R v Makavita Liyanage Dilesh (CR 99 of 2023) [2024] SCSC 32 (16 February 2024)

IN THE SUPREME COURT OF SEYCHELLES Reportable CR99 12023 Prosecution In the matter between THE REPUBLIC (rep. by Barry Galinoma) and MAKAVITA LlY ANAGE DlLESH (rep. by Clifford Andre) Accused Neutral Citation Before: Summary: Heard: Delivered: The Republic v Makavita l.iyanuge Dilesh (CR 9(/2023) delivered on J 6 February 2024 Vidol J Fishing without a Foreign Vessel Licence. contrary to section 11(I ) read with section 69 ofthe Fisheries Act 2014 and punishable the said Act 09 February 2024 ._' ()y.~rua.r~2024 under section 58(a) of SENTENCE VIDOT J [I j The Accused stands charged with and pleaded to the following offences Statement of offence Fishing without a Foreign Vessel Licence, contrary to section J I(I) read with section 69 of the Fisheries Act 2014 (Act 20 of 2014) and punishable under section S8(a) of the said Act. Paz-ticula r s of Offence Makavita Liyanage Charnel Dilcsh, aged 43 years old Sri Lankan national, skipper and Mastel' of vessel 'Rankurulla 4- which is not licensed or authorised. along with crew, on the 24th November at approximately 185 nautical miles Southeast of Malle Island and 40 nautical miles East of Coetivy Island. within the Seychelles EEZ, used the said foreign vessel for fishing in Seychelles waters in contravention of the Fisheries Act 2014. [2] Thereafter, the facts of tile case were read out. The facts were explained to the Accused and were admitted by him whereby the COUli proceeded 10 convict the Accused of the charge. [3] Counsel for the Accused then proceeded to make submission in mitigation. He pleaded to Court to show leniency to the Accused who pleaded guilty to the charge at the first opportunity, thereby showing remorse. He has saved the Court's precious time. He is also a first time offender. He slated that the catch has been sold and the Seychelles fishing Authority received Thirty five Thousand Three Hundred and Twenty Rupees (SR35.320.00) from the sale. The Accused is married with two children of 13 years and 19 years of age who are both dependant on him since they are still at school. [41 Section 58(a) of the Fisheries Act provides; "Where a fishing vessel Ihal is not licenced in accordance with sec/ion 11 is used for fishing or fishing related activity in Seychelles waters or for sedentary species on the continental shell the owner and Master each commits an offence and is liable on conviction 'where theforeign vessel is ..... fa) .tt length overall 110/ exceeding 24 meters, 10 afine ofnot less than SCR2.500, 000. 00: (b) ....... (c) ...... [5] The submission in mitigation shall be fully considered when appropriate sentence is considered. The Fisheries Act appears to provide for a mandatory minimum sentence. It IS true that that mandatory minimum sentence cannot be said to be grossly disproportionate to the mischief it seeks to avoid. Seychelles has to protect its sparse resources. It cannot afford to allow others from foreign countries to steal such resources. Therefore, it imperative we protect these resources and the reason thus the reason why we invest in safeguarding our 'waters from illegal fishing. However, the position in regards to mandatory minimum has been settled in the case of Ponoo v R {2011J SLR 424. The Court has to be granted some latitude in imposing sentence. [6J When passing sentence considering sentence, this Court will give the utmost attention to the Accused's special circumstances as pCI' mitigation and to the proportionality of sentence. Nonetheless, it is highly important that the Court considers public and national interest when imposing sentence for such offences. However. I do not believe that the fact that the fish on board has been sold by SFA as a mitigating factor. The fish had been fished in our waters, therefor the SFA was merely claiming back that which in any case belongs to the country. [71 In meeting out sentence. COUl1s have to bear in mind that the classic principles of sentencing includes deterrence. prevention, rehabilitation, reformation and retribution; sec Lawrence v Republic 119901 Sl .. R 47. I shall also take into consideration the principle of proportionality of sentence. [8] After. considering all mitigating factors. I sentenced the Accused as follows: A fine of SR550,OOO. OO which shall be payable within 60 days from today and in default to a term of 18 months imprisonment: f91 The Court also makes the following Orders: (i) If the fine remains unpaid within the prescribed period. the vessel Rankurulla with all equipment shall be forfeited to {be Republic; , (ii) In the event that the Accused settles the fine within the 60 days he shall be allowed to leave this jurisdiction his country or residence as soon as is practicable. on the vessel and ir not he shall be repatriated to 19J In the event that he has to serves the default term of imprisonment, time spent on remand shall be discounted against that term of imprisonment. [I OJ If unsatisfied with this sentence. the Accused may appeal against the same within 30 working days from today. Signed. dated and delivered at lie du Port on 16 February 2024 4