R v Tamires Souza Hurbath Dos Santos (CR 49 of 2024) [2024] SCSC 209 (31 October 2024)

IN THE SUPREME COURT OF SEYCHELLES Reportable CR49 12024 Prosecution In the matter between THE REPUBLIC (rep. by Alvin Marie) and TAMIRES SOUZA HURBATH OS SANTOS (rep. by Olivier Chang-Leng) Accused Neutral Citation Before: Summary The Republic v Tamires Souza Hurbath Dos Santos (CR49/2024) delivered on 31Sl October 2024 Vidot J importation of a controlled drug contrary to section 5 of the Misuse of Drugs Act 2016 'and punishable under section 5 and the Second Schedule of the said Act Heard: 18 October 2024 Delivered: 31 October 2024 The Accused is sentence to 26 years in prison. The offence is aggravated due to its commercial element the Accused shall not be entitled to remission ORDER VIDOT J SENTENCE [I] The Accused stands - charged with and pleaded guilty to one count of importation . of a controlled drug contrary to section 5 of the Misuse of Drugs Act 2016 and punishable under section 5 and the Second Schedule of the said Act. [2] The particulars of the offence are that the Accused, a Brazilian national, on 29 June 2024, imported into Seychelles a controlled drug namely cocaine having a total net weight of 2438.17 grams by causing the said controlled drug to be imported into Seychelles concealed in four winter jackets and wrapped in condoms. [3] A fie I' the facts were read out by the Prosecution and admitted by the Accused, the Court accordingly convicted her. Counsel for the Accused proceeded to make submission in mitigation. In pleading to Court to show leniency on his client, Counsel noted that she is a first time offender, She has pleaded guilty thereby saving the Court's precious time and save the inconvenience of witnesses having to testify before Court. She has thus shown remorse. She is a single mother of two young children 00 and 8 years old. She also takes care of her mother. She works as a hairdresser. The Accused explained that it was due to financial hardship that she agreed to import drugs into Seychelles. [4] I find that in line with section 49 of MODA, mitigating factors exist that will assist in appeasing the severity of sentence to be imposed. The admission of the charge through a guilty plea is a mitigating factor. Other mitigating factors include the Accused's acceptance of responsibility for the harm or potential harm associated with such offence, the absence of prior convictions or prior formal cautions under MODA and the fact that no other person was directly harmed by the offence. All such mitigating factors would indeed earn the Accused credit as far as sentence is concerned. [5] However there exist aggravating factors in regards to the offence such as the presence and degree of a commercial element in the offence. The Class A controlled drug imported is rather on the high side. [6] In his plea for a minimal custodial sentence, Mr. Chang-Leng relied on the case of Republic v Bashiru Chande C020/2024. In that case, the accused had imported into Seychelles 4953.20 'grams of heroin and received a 9 year sentence. That case referred to Suki v R (SCA 10 of 2019)[20201 SCCA 13 (21 August 2020) where the Accused imported 523.7 grams of heroin and 151 grams of cocaine and received a sentence of 8 years imprisonment. In R v Vambe (C0105 of 2021)[20221 SCSC 294 (31 March 2022) the accused "imported 1512 grams of heroin and 503 grams of cocaine and was sentenced to 5 years imprisonment on each count. [7] In contrast, this Court has imposed more severe sentences on foreigners who import drugs into Seychelles. These sentence commensurate with the gravity of such offences. Such cases include; R v Peter Nwachukuwa CR 64 of 2021 where the accused imported 1114 grams of cocaine with a cocaine content of746 grams and received a sentence of 11 years imprisonment. In R v Nellie Kawinga CR80 of 2023, the accused imported 874.33 grams of cocaine and the court imposed a sentence of 15 years imprisonment. In R v Noeline Namatovu CR86 of 2021 the accused imported 500.50 grams of cocaine and this Court imposed a sentence of 10 years imprisonment whilst in R v Prince Amari CR45 of 2022 this Court imposed a sentence of 14 years for importation of 1892.27 grams of controlled drugs with a cocaine content of 1342.85 grams. [8] The Accused states that she decided to involve herself in this criminal transaction due to financial hardship. To be involved in criminality is never an option. Furthermore, if the drug, which has a considerable commercial value as provided under section 48(1)(a) of the MODA, had reached the market, a sizable portion of the population particularly the youth would have been affected. This is because use of drugs is pervasive amongst our small population. The destruction it causes is alarming. The fight against drugs remains a challenge of mammoth proportion in the Seychelles. We are losing part of a generation due to this insidious cancer. Many of the social ilis witnessed today are due to drugs. It is also alarming that foreigners use our country as a playground to benefit from their poisonous trade. It needs to stop. Any sentence imposed should send a clear message to others that this jurisdiction will not allow itself to be violated in that manner. Much needed resources, be it human or monetary are being washed down the drains just to arrest the drug problem. [9] In meting out sentence I have taken into consideration all mitigating factors and in particular the fact that the Accused is the mother of young children who will definitely be affected by the sentence to be imposed. [10] In meeting out sentence, I bear in mind that the classic principles of sentencing deterrence, prevention, rehabiIitation, reformation and retribution; see Lawrence is v Republic [1990] SLR 47. I shall also take into consideration the principle of proportional ity of sentence. [11] When I consider the principal of proportionality of sentence, I note that it operates to guard the imposition of unduly lenient or unduly harsh sentence. In R v Scott [2005] NSWCCA 152, the Court in Australia stated "There in a fundamental and immutable principle of sentencing, that the sentence imposed must ultimately reflect the objective seriousness (~fthe offence committed and there must be a reasonable proportionality between the sentence passed and the circumstances of the crime committed. The principle arose under the common law: R v Geddes [1939) SR (-NSW)554 and R v Dodd [1991} 57 A Crim. R 349 one of the purposes of punishment is "to ensure that an offender is adequately punished"" [12] After, considering all mitigation factors, I sentenced the Accused to a term 26 years imprisonment. [13] The offence is aggravated in view of its commercial element, therefore the Accused shall not be entitled to remission. [14] . If unsatisfied with this sentence, - working days from today. Signed, dated the Accused may appeal against the same within 30 4