R v RJ (CO 22/2019) [2021] SCSC 990 (13 September 2021)

SUPREME COURT OF SEYCHELLES Redact [2021] scsc srb CO 22/2019 Republic Accused In the matter between: THE REPUBLIC (rep. by Ms Monthy) and RJ (rep. by John Renaud) Neutral Citation: Republic vJ (CO 22/2019) [2021] scsc5f'6 (13 September Before: Summary: Heard: Delivered: 2021). Burhan J Sexual Assault. Sections 130(1), 130(2) (d) & Section 130(3) (b) of the Penal Code. 20 August 2021 13 September 2021. SENTENCE BURHAN J [1] The accused in this case RJ has been charged with the following offence; Count 1 Sexual Assault contrary to Section 130 (1) as read with Section 130 (2) (d) & Section 130 (3) (b) of the Penal Code and punishable under Section 130 (1) a/the Penal Code. Mr. RJ 0/ , Mahe, on Sunday 17th December 2017 at Stad Linite at Roche Caiman Mahe, on Sunday 11'h February 2018 at Beau Vallon Mahe and on another date unknown to the prosecution in February 2018 at Les Mamelles Mahe, sexually assaulted another namely M\', SL, aged 14 years old at the time, by inserting his penis into the vagina of the victim. [2] The accused was found gui Ity and convicted on the said Count of Sexual Assault on a girl of ] 4 years of age. [3] I have considered the plea in mitigation in writing made by learned Counsel for the accused Mr. Renaud wherein he submits that the accused is a well-loved and respected person in the family and was always included in family activities. There are no complaints from any of the family members that he did any harm to them but he is a person who would always lend them a helping hand. Learned Counsel further submitted that there is no indication that any force was used on the victim. The accused is a first offender. He is 42 years of age and employed and the sole breadwinner of the family which includes a one year old daughter. In mitigation learned Counsel relied on the evidence of another 15 year old relation who stated she never felt uncomfortable in the presence of the accused. He moved Court to consider the least possible custodial term that could be imposed, [4] I have considered the facts set out in the probation report regarding the family background of the convict. It confirms the fact the accused is 42 years of age at present. It is apparent from the report that the accused has worked as a labourer for a period of20 years and as a driver for a period of one and a half years. The accused has no health issues and he still denies committing the offence. The mother of the accused has also stated he is a person with a good heart and that he would spend most of his time with the victim's family. She too maintains her son is innocent. The mother of the victim has stated to the probation officer that it was a big shock to her to have heard about the incident from the daughter of her cousin as the accused was like family and states she is very hurt and angry at what happened. She states she cannot forgive the accused. [5] Social Services have indicated that after the incident, the child victim had undergone counselling sessions and the services continue to monitor the victim and render assistance to her. The probation officer after analysing the facts contained in the report recommends that those who engage is this type of behaviour should be faced with a serious punishment .. " that will serve as a deterrent measure and a signal to the others to refrain from engaging in similar conduct. [6] In the case of C v The Republic SCA 28 and 29 of 2015, the Seychelles Court of Appeal took into consideration the age of the accused and as he was in a parental position to the many children he abused and recommended that sentencing Courts should add an element of retribution to punishment in crimes of this nature, to express the pain and disgust of society when it convicts an accused of such a crime. The trauma a young victim suffers and continues to suffer throughout his or her life is another factor to be considered at the time of sentencing. [7] Tnthe said case, the Seychelles Court of Appeal upheld a sentence of 8 years imposed on the convict in each of the two cases involving more than one child, and the sentences of 8 years imprisonment ordered in each case was made to run consecutively totalling 16 years. [8] In R v D. S. (CR 5012018) [2019J SCSC 55 (04 January 2019) and again in R v J. E (CR 3612019) [202OJSCSC 113 (14 February 2020), the Court stated that the revulsion, fear and disgust of the community in this regard cannot be underestimated. The degenerate conduct of rapists and paedophiles are a curse onto our society and our children need to be protected from their acts. The specific provisions of the Penal Code relating to such offences need to be applied by the Courts in the way it was intended. [9] I have considered the seriousness of the offence which is aggravated by the fact that at the time of the incident the accused was a 38 year old man and the victim a 14 year old young girl. The offence is further aggravated by the fact that the accused according to the evidence was having a relationship with the mother of the victim. In this instance case according to the prevailing law, the convict faces a maximum term of 20 years imprisonment for the offence. Further the evidence of the victim indicates that there was penetration during the sexual acts committed on her on more than one occasion. He has not expressed remorse or regret in respect of his actions. [10] Having considered the aforementioned factors together with the plea in mitigation, I proceed to sentence the convict in this case to a term of 8 (eight) years imprisonment on Count 1. [11] Time spent in remand to count towards sentence. Sig~d' d. ted an elivere,d at lie du Port on 13 September 2021 "V" o "V Burhan J / I, I. 4