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Legal Matters
Sentencing Of Cocaine Plane Convicts: Delivered Yesterday Tuesday 21st April 2009 by the Honourable Justice Nicholas C. Browne-Marke: Consequential Orders: Restitution, Confiscation, Forfeiture
By HON. NICHOLAS COLIN BROWNE-MARKE
Apr 22, 2009, 15:25

The Counts in respect of which sentence should now be passed are as follows:

Count 1:

1st accused, George Aritstizabel Archilla: USD 1M and 5 Years imprisonment
2nd accused, Victor Manuel Aroujo Lastreto (Jnr): USD 1M and 5 Years imprisonment
3rd accused, Julio Cesar Morales-Cruz: USD 1M and 5 Years Imprisonment

Count II

8th accused, Harvey Steven Perez: USD 2.5M and 5 Years Imprisonment
9th accused, Gerardo Quistana Perez: USD 1M and 5 Years Imprisonment
10th accused, Yeimy Fernadez Leandro: USD 1.5M and 5 Years Imprisonment

Count IV

1st accused, George Aritstizabel Archilla: USD 1M and 5 Years Imprisonment
2nd accused, Victor Manuel Aroujo Lastreto (Jnr): USD 1M and 5 Years Imprisonment
3rd accused, Julio Cesar Morales-Cruz: USD 1M and 5 Years Imprisonment

Count V

1st accused, George Aritstizabel Archilla: USD 1M and 5 Years Imprisonment
2nd accused, Victor Manuel Aroujo Lastreto (Jnr): USD 1M and 5 Years Imprisonment
3rd accused, Julio Cesar Morales-Cruz: USD 1M and 5 Years Imprisonment
4th accused, Mohamed Bashil Sesay: Le 300,000,000 and 5 Years Imprisonment
5th accused, Hassan Karim Mansaray: Le 100, 000,000 and 5 Years Imprisonment
6th accused, Patrick Moriba Johnson: Le 25, 000, 000 and 2 Years Imprisonment
7th accused, Chernor Momodu Bah: Le 150,000,000 and 5 Years Imprisonment
8th accused, Harvey Steven Perez: USD 2.5M and 5 Years Imprisonment
9th accused, Gerardo Quistana Perez: USD 1M and 5 Years Imprisonment
10th accused, Yeimy Fernadez Leandro: USD 1.5M and 5 Years Imprisonment
11th accused, Alex Romeo: USD 1.5M and 5 Years Imprisonment
12th accused, Ibrahim Mohamed Manley: Le 150, 000, 000 and 5 Years Imprisonment
15th accused, Alimamy Kabia: Le 150, 000, 000 and 5 Years Imprisonment
16th accused, Sadjo Sarr: USD 1.5 M and 5 Years Imprisonment
18th accused, Mohamed Musa Kamara: Le 50, 000, 000 and 3 Years Imprisonment

Count VI

1st accused, George Aritstizabel Archilla: USD 1M and 5 Years Imprisonment
2nd accused, Victor Manuel Aroujo Lastreto (Jnr): USD 1M and 5 Years Imprisonment
3rd accused, Julio Cesar Morales-Cruz: USD 1M and 5 Years Imprisonment

Fines are cumulative
Sentences of imprisonment are concurrent

CONSEQUENTIAL ORDERS: RESTITUTION, CONFISCATION, FORFEITURE

The provisions relating to these matters, under the general Law, are to be found in Sections 54 to 60 of the Criminal Procedure Act, 1965. The most apposite provisions are Sections 55, which deals with a convicted person paying the expenses of his conviction, and Section 59 which deals with the situation where property was taken from a person charged; it permits the Court to restore the property to the person "who appears to the Court to be entitled thereto", which might not necessarily be, the person from whom it was taken.

It follows therefore, that I am not compelled to make the Order prayed for by MR WRIGHT in favour of the 4th accused. The correspondence which was tendered, the undated letter addressed to the 4th accused by the State Chief of Protocol, shows that the 4th accused should have transferred ownership to State House. There is also a letter dated 10th March, 2008 from the Secretary to the President to the Commissioner General, National Revenue Authority, requesting DUTY FREE WAIVER. I presume the request was granted since it originated from State House.

MR. DARAMY’s letter aforementioned is attached to that letter, which shows that it predates the latter. I therefore ORDER that Mercedes Benz Jeep G55 AMG photographs of which are attached hereto, be RESTORED to THE OFFICE OF THE PRESIDENT, STATE HOUSE, FREETOWN.

All accused persons have a right of appeal, such appeal to be lodged within 21 days of today’s date. Since I am not presently in a position to say whether any or all of the accused persons might wish to, appeal, I propose, in anticipation of any such appeal or appeals, pursuant to Section 59 (2) of the Criminal Procedure Act, 1965 TO RETAIN in Court pending such appeal or appeals, the following exhibits: all Laptop computers; all mobile phones; all GPSs’; all walkie talkies or other means of verbal communication; all correspondence seized either at the residence or residences of any or all of the accused persons, or from their respective persons.

ALSO, all passports of convicted foreigners shall be RETAINED in like manner. In the case of the passports of convicted foreigners, they shall be retained in the custody of this Court, until and unless the time within which an Appeal should be brought has expired; or each and all of them have given a written undertaking in Solemn Form that he or they DO NOT WISH TO EXERCISE THE RIGHT OF APPEAL conferred on a convicted person by Section 57 of the Courts Act, 1965; OR UNTIL FURTHER OR OTHER ORDER.

In the case of Sierra Leone Nationals, any passports in the custody of the Court shall be handed over to the Chief Immigration Officer, from whom the same may be retrieved by the convicted accused person concerned, on payment of the fine and on completion of the term of imprisonment imposed upon him.

Since there is no evidence before me that any Licence or Licences was or were issued by the appropriate Authority in respect of the arms and ammunition found in the residences of the accused persons, and in their vehicles and/or on their respective persons, and bearing in mind that the Indictment herein has not charged any offence relating to the unlawful possession of arms and/or ammunition, it behoves this Court to exercise its discretion as to the eventual disposal of these arms and ammunition. IN THE EXERCISE OF THIS COURT’S DICRETION I ORDER that all arms and ammunition tendered as exhibits in the Court BE HANDED OVER TO THE CHIEF OF DEFENCE STAFF OF THE REPUBLIC OF SIERRA LEONE ARMED FORCES, for DISPOSAL.

All monies seized from any and all of the accused persons, and tendered as exhibits in this Court, shall be appropriated towards the payment of fines imposed on the affected accused persons. Foreign currencies shall be converted into Leones at the current rate applicable, at the Sierra Leone Commercial Bank Limited, Siaka Stevens Street, Freetown, by the Accountant, Judicial Sub-Treasury. On collection of the Leone equivalent of these foreign currencies, they shall be paid into the sub-treasury’s Non-tax Revenue account in favour of the accused person from whom, or in respect of whom, such monies were seized. A proper Account of these dealings shall be submitted to this Court by the Accountant Judicial Sub-Treasury, within 14 days of the date of this Order, for the Court’s approval, and for further Directions.

In view of the quantity and volume of exhibits tendered, all items of a personal nature, i.e. other than those already listed above, tendered in this Court, and which are not related to the commission of any of the crimes charged in the Indictment herein, shall be returned to their respective owners. In this respect, Counsel are asked to draw up lists of such items, such lists to be submitted to this Court for Approval, after which, the Court MAY Order their release to the particular accused person or persons concerned.

The eventual disposal of the Cessna aircraft tendered as exhibits 198 is dealt with by Section 12(5) and (7) of the National Drugs Control Act, 2008. Sub-section (5) provides that: "where a person is convicted of an offence under this Part, the court may in addition to the penalty prescribed for that offence, CONFISCATE OR FORFEIT any equipment or property which is the subject matter of the offence or which has been used for the commission of the offence. Sub-section (6) provides that "no conveyance used for the commission of the offence shall be forfeited if the offence was committed by a person other than the owner or PERSON IN CHARGE of the conveyance, and if it is proved to the court that the use of such conveyance for the commission of the offence was without the knowledge or consent of the owner or person in charge of the conveyance and was not due to any neglect; default or lack of reasonable care by the owner or person in charge of the conveyance. Sub-section (7) provides that "in making direction for the purposes of determining any disputes as to the ownership of or other interests in the property or any part therefore; (b) Directions as to the disposal of the property; and (c) such other directions as it may think fit.

I HOLD firstly, that Exhibit 198, the Cessna aircraft fall within the meaning of ‘equipment of property’ in Sub-section (5). A conveyance has not been defined or described in the Act; I should therefore give it, its ordinary. In the Oxford Concise English Dictionary, it is described as ‘the act or process of carrying…a means of transport; a vehicle." I hold therefore that, the aircraft falls within the description of the term ‘conveyance’ in the said Sub-section (6). It follows therefore, that an Order could be made for its disposal in accordance with the provisions of Sub-section (5). On the basis of the evidence led, I HOLD that Exhibit 198, the Cessna aircraft is the subject matter of counts 1 and IV of the Indictment, and that it was used for the commission of those offenses. I ALSO HOLD that on the evidence led, 1st accused was the PERSON IN CHARGE of the aircraft when the offence was committed

PURSUANT to Section 12 (7) (b) and (c) of the Act, I GIVE the following DIRECTIONS:

a) The Cessna aircraft, presently kept in a hanger at the Freetown International Airport, Lungi shall be RELEASED to the custody of the DIRECTOR OF CIVIL AVIATION with immediate effect, and he shall also immediately takes steps to protect it.
b) The DIRECTOR OF CIVIL AVIATION shall within 72 hours of receiving this ORDER APPRAISE OR CAUSE AN APPRAISAL of the value of the Aircraft. The APPRAISAL shall be submitted to, and filed by him through the Acting Director of Public Prosecutions in this court immediately thereafter
c) This court shall examine and assess the APPRAISAL, and if satisfied with it in all respect, shall accept the same. Upon accepting the said APPRAISAL, this court shall DIRECT the DIRECTOR OF CIVIL AVIATION to INVITE BIDS for the purchase of the said Aircraft, such Bids to be submitted to him not later than 4th May, 2009.
d) On 5th May, 2009 the DIRECTOR OF CIVIL AVIATION, through the Acting Director of Public Prosecutions, shall file any and all such bids in this court
e) On Tuesday 5th May 2009 this court shall ORDER the sale of the aircraft to the highest Bidder and who shall be prepared to pay for the same, within 24 hours of the Order of this Court.
f) Upon the sale being Ordered, the Master and Registrar shall prepare and Execute a Bill of Sale in favour of the winning bidder, such Bills of Sale to be Registered the same day
g) Upon Registration of the Bill of Sale, the Purchaser shall immediately make arrangements for the removal of the aircraft from its present location
h) In view of Section 12(8) of the Act, there shall be Liberty to Apply.

As states above, Section 12(5) provides that this court may "….CONFISCATE OR FORFEIT any…property which is the subject matter of the offence…….." The subject matter of the offence is count I and IV COCAINE. PURSUANT therefore, to the Powers Conferred on this Court by the said Section 12(5) of the National Drug Control Act, 2008 I ORDER that all cocaine seized in connection with this Indictment, in particular, Exhibits 50 Nos 1-538, 51 Nos 1-61; 87 (1-60); 166 BE CONFISCATED to the State.

PURSUANT to the ORDER made in paragraph 13 above, I ORDER that the said cocaine Exhibits be BURNT publicly within 48 hours of the Order at such place or sites as shall be determined by this Court. For this purpose, not later than 4:30pm today 21st April, 2009 the Acting Director of Public Prosecutions shall file in this Court, proposals for the burning of the said cocaine exhibits. He is at liberty to consult with the ONS, CISU, the Pharmacy Board, the Military and the Police in order to assist him in preparing these proposals.

PURSUANT to the provision of Section 21(1) of the NON-CITIZENS (REGISTRATION, IMMIGRATION AND EXPLUSION) ACT, 1965 as amended I HEREBY CERTIFY that GEORGE ARITSTIZABEL ARCHILLA, VICTOR MANUEL ARAUO LASTRETO (JRN), JULIO CEASAR MORALES-CRUZ, HARVEY STEVEN PEREZ, GERARDO QUISTANA PEREZ, YEIMY FERNADEZ LEANDRO, ALEX ROMEO and SADJO SARR are all Non-Citizens of Sierra Leone, and were on Monday 20th April, 2009 convicted of the Offence of Conspiracy to Import a Prohibited Drug; and in the case ARCHILLA, LASTRETO and MORALES-CRUZ, additionally, being Accessories After the Fact to the Importation of a Prohibited Drug that these are offences in respect of which the Court can impose imprisonment without the option of a fine; I NICHOLAS COLIN BROWNE-MARKE, Justice of Appeal and Presiding Judge DO HEREBY RECOMMEND that an EXPULSION ORDER be made in respect of the above-named IN ADDIITON TO THEIR RESPECTIVE SENTENCES.

Addendum

Exhibits 109 Black Suzuki Jeep and all vehicles seized in connection with this case SHALL be handed over to the Master and Registrar until further order

NICHOLAS COLIN BROWNE-MARKE
21/04/09



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