R v Lagrenade and Ors (Criminal 46 of 2021) [2023] SCSC 440 (16 June 2023)

SUPREME COURT OF SEYCHELLES Reportable [2021] scsc /.1./1 0 CR 46/2021 In the matter between THE REPUBLIC (rep. by Mr Thachett) and NEDDYLAGRENADE (rep. by Mr Ryan Laporte) NIGEL WILLIAM (rep by Mr Joel Camille) SHAMIAL BARRA (rep. by Mr Basil Hoareau) RYAN FRED (rep by Mr A Juliette) .,. 1st. Accused 2nd Accused 3rd Accused 4th Accused Neutral Citation: Before: Summary: Heard: Delivered: The Republic v N Lagrenade and Ors (CR 46/2021) [2023] SCSC"c/-110 Govinden CJ Sentences on guilty plea under the Misuse of Drugs Act. 2016 28 April 2023 16 June 2023 ORDER 1. 11. iii. IV. On count 1, I impose 5 years imprisonment on the JSt convict. imprisonment on the 2nd convict. On count 2, I impose 3 years' On count 3, I impose 3 years' imprisonment on the 3rd convict On count 4, I impose 3 years imprisonment on the 4th convict. SENTENCE GOVINDENCJ The charges [1] The four accused, who for the purpose of this sentence shall be collectively referred to as "the convicts, have pleaded guilty to their respective charges and have been convicted under the following counts in the Amended Information, dated the 17th of March 2023. Count! Statement of offence Committing the offence of trafficking of a controlled drug by virtue of organising the importation of a controlled drug into Seychelles, contrary to Section 10 of the Misuse of Drugs Act 2016 and punishable under Section 7 read witli the Second Schedule of the said Act. Particulars of offence Neddy, Roger LAGRENADE, 33 YEARS OLD Fisherman of Roche Caiman, Mahe, on or around the months of November 2020 to April 2021 committed the offence of trafficking of a controlled drug into Seychelles namely Methylenedioxymethamphetamine (Ecstasy) having net weight of 1207.40 grams , contained in parcel addressed to one Patrick Moustache of Beau Vallon, Mahe and having tracking number CC 08187487INL, Through the Seychelles Postal Services, Victoria, by making contacts with persons known to the Republic as Louiciana , Valerie Vanessa Calva and another Custom Official known to the Republic as Mary Ogada. Count 2 Aiding and abetting the trafficking of a controlled drug contrary to Section 15(1) (a) read with Section 7(1) and Section 2 of the Misuse of Drugs Act. 2016 further with Section 22 9a) of the Penal Code and punishable under Section 7 read with Second Schedule of the said Act. Statement of offence Nigel, Robert WILLIAM, of Anse Aux Pins, Mahe, aided and abetted Neddy Roger LAGRENADE, 33 tears old Fisherman of Roche CAIMAN, Mahe to traffic in a controlled drug namely Methylenedioxymethamphetamine (Ecstasy) having net weight of 1207.40 grams, contained in parcel addressed to one Patrick Moustache of Beau Vall on, Mahe and having tracking number CC 08187487INL, from the Seychelles Postal Services, Victoria, through person known to the Republic as Louciana, Valrie VANESSA Calva. Count 4 Statement of Offence Aiding and abetting the trafficking of a controlled drug coptrary to Section 15(1) (a) read with Section 7 910 and Section 2 of the Misuse of Drugs Act, 2016 and punishable under '- Section7 read with Second Schedule of the said Act. Particulars of offence Shamila Stephanie, Cecile BARRA_OF Au Cap, Mahe, on the 13th of April 2021 at Victoria, Mahe aided and abetted one Ryan Dominic Fred of Au Cap, Mahe to traffic in a controlled drug namely Methylenedioxymethamphetamine ( Ecstasy) having net weight of - 1207.40 grams, contained in parcel addressed to one Patrick Moustache of Beauvallon, Mahe and having tracking number CC 081874871NL, by collecting the said controlled drug at Dolce Vita restaurant, State House Avenue, Victoria, Mahe for the purpose of del ivering the said controlled drug to the said Ryan Domominic Fred. Count 5 Statement of Offence Agreeing with another to commit the offence of trafficking in a controlled drug, contrary to Section 16(a) and section 7( 1) of the Misuse of Drugs Act 2016, and punishable under Section 7 read with Second Schedule of the Misuse of Drugs Act 2016. Particulars of Offence Ryan Dominic Fredof Au Cap Mahe on or around the 13th of April 2021 agreed with one Shamila Stephanie Cecile Barra that a course of conduct shall be pursued which, if pursued will necessarily amount to or involve the commission of an offence of trafficking in a controlled drug namely Methylenedioxymethamphetamine (Ecstasy) having net weight of 1207.40 grams, contained in parcel addressed to one Patrick Moustache of Beau Vallon, Mahe and having tracking number CC 08187487TNL. [2] The facts of the case was read out by the prosecution and have been admitted by the Defendants. These facts are on record and they have been thoroughly scrutinised by the Court and would f2rm the basis of the Court's consideration in making its determination as to what is the appropriate sentences in this case. [3] For the purposes of this sentence, the Court will take the controlled drug Methylenedioxymethamphetamine (Ecstasy) to be a class B controlled drug as it was a Class B drug at the time of the commission and charging of the offences. [4] At the request of learned Counsels for the convicts, Pre-Sentencing Reports were requested and made available by the Probation Services. These Reports were received by the Court and made available to Counsels and has greatly assisted their submissions. [5] The Court was informed that all of the convicts have no previous convictions and they would therefore be taken as pt time offenders for the purpose of their sentences. [6] In coming to its determination as to what should be the appropriate sentences in this case, the Court has appraised itself with the provisions of the Misuse of Drugs Act (MODA), under which the convicts has been charged. The relevant provision is found in Section 47 and 48 of the MODA, which provides as follows: 47. (1) In sentencing a person convicted of an offence under Part 11of this Act, whether upon a guilty plea orfollowing trial, the Court shall have regard to - (a) the objectives of the Act,' .' (b) the degree of control to which the relevant controlled drug is subject; and the general (c) sentencing. objectives of transparency and proportionality in (2) Where an aggravating or mitigating factor identified in section 48 or section 49 applies to the circumstances of an offence, the Court shall expressly identify that factor and give weight to it in considering the appropriate sentence. (3) In sentencing a person who has been identified as a drug user or a drug the Court shall follow the process set out in section 38 or section dependent person, 39. (4) In sentencing a person convicted of an offence under section 8 of this Act, the Court shall not impose a sentence of imprisonment unless satisfied that a non custodial sentence is inappropriate in all the circumstances. (5) In sentencing a person convicted of an offence under this Act in circumstances where the offence is aggravated in nature, the Court shall have due regard to the ind{C'ativeminimum sentence for aggravated offence of that kind. 48. (1) Aggravating factors (factors that support a more serious sentence) for offences under this Act include - (a) the presence and degree of a commercial element particularly where controlled drugs have been imported into Seychelles; in the offending, (b) the involvement the offender belongs; in the offence of an organised criminal group to which (c) the involvement of the offender in other offences facilitated by or related to commission of the offence,' (d) the use of violence or weapons by or on behalf of the offender,' (e) the fact that the offender holds public office or a high-profile position in the community, particularly if the offence is connected with the office or position in question; the targeting, (j) connection with the offence,' involvement, use, or exploitation of children in that the offence was committed in a penal or educational (g) the fact institution, social service facility or in other places related to education, sports, or social activities, or in their immediate vicinity,' and to the Rehabilitation of Offenders Act), (h) prior convictions particularly for similar offences, whether foreign or domestic, or prior formal cautions under this Act. (subject identified in subsection (1) is to a significant extent, the Court shall treat the offence as aggravated in (2) Where one or more of the aggravating factors present nature. [7] To this court, it is clear that there are mitigating factors that can be identified in accordance to Section 47 (2) of MOD A and 1give to each the weight that would mitigate for a lenient sentence. There are about four mitigating factors which I consider below. [8] First, it is to be noted that though the convicts had not pleaded guilty at the very first opportunity nor accepted the harm or potential harm caused by their acts on society, they have accepted the facts upon which their conviction have been based and have unequivocally pleaded guilty. This amount to acceptance of responsibility, and in the spirit of Section 47 (6) (a) and (b) of the MODA. [9] Secondly, I also find it to be a mitigating factor that the controlled drug is a class B drug. Thirdly, the convicts are first time offenders. Finally, all of the convicts are relatively - young offenders with strong family ties and in seemingly stable employment. [10] However, there is one aggravating circumstance as described in section 48 (1) (b) of the MODA, which that there is an organised criminal group to which the offender belongs and have been involved in. The present case shows a certain level one such a group and the amount of the drug is relatively high. [11] In imposing the sentences, I am also conscious of the need to apply settled sentencing principles to the facts of this case as was enunciated in the case of ML & Drs SC Cr 38/19. Furthermore, I am aware of the need to individualised the sentences and to ensure it is proportionate to fit the circumstances of the case and those of each convict. The test enunciated in the case of Ponnoo vs R (2011) SLR 424, with regards to totality of sentencing principle has also been used in the present case. Thus, the sentences imposed would be proportionate to the crimes committed bearing in mind the individual circumstances of the convict. [12] Having considered five things, namely the pleas in mitigation made by learned Counsels for the convicts; the mitigatory circumstances; the content and recommendations of the Pre-Sentencing Reports; the facts and circumstances of this case upon which the convictions were based; the sentencing pattern in cases of similar nature before this Court and the Seychelles Court of Appeal; and, the applicable sentencing principles, I have come to the following determination: a. b. c. d. On count 1, I impose 5 years imprisonment on the 1st convict. On count 2, I impose 3 years' imprisonment on the 2nd convict. On count 3, I impose 3 years' imprisonment on the 3nd convict On count 4, I impose 3 years imprisonment on the 4th convict. ,. [13] Time spent in remand to count towards sentences. Signed, dated and delivered at lie du Port on Iii" June 2023 Govinden CJ