IN THE SEYCHELLES COURT OF APPEAL - - Missing Children Website

IN THE SEYCHELLES COURT OF APPEAL

IAN BISTOQUET -Appellant
v.s -Respondent
THE REPUBLIC

SCA No: 3 of 2007
===========================================
Before: Bwana, Hodoul, Domah, JJA

Counsel: Mr. Herminie for Appellant
Ms. Carolus for Respondent

JUDGMENT

BWANA, JA

1. This is an appeal against sentence. The Appellant then 18 years
old, was charged and convicted of Sexual Assault contrary to section
130(1) and 130(2) (d) of the Penal Code as amended. He was
sentenced to a prison term of six years. He has raised two grounds of
appeal namely:-

1.1 The sentence is harsh and excessive.

1.2 The learned trial judge failed to take into account the particular
circumstances of the case before imposing the sentence.

2. In so far as 1.1 (supra) is concerned, it was submitted that the
Appellant, being a young man of 18 years, first offender and who
had a steady relationship with the victim (14 year old then)
deserved a less severe custodial sentence. A number of recent
similar cases by both this Court and the Supreme Court and
wherein less serious sentences were imposed, were cited.
Comparatively, it was argued, the sentence imposed in this case
was “by any standard considered as manifestly harsh and
excessive.”

3. Concerning the second ground of appeal (para. 1.2 supra), it
was submitted that the trial court should have considered that the
convict and victim were friends and that they have known each other
in a steady relationship for quite a while. Further, the trial judge
should have also considered that even though there was no consent in
law, there was consent in fact, since this was not a case where the
convict raped his victim but a case where both the convict and victim
agreed to have consensual sexual intercourse. It was also submitted
that being 18 years old, the convict was not mature enough to give
thought as to the age of his victim.

4. The Respondent, on its part and citing several parts of the trial
court’s judgment, is of the view that the sentence imposed was not
harsh and excessive, but rather, justifiable. Counsel for the
Respondent referred to several issues that the trial judge took into
consideration before imposing that sentence. Such issues included:-

4.1 The offence carries a maximum sentence of 20 years
imprisonment.

4.2 The commission of offence resulted in the pregnancy of the
victim.

4.3 The degree of public revulsion for such offences and prevalent
concern for the protection and welfare of children.

4.4 Mitigating factors.

Several decided cases were cited in support of the foregoing views.

5. In the case of Raymond Mellie v The Republic (SCA 1 of
2005) at para. 12 we did state and we prefer to reproduce our views
hereunder:-

“We are aware of recent (2005) amendments to the law on
offences of this kind. It is obvious that the trend in these
frequent amendments send a clear signal that the Government
and the public at large want severe punishments to such
offenders…”

6. In sentencing convicts, courts of law should and are always
guided by, inter alia, factors such as character, background of the
convict, the seriousness of the offence committed and factors leading
to its commission, mitigatory factors and other extenuating issues
including but not confined to the uniformity in approach to sentencing

policies. We are minded of the words of this court in the case of
Ibrahim Gilbert Suleman v Republic (Cr. App. No. 3 of 1995) thus
-

“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
purposes of sentencing.”

7. In the much celebrated case of Dingwall v R (1966)SLR 205, it
was held that an appellate court will alter a sentence imposed by a
trial court when it is evident that either the trial court acted on a
wrong principle; the trial court overlooked some material factor; or if
the sentence is manifestly excessive in view of the circumstances.

What this means, in a nutshell, is that when sentencing a convict, the
court must act judicially and observe basic principles of justice. A
sentence so meted out must be commensurate with the offence. The
court must take into account all relevant factors which are particular
and/or peculiar to the offence and to the offender.

8. In the instant appeal, we have taken into consideration the
foregoing. If anything, it is our view that the sentence imposed is on
the low side, given the vulnerable age of the victim, the resultant
pregnancy and the overall need for deterrent punishment in offences
of this kind.

We are therefore, of the view that the six year prison sentence
imposed by the trial court is reasonable in the circumstances. We see
no reason to disturb it. This appeal against sentence therefore fails.
It is dismissed.

…………………………………….
S. J. BWANA
Justice of Appeal

I concur: ……………………………….....
I concur: J. M. HODOUL
Justice of Appeal

…………………………………….
S. B. DOMAH
Justice of Appeal

Dated this 24th August 2007, Victoria, Seychelles.