R v DYC (CO 81 of 2023) [2025] SCSC 131 (12 August 2025)

SUPREME COURT OF SEYCHELLES Page 1 of 6 In the matter between: THE REPUBLIC (Rep. by Alvin Marie) Versus D. Y. C (Rep. Mrs A. Molle) Redacted CO 8112023 Republic Accused Neutral Citation: Before: Summary: Heard: Delivered: Adeline J Sentencing on conviction for one count of sexual assault - Submissions on plea in mitigation 12thAugust 2025 FINAL ORDER I therefore sentence DYC of Praslin to serve a term of imprisonment of 8 years for his conviction for the offence of sexual assault contrary to Section 130 (1) read with Section 130 (2) (d) and Section 130 (3) (b) of the Penal Code as amended. In accordance with Article 18 (4) of the Constitution, the period oftime which the convict has spent on remand in Police custody shall be deducted from this 8 years' term of imprisonment, The convict has a right of Appeal to the Seychelles Court of Appeal against both, conviction and sentence, which right is exercisable within 30 days as of today. B Adeline J SENTENCE ON CONVICTION [1] On the 24th April 2025, the accused, D. Y. C, now a convict, who was indicted before this court with one count of sexual assault contrary to Section 130(1) read with Section 130(2) Page 2 of 6 (d) and Section 130(3) (b) of the Penal Code was found guilty of the offence and was accordingly convicted of the same. [2] The conviction came about following a full blown hearing of the evidence at trial on the allegation in the particulars of the offence, that the accused (now convict), "a 26-year-old Fireman residing at Praslin, on the 24'h May 2023, sexually assaulted another person namely B. A. R who was aged J 3 years old at that time, by penetration of her body orificefor sexual purpose, namely by inserting his penis in the vagina of the said B. A. R ". [3] To assist Counsel for the convict with its plea in mitigation as well as the court for the purpose of deciding the appropriate sentence that would do justice to the case, the convict called for a Probation Enquiry Report which was duly made available to the court and Counsel representing the parties. [4] In the report, the author of the same, gives an account of the convict's version of event that led to the charge levelled against him and his subsequent conviction for one count of sexual assault. The convict's version seems to be consistent with the evidence led before this court at trial in so far as it confirms the events leading up to him being charged for the offence of sexual assault. Nonetheless as reported, although he admits that he met B. A. R on the 24thMay, 2023 after having communicated to each other for sometimes, he told the author of the report that he did not know the age of B. A. R because he never asked her and never had any intention to have a sexual relationship with her. He told the author of the report that he never had sexual intercourse with B. A. R. [5] As to the convict's personal and family circumstances, according to the report, the convict is a 28-year-old man bom of a relationship between one l and . He has been fostered by one and is the only child born ofhis mother. He has a 9-year-old son by the name . The child is in the custody of his biological mother. He also has a three-year-old daughter who is in the custody of his mother, . [6] The convict's mother, l, is a 59-year-old who said that she shares a very good relationship with the convict. She told the author of the report, that she is devastated for having leamt that her son and only child, has been charged with an offence which she said is very serious, being one which his son face the unwanting prospect of being sent to prison. She is of the view, that should her son be incarcerated, both of his two children Page 3 of 6 would be affected. She therefore wants the court to give consideration to the accused's plight of the accused's children. [7] The mother of the virtual complainant/ alleged victim has a different perspective of how the court should deal with sentencing the convict. She told the author of the report, that she only got to know that her daughter, B. A. R, was not at home on that particular evening when the incident happened, after she received a phone call from her son who reported to her that he had seen BAR getting into a car. She reckons, that the whole incident has affected BAR's academic performance at school, primarily, because she was bullied after the incident. [8] She also reckons, that the convict who was a grown up adult at that time, took advantage of her daughter who was only 13 years old then. She is of the view, that the convict must face the consequences of his action, and that she hopes, that the court will impose a punishment on the convict that will deter him from repeating the same thing in the future. [9] In plea in mitigation, learned Counsel for the convict urged the cOUl1 to take into consideration the fact that the convict still maintains his innocent although he has been convicted for the offence, and to exercise leniency in sentencing him, although she recognises that the offence of which convict the has been convicted is serious. Learned Counsel for the convict noted, that the complainant/victim was already in an active case of sexual assault since October 2022, and that since then she has been receiving counselling. [10] Learned Counsel submitted that the convict is only 26-years-old and a parent himself, having two children, a three-year-old and a nine-year-old. Learned Counsel cited the case of the Republic vs SWM, contending, that the sentence impose by this court in this case is the appropriate sentence that should be meted out in this case. Learned Counsel also urges the cOUl1to consider the fact that the convict's criminal record is clean, and that he has even not been convicted of a misdemeanour. In other words, that he is a first time offender. [11] As amended by Act 5 of 2012 of the Penal Code, the prescribed minimum mandatory sentence on conviction for the offence of which the accused who was over 18 years old at the time he committed the offence and that is his first conviction, and his victim only 13 years old then, is 14 years imprisonment. The maximum penalty prescribed is 28 years' imprisonment. However, the case ofPoonoo (supra) instructs the court, that it can depart from the minimum mandatory sentence where on the facts and circumstances of the case Page 4 of 6 there are justifiable reasons for doing so. The reasoning in Poonoo (supra) was that sentencing has to be individualised and the sentence meted out should be "just desert". [12] The maximum and the minimum mandatory sentence having been prescribed by law, I am reminded, that sentencing a person convicted of a criminal offence is a matter for the court only in exercise of its discretion, and that such judicial discretion must be exercised with reason to come to a "just deserts" sentence. To exercise such a discretion, there is no common or standard formula to be applied. (see Poonoo vs Attorney General [2011] SLR 423). The case of Poonoo (supra), instructs us, that sentencing has to be individualised taking into consideration general matters as stated in Lawrence & Another vs Republic [1990] SLR 17. [13] In sentencing this convict, I am also bound by law to give due regard to the guiding principles of sentencing elaborated in H Savy and Ors vs Republic SLR 1976 and confirmed in Francis Crispin v Republic SLR criminal side No ]6/2013. Those guiding principles are, "retribution, deterrence, prevention and rehabilitation. [14] By retribution, it is understood to mean, that the guilty ought to suffer the punishments which he deserves. Deterrence is understood to mean, that the sentence to be imposed on the convict should aim to dissuade him from reoffending, as well as others who would be made aware of the punishment inflicting upon the offender from reoffending. Prevention is aimed to prevent many climes, particularly, those involving foresight or planning as opposed to those committed impulsively, and rehabilitation meaning, rehabilitative approach to punishment, emphasizing the changes that can and should be brought about in the offender's behaviour in the interest of the society and the offender himself. [15] It must also be borne in mind, that when sentencing a convict for an offence that is very serious, the principle of denunciation should also be put into the equation. This principle is achieved, in practice, by the imposition of a sentence the severity of which makes a statement that the offence in question is not to be tolerated by society in general or in the specific instance. The case of Flore v Republic (SCA CR 12 of 2020) [2021] SeA CR 12 of2020 [2021] SCCA 749,7 December 2021 supports this proposition. [16] In deciding the appropriate sentence that would be justified taking into account the whole facts and circumstances of this case, I have also had regard to the principle, that where there is a sentencing pattern for a particular offence, a departure from that pattern can only Page 5 of 6 be justified in special circumstances (see Low Hang v Republic SCA 1993 LSC 224. In R v DS [2019] SCSC 55, Twomey JA, had this to say about sentencing pattem for the offence of which the convict has been convicted in the instant case. "1 note the recent trends of 7 or 8 years sentencesfor such offences (see,for example R v Crispin CR 5812008,ECvs Republic [2016) SCSC 788 (291h September 2016, R vsDR (C'R 50 of2014 [2018) SCSC 185 (22nd February 2018 ESvs Republic CR App 3 of2017). They are simply not strict enough sentences to reflect the gravity of such offence and the specific indicative sentences of the Penal Code. In my view, such light sentences do nothing more than accentuate such degenerate behaviour perpetuate the sufferings of victims and perniciously normalise such deviant behaviour in an already very dysfunctional society". [17] In the case of H Savy and Ors vs Republic SLR 1976, the court cited the English case of Kenneth Ball, 35 Criminal Appeal R164 quoting the judgement ofHilbery J who had stated the following, - "In deciding the appropriate sentence, a Court should always be guided by certain considerations. First and foremost is the public interest. The criminal law is publicly enforced not only with the object of punishing crime but also, in the hope of preventing it. A proper sentence pass in public serves the public in two ways. It may deter others who might be tempted to try the crime ..... such a sentence, may also deter the particular criminal from committing a crime again or induce him to tumfrom a criminal to an honest life. The public interest is indeed best served if the offender is induced to turn from criminal ways to honest living. Not only in regard to each criminal, the Court has the right and duty to decide whether to be lenient or severe. " [18] Having taken into account all the relevant considerations, particularly, the need to protect vulnerable children, and balancing these with other considerations such as the convict personal and family circumstances as well as other matters raised by defence Counsel in plea in mitigation, I am without any doubt, that the convict deserves a custodial sentence. [19] For the reasons discussed in the proceeding paragraphs of this sentence, and notwithstanding the observations and comments by Twomey CJ (as she then was) in R v DS 2019 SCSC 55 that the sentencing trend shows that those convicted of the offence are being sentenced to 7 or 8 years' imprisonment and that is a too lenient sentence, based on Page 6 of6 the whole facts and circumstances of this case, I am of the VIew, that a term of imprisonment of 8 years is one that this convict deserves and no more. [20] I therefore sentence DYC of , Praslin to serve a term of imprisonment of8 years for his conviction for the offence of sexual assault contrary to Section 130 (l) read with Section 130 (2) (d) and Section 130 (3) (b) of the Penal Code as amended. [21] In accordance with Article 18 (4) of the Constitution, the period of time which the convict has spent on remand in Police custody shall be deducted from this 8 years' terrn of imprisonment. [22] The convict has a right of Appeal to the Seychelles Court of Appeal against both, conviction and sentence, which right is exercisable within 30 days as of today. delivered at Ile du Port on the 12thAugust 2025.