R v Monthy & Anor (CO 42/2015) [2017] SCSC 970 (6 December 2017)

IN THE SUPREME COURT OF SEYCHELLES Criminal Side: C042/2015 [2017] SCSC \ ICjt..t THE REPUBLIC versus ALEX MONTHY FIRST ACCUSED FRANCISCO ZIALOR Second Accused Heard: Counsel: 4 December 2017 Mr. Hemanth Kumar, Assistant Principal State Counsel for the Republic Mr. Basil Hoareau Attorney at Law for the first accused Mr. Clifford Andre Attorney at Law for the Second accused Delivered: 7 December 2017 SENTENCE Burhan J [1] The l" convict Alex Monthy and the 2nd convict Francisco Zialor were convicted of the following offence; Conspiracy to commit the offence of Arson contrary to section 381 of the Penal Code read with section 318 (b) of the Penal Code and punishable under section 318 of the Penal Code for which a term of life imprisonment could be imposed as the maximum sentence. [2] In addition to this, the 2nd convict was convicted of the offence of Arson contrary to section 318 (b) of the Penal Code and punishable under section 318 of the Penal Code for which a term of life imprisonment could be imposed as the maximum sentence. [3] It is Learned Counsel for the l" accused Mr. Basil Hoareau's contention that in terms of section 381 of the Penal Code only a maximum term of 7 years imprisonment could be imposed. This would be correct if the conspiracy was in respect of a felony where no other punishment is provided. But in this case, the felony of Arson attracts a term of life imprisonment and therefore the maximum of 7 years would not apply and the convict Alex Monthy faces a maximum sentence of life imprisonment. [4] I have considered the facts in mitigation on behalf of the 1st accused that he is 35 years of age, a first offender and that no person was on board the vessel at the time the Arson was committed. [5] I have also considered the seriousness of the offence for which the pI convict Alex Monthy has been convicted. It is further aggravated by the fact that the vessel which was set on fire was a fishing vessel being used by the complainant Daniel Monthy as a means of his livelihood. In an island like Seychelles, where fishing is the means of support and livelihood of many persons, such acts of destruction, threatening their only source of revenue should be dealt with by imposing suitable deterrent punishments. [6] I therefore proceed to sentence the l" accused Alex Monthy to a term of 8 (eight) years imprisonment on Count 1. I also proceed to impose a fine of Seychelles Rupees three hundred thousand (300,0001) on the 1sl convict Alex Monthy and make order that a total sum of SR 250,0001= (Two hundred and fifty thousand) from the said fine, be paid in equal shares SR 125,000.001 (one hundred and twenty five thousand each) to Mr. Errol Dias and Mr. Daniel Monthy as compensation. [7] In default of payment of the fine, the 15t accused will serve a term of 6 (six) months imprisonment which would run consecutive to the 8 years term of imprisonment. Time spent in remand to count towards sentence. [8] I have also considered the mitigation plea made by Learned Counsel for the 2nd accused Francisco Zialor referring to the fact that he is 31 years old, has 4 children and was enticed into doing the act of Arson by the 15t accused. A strong mitigation factor in his favour is that towards the end of the case, he decided to tell the truth and seek forgiveness from the complainant. He undoubtedly has expressed remorse and regret at what he had done. I therefore will proceed to deal with him in a more lenient manner. [9] The 2nd accused Francisco Zialor is sentenced on Count 1 to a term of 6 years imprisonment and a fine of Seychelles Rupees 50,0001 (fifty thousand). In default of payment of fine, he is to serve a term of 6 months imprisonment consecutive to the 6 year term of imprisonment. [10] On Count 3, the 2nd accused is sentenced to a term of 6 years imprisonment. Both 6 years term of imprisonments imposed in respect of Counts 1 and 3 to run concurrently. I make further order that the time spent in remand be reduced from the said term. [11] Both convicts are to be produced in Court prior to being released to verify payment of the fines imposed. Signed, dated a .-aeliveredat lIe du Port on 7 December 2017 Judge of the Supreme Court 3