Dos Santos v R ((SCA CR 16/2024) [2025] (Arising in CO 49/2024) (22 April 2025)) [2025] SCCA 2 (22 April 2025)

IN THE COURT OF APPEAL OF SEYCHELLES Reportable [2025] (22 April 2025) SCA CR 16/2024 (Appeal from CO 49/2024) In the matter between Tamires Souza Hurbath Dos Santos Appellant (rep. by Mr. Olivier Chang-Leng) and The Republic (rep. by Mr. Alvin Marie) Respondent Neutral Citation: Dos Santos v R (SCA CR 16/2024) [2025] (Arising in CO 49/2024) Before: (22 April 2025) Fernando President, Twomey-Woods, Andre, JJA Summary: Appeal against sentence imposed on importation of a controlled drug. Heard: 07 April 2025 Delivered: 22 April 2025 Appeal against sentence is dismissed. FERNANDO, PRESIDENT ORDER JUDGMENT 1. The Appellant who is a Brazilian national has appealed against the sentence of 26 years of imprisonment imposed on her, when she was convicted on her guilty plea to the charge of importation of a class ‘A’ controlled drug, namely 2453.69 grams of cocaine. 2. The Appellant has only one ground of appeal, namely, “The sentence imposed on the Appellant by the learned trial judge is harsh and excessive having regards to the circumstances of the case and past jurisprudence”. 3. Since the Appellant speaks, Portuguese the charge was translated to her by a Sworn Translator who was familiar in translating English to Portuguese and vice versa. On her pleading guilty to the charge and her acceptance as correct of the facts that were narrated to Court by the Prosecuting Counsel and translated to her in Portuguese, she was convicted of the offence as charged. 4. According to the facts, the Appellant had arrived at the Seychelles International Airport on an Emirates flight from Dubai at 6.40 am on the 29th of June 2024. An immigration line check was conducted and the Appellant was found to be in possession of a brown Gucci bag and a hand luggage. The Gucci bag contained USD 800 and a mobile phone. On being questioned by Immigration officers, the Appellant had stated that she had four winter jackets in her hand luggage that she was bringing as a gift for her brother in Brazil. The Immigration Officers had proceeded to check her luggage which contained four jackets and found two of the jackets had been torn from inside. She was then told that the jackets will be scanned to which she agreed. The scan had shown that there was an abnormality with the four jackets and therefore she was moved out of the line and handed over to the police. The Police officers had conducted a body scan on the Appellant and no foreign objects were found on her. The Appellant had then been taken to the Organized Crime Unit Office at Boise De Rose. There in the presence of a Portuguese translator the Appellant was informed in Portuguese that a further search will be conducted on her Gucci bag and hand luggage. Inside one of the jackets when it was cut open the police had found, condoms containing a liquid like substance which was suspected to be drugs. The condoms were clear white and tightened with a knot at the top. Each of the jackets were searched thereafter and inside a blue and white coloured jacket there were 35 condoms. The green, blue and white jacket contained 34 condoms and the red black and white coloured jacket contained 35 condoms. In total there were 140 condoms in the jackets containing a liquid like substance suspected to be cocaine. The Appellant had then been arrested, cautioned and informed of her constitutional rights and her Gucci bag, the USD 800 and mobile phone seized as exhibits. The 140 condoms on analysis was found to be cocaine having a total net weight of 2453 grams of cocaine. The Appellant had admitted the facts as narrated by the Prosecuting Counsel and since she had already pleaded guilty to the charge she had been convicted as charged. 5. In mitigation Counsel for the Appellant at the trial before the Supreme Court had stated that the Appellant is a young woman of 33 years of age, a Brazilian national, a hair-dresser by profession, and a single mother of two young children aged 8 and 3 years. Presently her children are under the care of her mother. She is a first time offender and had pleaded guilty at the first given opportunity and is remorseful for her actions. Her motivation to commit the crime was born out of her financial situation. There is no proof of the facts stated in mitigation other than as regards the nationality and age of the Appellant based on the information in her Passport and the fact that the Appellant had pleaded guilty at the first given opportunity. 6. In imposing a sentence in this case, the following provisions in the Misuse of Drugs Act (MODA) 2016 become relevant. The maximum sentence for importation of a class A drug is life imprisonment and a fine of SCR 1 million. The indicative minimum sentence for an aggravated offence of Class A drug is 20 years’ imprisonment. 7. MODA 2016 provides where an aggravating or mitigating factor as specified in the law applies, the Court shall expressly identify and give weight to it in considering the appropriate sentence. Aggravating factors that support a more serious sentence set out in section 48(1) of MODA includes among other factors are: (a) the presence and degree of a commercial element in offending, particularly where controlled drugs have been imported into Seychelles and (b) the involvement of an organised criminal group to which the offender belongs. Undoubtedly, both these factors are of relevance to the facts and circumstances of this case. MODA 2016 provides where one of these factors is present to a significant extent, the Court shall treat the offence as aggravated in nature. According to section 7(4) of MODA, where a person is convicted of an offence of trafficking in more than 250 grams of cocaine, the Court shall treat the offence as aggravated in nature. In my view importation, which also is a form of trafficking, is more serious an offence than trafficking. This is because a person importing dangerous drugs is attempting to deceive the border control officers of the country of his departure, arrival and the countries he is transiting. MODA also states where the offence is aggravated in nature, the Court shall have due regard to the indicative minimum sentence set out in the law. 8. The only mitigating factor in my view that is of relevance to the circumstances of this case as set out in MODA 2016 is the Appellant’s admission of the truth of the charge by a guilty plea, particularly an early guilty plea. None of the other mitigating factors specified in section 49 of MODA exist. The learned Sentencing Judge has however had also taken into consideration the fact that the Appellant “is the mother of young children who will definitely be affected by the sentence imposed.” In my view, this is not a mitigating factor. Firstly, there is no proof of this before the Court, save the submission of Counsel for the defence from the bar on unverified information, which has been told to him probably by the Appellant. Secondly, the Appellant should have thought about her children, before she decided to embark on a criminal mission of this nature, which would lead to the destruction of the lives of several young persons and affect the lives of many young children when their parents get addicted to the use of controlled drugs like heroin and cocaine. In sentencing an accused one needs to balance the interests of the adverse effects that an accused person’s conduct has on his or her family with that of a whole community. 9. The above said mitigating factor in this case do not tip the scales in favour of the Appellant over the presence of the aggravating factors against her as set out in section 48 of the Misuse of Drugs Act, 2016, namely the presence and degree of a commercial element in the offending because of the amount of the cocaine imported and the involvement in the offence of an organized group to which the offender belongs as clearly seen from facts of this case. These facts call upon the Court to treat the offence as aggravated in nature. 10. The Counsel for the Appellant has not come up with any of the accepted grounds for an appellate court to disturb the sentence imposed by the Sentencing Court. Simply placing reliance on two judgments of the Supreme Court, which were not appealed and where in my view, manifestly inadequate sentences have been imposed for importation of a larger quantity of heroin do not suffice. I am conscious that there needs to be a pattern in sentencing of offenders, but that does not mean that this Court is to be persuaded by a manifestly inadequate sentence that has been imposed in an earlier case by the Supreme Court merely to ensure uniformity with earlier cases. If that be the case a sentencing Judge would be left with little discretion in sentencing. It is to be noted that the facts and circumstances and the aggravating and mitigating factors of each case are not identical. It is clear that imposition of manifestly inadequate sentences in respect of import of controlled drugs has led to an increase of drugs being imported into the country by foreigners. 11. It was held in Suki V R (SCA 10 of 2019) by this Court, that although the requirement for consistency in sentencing is one of the underpinning principles of equality before the law and a useful aid to assist a court in determining an appropriate sentence; in the final analysis however, each case must be decided on its own merits, since no two cases are the same. Citing the High Court of Australia case of Hili V The Queen (2010) HCA 242 this Court said, consistency is not demonstrated by and does not require numerical equivalence, rather consistency is obtained in the application of the relevant legal principles. In Osama Brandon Casime & Hifa Noura Casime V R (SCA 07 & 08/2019) this Court held that: “Sentences in and of themselves do not delimit the exercise of discretion and are not binding precedents. The sentencing exercise is not merely the imposition of a number in a previous decision presenting similar circumstances. Rather it is an exercise of discretion in which the Sentencing Judge must tailor a sentence according to the particular circumstances of the case.” In Marengo V R (Criminal Appeal SCA 29/2018) this Court stated that “Sentencing is a discretionary power exercisable by the Court. It involves human deliberation of the appropriate sentence to be imposed for a particular offence in the circumstances of the case; it is not the mere administration of a common formula, standard or remedy.” 12. In Suki V R SCA 10 of 2019, where the appellant had been convicted by the Supreme Court for importation of 523.7 grams of heroin, which is 1930.62 grams less than the amount imported by the Appellant the sentence of 15 years’ imprisonment imposed was upheld by this Court. In the case of R V Peter Nwachukuwa CR 64 of 2021, where the accused imported 1114 grams of cocaine with a cocaine content of 746 grams, which is less than 1707 grams less than the amount imported by the Appellant, the accused was sentenced to 11 years. In the case of R V Noeline Namatovu CR 86 of 2021, where the accused imported 500.50 grams of cocaine, which is 1953 grams less than the amount imported by the Appellant, the accused was sentenced to 10 years. In the case of R V Mohamedi Khalidi Mikidadi (CO6/2022) SCSC (10 May 2022), the accused on pleading guilty for importation of 285.03 grams of pure cocaine, which was 2168.66 less than the amount imported by the Appellant; had been sentenced to 9 years’ imprisonment. In the case of R V Prince Amari CR 45 of 2022, where the accused imported 1892.27 grams of cocaine with a cocaine content of 1342.85 grams, which is 1111 grams less than the amount imported by the Appellant, the accused was sentenced to 14 years. In the case of R V Nellie Kawinga CR 80 0f 2023, where the accused imported 874.33 grams of cocaine, which is 1579 grams less than the amount imported by the Appellant, the accused was sentenced to 15 years. In Patrick Uwaoma SCA CR 05/2023, where the appellant had been convicted by the Supreme Court of importation of cocaine with a net weight of 4896.10 grams, the sentence of 30 years’ imprisonment imposed, was upheld by this Court in December 2023. to in this criminal involve herself transaction due 13. I am in total agreement with what the learned sentencing Judge has stated at paragraph 8 of his Sentencing Order, namely: “The Accused states that she decided 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 ills 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.” 14. The Appellant had argued that credit ought to have been given to her in the form of a discount on her sentence and seemed to suggest that a 1/3rd discount should have been given, relying on the case of R V Plaku (2021) EWCA Crim 568. It is the Appellant’s position that she pleaded guilty at the first reasonable opportunity and accordingly saved the time and resources of the court. At the outset I wish to state that Plaku was decided based on the Sentencing Code created by the Sentencing Act 2020 of UK (formerly section 144 of the Criminal Justice Act 2003), which has no application in the Seychelles, which is a sovereign Republic. I wish to point out that the 1/3rd discount principle enunciated in Plaku cannot be applied in respect of certain offences where the law provides that a person convicted of an offence is liable to imprisonment for life, or where the maximum sentence prescribed in the law is one of life imprisonment. The simple question the Appellant has failed to answer is 1/3rd discount from what? and this is because there is no yard stick to gauge how the 1/3rd discount can be measured, without any definitive determination when a person would die. Examples of these would be the offence of manslaughter under section 195 of our Penal Code where the law provides that a person convicted of manslaughter is liable to imprisonment for life or the offences of importation, exportation, manufacture and trafficking where the maximum sentence prescribed in the MODA is one of life imprisonment. In the case of Noris Pothin V R SCA CR 2 of 2007 this Court held: “The words ‘life imprisonment’… should be given their ordinary and natural meaning… If the legislature was desirous of rationalising this aspect of the law, it should be encouraged to do it but until then, life imprisonment should mean life imprisonment.” Besides, if the principle enunciated in Plaku had application in Seychelles it cannot be said, the sentence imposed on the Appellant militates against the 1/3rd discount principle enunciated in Plaku, in view that the maximum sentence prescribed for an offence of this nature is one of life. This is because, although the natural life span of any given individual cannot be numerically determined and equated to a fixed number of years, it is to be noted that the average life expectancy for women globally is above 75 years. In the case of Osama Brandon Casime & Hifa Noura Casime V R (SCA 07 & 08/2019) this Court held, interpreting section 30 (2) of the Prisons Act, that where a person has been convicted of an aggravated offence under MODA 2016, he is not entitled to remission of the period of sentence. Although the basis for entitlement for remission and discount are different, this shows the attitude of the Legislature in relation to aggravated offences under MODA. I am of the view in the context of the MODA where the maximum sentence that can be imposed is one of life imprisonment and the indicative minimum sentence for class ‘A” drugs is 20 years’ imprisonment in a case where the offence is of an aggravated nature; to impose a sentence below the indicative minimum sentence there needs to be exceptional circumstances. The words “indicative minimum sentence” simply means ‘pointing out to the least possible sentence’ that can be imposed, which is 20 years. Also granting of a discount on the sentence to an accused who pleads guilty at the first instance, should mainly apply in my view to cases where the acceptance of guilt reduces the impact of the crime on the victim and saving them from the hassle of testifying and not necessarily in cases of importation, trafficking, and manufacture of controlled drugs or dangerous weapons, which has an impact on the whole community. I am not however unmindful of saving court time and resources. I am also of the view that in a country like the Seychelles, 7