R v AH (CR 69/2019) [2023] SCSC 793 (20 October 2023)

IN THE SUPREME COURT OF SEYCHELLES Reportable [2023] SCSC ... CR69 12019 Prosecution In the matter between THE REPUBLIC (rep. by Luthina Monthy) and A. H (rep. by S. Rajasundaram) Accused Neutral Citation Before: Summary Heard: Delivered: delivered on 20 The Republic vA. H (CR69/20 19) [2023] SCSC October 2023 Vidot J Sexual Assault contrary to section 130(1) read with section 130(2)(d) and section 130 (3)(b)of the Penal Code and punishable under section 130(1) the Penal Code. 25 Septem ber 2023 20 October 2023 SENTENCE VInOT J [1] The Accused is charged with the following offences; Count 1 Statement of Offence Sexual assault contrary to section 130(1) read with section 130(2)(d) and section 130(3)(b) of the Penal Code and punishable under section 130(1) of the Penal Code. Particulars of Offence A. H , Mahe, on a date unknown to the Prosecution in March 2019, sexually assaultedhis daughter, A. H, aged 5 yearsold at the time, by licking her lips, inserting his penis in her mouth and inserting his finger into her vagina. Count 2 Statement of Offence Wilfully or negligently exhibits to a child an indecent material contrary to section 152(1 )(f) as read with section I52(2)(b) of the Penal Code and punishable under section 152 (1) of the Penal Code Particulars of Offence A. H , Mahe, on a date unknown to the Prosecution in March 2019, wilfully and negligently exhibited to his daughter, namely, aged 5 years old at the time, indecent material being the video of two naked woman having a bath. The Accused was found guilty and convicted of Count 1 and acquitted of Count 2. Since the Accused is a first time offender the Court called for a Probation Pre-Sentence Report ("the Report"). The Report together with submission in mitigation by Counsel shall be fully considered when considering the appropriate sentence to be imposed. [2] [3] [4] The Accused is 33 years old and father of two children, one of whom is the virtual complainant. The children have been fostered by t as it was found that it was not conducive to allow them to live with their mother. One of the children was at th even before the conviction of the Accused. At the trial, the Accused daughter, A. H stated that she did not want to see her father. [5] The Accused had been in steady employment throughout, first as a fisherman, then a skipper. Counsel for the Accused submitted that the parents of the Accused are "old", the father being 65 years old and the mother 60 years old. Personally I do not consider people of such age as old, especially after having seen them in Court. Counsel states that the Accused was the only breadwinner in the family. I disagree with that statement. When the mother of the Accused testified during the trial she mentioned that she has apartments that she rents out and the father being 65 years old should be on Social Security benefits and probably a pension. Therefore, they have sources of income. [6] The crime committed by the Accused is despicable. What makes it more abhorrent is the fact that the sexual assault was committed against his daughter who is and was of tender age. A father should protect his daughter and not destroy her. We should built a society where children can trust adults. Adults should act of role models, otherwise, our society will continue to slip into the decadence that it has been for some time now. [7] As I have mentioned, in meting out sentence, 1 have considered the Report and submission in mitigation. T find that the offence committed is a serious one that warrants a prison term. [8] [9] Therefore, T sentenced the Accused to a term of 5 years imprisonment on Count 1. Time spent on remand shall be discounted against sentence. [10] If unsatisfied with this sentence and the judgment, the Accused has 30 working days from today to file an appeal to the Court of Appeal. Signed, dated and delivered at lie du Port on 20 October 2023 ~\ M Vidot J 3