R v JCM (CR 54 of 2022 and CR 55 of 2022) [2024] SCSC 211 (29 November 2024)

SUPREME COURT OF SEYCHELLES Reportable [2024] SCSC CR 54/2022 and CR 55/2022 Republic THE REPUBLIC (rep. by Corrine Rose and Ketlynn Marie) and -C M J (rep. by Ryan Laporte and France Bonte) Accused Neutral Citation: Before: Summary: Heard: Delivered: R v JCM (CR 54/2022 and CR 55/2022) 29TH November 2024 Govinden CJ Sentence - Sexual Assault, Section ]30 (1), (2) (d) of the Penal Code; Trafficking in persons, Section 3 (1) (a) of the Prohibition of Trafficking in Persons Act; Demanding property by written threat, Section 284 of the Penal Code; Prohibited observation and recording of private Act, Section 157A of the Penal Code; Possession of prohibited visual recording, Section 157C of the Penal Code; Possession of indecent photographs or pictures of a child contrary to Section 152 (1) (aa) of the Penal Code 17 October 2024 29 November 2024 SENTENCE In consolidated cases CR 54 and 55 of 2020, the Convict is sentenced to 10 years followed by 5 years' imprisonment, making it a total of 15 years' imprisonment. GOVINDENCJ [1] J -C M ("JCM") a 66-year-old male resident of has pleaded guilty to all counts in CR 54 of 2022 and CR 55 of 2022. The two cases were consolidated. In CR 54 of 2022, under the amended charge sheet dated 22nd August 2024, JCM has been charged with the following offences and has pleaded guilty: Count 2 Statement of Offence Trafficking Persons Act, 2014 and punishable under Section 3 (1) of the same act. in persons to Section 3 (1) (a) of the Prohibition of Trafficking in contrary Particulars of Offence M -C J recruited and received a person namely N years old by threat/or the purpose 0/ sexual exploitation. a 66-year-old male resident 0/ P 0/ , Mahe, , Mahe, aged 22 Count 3 Statement of Offence Causing any person to receive any writing with intent to extort or gain anything from any person and knowing the contents of the writing, demanding anything from the person without reasonable orprobable cause, and containing threats 0/ any detriment of any kind to be cause to the person, if the demand is not complied with, contrary to and punishable under Section 284 a/the Penal Code (Cap 158). Particulars of Offence -C a 66-year-old male resident a/ to extort sexual favours from one N , Mahe, in J M , without the year 2022 with intent reasonable or probable cause and knowing the contents of the writing, causes the said to receive Facebook messages containing demand with threats 0/ N detriment whereby he demanded her to have sex P with him and to record it and send audio recordings of the sexual act to him with the threat that if the demand is not complied with, the said J would circulate the indecent photographs and audios on social media. P to be caused to the said N -C M P Count 4 Statement of Offence Prohibited observation and recording of private A ct contrary to Section 157A of the Penal Code and punishable under Section 157A (c) of the Penal Code. Particulars of Offence M -C a 66-year-old male resident of J on a date unknown to the Republic, on Praslin without recorded a private act of himself namely the said Tr private act in circumstances where the said J for the purpose V the consent of T , Mahe, , M -C having sex with person observing or visually recording the said would be expected to be afforded privacy. CountS Statement of Offence Possession 0/prohibited visual recording contrary to and punishable under Section 157C of the Penal Code. Particulars of Offence M -C a 66-year-old male resident of J , Mahe, in the year 2022 was found in the possession of a prohibited visual recording without the consent of T having sex with the said T of which the said visual recording shows J -C M V . Count 6 Statement of Offence Prohibited observation and recording of private Act contrary to Section I S?A of the Penal Code and punishable under Section 157A (c) of the Pena I Code. Particulars of Offence M -C a 66-year-old male resident of P J during the year 2013 without the consent of L himself having sexual intercourse with the said L or visually recording the said private act in circumstances where the said L would be expected to be afforded privacy. , Mahe, video recorded the private act of for the purpose of observing P P Count 7 Statement of Offence Possession of prohibited visual recording contrary to and punishable under Section 157C of the Penal Code. Particulars of Offence M -C a 66-year-old male resident of J the year 2022 was found in the possession of a prohibited visual recording without consent of L P without the other's person consent. , Mahe, in the , having reason to believe it to be a prohibited visual recording [2] In CR 55 of2022, under the amended charge sheet dated 22t1d August 2024, JCM has been charged with the following offences and has pleaded guilty: Count 1 Statement of Offence Possession without reasonable excuse indecent photographs orpictures of a child contrary to Section 152 (1) (aa) of the Penal Code and punishable under the same section. Particulars of Offence -C J , Mahe had in his possession in the year 2022, without reasonable excuse, indecent material , 66 years old a pensioner residing at M namely nude photographs aged 13 years old at that time of taking of the photographs. of a child namely B R of Praslin, Count 2 Statement of Offence Possession without reasonable excuse indecentphotographs or pictures of a child contrary to Section 152 (1) (aa) of the Penal Code and punishable under the same section. Particulars ofOffence M -C , 66 years old a pensioner residing at J , Mahe during the year 2022 at Anse Boileau was found in possession of some photographs 0/ the private part namely vagina ofJ who was aged 16 years old at that time of taking of the photographs. B Count 3 Statement of Offence Possession without reasonable excuse indecent photographs orpictures of a child contrary to Section 152 (1) (aa) ofthe Penal Code and punishable under the same section. Particulars of Offence M -C , 66 years old a pensioner residing at , J Mahe wasfound in the possession of some photographs of the breasts, vagina and naked self of a namely S who was aged 12 years old at the time of taking of the photographs. M Probation Report [3] Probation Reports in both CR 54/2022 and CR 55/2022 dated 19th September 20024 recommended that a custodial sentence be imposed on the accused and in view of the nature of the offence assistance with counselling and any other support services from prison counsellor during the prison tel111S. Plea in Mitigation [4] Counsel for JCM pleaded for leniency based on some personal circumstances of the convict. It was submitted that the convict is remorseful, acknowledges the harm caused, regrets his choices and understands the consequences of his behaviour. He has cooperated with the police and pleaded guilty. He suffers from various health conditions such as asthma and knee problems, which worsened with age; and prison sentence at his age and with these conditions will have severe impact on his health and wellbeing. Despite difficult upbringing and limited education, he managed to support his 13 children from different relationship and his elderly mother who is reliant on his support; and prison sentence would affect not just him but also his family. Counsel asked the court to consider alternative to a custodial sentence, such as probation or community service, active counselling. Counsel supported plea in mitigation with case authorities ofR v Moumou & Ors (CR 56/2020); R v Petrousse (CR 72 of2020); R v Labrosse (CR 03/2019), which will be addressed below in the analysis. [5] Counsel for JCM submitted in plea in mitigation that in relation to possession charges, the convict was negligent in not reporting the devices he had collected which contained indecent photographs and were found in his possession. As to the assessment of the harm to the victims, it was submitted that no videos were ever leaked, they were merely in the possession of the convict and therefore minimal harm was done to the complainants. [6] Counsel further pleaded to distinguish the present case from R v ML & Ors as in the present case, the virtual complainant was an adult and had a relationship with the convict at the time of the offence. ANAL YSIS - CR 54 of 2022 [7] There are three complainants in CR 54 of2022: NP, TV and LP. Offences committed on complainant NP Trafficking in persons contrary to section 3(1) of the PTP A (maximum sentence 14 years) - sentencing precedents [8] Counsel for JCM in his plea in mitigation relied on decision in R v Labrosse (CR 03/2019) [2021] SCSC 852 (4 March 2021) 1 with regards to sentencing under section 3 of the Prohibition of Trafficking in Persons Act ("PTP A"). Counsel submitted that the case involved deception of recruiting for forced labour and the section under which Labrosse was charged is similar to the present case. [9] Labrosse was charged with 3 counts ofthe offence of trafficking in persons contrary to and punishable under section 3 (1) (a), (b) and read with section 5 (1) of the PTPA. Particulars 1 https://sevlii.org/akn/sc/judgment/scsc/2021/852/eng@2021-03-04 of offences involved recruitment through deception and misrepresentation of financial incentives and working conditions and thereafter harbouring and exploiting complainants through forced labour, by the use of force and threats. Labrosse was sentenced to concurrent 3 years' imprisonment for three counts and ordered to pay a fine of SCR 25,000 on each count of which SCR 10,000 should go as compensation to the virtual complainants. [10] Although the section under which Labrosse and JCM is charge are the same section, the context of their offences is very different. Below case law can be of better guidance. [11] The case in R v SJ (CO 5612020) [20217 sese 319 U 1 June 202]) involved numerous offences of trafficking in persons contrary to section 3(1) of the PTPA with maximum sentence of 14 years' imprisonment; and child trafficking contrary to section 4 of the PTP A, offence which bears higher sentence of 25 years. The case involved multiple victims. The context of the case was in relation to recruiting persons and children to take nude photographs. The court ordered sentence of 6 years' imprisonment for offences of trafficking in persons and 12 years' imprisonment for child trafficking. Terms of imprisonment for these offences were ordered to run concurrently. [12] In R v ML & Ors (supra), the first convict was charged with the offence contrary to section 3(1) of the PTPA for offence committed on complainant n and received a 10 year's imprisonment. In relation to complainant Jl, the first convict, ML was also charged with seven counts for sexual assault and one count of possession of prohibited visual recording contrary to section 157C of the Penal Code. The offences were committed during period from 14th August 2018 until July 2019. The offence of possession of prohibited visual recording was detected on the 25th July 2019, the complainant JJ was aged 18 years. The prosecution therefore charged ML with offence contrary to section 3(1) of the PTPA and not child trafficking contrary to section 4 of the PTPA. The sentence in the circumstances of R v ML & Ors case was higher than in R v SJ case in relation to trafficking in persons. This can likely be due to offences of sexual assault also being committed on complainant n. [13] The circumstances of the present case are clearly more similar to R v ML & Ors as offences committed on complainant NP are also sexual assault, trafficking in persons and demanding property by written threat. In R v SJ the offences did not escalate to sexual assault unlike R v ML and present case. Demanding property by written threats contrary to Section 284 (maximum sentence 18 years) - sentencing precedents [14] In R 11 EH (CR 52120192 [20211 SCSC 853 (4 March 2021)2, the court sentenced the 20- year-old EH, to a term of one year and six months, suspended for three years, along with a fine of SCR 10,000, part of which was allocated as compensation to the complainant. The convict, EH, attempted to extort nude photographs from a 19-year-old complainant by threatening to publish her existing private photographs, if the demand of the full nude photographs is not complied with. [15] The accused in that case was also convicted on count for possession of prohibited visual recording contrary to and punishable under section 157C of the Penal Code (2 years imprisonment and to a fine of SR13,OOO. OO)and prohibited recording of private part contrary to section 157B read with section 157E of the Penal Code and punishable under section 157B (2 years imprisonment and to a fine ofSRI3,OOO.00). The sentences were to run concurrently; all prison terms were suspended for a period of 3 years; half of the fines amounting to SR18,OOO. OOwere ordered to be paid to the virtual complainant as compensation for the psychological injury endured as a result of this incident. [16] The court's decision was influenced by several key factors. Although the offense was serious, involving an attempt to manipulate and exploit the victim's privacy, the threats were not carried out. Further, EH was demanding further nude images and not sexual intercourse, as in the present case. The cOUl1balanced the need for deterrence against the offender's age and lack of criminal history, opting for a suspended sentence that emphasized deterrence without imposing immediate imprisonment. Additionally, the sentence accounted for the psychological harm experienced by the complainant, reflected through a portion of the fine designated as compensation. This approach underscores the court's consideration of both the gravity of the offense and the rehabilitative potential for the young, first-time offender. [17] Considering that in present case threats and demands escalated to sexual assault R v EH sentence would be too lenient for the present circumstances. 2 https:llseyJi i.org/akn!sc/judgment/scsc/20211853/eng@2021-03-04 [18] In R v SJ (CO 5612020) [20211 sese 319 (J I June 2021},3 the convict, SJ was sentenced imprisonment for the offence contrary to section 284. Particulars of the offence to 7 years' were: "[SLJ], 20 years old, mechanical technician of Petite Paris, Mahe, without reasonable excuse sent in writing by way of Facebook messages containing demands with threats to EN, in the month of June 2020 demanding her to send her indecent photographs and to have sexual acts with him to avoid the circulation of her indecent in social media". This was the only count in relation to complainant BN. Apart from the said offence, the convict faced multiple charges and has been convicted on his own guilty pleas to 37 counts contrary to sections 152 and 284 of the Penal Code; sections 4 (l) and 3 (1) (e) & (f) of the Prohibition of Trafficking in Persons Act, 2014 (Act 9 of2014) read with Section 22 (a) of the Penal Code. SJ received a cumulative sentence of 14 years' imprisonment for multiple counts." [19] The case involved large number of charges against multiple victims, for serious offences involving threats, coercion, trafficking in persons and children trafficking. There was organized and persistent nature of the abuse, necessitating a significant custodial sentence to address both the offense's gravity and the risk posed by the offender. Additionally, the COUltaimed to deter similar offenses by imposing a substantial custodial sentence, thereby emphasising the legal consequences of organized and abusive behaviours of this nature. [20] In R v ML & Ors the COUlt sentenced the first convict to 10 years imprisonment for the offence contrary to section 284. First convict pleaded guilty to twenty-one counts in relation multiple related offenses and several complainants. The count contrary to section 284 was one of three counts for offences committed on the same complainant, NF, aged 17 years. The other two counts were contrary to section 152(1)(aa)5 and 139(a)6 of the Penal Code. The first convict was sentenced to a term of 10 years on Count 1 (section 284), a 3 https://seylii.org/akn/sc/judgment/scsc/2021/319/eng@2021-06-11 4 The sentence was ordered to IUn concurrently with sentence for counts 28, 37,54 and 57 (6 years each) and counts 2, 3, 6, 11, 16, 52, 56, 59, 60 and 61 ( 12 years each), being 12 years total. Further consecutive sentence of 2 years was ordered for (counts 4, 5, 14, 17, 18, 19, 20, 21, 22, 25, 26, 27, 30, 31, 35, 36, 39,41,44, 49, 51 and 63 (2 years each), to run concurrently with each other (two years total). 5 152. Display of or traffic in indecent material (1) A person who- photograph, sketch, drawing or picture of a child; ... 6 139. Procuring defilement by threats, etc Any person who- (a) by threats or intimidation procures or attempts to procure any woman or girl to have any is guilty of a misdemeanor. Provided that no unlawful carnal connection, either in Seychelles or elsewhere; or ... person shall be convicted of an offence under this section upon the evidence of one witness only, unless such witness be corroborated in some material particular by evidence implicating the accused. (aa) makes, takes or has in the person's possession without a reasonable excuse an indecent for five years. is guilty of an offence and liable to imprisonment ... term of 3 years on count 2 and term of 1 year on count 3, terms of imprisonment were to IUn concurrently, making the convict serve a total term of 10 years imprisonment for the three offences committed on complainant NF. [21] A comparative analysis of these cases illustrate that sentencing varied based on harm, pattem of offending, and victim vulnerability. In R v EH's suspended sentence was likely due to lack of physical harm to the victim (apart from psychological harm), relatively young age of the offender, suggesting leniency is such cases. Sentences in R v SJ and R v ML reflect the court's response to systematic offenses, involvement of minor victims and multiple offences committed on one complainant. Courts balanced deterrence and rehabilitation based on offense severity, emphasizing rehabilitation in isolated cases like R v EH, while focusing on deterrence for more persistent offenses in R v SJ and R v ML. [22] In R v EH, R v SJ and R v ML, particular offence contrary to section 284 did not escalate further than the threats in relation to the complainants, unlike the present case. According to the prosecution's case, demands and threats toward the complainant NP actually escalated to sexual assault being committed on her. Including assault alongside the offense contrary to section 284, in my opinion, significantly increases the severity, as it escalated from demands and tlu'eats to actual physical harm, indicating a more dangerous pattern of offender's behavior. Additionally, the methods used by the convict, specifically disguising himself under fake female Facebook accounts, in my view, indicates premeditated nature of the offense, systematic element, elaborate planning, intent to intimidate and cause harm. These factors in my view further increases the severity. Offences in relation to complainant's TV and LP (Counts 4-7 in CR 54/2022) [23] Offences under Counts 4-7 involve recording a private act of having sexual intercourse without the consent of the other patty contrary to section 157A7 of the Penal Code and possession of such prohibited video recording without the consent of the other patty 7 157A. Prohibited observation and recording of private act A person who observes or visually records another person, afforded privacy- (a) without the other person's consent; and (b) when the other person is- (i) in a private place; or (ii) engaging in a private act; and (c) the observation or visual recording is made for the purpose of observing or visually recording a private act, commits an offence and is liable on conviction to imprisonment in circumstances where a person would expect for a term of 20 years. to be contrary to section 157C8 of the Penal Code. Both offences carry a maximum sentences of 20 years imprisonment. [24] In R v EH (supra) the COUltsentenced the EH to 2 years imprisonment and to a fine of SR13,000.00, prison sentence being suspended for 3 years. EH was convicted for offences contrary to sections 157C, 157B read with section 157E. There was no offence contrary to section 157A (prohibited observation and recording of private act). [25] Counsel for JCM referred to R v Petrousse (CR 72 of 2020) [2024] SCSC (5 April 2024) decision in his plea in mitigation submissions. In this case Egbert Collin Petrousse recorded intimate acts with his former partner and stored recordings thereof on his phone without her consent. He was charged with three counts related to recording private acts, possession of prohibited recordings, and threatening violence. He was found guilty on the first two counts contrary to Section 157A( a) of the Penal Code (recording) and contrary to Section 157C (possessing these recordings); and acquitted on the third count. [26] The Court considered mitigating factors presented by the defence, such as accused being a first-time offender, a father of two children, and being self-employed. Further factors taken by the COUli for consideration was complainant's forgiveness, her wish not to see him imprisoned, although she experienced trauma and sleepiness nights from the incident. [27] Considering principle of totality and proportionality, and citing Morin v R SeA] ]12002 [20031 (1] April 2002), decision which discourages imprisonment for first-time offenders without aggravating factors, the Court imposed a suspended sentence. Consequently, the accused was sentenced to 2 years imprisonment on both counts 1 and 2, terms of imprisonment to be suspended for two years; and a fine of SCR 50,000 (in default of paying the fine, the accused would face an additional one year and six months of imprisonment). Half of the total fine was ordered as compensation to the complainant, with a one-year payment period. [28] In R v Sayy & Ors (CO 29/2017) [2018] SCSC 1118 (1 December 2018), Savy and Freminot faced charges of sexual assault (Savy faced charge for sexual assault by 8 157C. Possession of prohibited visual recording A person who possesses a prohibited visual recording of another person having reason to believe it to be a prohibited visual recording, without the other person's consent, commits an offence and is liable on conviction to imprisonment for a term of 20 years. penetration; and Freminot - for indecent assault by way of touching). They were also charged with offences in relation to prohibited recording of private act (section 157 A) and private parts (section 157B) of an unconscious complainant. The COUli imposed 3 years imprisonment sentence on Savy for committing the offence of sexual assault contrary to section 130 (1). Both accused were sentenced to each 4 years imprisonment for prohibited recording of private act (section 157 A); and to each 4 years imprisonment for prohibited recording of private parts (section 157B). The sentences of imprisonment were ordered to be made to run concurrently to each other. [29] In R v ML & Ors (supra), given the circumstances of that case, the court imposed more severe sentences for offenses contrary to Sections 157A and 157C. The first convict received 10 years imprisonment for these offences. He was charged with offences contrary to the said section in relation to complainant H, NS, KE and AA. Complainants NS, KE and AA were minors. The summary of counts and respective sentences is below: • Counts 5 to 12 and 14 in respect of offences committed on complainant JJ - total tem1 of 10 years: the purpose of sexual Count 5 (Recruiting or receiving another person for exploitation by means of coercion contrary to section 3 (1) (b) and punishable under section 3 (1) the PTPA) - a term of 10 years' imprisonment. Count 6-12 (Sexual Assault, imprisonment for each of the counts section 130(1) & (2)(d)) - terms of 10 years' Count 14 (Possession of prohibited visual recording, section i57C) - to a term of 10 years' imprisonment The Court ordered that the terms of imprisonment imposed in the above-mentioned thereby making the convict serve a Counts 5 to 12 and Count 14 run concurrently, total term of 10 years' imprisonment for the 9 offences committed on complainant JJ • Counts 15, 18 and 19 in respect of offences committed on complainant NS - total tenn 0f 12 years: Count 15 (Sexual Assault, imprisonment. section 130(1) & (2)(d)) - a term of 10 years' Count 18 (Possession ofprohibited visual recording, section iS7C) - a term of 10 years' imprisonment. Count 19 (Intentionally benefitting from the exploitation of trafficking in a person contrary to and punishable under section 6 of the PTPA) - a term of 12 years' imprisonment. The Court ordered that the terms of imprisonment Counts 15, 18 and 19 run concurrently, term of 12 years' imprisonment/or imposed in the abovementioned thereby making the convict serve a total the 3 offences committed on complainant NS. • Counts 20 and 21 as follows in respect of offences committed on complainant KE - total tel111of 12 years: Count 20 (Recruiting, harbouring, transferring and receiving a child knowingly or recklessly disregarding that the person is a child for the purpose of exploiting, whether or not by the use offorce or other forms of coercion contrary to section 4 (1) and further read with section 5 (l)(b) under the PTPA and punishable under section 4 (1) read with section 5 (2) of the same Act.) - a term of 12 years' imprisonment. Count 21 (Prohibited visual recording of a private act, section 157 A read with section 157 E) - a term of 10 years' imprisonment. The Court ordered that the terms of imprisonment imposed in the above-mentioned Counts 20 and 21 run concurrently, thereby making the convict serve a total term of 12 years' the two offences committed on complainant KE. imprisonmentfor • Counts 22, 24, 25 and 26 as follows In respect of offences committed on complainant AA - total tem1 of 10 years: Count 22 (Sexual Assault, section 130(1)) - a term of 10 years' imprisonment. Count 24 (act of indecency towards a child, section 135(1)) - a term of 8 years' imprisonment. Count 25 (Prohibited recording of a private act, section 157 A read with section 157 E) - a term of 10 years' imprisonment. Count 26 (Possession of prohibited visual recording, section 157 C) - a term of 10 years' imprisonment. The Court ordered that the terms of imprisonment Counts 22, 24, 25 and 26 run concurrently, term of 10 years' imposed in the abovementioned thereby making the convict serve a total imprisonment for thefour offences committed on complainant AA. [30] The above case law demonstrates different approaches taken by COUltS in relation to sentencing, considering circumstances of the case. In R v EH and R v Petrousse imposed sentences were suspended 2 years imprisonment and a fine. The mitigating factors included remorse, guilty plea, forgiveness of complainant, stable employment, first-time offence. Further the cases did not involve aggravating factors such as multiple victims and a victim being a minor, which was the case in R v ML. Sentences in R v Savy & Ors where custodial sentence of 4 years. This was likely due to the aggravating factors of further offence of sexual assault on the victim and her unconscious state. In R v ML as seen, there are numerous aggravating factors including multiple victims, minors, and exploitation of the victims. These factors called for higher custodial sentence of 10 years. [31] In the present case, aggravating factor is that the same offences were committed on two complainants, which shows a pattern of behaviour. [32] In R v ML the term of imprisonment was 10 years. On the other hand, the circumstances in R v ML can be viewed as more aggravating than in present case, which is reflected by other counts for offences committed on victims, including sexual assaults and exploitation of minors. These additional offences are not present in the current charge sheet against complainant's TV and LP. [33] In R v Savy & Ors, a term of 4 years imprisonment was ordered. Circumstances in R v Savy & Ors may also be viewed as more aggravating than in the present case as it involved sexual assault, two accused (now convicted) and an unconscious victim. These aggravating elements are not present in current case. Nevertheless, there are two complainants, which, as already noted, this COUli considers to be aggravating factor. Sentencing remains a discretionary power of the COUli. See R v ML at para [57]: "Sentencing remains a discretionary power, exercisable by the court and involves the (Marengo v R (Criminal Appeal SCA 2912018) 'deliberation of the appropriate sentence' [2019} SCCA 28, 45). Finding an 'appropriate sentence' or a 'just punishment' falls somewhere between striking a balance on key procedural ideals namely - rule making which ensures consistency and predictability. Secondly, sentencing requires the judge to exercise discretion, which promotes flexibility and efficiency in the administration of justice. A balance of these two ends promotes consistency in sentencing at the same time as ensuring that judges are flexible to adjust sentences when there is a need. In Julie v The Republic CN 3312015 Appeal from the Magistrates Court Decision 52412014) [2016} the above SCSC 552, para 6, perspective. the lower court, which departed/rom the mandatory minimum sentences. The trial court had taken the circumstances of the convict into consideration and reduced the mandatory sentences to achieve an appropriate sentence. Julie rightly followed the seminal case qf (SCA 38 of 2010) [2011} SCCA 30 (09 December 2011). Poonoo v Attorney-General Therefore, while the rule existed 011 mandatory sentencing, enabled the Court to strike the right balance. " the Supreme Court approved the sentencing approach of the sentencing approach adopted rightly underscores introducingflexibility In that case, ANALYSIS - CR 55 of 2022 [34] In CR 55 of 2022, JCM was charged and pleaded guilty to three counts for offence of possession of incident photographs of three children, BR, JP, and SM, respectively aged 13 years, 16 years, and 12 years at the time of taking of photograph. The offence is contrary to section 152(1)(aa)9 of the Penal Code and a person guilty of an offence is liable to imprisonment for five years. [35] In the abovementioned decision R v Sf (CO 56/2020) [2021], S1's faced numerous charges for offences contrary to section 152(1) of the Penal Code. Other counts related to extortion, threats, child exploitation, and production of incident materials. The Court observed that SJ was between 17 and 20 years old when he committed the offences, has been co operative, remorseful and pleaded guilty. The offences, however, involved multiple children. In relation to counts contrary to section I52( 1), Count 49 specifically refers photograph or picture of a child, while the rest of the Counts contrary to section 152(I)(a) do not specify the age of the complainant. SJ received 2 years imprisonment sentence for all the counts contrary to section 152, including Count 49 involving taking a nude photograph of a child. These were ordered to run concurrently, but consecutively with higher sentences for other offences in the case (totalling of 12 years). The sentence in total was 14 years' imprisonment, [36] In R v Moumou & Drs (CR 56/2020) [2021] SCSC 921 (17 June 2021) the convicts have been convicted on their own guilty pleas for various offences involving producing and distributing indecent materials, including minors contrary to Section 152 of the Penal Code. [37] Jean-Luc Moumou faced multiple counts for carrying on or taking part in a business concerned with producing indecent materials. He was sentenced to one year of imprisonment for each count (to run concurrently), suspended for two years, and fined SCR 3,000 for each count, totaling SCR 15,000. 9 152. Display of or traffic in indecent material (1) A person who- (aa) makes, drawing or picture of a child; ... takes or has in the person's possession without a reasonable excuse an indecent photograph, sketch, is guilty of an offence and liable to imprisonment for five years. [38] Rico P was similarly convicted for taking part in the business of producing indecent materials, including photographing topless women. He was sentenced to one year of imprisonment (to run concurrently), suspended for two years, for each count, with a total fine ofSCR 12,000. [39] Christian Laporte was convicted for taking indecent photographs of a child and participating in the production and distribution of indecent materials. He received one year of imprisonment for both offences (to run concurrently), suspended for two years, and was fined SCR 3,000 for each count, totaling SCR 6,000. [40] The Court considered several mitigating factors, including young age of convicts, their cooperation, remorse and guilty pleas. The court concluded that they played relatively minor roles in the broader criminal scheme. As a result, the COUlt imposed suspended sentences and fines rather than custodial sentences. This case demonstrates judicial discretion in prioritizing fines and suspended sentences for defendants with less direct involvement, aiming to penalize the actions without resorting to imprisomnent. [41] In R v ML the first convict, ML, has been convicted on counts 1, 2 and 3 on his own plea of guilt for offences committed on the complainant NF, aged 17 years. One of the offences was for possession without reasonable excuse of indecent photographs or pictures of a child contrary to section 152 (1) (aa) (Count 2). The remaining offences were contrary to section 284 (demands and threats, Count 1); and procuring or attempting to procure by way of threats or intimidation any girl to have unlawful camal connection, contrary to section 139 (Count 3). The First Convict was sentenced to a term of 10 years' imprisonment on Count 1; a term of3 years' imprisonment on Count 2 (section 152(1)(aa); and to a term of 1 year's imprisomnent on Count 3. The Court ordered that the terms of imprisomnent in Counts 1 to 3 run concurrently, thereby making the convict serve a total term of 10 years' imprisomnent for the three offences committed on complainant NF. [42] Comparative analysis of the above cases in terms of sentencing indicate that in R v SJ, the sentence for offence contrary to section 152, was only two years and even though the offence was committed on multiple victims, the terms of imprisomnent were ordered to run concurrently for each of the offence, and consecutively to 12 years' imprisomnent for other offences. [43] InR v ML, the Court imposed 3 years' imprisonment for possession of indecent photograph of a child. With regards to total sentence te1111,the court took a different approach to R v SJ and ordered that terms of imprisonment for various offences run concurrently in relation to a particular complainant and consecutively with sentences for offences committed on other complainants. ML' s total sentence was 25 years' imprisonment (44 reduced to 25 considering guilty plea), with total sentence of 10 years' imprisonment in respect of complainant NP, including 3 years for possession of indecent photograph of a child. The total sentence reflects the seriousness of all the offences that ML was charged with in relation to complainant NF and the rest of the complainants. [44] The sentences in R v Moumou & Ors can be considered relatively lenient, taking into account that there were multiple victims and defendants were involved in production and distribution of indecent materials. The leniency in the sentence in comparison to SJ and ML is likely because firstly, the COUltconsidered that defendants played minor roles in the criminal scheme; and secondly, there was only one count in relation to child, Count 53 - taking indecent photograph of a child, aged 16; and no charges for exploitation and threats. Christian Laporte received suspended 1 year imprisomnent and a fine on this count. [45] This Court considers mitigating factors, such as the guilty plea and advanced age of the convict, particularly the impact of incarceration at an advanced age. On the hand, the COUlt also needs to consider the the seriousness of the offence and the need to protect vulnerable minors, considering that JCM was found in possession of indicent materials in relation to three minors. [46] As noted above, the courts in R v SJ and R v ML took different approaches on making sentences concurrent based on the offence or in relation to the victim. In R v SJ concurrent sentences were given for similar offences committed on multiple victims, to run consecutively with terms of imprisonment for other offences. In R v ML, the court on the other hand ordered that concurrent sentences for multiple offences are given in relation to particular victims, to run consecutively to sentences in relation to other victims. [47] Concurrent sentences are generally applied when offences are similar in nature or arise from the same transaction (e.g. in R v GB, the defendant received ten years of imprisorunent on each count, with the sentences running concurrently, resulting in a total of ten years). Consecutive sentences are generally imposed when offences are distinct or involve different victims, reflecting the separate harm caused. The Court in R v ML provided detailed reasoning with regards to the approach adopted in the sentencing, including analysis of principle of totality at paragraphs [54] - [72]. [48] In R v ML & Ors, ML received 44 years' sentence which was reduced to 25 due to guilty plea which saved the complainants the ordeal from once again re-living the trauma they had undergone at his hands.!" DETERMINATION [49] I have carefully considered the plea in mitigation and the facts set out in the probation report. I have given strong consideration to the fact that the convict pleaded guilty to the said offences, thereby saving complainants the trauma from once again re-living the experience they had undergone, and saving the time of this Court; and the fact that he has also expressed remorse and regret at what he has done. I feel that there are some mitigation features. However, I have to take into consideration the aggravating factors as well the number of different complainants; convict's modus operandi, which is unprecedented in terms of its preparation and sophistication; the nature of the charges; the degree of deceit and abused of trust and the fact that it appears that he has been committing the offences for a long time. [50] I am inclined to adopt the approach taken in R v ML & Ors and considering that offences are distinct and involve different complainants, thus, separate harm caused, impose sentences for the offences committed on 5 complainants in CR 54 and 55 of 2022 to run consecutively to each other. [51] Having taken all of the aforementioned into consideration I hereby sentence the convict as follows: CR 54 0/2022 the total terms 0/ imprisonment in respect 0/ 10 "[79} We further order that complainant NF i.e. 10 years; in respect 0/ complainant JJ i.e. 10 years; in respect 0/ complainant NS i.e. 12years; in respect 0/ complainant KE i.e. 12years; and in respect 0/ complainant AA i.e. 10 years - run consecutively thereby totalling a term 0/44 years. instance saved the complainants the ordeal from once [80} We also note that the convict in pleading guilty at thefirst again re-living the trauma they had undergone at his hands. We consider this as a special circumstance and proceed to reduce the total sentence to 25 years' imposed upon the First Convict imprisonment. " On Counts 2 and 3 in respect of offences committed 011 complainant NP: Count 2 (trafficking in persons) - a term of 10 years' imprisonment; Count 3 (demanding property by written threats) imprisonment. - a term of 10 years' [52] I order that the terms of imprisonment in Counts 2 to 3 run concurrently, thereby making the convict serve a total term of 10 years' imprisonment for the three offences committed on complainant NP. On Counts 4 and 5 in respect of offences committed on complainant TV: Count 4 (prohibited observation and recording of private act) - a term of 3 years' imprisonment; Count 5 (possession of prohibited visual imprisonment. recording) - a term of 2 years' [53] I order that the terms of imprisonment in Counts 4 and 5 run concurrently, thereby making the convict serve a total term of 3 years' imprisonment for the two offences committed on complainant TV. On Counts 6 and 7 in respect of offences committed on complainant LP: Count 4 (prohibited observation and recording of private act) - a term of 3 years' imprisonment Count 5 (possession of prohibited visual imprisomnent recording) - a term of 2 years' [54] I order that the tel111Sof imprisonment in Counts 6 and 7 run concurrently, thereby making the convict serve a total term of 3 years' imprisonment for the two offences committed on complainant LP. [55] I therefore order that the total terms of imprisomnent in CR 54 of 2022 imposed upon the convict in respect of complainant NP is 10 years; in respect of complainant TV is 3 years; in respect of complainant LP is 3 years; - run consecutively thereby totaling a term of 16 years. Considering the guilty plea, I order that sentence be reduced to 10 years' imprisonment. [56] CR 55 of2022 Count 1 in respect of offence committed on complainant BR (possession of indecent photographs or pictures of a child) - a term of 3 years' imprisonment; Count 2 in respect of offence committed on complainant lB (possession of indecent photographs or pictures of a child) - a term of 3 years' imprisonment; Count 3 in respect of offence committed on complainant SM (possession of indecent photographs or pictures of a child) - a term of 3 years' imprisonment, [57] I order that the terms of imprisonment in CR 55 of 2022 Counts 1, 2, and 3 run consecutively, thereby making the convict serve a total term of 9 years' imprisonment for the three offences committed on complainants BR, lB, and SM. Considering the guilty plea, I order that sentence be reduced to 5 years' imprisonment. [58] Therefore, the total term of imprisonment to be served in consolidated cases CR 54 and 55 of 2022, is 10 years followed by 5 years' imprisonment, making it a total of 15 years imprisonment, [59] Time spent in remand to count towards sentence. [60] Considering the recommendation of the Probation Report, I further order that assistance with counselling and any other support services from prison counsellor during the prison terms be provided to the convict. [61] The convict has a light to appeal against this sentence to the COU1tof Appeal. Signed, dated and delivered at Ile du Port on 29th November 2024. Govinden cr 19