R v Kawinga (CR 80 of 2023) [2024] SCSC 58 (13 May 2024)

IN THE SUPREME COURT OF SEYCHELLES Reportable CR80 /2023 Prosecution In the matter between THE REPUBLIC (rep. by Ria Alcindor ) and NELLIE KAWINGA (rep. by S. Rajasundaram) Accused Neutral Citation The Republic v Nellie Kawinga (CR80/2023) delivered on 26 May 2022 Before: Heard: Delivered: Vidot J 28 March 2024 13 May 2024 SENTENCE VIDOT J [1] The Accused stands charged with and pleaded guilty to one count of importation of a controlled drug contrary to and punishable under section 5 of the Misuse of Drugs Act 2016 read with the Second Schedule of the said Act. [2] The particulars of the offence are that the Accused, a 39 year old Malawi national, on 08 October 2023, imported into Seychelles a controlled drug namely 874.33 grams of cocaine in 74 cylindrical shaped packets. [3] After the facts were read out by the Prosecution and admitted by the Accused, the Court accordingly convicted the Accused who is a first time offender. Counsel for the Accused prayed to Court for a Probation Pre-Sentence Report (“the Report”). The demand was granted. A copy of the Report was made available to the Defence. Counsel for the Accused then proceeded to make submission on mitigation on behalf of the Accused. The submission was in part a repeat of the Report. I shall when considering the appropriate sentence to mete out give due consideration to both the report and submissions in mitigation. [4] The Accused claims to have four children, all of whom are minors and attending school, save for her last born who is 1½ year old. The eldest is at university. She has separated from the children’s father and he is not maintaining them. She claimed to have been tricked into importing drugs into Seychelles by someone who had intimated that he would help her out of her impoverished state. The man had proposed to involve her in undertaking culinary business in Ethiopia. In Ethiopia she was picked up by another man who asked her to travel to Kenya to deliver some goods. She was threatened by that man. Prior to coming to Seychelles she was forced to swallow the cylindrical capsules. She was arrested at the airport. She co-operated with the Police in Seychelles. She had no intention of committing such a crime. I shall give the utmost consideration to the Accused’s explanation on her involvement in the commission of the crime. [5] Mr. Rajasundaram, Counsel for the Accused pleaded for leniency and prayed that Court imposes a minimal custodial sentence. Counsel submitted that the Accused who is a first time offender pleaded guilty, therefore saving the Court’s precious time and showing remorse. The Accused also apologises for the offence committed. Indeed, a guilty plea should earn the Accused credit as far as sentence is concerned. Blackstone’s Criminal Practice (2012), paragraph E.12 p2148 provides that a guilty plea would in effect earn an accused a reduction in sentence as it saves time of the court and reduces considerable cost and in the case of an early plea, saves inconvenience of witnesses to give evidence before court, and therefore that “reduction should be a proportion to the total sentence imposed calculated by references in which the guilty plea was indicated, especially at what stage of the proceeding.” In fact, section 49 of the Misuse of Drugs Act lists “admission of the charge through a guilty” plea and the fact that “no person was ……. directly harmed by the offence” as mitigating factors in support of a reduction in sentence. [6] However, I have stated before and shall do so again, the drug problem in an insidious cancer that eating away at many of young people of this country as they become more and more dependent on drugs. The country needs a more concerted effort in fighting this evil. It is true that in meting out sentence the Court should consider the special circumstances of the offender. However, we should also look at the crime and its effects it has on society. Any sentence should send a clear message that such crimes cannot and should not be tolerated. The Court can show mercy to the Accused but should recognise that a greater community is suffering because of drugs. Furthermore, if the drug, which has a commercial value as provided under section 48(1)(a) of the Act, had reached the market, it is other parents’ children who would have been affected. [7] In meeting out sentence, Courts have to bear in mind that the classic principles of sentencing is deterrence, prevention, rehabilitation, reformation and retribution; see Lawrence v Republic [1990] SLR 47. I shall also take into consideration the principle of proportionality of sentence. [8] After, considering all mitigation factors, I sentenced the Accused to a term 15 years imprisonment. [9] Since the offence is aggravated, the Accused shall not be entitled to remission. [10] If unsatisfied with this sentence, the Accused may appeal against the same within 30 working days from today. Signed, dated and delivered at Ile du Port on 13 May 2024 ____________ M Vidot J 3