Totality principle in 'harrowing' Seychelles online sexual abuse case

From the holiday islands of Seychelles comes a new judgment with a warning for all of us on lockdown with kids spending too much time online. It is a horrifying reminder of the dangers lurking on Facebook and other seemingly innocent platforms: even in a paradise like Seychelles, children may fall victim to evil that stalks them. The judgment, from the Supreme Court of Seychelles is important because of this warning, but it is also important for lawyers because of the sentencing system used by the court. Given the 'shocking' nature of the crimes, the judges concluded that sentencing in the matter had to be decided using what had come to be known as 'the totality principle', most developed and applied in Australia, the UK and Canada. It was a common law principle that required a judge, in a case where the accused was convicted on several offences, to ensure that the 'aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved.'

Read judgment

It is the kind of story that terrifies every parent: three men using social media to prey on children, to draw them into their circle of depravity and then sexually abuse them.

As the court put it: ‘This case is a depressing reminder that children, parents, caregivers and the public at large need to be vigilant when engaging in the online space, and to report suspicious behaviour before it escalates to the commission of heinous crimes like those we have seen in this case.’

Harrowing

The court’s deep concern about the evidence was clear from the fact that, in a rare move, two judges sat to hear the matter, citing the ‘unprecedented nature of the offences and their seriousness.’ The two also noted that they found the facts and the evidence ‘harrowing and disturbing.’

They heard that the ring being operated by the three men came to light when a student, 17 at the time, went to police with her story. She said that initially she had accepted ‘KB’ as friend on Facebook. KB, who posed as a female model, asked if she also wanted to be a model and requested photographs. Pressure for increasingly intimate pictures followed. And then the threats started: if she didn’t agree to threesome sex with ‘KB’, whom she now learned was a man, her intimate pictures would be published.

The police set up a sting operation and arrested KB. Though his real name is now known this was redacted by the court which used the initials ‘ML’ to protect the identities of the girls involved.

Videos

From electronic equipment at his home police discovered that he had used the same methods to contact girls via Facebook – some as young as 10, perhaps 75 in all. Many of them had given in to his threats and there were videos of him raping his young victims. Sometimes he worked with two co-accused, EL and J-YN.

EL was 33 years old and had a newly-born baby at the time his probation report was prepared. Worse, he was a police officer at the public security support wing where he had worked for five years.

The court took into account that he had pleaded guilty at the first opportunity and expressed remorse and regret. Against these were aggravating factors: he went with the first accused ‘to pick up a child with the intention of having sex with her. (She) was compelled to agree to have sex with him for fear of being harmed if she refused.’ His crime, said the court, ‘represents a new level of depravity’. It was a seriously aggravating factor for an official entrusted by the state to protect children, to commit such a crime. The court had to send a clear message to police officers about their duty not to be part of criminal activities.

Irreparable harm

‘The supreme court of Seychelles has in several cases emphasized the irreparable harm sexual offences inflict on minors.’ In addition, there had been an increase of sexual crimes involving children. ‘We have no hesitation in sentencing EL … to 12 years’ imprisonment.’

Third accused J-YN was convicted of a crime for which the sentence prescribed was between 14 and 20 years. He had been a self-employed building contractor. He too pleaded guilty at the first opportunity and thus spared the complainant the trauma of giving evidence in court.

As a well-educated person he should have been well aware of the ‘serious moral, social and psychological consequences and implications of his act.’

Since J-YN had been 18 years at the time of the offence, and appeared to have been led on by the first accused, he was given an eight-year term.

Ring leader

Most of the court’s judgment on sentence was spent considering the appropriate punishment for the ring-leader, ML. He was convicted on more than 20 counts, some of them carrying sentence of more than 20 years.

He too expressed remorse. He said he suffered from depression and had such low self-esteem that he was unable to find a girlfriend. He said he felt ‘addicted to sex’ and needed help.

Like the other two accused, ML had pleaded guilty, and expressed remorse. But the aggravating factors were severe. He committed serious crimes ‘which are unprecedented’ in the history of the Seychelles courts: sexual assault, filming the victims, kidnapping and trafficking – all committed on young girls.

Blackmailing

He used the same method repeatedly, blackmailing the girls into sex not only with himself, but with the other two men as well. It was carried out in an ‘extremely systematic and well-organised manner’. If the court were to sentence him by imposing the terms prescribed for each offence, he would have to serve more than 70 years.

This consideration made the court carefully scrutinise its sentencing powers. And it is this debate that lawyers who specialise in criminal law and sentencing policy will find particularly interesting, and that was given most space in the decision.

The judges concluded that ML had to be sentenced in terms of what had come to be known as ‘the totality principle’, most developed and applied in Australia, the UK and Canada. It was a common law principle that required a judge, in a case where the accused was convicted on several offences, to ensure that the ‘aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved.’

Just and proportionate

In cases like this, the court was advised to impose a proper sentence for each conviction, but to make the sentences run concurrently – rather than reducing the sentence for each and coming up with a global period of imprisonment. Courts were also advised to pass a total sentence reflecting all the offending behaviour but that was just and proportionate. The totality principle was particularly important in cases where the crimes committed were ‘so shocking that a longer custodial sentence will be warranted to protect the general public.’

After a lengthy and delicate balancing act, the judge noted that, even by ordering that the sentences should run concurrently, the accused would be jailed for 44 years. Given the mitigating factors however they reduced the total sentence to 25 years. In addition, ML was to be placed on the sexual offenders’ register and interactions with children were to be closely monitored.

Account profiles

Further, ‘he is not allowed to engage on social media of any kind whatsoever.’

‘We notice that the Facebook account profiles (he) used are still publicly available,’ said the court, and concluded by ordering that the attorney general formally report the crimes to Facebook and request that ML’s profiles all be removed.

* Appearances 

The State: David Esparaon and Rongmei Lansinglu

ML: Nichol Gabriel

EL: Clifford Andre

J-YN: Alexia Amesbury