R v Isidor (CO 1 of 2023) [2024] SCSC 84 (19 January 2024)

contents of #navigation-content will be placed in [data-offcanvas-body] for tablet/mobile screensize and #navigation-column for desktop screensize. Skip to document content Summary Table of contents Search null Esparon J [1] In the present case, the convict was initially charged with Murder and subsequently pleaded not guilty. Trial by jury had commenced and the prosecution relied on the facts already lead during the duration of the trial. On 16th February 2024, the alternate count of manslaughter was added as leave was granted by this Court for the charges to be amended, and the convict pleaded guilty to the second count and not guilty to the first count of murder. The jury accepted the plea of guilty in respect of count 2. [2] The convict Nichol Georges Isidor was convicted on his plea of guilty after agreeing to the facts of the prosecution's case and stating that he understood the matter and he admits, without qualification that he committed the following offence: Count 2 Manslaughter, contrary to Section J 92 of the Penal Code (Cap J 58) and punishable under Section 195 thereof Nichol Georges Isidor 49-year-old male of North East Point Mahe, on Wednesday 07 December 2022 unlawfully stabbed Cliff Pillay a 44-year-old male of North East Point Mahe, with a knife which caused the death of the said Cliff Pillay on the same date. [3] Learned counsel for the convict, moved the Court that a probation report be called before sentencing the convict. The Court declined such a request as there was already ample evidence tendered during the proceedings regarding the personal and medical details of the convict. Mitigation [4] The counsel for the defence addressed the court in mitigation and firstly requested the court to take into consideration the nuanced complexities of the case. In respect of the personal circumstances of the convict, he comes from a family of 10 children, he previously worked as a mason, in the fire brigade, in the tourism industry and at SEYPEC. He has a daughter aged 17 and had a tumultuous relationship with his father, who abused alcohol. The defence counsel also indicated that the convict started to abuse alcohol at the age of 15 years old and this subsequently influenced his mental health and caused him years of suffering from substance abuse. The convict was previously diagnosed with Bipolar Affected Disorder (BAD), auditory and visual hallucinations, paranoia, psychosis and epilepsy. This was confirmed by the oral evidence given by Dr Kissubi during cross-examination. The convict was also admitted to the Wellness Centre on various occasions until 2012 and then again in 2022. [5] In respect of the case, the counsel for the defence submits that the convict pleaded guilty at the first instance when the charge of manslaughter was added as a second count. He is remorseful for his actions and cooperated with law enforcement from the onset when the incident had occurred. The convict had the opportunity to run away however he stayed at the scene of the incident until the police arrived 20 minutes later. The counsel for the defence also asked the Court to take into consideration that the convict was under the influence of alcohol on the day in question, this being corroborated by evidence given by various police officers that confirmed that the convict appeared to be under the influence of alcohol and had slurred speech. [6] The counsel for the defence submitted that the deceased and convict previously had an argument about money and that the deceased had thrown rocks at the convict. As a result, through panic, desperation and a heightened state of emotional turmoil, the convict stabbed the deceased, which ultimately lead to his death. Further, the counsel submitted that the pathologist had given evidence that it did not require much force to inflict the wound that had caused the death of the victim and that there had only been one stab wound inflicted. [7] The counsel for the defence referred to various case law, which will not be repeated by the court that shows a range of 4 - 7 years sentence in respect of convictions of manslaughter. The Court takes cognisance of the case law highlighted by the defence counsel. Analysis and determination [8] The case of Njue v R (2016) SCCA 12, (at para 14) set out the principles a court should consider when sentencing which includes public interest; the nature of the offence and the circumstances it was committed. The COUliat the same time must consider whether there is a possibility of the offender to be reformed; the gravity of the offence; the prevalence of the offence; the damage caused; any mitigating factors; the age and previous records of the accused; the period spent in custody; and the accused's cooperation with law enforcement agencies. [9] In the case of Emmanuel Saffance v R [2020} SCCA 29 (18 December 2020), the Seychelles Court of Appeal enhanced a term of 15 years' imprisonment to 20 years' mprisonment on the basis that the accused had previous convictions and was a person of violent disposition and considering the numerous injuries inflicted on the deceased by the accused. In the case of Francis Bakas v R [2021J SCCA 07 where the jury verdict of conviction for murder was reduced to one of voluntary manslaughter, the Seychelles Court of Appeal sentenced the accused to a term of 10 years. [10] In the case of Emmanuel Saffance (supra), the Seychelles Court of Appeal, enhanced a term of 15 years' imprisonment to 20 years, and in deciding to enhance the sentence Twomey JA held: "In a hierarchy of seriousness, where the highest culpabilityfor each of the offences of homicide are considered, the offence of murder would be at the summit, followed by voluntary manslaughter and then involuntary manslaughter committed by an unlawful act and lastly gross negligence manslaughter. These levels of culpability should, in my opinion, be reflected in the penalty imposed (or the offence committed. " (emphasis added) [11] This Court gives due consideration to the aforementioned reasoning in the case of Emmanuel Saffance (supra) this Court will proceed to consider the relevant case law in respect of sentencing in similar cases of manslaughter. In the case of Francis Bakas (supra) where the accused was eventually found guilty of voluntary manslaughter, the Seychelles Court of Appeal sentenced the accused to a term of 10 years' imprisonment. Therefore, as held in the case of Rep v Quatre (CO 3612023) [2023J (11 December 2023), it is the considered view of the court that the sentencing range based on these recent cases for voluntary manslaughter ranges from 10 years (Bakas) to 20 years (Saffance) depending on the aggravating circumstances of each case. [12] It is clear from the facts before the Court that the convict, in this case, is not a person of violent disposition as in the case of Saffance (supra). He has pleaded guilty and saved the cost and expense that would be incurred in the continuation of a lengthy jury trial. He in my view genuinely expresses remorse in doing so unlike in the case of Bakas (supra) where the accused went through a lengthy trial and never expressed any remorse or regret for what he had done. [13] In the case of R v Freminot (2022) scsc 838 the accused was sentenced by this Court to a term of 8 years' imprisonment, but this was in respect of a charge of involuntary manslaughter which is less in culpability to voluntary manslaughter. [14] Msoffe JA in the case of R v Sirame (SCA 0612012)/2014} SCCA 6 (11 April 2014). explained the distinction between the type of manslaughter: "15. The offence of manslaughter is usually divided into two generic types - voluntary and involuntary. Voluntary manslaughter is committed where the accused has killed with malice aforethought, and could be convicted of murder, but there are mitigating circumstances present reducing his culpability. In other words, voluntary manslaughter consists of those killings which would be murder because the accused has the relevant mens rea, but which are reduced to manslaughter because one of the defences, like diminished responsibility, provocation, etc., exists in the case. 16. Involuntary manslaughter is an unlawful killing committed by an accused who did not have malice aforethought but who, nevertheless, had a state of mind, which the law treats as culpable. BLACK'S LAW DICTIONARY [Ninth Edition, by Bryan A. Garner} defines it as a "Homicide in which there is no intention to kill or do grievous bodily harm, but that is committed with criminal negligence or during the commission of a crime not included within the felony - murder rule ... Involuntary manslaughter is a "catch-all" concept. It includes all manslaughter not characterized as voluntary ... " [15] In the case of Labrosse v R (SCA 27/2013) [2016] SeeA 35 (09 December 2016) the Court held that a lesser sentence should be imposed in instances where the convict suffered diminished responsibility due to impulsive conduct aggravated by substance abuse. In the case of R v Donald Hoareau [1982] SLR 87, the accused who was charged with murder pleaded guilty to a charge of manslaughter based on diminished responsibility under section 196A of the Penal Code. The learned Trial Judge after considering the facts of the case, the state of mental health of the accused, and the fact that he had no previous convictions and had been detained for a period of nearly 6 months before conviction had imposed a sentence of imprisonment of 5 years and 6 months. In the case of Barra v R (SCA 21 of 2012) [2014] SCCA 36 (12 December 2014), the court substituted the conviction of murder for manslaughter and imposed a sentence of 12 years' imprisonment, taking into consideration the weapon used was a knife and machete and that there was a provocation that was present during the commission of the offence. [16] In the recent case of Quatre (supra), Burhan J handed down a sentence of 9 years' imprisonment where the convict pleaded guilty to the offence of voluntary manslaughter, where the convict unlawfully caused the death of the victim with a machete. The Court took into consideration the fact that the convict pleaded guilty, was a first time offender and acted in the 'heat of the moment' when he committed the offense. [17] This Court takes the following factors into consideration when deciding on an appropriate sentence in this matter: i) The severity of the charge to which the convict has pleaded guilty and the instrument used to commit the offence. In this case the charge is voluntary manslaughter and the convict had used a knife to stab the deceased. ii) The fact that the accused has pleaded guilty to the offense of manslaughter at the first available opportune time and did not further waste the time of the court. iii) That he had suffered either a diminished capacity or that there was provocation that lead to the charge of manslaughter. iv) That the accused does have a history of mental health problems and has previously been admitted to the Ministry of Health Psychiatric ward as per the oral evidence given by Dr Kissubi during cross-examination. (v) That he was under the influence of alcohol on the day in question and that the deceased did throw rocks towards the convict. [18] Giving due consideration to all the aforementioned factors, the plea in mitigation, the facts of the case and the personal history of the convict, I proceed to sentence the convict Nichol Georges Isidor as follows: Count 2 for the offense of manslaughter - to a term of eight years' imprisonment. [19] Time spent in remand to count towards the sentence. [20] The convict has a right of Appeal within 30 days from the date of this sentence. [21] A copy of this sentencing order to be served on the Superintendent of Prisons.