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Same crime, different time? |14 May 2021

The judiciary plays a fundamental role in most societies, and is a key aspect of democratic life. As one of the three arms of government in Seychelles, the judiciary, comprising the courts of law, interprets and applies the law, settles disputes, and punishes individuals who break the law in accordance with the laws of the Republic, towards upholding peace, maintaining social order and good governance, as well as to uphold the rights of citizens and government.

 

Seychelles’ judicial system

In Seychelles, the judiciary comprises the Magistrates Court, Supreme Court, Constitutional Court and the Court of Appeal, as well as other courts and tribunals created by law such as the Employment Tribunal and Family Tribunal.

The Magistrates Court is a trial court for lower value civil claims, and less serious criminal charges, while the Supreme Court is the trial court for serious criminal charges, and high value claims. Matters relating to the Constitution of Seychelles are dealt with by the Constitutional Court, as provided for under Article 46 and Article 130 of the Constitution, the supreme law of the country, which imparts to the court powers to determine violations in relation to the Seychelles Charter of Fundamental Human Rights and Freedoms, and other violations of the Constitution.

The Court of Appeal is the highest appellate court in the land, with power to hear only cases on appeal. The court, presided over by five Justices of Appeal including the President of the Court of Appeal, presently Anthony Fernando, hears both civil and criminal appeals from the Supreme Court. 

Seychelles’ legal system is a unique mix, borrowing from both the French and British legal systems. Legislation passed by the National Assembly of Seychelles, the legislative branch of government, is also a source of law to which the courts operate to carry out the administration of justice in accordance with the rule of law.

In handling criminal matters, courts are not necessarily responsible for enforcing criminal laws, but for ensuring the criminal justice process proceeds in accordance with the law. After a decision has been made by the Attorney General’s chambers to prosecute someone for an alleged crime, the person becomes a defendant in court, and if he/she pleads guilty, or is found to be guilty, he/she becomes an offender, and will be sentenced by court.

The magistrate or judge in deciding the appropriate sentence considers the facts of the case, and the sentence should reflect the crime committed and be proportionate to the seriousness of the offence.

Why then are different sentences imposed for crimes or offences of a fairly similar nature?

Seychelles NATION contacted the judiciary for more information pertaining to the factors considered by courts in making determinations for sentencing.  

 

Sentencing

A sentence is the punishment a judge or magistrate decides should be given to someone who has been convicted of a crime, at the end of a prosecution. Sentencing aims not only to punish the offender for the crime committed, but also aims to deter others from similar acts, while also reforming of rehabilitating offenders.

When considering a sentence, as well as bearing in mind the purposes of sentencing, the judge or magistrate must refer to the law, including the maximum and, in some cases, minimum sentence and any sentencing guidelines relevant to the offence that has been committed. The sentencing guidelines set out the process judges and magistrates should follow and the factors they should consider to work out the appropriate sentence.

The factors taken into account will vary depending on the facts of each individual case, and include consideration of the seriousness of the offence, harm caused to the victim, the offender’s level of blame, their criminal record, their personal circumstances and whether they have pleaded guilty.

 

Mitigating and aggravating factors in sentencing

Any facts or circumstances that lessen the severity or culpability of the criminal act are referred to as mitigating factors, and are prescribed by law. Among the factors that could see the defendant off with a more lenient sentence are whether or not they had a major role to play in the crime, whether they willingly partook in the crime, or whether the defendant committed the crime due to unusual circumstances such as temporary emotional difficulty or extreme stress.

Court will also consider if the defendant caused any harm or committed the crime in such a way as to cause harm, if they are a first-time offender or only has a relatively minor criminal record, and if the individual accepted and showed remorse to the crime. A defendant who confesses upon arrest and is contrite in court, has this factor in their favour.

Additionally, courts factors in whether the crime was committed out of relative necessity, that is whether the defendant acted out of a desire to provide life necessities, such as a mother who shoplifts groceries to feed her hungry children. If the defendant had a difficult personal history whereby they suffered abuse or neglect, or acted criminally as a result of addiction, depending on the nature and circumstances of the case, can impact on the sentence imposed by court.

On the other hand, aggravating factors are circumstances that make the crime more serious, and indicate a higher degree of culpability. Aggravating factors are also prescribed by law and could see a tougher sentence or harsher penalty imposed on the defendant, if the defendant is a repeat offender, or they committed a crime against a victim that is considered vulnerable, either according to an objective standard, or in relation to the defendant.

In some jurisdictions, hate crimes and whether the defendant had a prominent role in a criminal scheme, court can consider this an aggravating factor.

While such factors are an important consideration for courts deciding the matter, the law provides for mandatory minimum sentences for certain categories of offences, thereby limiting court’s discretion to adjust a sentence downward.

Only once the judge has considered all of these factors will the appropriate sentence or punishment be pronounced, and the punishment should fit the crime. Sentences vary from prison terms, community service sentences and fines among others.

 

Laura Pillay

 

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