R v Mondon & Ors (CO 44/2017) [2020] SCSC 481 (2 April 2020)

SUPREME COURT OF SEYCHELLES . I • b Reportable [2020] sese ~ eo 44/2017 In [he matter between THE REPUBLIC (rep. by (j Thatchettt and 1. STEPHAN MONDON (rep. by A Amesbury and (.' Andre) 2. GUY HALL (rep. by G Camille) 3. PHILlP MARZORCCHI 4. MARCUS LOUYS (rep. by C Andre) Neutral Citation: R v Mandan and Ors (CO 44/2017) Before: Govinden J Summary: Misuse of Drugs Act 2016 - guilty plea - mitigating factors - departure from both the minimum and maximum sentences Heard: 10 March 2020 Delivcrc~:l April 2020 (20201 sese 246(3 April 2020) The convicted persons arc sentenced as tallows: ORDER I. The first convict 2. The second convict 3. The third convict 4. The fourth convict is sentenced to five (5) years imprisonment under count tour. is sentenced to eight (8) years imprisonment under count one. is sentenced to six (6) years imprisonment under count two. is sentenced five (5) years imprisonment under count three. Time spent on remand to be taken into consideration in the sentences for nil accused SENTENCE ._--_._------_ .._ --- GOVINDEN J [I] The four convicts in this case were convicted on their own guilt} plea to the charges levelled against them by the Prosecution in amended information containing four counts dated 18th or February 2020. [2] The first convict. Mr Stephan Mondon. pleaded guilty to the first count, namely the charge or importation or a controlled drug in contravention of the Misuse of Drugs Act. 2016 (MODA), contrary to and punishable under section 5 read with section 48 (I) (a) and the second schedule or MODA. The charge is particularised as follows: Stephan Mondon. 29 years old male. unemployed and residing at Anse Forbans. Mahe. along with other persons known to the Republic 011 or around J ],h of August 2017. imported i17l0 Seychelles 33855.3 KI'(WIS of the controlled drug namely. cannabis resin ill contravention of the Misuse ofDrugs Act 2016. 011 board the yacht "Quest" and in two vessels belonging to Stephan Martial Mendon. [3] The second convict. Mr Guy Pierre Hall. pleaded guilty to the second count. namely the charge of aiding and abetting trafficking in a controlled drug contrary to. and punishable under section 7 (I) read with section 15 (I) ( I) (a) and section 48 ( I) (b) and the second schedule of MODA. The charge is particularised as follows: GOIT Pierre Hall. 50-.vear-old male, Accountant a/ Creole Travel Services of Beall Val/on. Mahe Oil or around 13,hof August 2017. aided lind abetted persons k110W11 to (he Republic to traffic in 33855.3 grams of the controlled drug namely cannabis resin in contravention a/the Misuse of Drugs Ael. on hoard vessels belonging to one Stephen Martial Mendon. l4J The third convict. Mr Philip Arthur Joseph Marzocchi pleaded guilty to the yd count. namely the charge of trafficking in a controlled drug. by contrary to section 7 (1) or the MODA read with section 2. section 20 (3) and section 23 or the said Act and punishable under section (I) of MODA rend with section 48( I) (b) and the second schedule of the Act. The charge is particularised as follows: Philip Arthur Joseph Marzocchi. 66-year-old skipper/captain. residing at Providence. Mahe along with other persons known (0 the Republic 011 or around 13th A ugust 2017, was trafficking ;17 a controlled drug by means ()l transporting. delivering 01' distributing a controlled drug I1WI7e~)I.33855.3 grams ofcannabis resin in contravention of the Misuse ofDrugs Act 2016 on board ofrwo vessels belonging to one Stephan Martial Mandan. [51 The fourth convict, Mr Marcus Louys, pleaded guilty to the 41h count, namely the charge 0[' aiding and abetting trafficking in a controlled drug contrary to. and punishable- under section 7 (1) read with section 15 (1) (a) and the second schedule of MODA. The charge is particularised as follows: Marcus Louys, 30-yeal'-old ilia/e. casual worker. residing 01 Glacis. Mahe. on or around the 1jill August 20 j 7. aided and abetted persons known to the Republic /0 traffic in 33855.3 grams 0,(0 controlled drug, namely cannabis resin ill contravention ofthe Misuse of Drugs Act ]016. [6) The salient facts ofthe case were available to the COUrT as the trial ofthe convicts was well underway when they changed their pleas from not guilty to guilty. According to evidence before the court the first and fourth convicts were arrested on 16th August 2017. The third convict was arrested on 18111 August 2017 and the second convict was arrested 011 23,J August 2017. They have all been on remand from 7th September. 2017 onwards, The prosecution had examined 13 witnesses and produced 29 exhibits. which consisted of 36 packets of the controlled drug. Exhibits 0 I to 0 II(a) were marked on behalf or the defence. As per the evidence of PW - 9. Julia Volcere, Forensic Analyst and Exhibits P 15 & P 19 - the Certificates of Analysis, the 36 packets contained controlled drug, namely. cannabis resin, totalling 33855.3 grams in weight. PW -10, Peter Michael Hein, a South A frican skipper or a yacht named "Quest", Seychelles identified the second convict in June 2017 in Zanzibar. when money for the in which the drugs were imported into advance purchase of the drugs was handed over to him through the second convict ana also later in July 2017 at a restaurant in Zanzibar. Exhibit P 22, a letter [rom Kenya Airways and an immigration document (P 23) shows that the second convict travelled to Tanzania in June and July 2017. P 27 a Cash Plus Money Exchange receipt shows that the second convict changed SCR 55,600 to USD 4000 on 15lh April 2017. [7] The other two material prosecution witnesses, PW - 12 & ['W - 13 Jude Beauchamp & . Iude Labiche - narrated the involvement of the first convict: the third convict and the fourth convict in tilt: commission of the offences. The witnesses testified how the first convict procured them for the illegal transaction and the third convict navigated a vessel belonging to the first convict and collected the bag containing the drugs at the A frican Bank from the incoming yacht skippered by Peter Micheal Hein. He also testified on the role of the fourth convict in collecting the drugs at Anse Royale Bay and bringing the drugs to shore. The witnesses also identified the drugs and the bag in which drugs came ill (P 13(a)); the photographs of the vessels involved and the first and third convict. The con victs. moreover. have admitted the summary of the facts of the case as read out by the Learned counsel for Republic. According to counsel for the Republic. nothing is known about the previous convictions of the convicts. Hence for the purpose of this sentence the court will take them as first offenders. The Learned counsel for the convicts invited the court to request a probation pre-sentencing report tor each ofthe convicts for the purpose of assisting them in their plea in mitigation of their sentences. The Probation Reports were requested and were made available to the court and all convicts 18 J 19J [10 J [have thoroughly considered the seriousness of the charges in rh is case in terms of the severity of the counts and the facts of the case. I have further given due consideration to the strong submissions in mitigation made by the Learned Defence counsels in favour of a lenient sentence and the content and recommendations of the Probation services in the respective reports. Having done so I have come LO the following determination. r II J I find that this case is a serious one. The charges pleaded to by the convicts relates to 33855.3 grams of a class B drug. If the drug was not intercepted it would have ended on the streets of Seychelles. There it would have gone a long way in accentuating the scourges of drugs and all the ills that it ental Is. [121 There is also abundant evidence on record that the several offences "..ere jointly connected and executed in an organised manner. II was an organised crime that transcends national jurisdictions and nationalities and involved a complicated number of transactions, including international air and sea voyages. 'rhe modus operandi of the offences was well coordinated, using different ocean going vessels; and moving the drugs from Zanzibar to Seychelles. The facts show that there was direct involvement, albeit in different degrees of participation. or all or the convicts. with all of them being aware of the illicit nature of the substance. These activities would have necessitated plenty of preparation and strategic planning. The first convict provided funding for the operation and the usage or two of his financed partly the purchase and importation. The third convict boats. The second convict skippered one of the first convict's vessel and collected the drug at sea and brought it to Anse Royale bay. Mahe. The fourth convict assisted the first convict to transfer the drugs from Ansc Royale bay onto the island Mahe. 113 j The gravity of the case is also reflected by the maximum penalties for each charge, The maximum penalty for the first count is life imprisonment and a fine of one million Seychelles Rupees and the indicative minimum sentence for such an aggravated offence is fifteen years imprisonment. The maximum penalty for the other counts is 50 years imprisonment and a tine of500, 000 Seychelles Rupees. The indicative minimum sentence for such aggravated offences is 15 years imprisonment [14] However, this said the level of criminal culpability of the convicts would have to be assessed separately for the purposes of sentencing and this would obviously depend on their level of participation and involvement in the commission of the offences. Sentences have to be individualised. [151 On the other hand, there are certain mitigating factors in this case. The convicts are all first time offenders. They have pleaded guilty. saving the precious lime of the court and the prosecution and prevented former co-accused with serious physical impairments from testifying. They have shown remorse and have expressed regret for committing the offences. These amount to attenuating factors that support a reduction in sentence Linder section 49 of MODI\. [161 r have to accordingly lind a balance between aggravation and mitigation in order for mc to do justice in sentencing the convicts. Though not expressly stated, in section 38 (I) of MODA, I am of the view that the indicative minimum sentence regime provided for in that section would be more appropriate in cases where the accused arc found guilty after a full trial. It would be more challenging. to apply it in instances such as this one where the accused pleaded guilty, as this would take away both the initiative and incentive of a guilty pica and the court s discretion in meeting OUl an appropriate sentence ill accordance with the admitted facts which would affect the totality of sentencing principle. 117] Given the nature of the case and severity or the charges I am of the view that the convicts merit custodial sentences. which must however be mitigated based on the circumstances mentioned above. lIS) Accordingly. I proceed to sentence the convicts as follows: I. 1sentence the [irst convict 10 eiglu years imprisonment in count one. 2. 3. . J. I sentence the second convict 10 six years' 'sentence the third convict tofive years' / would sentence rhe/oul'lli convict [(J jive years' imprisonment imprisonment in count (WO. in count three . imprisonment in countfour. [19) Their time spent on remand will be taken into consideration in these sentences. l20J The convicts have a right of appeal against the conviction and sentence in this case. Signed, dated and delivered at lie du Port on 3 April 2020 6