R v Padmasiri (CO 45 of 2024) [2024] SCSC 153 (24 July 2024)

SUPREME COURT OF SEYCHELLES Reportable CO 45/2024 Applican t/Petitioner In the matter between: THE REPUBLIC (represented by Mr. Barry Galinoma) and MAWALLA KATT ADILAGE PADMASIRI (represented by Mr. Clifford Andre) Accused J [24th July 2024] The republic vis-Padmasiri (C045/2024) Adeline, Sentencing of a convict Vessel License. Section 11 (1) read with Section 69 of the Fisheries Act, 2014. 29th June and 18th July 24th July 2024 for the offence of Fishing Without a Foreign Fishing SENTENCE Neutral Citation: Before: Summary: Heard: Delivered: Adeline J, [I] By way of an amended formal charge pertaining to CB No.89106/24, filed in court on the 9thJuly 2024, the accused, one Mawalla Kattadilage Padmasiri, now a convict, was charged with a single count of Fishing Without a Foreign Fishing Vessel License. The statement of offence reads as follows: - "Fishing without a Foreign Fishing Vessel License, contrary to Section 11(1) read with Section 69 of the Fisheries Act, 2014 (Act 20 of2014) and punishable under Section 58(a) of the said Act ". [2] The particulars of the offence as written in the formal charge reads as follows: - "Mawalla, Kattadilage, Padmasiri aged 58years old, Sri Lankan national and skipper of the Foreign Fishing Vessel (FV) Sampath 16 bearing registration number IMULA0835KLT, along with his crew, on the 9th June 2024, at approximately 94 Nautical Miles South East of Mahe, within the Seychelles EEZ, used the said Foreign Fishing Vessel, that is not licensed or authorisedfor fishing in Seychelles waters JJ. [3] On the 24thJune 2024, the accused I convict pleaded guilty to one count of Fishing Without a Foreign Fishing Vessel Licence, and after admitting the facts pertaining to the charge laid before the Court by the prosecution, he was accordingly convicted of one count of Fishing Without a Foreign Fishing Vessel Licence. [4] In plea in mitigation, learned defence counsel submitted, that the court must take into account as a mitigation factor, the fact that the accused has pleaded guilty at the first available opportunity, at a time when the prosecution has not even disclosed to the defence the prosecution's docket containing the relevant documents. [5] It was submitted by learned defense counsel, that a plea of guilty at such early stage of the proceedings has saved the court valuable time and resources, and as such, the accused should be credited. Learned counsel also submitted, that the accused is the father of four children, two of whom are still dependent on him to provide them with their needs for their well-being and upbringing. [6] It was the submission of learned counsel, that when it comes to sentencing an accused convicted of Fishing Without a Foreign Fishing Licence, the Court of appeal case of Mahalingam Kanapathy SCA CR14/2021 SCC A 36 (19th August 2022) offers good guidance as to how the court should approach sentencing, and the factors which the court has to consider to decide on a sentence that is just and reasonable. [7] As per learned counsel's submission, in Kanapathy (Supra), the Court of Appeal substituted the sentence imposed by the trial court, which was a fine of SCR2,500,OOO. OO to be paid within 14 days in default of which the accused was to be imprisoned for 2 years, and for seizure of the fishing vessel and all its gears by a lesser sentence after taking into account the mitigating factors which the Court a quo failed to take into account. [8] It was submitted by learned defence counsel, that in Kanapathi (Supra), the convict was ordered to pay a fine of SCR400,000.00 within a period of one month from the date the judgment that was delivered on the 19th August 2022, in default of which, the vessel and its gears as well as its equipment were to be forfeited to the republic. [9] Learned counsel submitted, that the Court of Appeal came to this sentence after taking into account several factors and principles many of which have been developed through case law and are found in our jurisprudence. Learned counsel urged the court to rely on Kanapathy (Supra)and to impose a non-custodial sentence in the form of a fine that would be justified on account of the whole facts and circumstance of this case. [10] In order to met out the sentence that would be just and appropriate in this case, it is necessary, at this juncture, to be clear of the penalty prescribed by law for the offence of Fishing Without a Foreign Vessel License. The penalty for such offence is prescribed under Section 58 of the Fisheries Act, 2014. [11] Section 58 reads as follows-; "Where a Foreign Fishing Vessel that is not licensed in accordance with Section 11 is used for fishing or any fishing related activity in Seychelles waters or for sedentary species on the continent shelf, the owner and master each commits an offence and is liable on conviction, where theforeign fishing vessel is: - (a) of a length overall not exceeding 24 metres, to a fine not less than SCR2,500,000.00,' (b) of a length overall exceeding 24 metres but not exceeding 50 metres, to ajine not less than SCR12,500,000.00,' (c) of a length overall exceeding 50 metres or more, to a fine not less than SCR18,750,000.00 and not exceeding SCR31,250,000.00". [12] Furthermore, it is prescribed under Section 70 of the Fisheries Act, 2014 for forfeiture of the vessel, its gears and articles, Section 70 of the Fisheries Act, 2014 is couched in the following terms: - "Where a person is convicted of an offence under this Act, the court may, in addition to any other penalty, (a) order theforfeiture of thefishing vessel, any gear or article used in the commission of the offence,' (b) order theforfeiture of anyfish caught in breach of this Act,' (c) order that the Master of the vessel shall be prohibited from operating or boarding any jishing vessel in Seychelles' watersfor a period of two years from the date of his conviction. [13] My reading of the sentences under Section 58 (a) - (c) of the Fisheries Act, 2014 leads me to the conclusion that they are minimum mandatory sentences and that they are limited to fines only. Therefore, there is no statutory provisions providing for a custodial sentence for Fishing Without a Foreign Fishing License under the Fisheries Act, 2014. It is also the case, that the sentences prescribed under Section 58 of the Fisheries Act, 2014 vary depending on the length of the vessel. [14] I note, that the prosecution has not provided the court with information pertaining to the length of the fishing vessel used in the commission of the offence. Therefore, for the purpose of this sentencing exercise, because the accused/convict was charged and convicted under Section 58 (a) of the Fisheries Act, 2014, I take it that the vessel does not exceed 24 metres and as such, the convict is liable to a fine of not less that SCR2,500,000.00. [15] My reading of Section 70 of the Fisheries Act, 2014 is that forfeiture of the fishing vessel used for the commission of the offence as well as its gears, equipment and articles are not mandatory, but rather, at the discretion of the Court, which discretion, in my view, must be exercised reasonably taking into account the whole facts and circumstances of the case. [16] As I consider the sentence which in my opinion would be just and appropriate to reflect the facts and circumstances that the accused/convict committed the offence, I started from the premise that the offence committed by the accused/convict that led to its conviction attracts a minimum mandatory sentence of a fine of SCR2,500,000.00. I then proceeded to establish whether there are mitigating factors and extenuating circumstances that should be taken into account that would render the accused/convict liable for a lesser sentence. [17] I have also applied the factors that have to be taken into account to the facts and circumstances that offence was committed as well as the principles enunciated by case law in our jurisprudence. The need for such an approach was stated in the case of Njue V R (2016) SCCA 12, when the court had this to say: - "....when sentencing, a court must be guided by several principles includingpublic interest, the nature of the offence and the circumstance it was committed, whether there is a possibility for the offence to be reformed, the gravity of the offence, the prevalence of the offender, the damage caused, any mitigating/actors, the age and previous records of the accused, the period spent in custody and the accused's cooperation with law enforcement agencies. These factors can be grouped into three categories, namely, looking at the crime committed, the offender and the interest 0/society ', I am reminded of the case of Lawrence VIS Republic 1990 SLR47, in which case the court mentioned the principles of sentences which are deterrence, prevention, and rehabilitation". [18] Therefore, the fact that the accused/convict pleaded guilty at the first available opportunity, that in itself is a mitigating factor that cannot be ignored and its consideration necessitates a departure from the minimum mandatory sentence towards a lesser sentence. [19] The principle that a guilty plea would earn a convict a reduction in sentence is well elaborated in Blackstones's Criminal Practice and has been put in application in Mahalingam Kanapathi SCA CR14/2021. Furthermore, the fact that no antecedent ofthe accused/convict was put before this C0U11to show that the accused/convict has previous criminal convictions that would have been an aggravating factor to be taken into account, I have treated the accused/convict as a first time offender. [20] In the final analysis, therefore, guided by the case of Kanapathi (Supra), after considering all the relevant factors and the principles of sentencing, I sentence the accused/convict Mawalla Kattadilage Padmasiri to pay a fine of SCR400,OOO. OOwithin two months from the date of this sentence in default of which the Vessel (FV) Sampath 16, its gears and other equipment on board shall be forfeited to the Republic. [21] I order that the proceeds of sale of the frozen sharks, the shark fins, the sail fish and mix demersal (red snapper and two spot red snapper) be forfeited to the Republic. The accused/convict has 30 days to appeal against this sentence. [22] A copy of this order is to be served on the Commissioner of Police. Signed, dated and delivered at Ile du Port on 24th July 2024. 6