a single mother of three children, the eldest a 16 year old, the youngest a 10 year old. She is a school drop out who has had few jobs as a maid and a waiter. Her last job was farming.

[12]      As to her medical conditions, she claims that she is HIV positive and that she suffers from hypertension. According to her, she has visual impairment. As to her circumstances that led her into committing this offence, the Report reveals, that it was because of despair and the need to generate funds to sustain her family, that she took that risky venture as “a job” offered to her by one Soya. She was to be paid USD 4000 after successfully completing the job.

[13]      As per the Report, the 1^st accused/convict is remorseful for the offence she has committed, and is seeking for forgiveness by way of a non-custodial sentence, that would enable her to be reunited with her three children in order to spend the rest of her life with them, given her medical conditions.

[14]      According to one of the children of the 1^st accused/convict, Anita Anena, a 15 year old, they all have dropped school as they struggle to make ends meet in the absence of their mother, the 1^st accused/convict. It is their eldest sister, a 16 year old, who is providing food to the family and in the absence of their mother from home, their family circumstances have worsen given that they were already poor. She would like the Court to forgive her mother for the wrong she did, so that she would be able to come home given that they desperately need her support to sustain their living.

[15]      The Probation Report recommends the imposition of a minimum custodial sentence, whilst commenting that;

            “……drugs related offences remain very alarming and a bigger concern to the society. However authorities involved remain very proactive in the fight, with the aim of curbing down the situation that is impacting on the lives of so many individuals and contributing to more social ills.

            It is of the opinion that whoever is found culpable of such crime should not go unpunished, hence should be faced with punishment that will serve as a future deterrent and will at the same time send a strong message to many others to refrain from committing similar offences”.

            The nature of the offence including the gravity and extent thereof.

[16]      The offence of which the accused has been convicted is very serious.  She has been convicted for importing into this country the drug, Heroin, which is a class ‘A’ drug, with a purity of 564.60 grams and therefore, the offence she has committed  is aggravated in nature. 

            The interest of the community.

[17]      No sentence, not even a life sentence where a convict deserves to be sentenced to a term of life imprisonment for importation of a Class A drugs, can repair the damage which drugs have caused to this country over the last few decades.  The suffering which many local families have endured and continued to endure, has been enormous given the huge impact which illicit drugs have had on our small community.   Had these drugs gone undetected, they would have inflicted more misery and suffering on our youths at their detriment, while a few would have enriched themselves with the proceeds of this illegal trade.

[18]      In Rep v Micock and Anor SCSC 322 (4^th April 2017) the court had this to say:-

            “the youth of Seychelles is being poisoned by drugs seemingly readily available brought by scrupulous persons.  They have no regard for the overwhelming consequences of their acts.  Their greed at the expense of the effects of their trade, including a lost youth and work force, the toll on Seychelles and the tax payers to treat and rehabilitate drugs abusers, the cost of education programmes for the prevention of drugs abuse, and efforts to intercept and prevent the trafficking and importation of drugs and prevent abuse is lost on them.  They are oblivious to the pain and havoc they wreck on individual families and the community.”

[19]      These words, encapsulate the seriousness of the offence of which the accused has been convicted when considered in a wider perspective, and therefore, the sentence to be imposed should reflect public abhorrence to offences of this nature which calls for tougher sentences.  I am, however, reminded of the case of Rep v Rasie 1975 (4) SA 855 A, in which case the court stated the following:

            “punishment should fit the criminal as well as the crime, be fair to society, and be blended with a measure of mercy according to the circumstances.”

[20]      Locals and foreigners alike, should not allow themselves to be misled into the mistaken belief that, this country, known to be a small jurisdiction, is a soft target for the illegal drugs trade.  To the contrary, they must always bear in mind that the moment they venture into the illegal drugs trade in this country, they effectively step on a minefield at their own peril, with potentially disastrous long term consequences.

[21]      Having said that, members of the general public should also not be mistaken into believing, that the court would simply pluck out of the air a sentence to satisfy public sentiments over the drugs issue, without thoroughly consider all the relevant factors to come to a just and fair sentence.   The question of imposing a sentence is a matter of discretion to be exercised by the court in consideration of the aggravating and mitigating factors in the individual cases.  The approach, is that a reasonable proportion has to be maintained between the seriousness of the offence or the crime, and the punishment.   

            The relevant sentencing legislation, guidelines and case law.

[22]      The maximum penalty which this court can impose on an accused convicted of a single count of importation of a Class A controlled drug, Heroin, is prescribed under Section 5 of the Misuse of Drugs Act, 2016 read with the Second Schedule of the Act.  Section 5 reads:

“a person who imports or exports a controlled drug in contravention of this Act commits an offence and is liable on conviction to the penalty specified in the Second Schedule.”

The maximum penalty specified in the Second Schedule of the Misuse of Drugs Act, 2016 is a term of life imprisonment and a fine of up to Seychelles Rupees one million.

[23]      It is, perhaps, worth mentioning, that the minimum mandatory sentences under the Misuse of Drugs Act, 2016 (“MODA”) Act 5 of 16, have been done away with and replaced by indicative minimum sentences prescribed for offences which are aggravated in nature.  For example, Section 7(4) of MODA refers to aggravated factors depending on the weight in a trafficking offence of over 250 grams of a controlled drug.  Furthermore, in respect of the instant case, regards should also be made to Section 48 of MODA which considers the degree of commercial element as an aggravating factor.  As such, the indicative minimum sentence as required under Section 47(5) of MODA has to be given due regard.  Clearly, therefore, the offence of which the accused has been charged and convicted, is aggravated in nature as the quantity of the purity of the controlled drug he imported into this country is over 250 grams, and as per the sentencing guidelines, the appropriate sentence should be within the range of 12 to 15 years imprisonment.

[24]      Taking into consideration learned counsel’s submission in plea mitigation as a whole, it is conceded, that a guilty plea taken at the first available reasonable opportunity, warrants a reduction in sentencing because of the benefits it brings about as correctly elaborated by learned defence counsel in his submission.  In this respect, in my considered opinion, in the meting out the appropriate sentence, the court needs to conduct a balancing exercise between the mitigating and the aggravating factors in this case.

[25]      I have taken a myriad of competing factors into account in deciding the appropriate sentence that will do justice in this case.  I have, in doing so, taken into account the salient aspects of learned defence counsel’s submission in plea mitigation which are in favour of the accused, now a convict, and have given him the credit he deserves. I have also considered the relevant aspects of the pre-sentence Probation Report.

[26]      I have further had sight of the relevant case law authorities to familiarize myself with the pattern of sentencing in cases of this nature in the light of the recommended sentences.  In the case of the Republic v Jakari Suki, SCSC 142 SL 34/2018, the accused was convicted for one count of importation of a controlled drug heroin (diamorphine) with a net weight of 942.2 grams of illicit heroin and one count of 244.4 grams of cocaine, net weight with purities of 523.7 grams of heroin and 151.4 grams of cocaine.  The accused was sentenced to 15 years for count one in respect of the importation of heroin and 8 years on count two in respect of the importation of cocaine, which sentences took effect concurrently, and were upheld by the Court of Appeal.

[27]      I therefore sentence the convict to serve a term of imprisonment of 10 years for the single count of importation of a controlled drugs, Heroin.  The time which the convict has spent on remand shall be deducted from her 10 years term of imprisonment.  Given that the accused, now a convict has been sentenced to serve a long term of imprisonment for an offence committed in contravention of the provisions of the Misuse of Drugs Act 2016, with aggravated nature, Section 30 (2) (b) of the Prison Act, Cap 180, shall be invoked, in that, she shall not be entitled to remission for good behaviour.

[28]      The accused, now a convict who has been sentenced, is informed that he has thirty (30) days from today to appeal against this sentence.

Signed, dated and delivered at Ile du Port 21^st July 2022.

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Adeline J