R v TL (CO 20 of 2022) [2024] SCSC 214 (13 January 2024)

SUPREME COURT OF SEYCHELLES Reportable 1 Redact CO 20/2022 Prosecution Accused In the matter between: THE REPUBLIC (rep. by GuiLmette Leste) and TL (rep. by Joel Camille) Neutral Citation: Republic v T L (C020122022) [2024] Before: Summary: Delivered: Govinden CJ Sentence - Sexual Assault 13th September 2024 I. On Count I, the court Sexual Assault. ORDER impose 15 years' imprisonment for the offence of 2. On Count 2, the court impose 15 years' imprisonment for the offence of Sexual Assault. 3. The sentence imposed under Count 2 shall run concurrently with that imposed under Count 1. 4. The Convict has a right to appeal against his Conviction and sentence. GOVINDEN CJ SENTENCE [I] The Convict after trial was convicted of two counts of the offence of Sexual Assault contrary to section 130( I) read with section 130(2)(d) of the Penal Code and punishable under section 130e I) as read with section 130e4) of same. [2] The particulars of offence are that the convict in Count I, T L, a 33 years old Police Officer of Castor Road, Mahe, while he was living at Pointe Larue, Mahe, on a date unknown to the Republic in 2019, at his residence at Pointe Larue, Mahe, sexually assaulted his stepdaughter namely K M, a student of P2 at the time by penetrating the body orifice namely vagina and anus of the said K M with his finger and his penis for sexual purpose. [3] In Count 2, T L, a 33 years old Police Officer of Castor Road, Mahe, while he was living at Pointe Larue, Mahe, on a date unknown to the Republic in 2019, inside a car at Takamaka, Mahe, sexually assaulted his stepdaughter namely K M, a student of P2 at the time by penetrating the body orifice namely vagina of the said K M with his finger for sexual purpose. [4] Counsel for the convict in mitigation submitted that the convict is a first time offender, he is 36 years old and a father of three dependent chi ldren aged 15, 12 and 8 years old. At the material time of the offence he was an exemplary police officer and has no previous record. Counsel for the convict begged the court to show leniency on his client in considering sentence against convict and to consider imposing the minimal sentence as per the precedence he cited. Counsel also submitted that Section 26 of the Penal Code empowers the court to consider a lesser sentence for a person liable to imprisonment for life or for any other term instead of the prescribed sentence under Section 130eI) wh ich is not less than 14 years and not more than 20 years. [5] For the purposes of sentencing, 1consider the convict to be a first time offender and I have taken into account the mitigating factors as outlined by counsel. The court however views these offences as serious ones. The mere fact that the offender was the victim's stepfather puts him in a position of trust and he abused that trust and authority. [6] In the recent case of R v OB (CR 51 of 2020) [2024] SCSC 65 (17 May 2024) this court stated as follows; ''[1OJIt is important to note that there has been no uniformity in sentencing in these cases. The Court is aware of the need to individualise sentences and to ensure it is proportionate tofit the circumstances of the case and those of the Convict of this particular case. In the case of Ibrahim Gilbert Suleman v Republic (Cr. App. N03 of 1995) the following paragraph is to be quoted; "Much as the Court should be guided by a pattern of previous sentences in similar cases, it must be acknowledged that time and circumstances do often combine to make cases dissimilar for the purpose ofsentencing". [11J The test enunciated in the case ofPonnoo vs R (2011) SLR 424, with regards to totality of sentencing principle has also been followed. Thus, the sentence imposed would be proportionate to the crimes committed bearing in mind the individual circumstances of the Convict. " [7] In GK v The Republic SCA46/2014 Cjudgmentdelivered on 21 April. 2017) in which the Accused was sentenced to 8 years' imprisonment for having anal sex with a 15-year-old boy while intoxicated in a cell, the Court of Appeal stated: "We may not stay insensitive to the call of the day in this area of criminal law. Accused persons convicted ofsuch offences shall not expect leniencyfrom the Court of Appeal or any other Courtfor that matter. " [8] In reaching its decision, the Court considered not only the circumstances that could mitigate the sentence but also those that could aggravate it. With regard to this case, the Court found the following facts to be particularly relevant: I. The victim was very young II. The convict was a stepfather and a guardian III. The Convict was a person of trust over the victim and abused that trust. IV. The convict was a police officer V. The victim was sexually penetrated on more than one occasion. [9] Having considered the pleas in mitigation made by learned Counsel for the Convict, the aggravating factors, the facts and circumstances of this case upon which the convictions were based, the sentencing patterns in cases of a similar nature heard by this court and the Seychelles Court of Appeal, the court proceeds to sentence the convict to: I. On Count 1, I impose 15 years' imprisonment for the offence of Sexual Assault. II . On Count 2, I impose 15 years' imprisonment for the offence of Sexual Assault. III. The sentence imposed under Count 2 shall run concurrently with that imposed under Count I. The Convict has a right to appeal against the sentence against his Conviction and sentence to the Seychelles Court of Appeal. Govinden CJ 4