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Folette v R (CN 17 of 2011) [2013] SCSC 58 (23 May 2013);

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Folette v R (CN 17 of 2011) [2013] SCSC 58 (23 May 2013);

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Folette v R

(2013) SLR 237

Dodin J

23 May 2013 Crim App 17/2011

Counsel N Gabriel for the appellant

E Gonthier for the respondent

DODIN J

The appellant Ricky Folette was charged with two counts being:

1) Housebreaking contrary to and punishable under s 289(a) of the Penal Code; and

2) Stealing from a dwelling house contrary to s 260 and punishable under s 264 of the Penal Code.

[1] The brief facts of the offence are that the appellant on 18 October 2006 at Amitie, Praslin broke and entered the dwelling house of Gerry Uranie with intent to commit a felony namely stealing therein and that he did steal from the dwelling house of Gerry Uranie one silver digital camera make Eura Cyber, DVD 777 x together with its headphone, one silver ring and one set of binoculars all amounting to the total value of R 7,000 being the property of Gerry Uranie.

[2] The appellant was convicted on his own guilty plea to both counts and was sentenced to a period of six years imprisonment for the offence of breaking and entering the dwelling house and to a period of one year imprisonment for the offence of stealing from the dwelling house. The sentences were to run consecutive to each other and consecutive to any sentence the appellant was then serving.

[3] The appellant now appeals to this Court against the whole of the decision of the Magistrate on the following grounds contained in the Memorandum of Appeal:

a) On Count 1 that the Magistrate erred in law by applying the minimum mandatory term of five years and adding an additional one year totaling six years, a sentence that would normally be reserved for a non-first offender as per s 27A(1) (b) of the Penal Code.

b) On Count 2 the sentence of one year for stealing from dwelling house imposed to run consecutively with the six years was manifestly harsh and excessive.

c) The Magistrate erred in law by failing to take into account a material particular before sentencing that is the age of the appellant who was a minor at the material time.

[4] I must observe from the outset that I find this procedure of appeal used by the appellant to be most unusually formulated as no ground of appeal against conviction was raised in the Memorandum of Appeal despite the appellant claiming to be appealing against the whole decision of the Magistrate and concluding with the prayer to quash the sentences rather than claiming that the cumulative effect of the sentences was harsh and excessive. I would urge counsel to file clearer reasons and grounds of appeal in future and to separate any ground of appeal against conviction from the grounds of appeal against sentence so as to prevent the summary dismissal of appeal grounds that have not been clearly set out in accordance with set procedures to the detriment of the appellants. Be that as it may it is obvious that all the three grounds of appeal are against sentence only and I shall treat this appeal as such.

[5] Counsel for the appellant submitted that the offence of housebreaking under s 289(a) of Chapter XXIX of the Code which states that any person who breaks and enters a building, tent or vessel used as a human dwelling with intent to commit a felony therein or having committed a felony in any such building, tent or vessel breaks out thereof, is guilty of a felony termed ‘housebreaking’. By virtue of s 27A(1)(b) of the Penal Code Amendment Act 16 of 1995, in the case of conviction, the offender is liable to 10 years imprisonment.

[6] Counsel further submitted that the Magistrate did not address his mind to s 27A(1)(b) either before or after the taking of the guilty pleas and the passing the sentence. He erred on the section of law dealing with sentences and did not treat the appellant as a first offender. He admitted that the prosecution disclosed the record of previous convictions to the Court but maintained that such disclosure is not on record to show that the appellant had indeed any previous convictions or of what nature.

[7] Counsel submitted that a similar offence has been defined under s 27A(2) as ‘an offence falling within the same Chapter as the offence for which the person is being sentenced.’ He submitted that there is no evidence in the proceedings that this was the case prior to passing sentence and further, the appellant was not given the opportunity to view the prosecution’s list of previous convictions and to contest its contents. Counsel concluded that in the circumstances the appellant should be treated as a first offender and a non-mandatory sentence should be imposed.

[8] On the second ground of appeal counsel submitted as the appellant had pleaded guilty at the beginning of his trial, this mitigating factor should have been treated in his favour. He had not wasted the Court’s time and had saved resources considerably in view that he had been transported from prison to Praslin and may well have to be brought back again for continuation of trial. He submitted that the Magistrate should have considered concurrent sentences as an option particularly in view that the appellant was young, a first offender and unrepresented.

[9] On the third ground of appeal counsel submitted that the Magistrate ought to have adjourned the proceedings and sought more particulars on the age and status of the appellant prior to passing sentence. He submitted that in the instant case, the Magistrate has overlooked a material factor in that the appellant was young and may have been a juvenile at the time the offence was committed.

[10] Counsel further submitted that under the Children Act, a young person should not be sentenced to imprisonment if he can be suitably dealt with in any other way provided for under the Act. He referred the Court to the case of Vital v R (1981) SLR 35, which stated that a Magistrate should, before passing sentence of imprisonment on a young person, state in open court and place on record the reasons for passing a sentence of imprisonment instead of dealing with the young person in some other way. He argued that at that time, the Children Act s 11(2) was applicable and a young person described in the Act as a person who is 14 years of age or upwards and under the age of 18 years.

[11] Counsel submitted that the Magistrate could have alternatively sought a probation report, which, although it is not a statutory requirement, might have offered some guidance on the facts and character of the offence and the antecedents of the offender, his age and family background.

[12] Counsel submitted that the Court can only alter a sentence imposed by the trial court if it is evident that the trial court has acted on a wrong principle or overlooked some material factor or if the sentence is manifestly excessive in view of the circumstances of the case. He referred the Court to the case of R v Newsome (1970) 54 Cr App R 485 in support of his submission.

[13] Counsel submitted that in the circumstances the appellant’s sentences were manifestly harsh and excessive and wrong in law, especially for a young first offender. He moved the Court to quash the sentences imposed by the Magistrate in this case.

[14] Counsel for the respondent submitted on ground 1 that at pages 2 to 3 of the record of proceedings the Magistrate inquired as to whether the accused had any previous criminal conviction and the prosecution stated that he did and the same was produced to the Court. The appellant was not a first-time offender. Counsel submitted that even if it had been the case that the appellant was a first offender, there is no evidence that the Magistrate considered the minimum mandatory term when imposing the sentence, as the Court made no mention of such when imposing the sentence. Counsel submitted that the sentence imposed by the Magistrate falls well within the provision of s 289 of the Penal Code. Counsel concluded that the Magistrate had correctly applied the power of sentencing and used his discretion to apply a sentence below the prescribed 10 years.

[15] On the second ground of appeal counsel submitted that the Magistrate rightly ordered the sentences to run consecutively as per the amended section of the Penal Code which mandates that it shall not be lawful for a court to direct that any sentence under Chapter XXVI, Chapter XXVIII and Chapter XXIX be executed or made to run concurrently with one another; and the offence in this case does fall under Chapter XXIX.

[16] On ground 3 of the appeal counsel submitted that the appellant’s age at the time was not on record and no evidence of his being a juvenile was submitted by the appellant. Counsel submitted that the fact that the appellant was not represented at the trial is not in issue as the appellant was informed of his constitutional right to legal representation and chose to defend the case himself and he was further given adequate advice before he pleaded guilty.

[17] Counsel hence moved the Court to dismiss the appeal and uphold the sentences imposed by the Magistrate.

[18] This appeal raises three issues which need to be addressed. First whether the Magistrate imposed a mandatory minimum sentence for the offence which was committed in 2006 and if so was that sentence unlawful. Second, whether the cumulative effect of the consecutive sentences make the same harsh and excessive and third whether the Magistrate took into account all the mitigating factors including the young age of the appellant before passing sentence.

[19] It cannot be disputed that the Magistrate advised the appellant and it is so recorded in the proceedings of the Magistrates’ Court that the first count the appellant was charged with carried a mandatory minimum sentence of five years and the Magistrate clearly stated that to the appellant prior to the appellant pleading guilty to the charges. I therefore find the submission of the respondent that the Magistrate did not consider the mandatory minimum sentence when imposing sentence on the appellant to be incorrect.

[20] However, counsel for the respondent maintained that even if the Magistrate had indeed considered imposing the mandatory minimum sentence since the maximum sentence that the Magistrate could impose was 10 years, the sentence imposed by the Magistrate was well within the prescribed sentence. That may be so but the issue is whether having so decided that he could not impose a sentence lower that five years for the first count the Magistrate unduly restricted himself to imposing a sentence of between 5 and 10 years instead of the full range of 0 to 10 years.

[21] Article 19(4) of the Constitution states that:

Except for the offence of genocide or an offence against humanity, a person shall not be held to be guilty of an offence on account of any act or omission that did not, at the time it took place, constitute an offence, and a penalty shall not be imposed for any offence that is more severe in degree or description than the maximum penalty that might have been imposed for the offence at the time when it was committed.

[22] This principle implies also that a court cannot consider imposing a mandatory minimum sentence for an offence for which, when it was committed, the mandatory minimum sentence was not the law in force. Secondly, courts must always be mindful in imposing sentence that it is not doing an injustice by imposing a sentence that did not exist at the time of the commission of the offence.

[23] Consequently I accept the appellant’s contention that the Magistrate limited his discretion in sentence by the belief that the Court must impose a mandatory minimum sentence for an offence which was committed when the law did not require a mandatory minimum sentence.

[24] The second limb of this issue is whether the sentence imposed by the Magistrate was unlawful taking into account that the maximum sentence that could be imposed was 10 years. On the face of it, the Magistrate imposed a sentence that was well within the limit of the Court’s sentencing power. However one should always keep in mind when imposing sentence that a sentence must be proportionate to the offence.

[25] In the case of S v Vilakazi 2009 (1) SACR 552 (SCA) the South African Court made this most pertinent point that may be well applicable to our courts when imposing sentence:

It is incumbent upon a court in every case, before it imposes a prescribed sentence, to assess, upon a consideration of all the circumstances of the particular case, whether the prescribed sentence is indeed proportionate to the particular offence and that the essence of the inquiry is that disproportionate sentences are not to be imposed and that courts are not vehicles for injustice.

[26] Considering the above, imposing 60% of the maximum sentence on a young offender who has pleaded guilty is very much disproportionate to the offence considering all the circumstances of the case and I therefore find that the sentence of six years imprisonment imposed by the Magistrate although not per se unlawful, is harsh and excessive in the circumstances.

[27] With regards to the second ground of appeal the issue is whether the sentence of one year imprisonment which was to run consecutive to the six years imposed for the first count is harsh and excessive. Since the two offences occurred during a single transaction the principle known as the single transaction rule should generally apply.

[28] In his text entitled Principles of Sentencing (2nd ed, 1979) 53 DA Thomas states:

The one-transaction rule can be stated simply: where two or more offences are committed in the course of a single transaction, all sentences in respect of these offences should be concurrent rather than consecutive.

[29] The rule against double punishment should also generally be observed when the court is determining an appropriate sentence for each offence. The one transaction rule may assist in determining whether the sentences should be cumulative or concurrent but the Court must look at the aggregate sentence and consider whether the aggregate is just and appropriate or whether the total sentence is crushing and not in accordance with the totality principle.

[30] In R v White [2002] WASCA 112, [26] McKechnie J remarked on the above principles:

There is no hard and fast rule. In the end a judgment must be made to balance the principle that one transaction generally attracts concurrent sentences with the principle that the overall criminal conduct must be appropriately recognized and that distinct acts may in the circumstances attract distinct penalties. Proper weight must therefore be given to the exercise of the sentencing Judge’s discretion.

[31] It is true that current legislation has attempted to remove that discretion from the courts. Whatever may be one’s view on this, the fact remains that the Magistrate should have applied the principles that were applicable at the time the offences were committed. Since art 19(4) of the Constitution gives retroactive force only to the offence of genocide or an offence against humanity and not any other crime, the same principle considered in the first ground of appeal should apply to this ground of appeal provided always that the Magistrate could have used his discretion if he had found it appropriate and necessary to consider the two offences as sufficiently distinct and separate to imposed a consecutive sentence and if considering the totality of all the sentences it would not have made the consecutive sentence of one year imprisonment harsh and excessive.

[32] On the third ground of appeal, I find that the issue of the appellant’s age was considered by the Magistrate to the extent allowed by law. In fact there is no evidence to show that the appellant was actually a juvenile at the time of the commission of the offence, a fact that could have been easily established by producing the appellant’s birth certificate even on appeal. The records show that the Magistrate considered the mitigating factors before passing sentence which included the youthfulness of the appellant. Without more to go on, I find thus ground of appeal to be wanting in substance and I would dismiss that ground outright.

[33] Consequently, the appeal is allowed against sentence and only to the extent that the sentence of six years imposed by the Magistrate was misconceived, harsh and excessive considering all the circumstances of this case. I therefore set aside the sentence of six years imprisonment and impose a sentence of three years imprisonment in its place. I also find that the sentence of one year imprisonment for the second count was reasonable but that it should not have added to the sentence already imposed as the two offences were part of a single transaction. I hereby order that the sentence of one year’s imprisonment imposed for the second count run concurrently with the three years imprisonment imposed for the first count.

[34] Judgment is entered accordingly

Folette v R

(2013) SLR 237

Dodin J

23 May 2013 Crim App 17/2011

Counsel N Gabriel for the appellant

E Gonthier for the respondent

DODIN J

The appellant Ricky Folette was charged with two counts being:

1) Housebreaking contrary to and punishable under s 289(a) of the Penal Code; and

2) Stealing from a dwelling house contrary to s 260 and punishable under s 264 of the Penal Code.

[3] The appellant now appeals to this Court against the whole of the decision of the Magistrate on the following grounds contained in the Memorandum of Appeal:

b) On Count 2 the sentence of one year for stealing from dwelling house imposed to run consecutively with the six years was manifestly harsh and excessive.

c) The Magistrate erred in law by failing to take into account a material particular before sentencing that is the age of the appellant who was a minor at the material time.

[17] Counsel hence moved the Court to dismiss the appeal and uphold the sentences imposed by the Magistrate.

[21] Article 19(4) of the Constitution states that:

[25] In the case of S v Vilakazi 2009 (1) SACR 552 (SCA) the South African Court made this most pertinent point that may be well applicable to our courts when imposing sentence:

[28] In his text entitled Principles of Sentencing (2nd ed, 1979) 53 DA Thomas states:

[30] In R v White [2002] WASCA 112, [26] McKechnie J remarked on the above principles:

[34] Judgment is entered accordingly

R v Moustache (15 of 2012) [2013] SCSC 38 (11 March 2013);

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R v Moustache (15 of 2012) [2013] SCSC 38 (11 March 2013);

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JUDGMENT

Burhan J

The accused appellant hereinafter referred to as the appellant in this case has been charged in the magistrates’ court as follows;

Count 1

Housebreaking contrary to and punishable under section 289(a) of the Penal Code.

The particulars of the offence are that Magid Moustache residing at La Retraite Mahe on the 10^th day of May 2011 at Hutane Lane Mahe broke and entered the dwelling house of Derothy Abel.

Count 2

Stealing from dwelling house contrary to section 264 (b) and punishable under section 264 of the Penal Code.

The particulars of the offence are that Majid Mosutache residing at La Retraite, Mahe, on the 10^th day of May 2011, at Huteau Lane, Mahe, stole from the dwelling house of Derothy Abel, one laptop make HP value six thousand rupees, three(3) gold necklaces value fifteen hundred rupees (Rs1500/-), one gold chain value one thousand rupees, one gold ring value three thousand and five hundred rupees, one small chain value twelve hundred rupees, some stud, small chain value one hundred and fifteen rupees and one earring value three hundred and sixty rupees being the property of Derothy Abel.

The appellant had been convicted on his own plea of guilt and sentenced on the 17^th day of May 2012 by the learned magistrate Mr. K Labonte, on count 1 to a term of eight years imprisonment and on count 2 to a term of one and a half years imprisonment. The learned magistrate further ordered both terms run consecutively.

This is an appeal against the aforementioned sentence imposed by the learned magistrate.

In the case of Godfrey Mathiot v Republic SCA 9/1993 the Seychelles Court of Appeal held that in sentencing, courts should consider the principles of retribution, deterrence, prevention and rehabilitation. It further held that in appeals in respect of sentencing the court would intervene only where:

a) The sentence was harsh, oppressive or manifestly excessive.

b) The sentence was wrong in principle.

c) The sentence was far outside discretionary limits.

d) A matter had been improperly taken into consideration or a matter that should have been taken into consideration was not or,

e) The sentence was not justified by law.

It is borne out in the proceedings and admitted that the appellant had a previous conviction in magistrates’ court case no; 382/11 on the 2^nd of May 2012 for an offence committed on the 1^st of May 2011.

Section 289(a) as amended by Act 16 of 1995 reads as follows;

Any person who –

(a)breaks and enters any building, tent or vessel used as a human dwelling with intent to commit a felony therein;or

(b)……..

is guilty of a felony termed “housebreaking” and is liable to imprisonment for ten years.

If the offence is committed in the night, it is termed “burglary”and the offender is liable to imprisonment for fourteen years.

Section 27(1) (b) of the Penal Code as amended by Act 20 of 2010 reads as follows;

Notwithstanding section 26 and any other written law, a person who is convicted of an offence in Chapter XXVIII or Chapter XXIX shall-

(a)………

(b) where the offence is punishable with imprisonment for more than eight years but not more than ten years and the person had, within five years prior to the date of the conviction, been convicted of the same or similar offence, be sentenced to imprisonment for a period of not less than eight years.

In this instant case the appellant had admittedly been convicted of an offence in case no; 382/11 on the 2^nd of May 2012 in respect of an offence within Chapter XXIX namely housebreaking and stealing and sentenced to two years and fifteen months respectively to run consecutively. Thus it is apparent within 5 years prior to the date of conviction in this case, the appellant had been convicted of the same type of offences in case no 382/11. Further on considering the date of offences in both cases, the offences in this case, are subsequent offences to the offences in case no 382/11.

It is the view of this court that as the law stands subsequent to the amendment Act 20 of 2010 the learned magistrate cannot be faulted for sentencing the accused to the minimum mandatory term of imprisonment in respect of count 1 which in terms of the aforementioned section 27 (1) (b) of the Penal Code is eight years for a second offender.

The learned magistrate in the sentencing process referred to the case of Jean Frederick Poonooo v Republic SCA 38 of 2010 and came to a finding that there were no exceptional grounds in this instant case, for the minimum mandatory term not to be imposed. I see no reasons to refute the finding of the learned magistrate. The mere fact that the appellant had pleaded guilty is not an exceptional ground to impose a term of imprisonment lesser than the minimum mandatory term required by law.

The learned magistrate further ordered that the terms of imprisonment imposed in respect of count 1 and 2 run consecutively and consecutive to the terms of imprisonment he is serving in case no; 382/11.

It is apparent that the learned magistrate relied on section 36 of the Penal Code which reads as follows;

Where a person after conviction for an offence is convicted of another offence, either before sentence is passed upon him under the first conviction or before the expiration of that sentence, any sentence which is passed upon him under the subsequent conviction, shall be executed after the expiration of the former sentence unless the court direct that it shall be executed concurrently with the former sentence or any part thereof.

Provided that it shall not be lawful for a court to direct that any sentence under Chapter XXVI, Chapter XXVIII or Chapter XXIX be executed or made to run concurrently with one another or that a sentence of imprisonment in default of a fine be executed concurrently with the former sentence under section 28 (c) (i) of this Code or any part thereof.

Having considered the aforementioned relevant provisions of the Penal Code the learned magistrate’s decision to make order that sentences imposed in respect of offences under Chapter XXIX as in this instant case run consecutively to the sentences imposed in case no 382/11, cannot be faulted as the law provides for same.

Further on consideration of the gravity of the offence, the valuable items stolen as set out in the particulars of offence in count 2, this court is satisfied that a just and appropriate sentence has been imposed by the learned magistrate, after due consideration of the facts of the case and the facts mentioned in the plea of mitigation by learned counsel for the appellant. The case referred to by learned counsel for the prosecution namely Ricky Victor v Republic SC Cr App 11/2010 is in respect of sentences imposed for offences committed prior to the amendment Act 20 of 2010 coming into force ( i.e. the 10^thof August 2010).

For the aforementioned reasons this court finds no ground on which the sentence imposed by the learned magistrate should be set aside or altered. The appeal is dismissed.

M.N BURHAN

JUDGE

SUPREME COURT OF SEYCHELLES

Dated this 11^th day of March 2013.

JUDGMENT

Burhan J

The accused appellant hereinafter referred to as the appellant in this case has been charged in the magistrates’ court as follows;

Count 1

Housebreaking contrary to and punishable under section 289(a) of the Penal Code.

The particulars of the offence are that Magid Moustache residing at La Retraite Mahe on the 10^th day of May 2011 at Hutane Lane Mahe broke and entered the dwelling house of Derothy Abel.

Count 2

Stealing from dwelling house contrary to section 264 (b) and punishable under section 264 of the Penal Code.

This is an appeal against the aforementioned sentence imposed by the learned magistrate.

a) The sentence was harsh, oppressive or manifestly excessive.

b) The sentence was wrong in principle.

c) The sentence was far outside discretionary limits.

d) A matter had been improperly taken into consideration or a matter that should have been taken into consideration was not or,

e) The sentence was not justified by law.

Section 289(a) as amended by Act 16 of 1995 reads as follows;

Any person who –

(a)breaks and enters any building, tent or vessel used as a human dwelling with intent to commit a felony therein;or

(b)……..

is guilty of a felony termed “housebreaking” and is liable to imprisonment for ten years.

If the offence is committed in the night, it is termed “burglary”and the offender is liable to imprisonment for fourteen years.

Section 27(1) (b) of the Penal Code as amended by Act 20 of 2010 reads as follows;

Notwithstanding section 26 and any other written law, a person who is convicted of an offence in Chapter XXVIII or Chapter XXIX shall-

(a)………

It is apparent that the learned magistrate relied on section 36 of the Penal Code which reads as follows;

For the aforementioned reasons this court finds no ground on which the sentence imposed by the learned magistrate should be set aside or altered. The appeal is dismissed.

M.N BURHAN

JUDGE

SUPREME COURT OF SEYCHELLES

Dated this 11^th day of March 2013.

R v William (CN 60 of 2013) [2013] SCSC 86 (18 November 2013);

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R v William (CN 60 of 2013) [2013] SCSC 86 (18 November 2013);

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Judgment

Mckee J

The Appellant seeks leave to appeal against conviction and sentence imposed upon him by the Magistrate on June 2013 following his plea of Guilty to two charges, namely:
[i] Burglary contrary to section 289[a] of the penal code. The Particulars are that the defendant, residing at Grand Anse Praslin on the 23rd of June 2013 in the early hours broke and entered Ocean Jewel a guest house in room no 4 occupied by Amina Mustanr and Faisal Mushtaq with intent to commit a felony therein, namely stealing.
[ii] Stealing from a dwelling house contrary to section 260 and punishable under section 264[b] of the penal code. The Particulars are that the defendant residing at the address aforesaid and on the date aforesaid in the early hours stole from the dwelling house Ocean Jewel a guest house in room no 4 occupied by Amina Mustanr and Faisal Mushtaq one iphone 550 USD, sunglasses 300 USD, 2 bangles 100 USD being the property of the afaidsaid to the total value of RS11,542.
There was a further defendant on the charge sheet, named Ronny Hollanda, who faced one charge, namely: Receiving Stolen Property contrary to section 309[1] of the penal code. This defendant is not part of this appeal but since he is referred to in these appeal proceedings I set out the particulars of offence, which are:
Ronny Hollanda residing at Grand Anse Praslin on 24th June 2013 did receive 1 phone knowing or having reason to believe the same to have been feloniously stolen.
The Record shows that the Magistrate explained his constitutional rights to the Appellant and the Appellant elected to defend himself. The charges were read to the Appellant and he pleaded Guilty to both charges. The remaining charge against defendant Hollanda was continued without plea. The facts were narrated to the Appellant as set out in the charge sheet. The court was also advised that the Appellant had been seen committing the offence on CCTV and some stolen items were seen at his place, which I take to be his place of residence. The court then proceeded to convict the Appellant on his own plea. By way of mitigation the Appellant tendered his apologies to the owner.
MITIGATION
In my view the further points in favour of the Appellant were that he was a first offender and had pleaded Guilty to the charges at the first opportunity.
SENTENCE
The Magistrate took into account that the victims were tourists and visitors to the Seychelles and held that this was an aggravating factor.
He imposed a sentence of 10 years imprisonment in respect of charge 1 and 5 years in respect of charge 2 and ordered that the sentences be consecutive. Accordingly the total term of imprisonment was fifteen [15] years.
It is against this conviction and sentence that the Appellant entered his appeal.
Counsel for the Appellant at the hearing of the Appeal was cogniscant of section 309[1] of the Criminal Procedure Code but sought to maintain the appeal against conviction as well as sentence. I elected to consider the submissions in relation to conviction and sentence.
GROUNDS OF APPEAL
The grounds of appeal are set out in the Memorandum of Appeal and Mrs Amesbury also relied on her submissions in court. Counsel for the Prosecution replied. The Submissions form part of this record. Mrs Amesbury also brought to the attention of the Court the case of Raymond Tarnecki v The Republic [Criminal Appeal No 4 of 1996].
It was submitted by Mrs Amesbury that at the time of the offence and conviction the Appellant was only 16 years of age and was thus a child in terms of section 92 of the Children Act. She produced in support the Birth Certificate of the Appellant. She stated that the age of the Appellant should have been taken into account by the Magistrate and the Prosecution required the instruction of the Attorney General before proceeding with the prosecution of the Appellant. There was no such instruction. She also highlighted the fact that before plea was taken the Appellant did not have access to advice from a legal representative or members of immediate family or a guardian.
She also submitted that the phrase in the charge of burglary "in the early hours" was not consistent with the wording "at night" or "in the night" as set out in section 289 of the penal code.
The final ground of the memorandum of appeal read as follows "The charge was also defective in that it charged two persons on the same indictment without making them joint offenders. These were two distinct offences committed by two distinct persons and on different days".
These points were all amplified in the oral submissions of Mrs Amesbury.
Mr. Vipin for the Respondent submitted that no instruction from the Attorney General was required since the Appellant, a child, was charged jointly with an adult in terms of section 113[e] of the Criminal Procedure Code. Mr. Vipin accepted that we had no precise knowledge of the age of defendant Hollanda but asked that it be presumed that he was an adult. He submitted that his view was supported by a consideration of section 93 of the Children Act and both sections should be considered together. This section allows a child, when charged jointly with an adult to be dealt with in the adult court and not the juvenile court. Hence the Prosecution and conviction should stand.
CONSIDERATION OF THE SUBMISSIONS and FINDINGS
I have considered all the submissions both written and oral.
I look firstly at the point regarding the wording in the burglary charge. There is no substance to this ground of appeal.
Secondly, it was entirely proper that charges of burglary and stealing and receiving be included in the same charge sheet.
I now look at the remaining points which, for convenience, can be taken together.
A child is defined in the interpretation section of the Children Act and means a person under 18 years of age and includes a young person. There is an exception to the general rule but this refers only to sections 9 to 14 and hence to Affiliation Orders only.
I find that the Appellant was 16 years of age on the date of the offence and on the date when the Court imposed the conviction and sentence. I refer to the Certificate of Birth Number 1167 of 1996.C issued by the Civil Status Officer and produced to the Court by Mrs Amesbury which shows the date of birth of the Appellant to be is September 1996. The offences were committed on 23rd June 2013 and the Appellant was convicted on June 2013.
In the earlier proceedings the Magistrate was not advised that this Appellant was 16 years of age. The Appellant did not so advice. The Prosecutor did not do so. The formal charge sheet does not record the age or date of birth of the Appellant. For that matter the charge sheet did not show the age or date of birth of the other defendant called Ronny Hollanda.
The Magistrate proceeded in his normal way. He explained the constitutional rights to the defendant who stated that he wished to defendant himself. He elected to plead guilty to both charges and he agreed the brief facts. He mitigated on his own behalf. Thereafter he was convicted and sentenced. In view of the paucity of information it is understandable why the Magistrate took the view that he had received unequivocal pleas and proceeded accordingly.
However it is now known that on the date the Appellant appeared in the Magistrates Court he was 16 years of age. No doubt if this had been known to the Magistrate, he may have considered adopting a different approach. Even at this stage I do not know the age of the other defendant, Hollanda. It is not shown on the charge sheet and Counsel for the Respondent was unable to give me this information in court.
I refer to Section 92 of the Children Act. It is as follows "No child shall be prosecuted for any offence…” except- :
The offence of murder or an offence for which the penalty is death; or On the instructions of the Attorney General.
Hence, discounting the special cases mentioned in subsection [a] no child shall be prosecuted unless the prosecution is instructed by the Attorney General. In my view that means the written instruction of the Attorney General. Similar wording is sometimes used, for example, "with the consent of the Attorney General". The import of such phrasing is that the written sanction or approval of the Attorney General is a pre-condition to certain classes of prosecution.
Counsel for the Respondent referred me to section 113[e] of the Criminal Procedure Code. This allows a charge sheet to include charges of burglary and Stealing and a charge of receiving stolen property. This merely sets out a procedure which is in common use whereby charges based on the same facts or continuing circumstances can be brought in the same information or charge sheet. Charges of stealing and receiving are often found on the same charge sheet with the same or different defendants. Section 112 of the Criminal Procedure Code provides as follows: "Any offences, whether felonies or misdemeanors may be charged together in the same charge or information if the offences charged are founded on the same facts or form, or are part of a series of offences of the same or similar character". Similarly section 93 of the Children Act is procedural in nature. A child charged alone is dealt with in the juvenile court. A child charged jointly with an adult can be dealt with in the adult court.
I find that the Appellant was 16 years of age when he appeared in court to answer the two charges. He was a child in terms of section 92 of the Children Act. The Prosecution required the prior written instruction of the Attorney General before proceeding with this prosecution. There was none. The Prosecution did not seek an adjournment to obtain this instruction. I take into account the precise wording of section 92, "No child shall be prosecuted for any offence.". In my opinion these words mean exactly what they say. Mr. Vipin has produced no authority in support of his submission that a child charged jointly with adult is in a different position to that of a child charged alone. I see no reason why there should be any difference. Section 113[e] of the Criminal Code and section 93 of the Children Act are procedural and reflect common practices and do not assist the Respondent.
Section 92 of the Children Act is quite clear; it means exactly what it says. In the present matter the prior written instruction of the Attorney General was required for the prosecution of the Appellant. No such instruction was obtained by the Prosecution.
I refer to the final sub-paragraph of paragraph 1-286 of Archbold 2012 which reads as follows, "Where some consent that is required to the institution of proceedings is not obtained, the whole of any trial that takes place, including committal proceedings, is a nullity and a conviction which occurs in such circumstances will be quashed". In the present matter the proceedings in the magistrate’s court were a nullity.
According this appeal against conviction and sentence succeeds. The conviction is quashed and the sentence set aside. The Appellant is discharged.

Signed, delievered and dated on 18th November 2013

C Mckee

Judge of the Supreme Court

Judgment

Mckee J

The Appellant seeks leave to appeal against conviction and sentence imposed upon him by the Magistrate on June 2013 following his plea of Guilty to two charges, namely:
[i] Burglary contrary to section 289[a] of the penal code. The Particulars are that the defendant, residing at Grand Anse Praslin on the 23rd of June 2013 in the early hours broke and entered Ocean Jewel a guest house in room no 4 occupied by Amina Mustanr and Faisal Mushtaq with intent to commit a felony therein, namely stealing.
[ii] Stealing from a dwelling house contrary to section 260 and punishable under section 264[b] of the penal code. The Particulars are that the defendant residing at the address aforesaid and on the date aforesaid in the early hours stole from the dwelling house Ocean Jewel a guest house in room no 4 occupied by Amina Mustanr and Faisal Mushtaq one iphone 550 USD, sunglasses 300 USD, 2 bangles 100 USD being the property of the afaidsaid to the total value of RS11,542.
There was a further defendant on the charge sheet, named Ronny Hollanda, who faced one charge, namely: Receiving Stolen Property contrary to section 309[1] of the penal code. This defendant is not part of this appeal but since he is referred to in these appeal proceedings I set out the particulars of offence, which are:
Ronny Hollanda residing at Grand Anse Praslin on 24th June 2013 did receive 1 phone knowing or having reason to believe the same to have been feloniously stolen.
The Record shows that the Magistrate explained his constitutional rights to the Appellant and the Appellant elected to defend himself. The charges were read to the Appellant and he pleaded Guilty to both charges. The remaining charge against defendant Hollanda was continued without plea. The facts were narrated to the Appellant as set out in the charge sheet. The court was also advised that the Appellant had been seen committing the offence on CCTV and some stolen items were seen at his place, which I take to be his place of residence. The court then proceeded to convict the Appellant on his own plea. By way of mitigation the Appellant tendered his apologies to the owner.
MITIGATION
In my view the further points in favour of the Appellant were that he was a first offender and had pleaded Guilty to the charges at the first opportunity.
SENTENCE
The Magistrate took into account that the victims were tourists and visitors to the Seychelles and held that this was an aggravating factor.
He imposed a sentence of 10 years imprisonment in respect of charge 1 and 5 years in respect of charge 2 and ordered that the sentences be consecutive. Accordingly the total term of imprisonment was fifteen [15] years.
It is against this conviction and sentence that the Appellant entered his appeal.
Counsel for the Appellant at the hearing of the Appeal was cogniscant of section 309[1] of the Criminal Procedure Code but sought to maintain the appeal against conviction as well as sentence. I elected to consider the submissions in relation to conviction and sentence.
GROUNDS OF APPEAL
The grounds of appeal are set out in the Memorandum of Appeal and Mrs Amesbury also relied on her submissions in court. Counsel for the Prosecution replied. The Submissions form part of this record. Mrs Amesbury also brought to the attention of the Court the case of Raymond Tarnecki v The Republic [Criminal Appeal No 4 of 1996].
It was submitted by Mrs Amesbury that at the time of the offence and conviction the Appellant was only 16 years of age and was thus a child in terms of section 92 of the Children Act. She produced in support the Birth Certificate of the Appellant. She stated that the age of the Appellant should have been taken into account by the Magistrate and the Prosecution required the instruction of the Attorney General before proceeding with the prosecution of the Appellant. There was no such instruction. She also highlighted the fact that before plea was taken the Appellant did not have access to advice from a legal representative or members of immediate family or a guardian.
She also submitted that the phrase in the charge of burglary "in the early hours" was not consistent with the wording "at night" or "in the night" as set out in section 289 of the penal code.
The final ground of the memorandum of appeal read as follows "The charge was also defective in that it charged two persons on the same indictment without making them joint offenders. These were two distinct offences committed by two distinct persons and on different days".
These points were all amplified in the oral submissions of Mrs Amesbury.
Mr. Vipin for the Respondent submitted that no instruction from the Attorney General was required since the Appellant, a child, was charged jointly with an adult in terms of section 113[e] of the Criminal Procedure Code. Mr. Vipin accepted that we had no precise knowledge of the age of defendant Hollanda but asked that it be presumed that he was an adult. He submitted that his view was supported by a consideration of section 93 of the Children Act and both sections should be considered together. This section allows a child, when charged jointly with an adult to be dealt with in the adult court and not the juvenile court. Hence the Prosecution and conviction should stand.
CONSIDERATION OF THE SUBMISSIONS and FINDINGS
I have considered all the submissions both written and oral.
I look firstly at the point regarding the wording in the burglary charge. There is no substance to this ground of appeal.
Secondly, it was entirely proper that charges of burglary and stealing and receiving be included in the same charge sheet.
I now look at the remaining points which, for convenience, can be taken together.
A child is defined in the interpretation section of the Children Act and means a person under 18 years of age and includes a young person. There is an exception to the general rule but this refers only to sections 9 to 14 and hence to Affiliation Orders only.
I find that the Appellant was 16 years of age on the date of the offence and on the date when the Court imposed the conviction and sentence. I refer to the Certificate of Birth Number 1167 of 1996.C issued by the Civil Status Officer and produced to the Court by Mrs Amesbury which shows the date of birth of the Appellant to be is September 1996. The offences were committed on 23rd June 2013 and the Appellant was convicted on June 2013.
In the earlier proceedings the Magistrate was not advised that this Appellant was 16 years of age. The Appellant did not so advice. The Prosecutor did not do so. The formal charge sheet does not record the age or date of birth of the Appellant. For that matter the charge sheet did not show the age or date of birth of the other defendant called Ronny Hollanda.
The Magistrate proceeded in his normal way. He explained the constitutional rights to the defendant who stated that he wished to defendant himself. He elected to plead guilty to both charges and he agreed the brief facts. He mitigated on his own behalf. Thereafter he was convicted and sentenced. In view of the paucity of information it is understandable why the Magistrate took the view that he had received unequivocal pleas and proceeded accordingly.
However it is now known that on the date the Appellant appeared in the Magistrates Court he was 16 years of age. No doubt if this had been known to the Magistrate, he may have considered adopting a different approach. Even at this stage I do not know the age of the other defendant, Hollanda. It is not shown on the charge sheet and Counsel for the Respondent was unable to give me this information in court.
I refer to Section 92 of the Children Act. It is as follows "No child shall be prosecuted for any offence…” except- :
The offence of murder or an offence for which the penalty is death; or On the instructions of the Attorney General.
Hence, discounting the special cases mentioned in subsection [a] no child shall be prosecuted unless the prosecution is instructed by the Attorney General. In my view that means the written instruction of the Attorney General. Similar wording is sometimes used, for example, "with the consent of the Attorney General". The import of such phrasing is that the written sanction or approval of the Attorney General is a pre-condition to certain classes of prosecution.
Counsel for the Respondent referred me to section 113[e] of the Criminal Procedure Code. This allows a charge sheet to include charges of burglary and Stealing and a charge of receiving stolen property. This merely sets out a procedure which is in common use whereby charges based on the same facts or continuing circumstances can be brought in the same information or charge sheet. Charges of stealing and receiving are often found on the same charge sheet with the same or different defendants. Section 112 of the Criminal Procedure Code provides as follows: "Any offences, whether felonies or misdemeanors may be charged together in the same charge or information if the offences charged are founded on the same facts or form, or are part of a series of offences of the same or similar character". Similarly section 93 of the Children Act is procedural in nature. A child charged alone is dealt with in the juvenile court. A child charged jointly with an adult can be dealt with in the adult court.
I find that the Appellant was 16 years of age when he appeared in court to answer the two charges. He was a child in terms of section 92 of the Children Act. The Prosecution required the prior written instruction of the Attorney General before proceeding with this prosecution. There was none. The Prosecution did not seek an adjournment to obtain this instruction. I take into account the precise wording of section 92, "No child shall be prosecuted for any offence.". In my opinion these words mean exactly what they say. Mr. Vipin has produced no authority in support of his submission that a child charged jointly with adult is in a different position to that of a child charged alone. I see no reason why there should be any difference. Section 113[e] of the Criminal Code and section 93 of the Children Act are procedural and reflect common practices and do not assist the Respondent.
Section 92 of the Children Act is quite clear; it means exactly what it says. In the present matter the prior written instruction of the Attorney General was required for the prosecution of the Appellant. No such instruction was obtained by the Prosecution.
I refer to the final sub-paragraph of paragraph 1-286 of Archbold 2012 which reads as follows, "Where some consent that is required to the institution of proceedings is not obtained, the whole of any trial that takes place, including committal proceedings, is a nullity and a conviction which occurs in such circumstances will be quashed". In the present matter the proceedings in the magistrate’s court were a nullity.
According this appeal against conviction and sentence succeeds. The conviction is quashed and the sentence set aside. The Appellant is discharged.

Signed, delievered and dated on 18th November 2013

C Mckee

Judge of the Supreme Court

R v Mancienne (CN 52 of 2012) [2014] SCSC 16 (24 January 2014);

Anonymous — Wed, 03 Mar 2021 16:54:10 +0000

R v Mancienne (CN 52 of 2012) [2014] SCSC 16 (24 January 2014);

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Judgment

Mckee J

The Appellant, Ms Zera Mancienne appeals against Sentence. The Appellant was charged with the offence of entering a building to commit a felony therein namely Stealing contrary to section 290 of the Penal Code.

The Particulars of the offence were as follows:

[1] Zera Mancienne, unemployed, residing at La Pointe, Praslin, on the 13^th day of May 2012 entered into a chalet at Anse Saint Sauveur, Praslin, with intent to commit a felony therein, namely stealing.

[2] The Appellant pleaded not guilty to the charge and the matter went to trial. She was represented by Mrs Amesbury. At the conclusion of the trial the Magistrate adjourned the matter for judgment, which was delivered on 26^th October 2012. The Appellant was found Guilty and convicted of the charge. On this appearance the Appellant did not have the benefit of representation.

[3] Prior to sentence the Magistrate asked the Prosecutor whether the Appellant had any previous convictions. No formal record of previous convictions was produced to the court and the prosecutor merely asked the court to take judicial notice that the Appellant had a previous conviction. The Magistrate raised this matter with the Appellant who confirmed that she did have a previous conviction for a similar offence for which she had been sentenced to imprisonment for a period of two years. No other details were given nor the date of this conviction. The Appellant made no submission in mitigation. The Magistrate adjourned for sentence. On 31^st October 2012 the Magistrate gave his Reasons for Sentence. He stated that the Appellant had been convicted of a similar offence in the year of 2009 and referred to the mandatory minimum sentencing provisions for this offence. Under the provisions he was of the view that the Appellant could face a possible sentence of ten years imprisonment. However he took into account the findings in the appeal case of Frederick Ponoo and imposed a reduced sentence of six years imprisonment.

[4] The Appellant now appeals against the sentence of six years imprisonment.

SUBMISSIONS.

The submission by Mr Chetty for the Appellant was simply that the sentence was harsh and excessive.The Magistrate, while acknowledging that the minimum mandatory sentence provisions applied, had stated that he took an individualistic approach to sentencing in line with the findings in the Ponoo case and hence imposed the reduced sentence. However Mr Chetty still sought a reduction of sentence.

Mr Kumar for the Respondent supported the sentence imposed. He submitted that the Appellant had been convicted within a period of five years from this present conviction for the same or similar offence. As a result it was appropriate that the Magistrate take cognisance of the minimum mandatory sentencing provisions.

FINDINGS

In respect of this appeal I have considered the Notes of Proceedings, the Reasons for Judgment, the Reasons for Sentence and Submissions.

I would like firstly to focus on the record of proceedings immediately after the Magistrate read out his judgment dated 26^th October 2012. He enquired as to any possible previous conviction relating to the Appellant. The prosecutor was unable to produce, in line with normal procedure, a Certificate of Previous Convictions which is prepared by the Criminal Record Office of a police force. I refer to section 119 of the Criminal Procedure Code of Seychelles, which has the marginal explanatory note, “Mode of proof of previous conviction or acquittal”. In particular, I refer to section 119[2] of the Code which reads “A certificate issued under the provisions of section 27[4] the Police Force Act shall be prima facie evidence of all the facts therein set forth”. In the present matter the prosecutor was not in possession of a said certificate and moved the court to take judicial notice that [the Appellant] Ms Zera Mancienne has previous conviction. In the absence of information to the contrary I conclude that the Magistrate did proceed on this basis. He questioned the Appellant on this topic and elicited from her the following information; she had been convicted of a criminal offence before, for the same offence as the present one and that she had been sentenced to a period of two years imprisonment. During this exchange neither the precise charge nor the exact date of the offence were mentioned in open court. This date is not shown in the typewritten or handwritten notes of the Magistrate. However in his Reasons for Sentence delivered some five days later on 31^st October 2012 at line 2 the Magistrate states “The accused was convicted and sentenced to prison for two [years] in 2009 for the same offence which she does not dispute”. Up to this point the date, neither the day, month or year, of the prior offence is recorded in the Notes of Proceedings. I am led to infer that during the intervening five days the Magistrate may have used his own knowledge or carried out some private enquiry to confirm, at least, the year of the previous conviction.

In my opinion the Magistrate was ill-advised to take up the suggestion of the prosecutor that he should take judicial notice that the Appellant had a previous conviction. A court may take judicial notice of certain matters but these are normally matters such as, for example, lighting conditions on a particular piece of road, the location of a church, school or public house and like issues, which are known to the general public and are in the area where the judge or magistrate lives or works. A court can also take judicial knowledge of public statutes, constitutional matters, territorial limits, territorial areas, official gazettes and the currency of a particular country. I can find no authority which suggests that a court can take judicial notice of a previous conviction of a particular accused in a particular case.

Archbold [2012 edition] on Judicial Notice at paragraph 10-71 states “Courts may take judicial notice of matters which are so notorious, or clearly established, or susceptible of demonstration by reference to a readily obtainable and authoritative source that evidence of their existence is unnecessary;”. Further on in the paragraph “ The doctrine applies not only to judges but also to juries with respect to matters coming within the sphere of their everyday knowledge and experience”. And again in the paragraph “Although judges and juries may, in arriving at their decisions, use their general information and that knowledge of the common affairs of life which men of ordinary intelligence possess, they may not act on their own private knowledge or belief regarding the facts of the particular case”.

The Magistrate strayed into error in taking the route he did with regard to proof of the previous conviction of the Appellant. In my opinion, the proof of a previous conviction should not be considered under the principle of Judicial Notice. It is important that a previous conviction is proved in the correct manner where the minimum mandatory sentencing provisions could possibly apply since under the provisions a repeat offender can face a greatly enhanced sentence in comparison to a first offender.

Where the prosecution wish to rely on a previous conviction the way is clear. It must ensure that it has a Certificate of Previous Convictions in the prescribed form available when there is a prospect after a conviction that the minimum mandatory sentencing provisions may or will apply.

Details of the Provisions of antecedents to the Magistrates Courts in England under Practice Directions can be found in Archbold at paragraph 5-75, paragraph III.27.8. “The magistrates’ courts antecedents will be prepared by the police and submitted to the CPS [Crown Prosecution Service] with the case file”.

In the present case the Magistrate ought to have considered adjourning the case for the production of a certificate of previous convictions relating to the Appellant. He did not do so. As a result I find that it has not been proved to the required standard that the Appellant had a previous conviction for the same or a similar offence. In my view the Magistrate’s formula for calculation of sentence is not sustainable.

In the light of the above finding I look afresh at the circumstances of the offence and possible sentence.

The date of the offence was 13^th May 2012. The date of conviction was 26^th October 2012. The latest amendment to the minimum mandatory sentencing provisions came into force on 30^th July 2012. These provisions have no retrospective effect and hence the Appellant is sentenced according to the law at the date of the offence, 13^th May 2012. Section 290 of the Penal Code is in Chapter XXIX of the Code. Since any previous conviction has not been proved I take the Appellant as a first offender. Section 27 of the penal code which was operative on 13^th May 2012 prescribed no minimum mandatory sentence for a first offender who was convicted of an offence punishable with imprisonment for seven years.

Consequently I look to section 290 of the penal code on the matter of sentence. The offence occurred during the hours of daylight. This Appellant is liable to a possible sentence of up to seven years imprisonment.

I look at the circumstances of the offence. The Appellant had the effrontery to secret herself in the holiday chalet which the occupants vacated for the day. It is unclear how she obtained entry. She was discovered by Ms Rosemary Cresswell when she entered to clean the room. The Appellant had tried to evade detection by hiding under the bed. On discovery she made good her escape but was arrested shortly afterwards.

She pleaded not guilty to the offence. She sought to test the evidence of the prosecution as is her right but by doing so lost any benefit she may have accrued by entering a plea of guilty. A disturbing piece of evidence is found in her cautioned statement where she refers to smoking marijuana. I find that it reasonable to infer that she was in the chalet to steal in order to finance her dangerous drugs habit. In my view there has to be a strong element of deterrence in the sentence.

CONCLUSION

In the result I allow the appeal against sentence and quash the order of the Magistrate that six years imprisonment be imposed. In its place I substitute an order that a term of five years imprisonment be imposed on the Appellant.

Signed, dated and delivered at Ile du Port on 24 January 2014

C Mckee

Judge of the Supreme Court

Judgment

Mckee J

The Particulars of the offence were as follows:

[4] The Appellant now appeals against the sentence of six years imprisonment.

SUBMISSIONS.

FINDINGS

In respect of this appeal I have considered the Notes of Proceedings, the Reasons for Judgment, the Reasons for Sentence and Submissions.

In the light of the above finding I look afresh at the circumstances of the offence and possible sentence.

CONCLUSION

Signed, dated and delivered at Ile du Port on 24 January 2014

C Mckee

Judge of the Supreme Court

R v Samson (CN 9 of 2013) [2014] SCSC 46 (26 February 2014);

Anonymous — Wed, 03 Mar 2021 16:47:24 +0000

R v Samson (CN 9 of 2013) [2014] SCSC 46 (26 February 2014);

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Judgment

Mckee J

The Appellant was charged with the offence of Breaking and Entering into a Building and Committing a felony therein contrary to section 291[a] of the Penal Code.

The Particulars of the offence read as follows:

[1] Dereck Samson, residing at North East Pointe, Mahe, during the night of 30^th day Of January in the year 2012, at North East Pointe, Mahe, broke and entered the Seaview Shopping Centre, and stole therein four [4] packets of Basmati rice [25kg], some packets of cigarettes Mahe King, 10 Airtel cards [R50], 20 Airtel cards [R25], some bottles spirits and liquor, all amounting to the total value of SR 25,000, being the properties of Vetrivel Lesser.

[2] The Appellant was represented at trial by Mr. Gabriel. The Appellant pleaded Not Guilty to the charge. At the end of the prosecution case the Magistrate rejected a submission of no case to answer. Following the election, the Appellant elected to give an unsworn statement from the dock. The Magistrate found the Appellant guilty and CONVICTED him of the charge. By way of mitigation the Magistrate was advised that the Appellant was a first offender. The Appellant was sentenced to ten years imprisonment. The Appellant now appeals against CONVICTION and SENTENCE.

I have considered the Notes of Proceedings, the written Judgment, the Reasons for Sentence and the Submissions made on behalf of the Appellant and the Respondent.

[3] FACTS OF THE CASE.

The Prosecution called three witnesses. PW1 was Marcus Julienne and the brother of the Appellant. It was the evidence of PW1 that his residence is close to the shop in question. His testimony was that, having been alerted by his younger brother, he went into the dining room and looked out to see his brother, the Appellant, close to the shop in question with a cutter in his hand. The time was about 3.15 am and he could make this observation because there was a light immediately outside the shop. He saw the Appellant cut the padlocks which secured the access to the shop. He left his observation point to telephone the police. He did not see any person enter the shop. He concluded later that entry to the shop must have been carried out while he was telephoning the police. He stated that the Appellant later came to him and gave him a box of cigarettes. In cross-examination the record of the proceedings shows that he told the court there was no bad feeling between him and his brother, the Appellant. He repeated what he said in examination in chief regarding the actions of his brother. He offered additional information that he had been put under arrest when he gave his formal statement to the police. There is no evidence to suggest that the police followed up on this initial action.

PW2, WPC Santache, took the initial report from PW1. She went to the shop and found the lock and padlock broken.

PW3 was Vetrivel Lesser, and the tenant in the shop. After the report of the break-in he went to the shop. He observed that the padlocks which he had put on the main door were removed. He also stated that there was a small electric light on the veranda of the shop. He gave evidence of items removed from the shop. PW3 remained unshaken in cross-examination.

Following a submission at the end of the prosecution case the Magistrate ruled that there was a case to answer.

The Appellant elected to give an unsworn statement from the dock. He stated that he took no part in this venture. He denied participation. He said he was not present. He stated that PW1 told him that he, PW1, would give him Rs1000 to report that he had broken in to the shop. He said he took the money but gave no statement to the police. No witnesses were called by the defence.

In his submission of no case to answer and closing submission Defence Counsel expressed the view that the absence of corroboration of the evidence of PW1 was fatal and hence there was insufficient evidence to support a conviction. In his judgment the Magistrate stated that he found PW1 to be a truthful witness and accepted his version of the facts. He also took into account all the other evidence before the court. He found there was sufficient evidence to convict, which he did.

[4] SUBMISSIONS.

In his submission Mr. Durup for the Appellant again reviewed all the facts before the court. The thrust of the submission was that it was unsafe in all the circumstances to base the conviction solely on the testimony of one person, PW1. There was even a hint of suspicion that PW1 may have been involved in the break-in and that he was putting the blame on the Appellant.

Counsel for the Respondent supported the conviction. He pointed out that no witness was called in support of the Appellant’s version of events. He also spoke to the strength of the circumstantial evidence pointing to the guilt of the Appellant.

[5] FINDINGS IN RESPECT OF APPEAL AGAINST CONVICTION.

The Magistrate found PW1 to be a witness of truth and accepted his version of events. The evidence of PW1 as to light at the scene of the break-in is corroborated by PW3, Lesser, the shopkeeper. PW3 also corroborated PW1’S evidence that the shop was secured by padlocks. PW2, WPC Santache spoke of the main door being broken. PW3 spoke of entering the shop and observing that items were missing.

PW1 saw his brother, the Appellant, at the shop at 3.15 am and cutting the padlocks. The Magistrate was fully entitled to infer that the Appellant, having cut the padlocks, proceeded into the shop and stole the items alleged. By making this finding the Magistrate had rejected the evidence of the Appellant.

The Magistrate accepted the evidence of PW1 as truthful. There was also the supporting evidence, as I have mentioned, from the other prosecution witnesses. At common law one witness is sufficient to sustain a conviction. The question of credibility is essentially one for the trial magistrate to make. The Magistrate has the opportunity to observe the demeanour of the witnesses and the manner in which each gave his evidence. I have no reason to disagree with his findings. I find that the Magistrate was justified in making the finding he did.

Accordingly the appeal against conviction is DISMISSED.

[6] FINDINGS IN RESPECT OF APPEAL AGAINST SENTENCE.

The offence occurred on 30^th January 2012. The date of conviction was 20^th December 2012 The Magistrate convicted the Appellant under section 291[a] of the Penal Code and, although not expressly saying so, must have held that he was bound by the minimum mandatory sentencing provisions. An offence under section 291 of the Penal Code carries a liability to imprisonment of 14 years. By applying the minimum mandatory sentencing provisions as at 30^th January 2012 the Magistrate sentenced the Appellant to 10 years imprisonment. By doing so I infer that he took the Appellant as a first offender and found no mitigating circumstances in his favour.

I understand the Magistrate’s thinking on sentence in this matter but in doing so he exceeded his sentencing powers as prescribed in section [6][2] of the Criminal Procedure Code. I take judicial notice that the magistrate presiding in this case is a magistrate other than a Senior Magistrate.

Section 6[2] reads as follows:

(2) The Magistrates’ Court when presided over by a Magistrate other than a Senior Magistrate may pass any sentence authorised by law:

Provided that such sentence shall not exceed, in the case of imprisonment, 8 years, and in the case of a fine, Rs75,000.

I find that the Magistrate in imposing the sentence he did exceeded his statutory powers. I set aside the present sentence of 10 years imprisonment. I look again at the circumstances of this case.

The Appellant had broken into commercial premises, not residential property. He broke padlocks to gain entry. A substantial amount of items were removed from the shop. Their value is given at Rs25000. There was no evidence that any items have been recovered.

I keep in view the maximum sentencing powers open to the magistrate and the circumstances of the case. In my opinion an appropriate sentence is one of 6 years imprisonment. Consequently, I quash the sentence of 10 years imprisonment and in substitution impose a sentence of 6 years imprisonment.

On the day prior to the delivery of the above judgment I received proceedings relating to a further appeal lodged by this Appellant. Only the Notice of Appeal had been lodged.

Without going into the merits of the second appeal I noted the following. The Appellant was charged and convicted for the offence of possession of a controlled drug contrary to the Misuse of Drugs Act and sentenced to 12 months imprisonment. The date of conviction and sentence was 20^th November 2012 which was only one month prior to the date of conviction in the case presently before me on appeal. The Appellant had been convicted of being in possession of a small quantity of drugs, namely, 7 milligrams of heroin. This offence relates to drugs. The present appeal relates to an offence of dishonesty.

In the present appeal the magistrate ordered that the sentence he imposed of 10 years imprisonment, now reduced to 6 years imprisonment, should “start to run after the expiration of all sentences passed on the accused prior to that day”, that is consecutive to any previous sentence imposed.

We now are aware that there was only a short period of one month between the dates of conviction and sentence in the two cases. As matters stand at present, the Appellant is required to serve an aggregate sentence of 7 years imprisonment. I consider the position under the totality principle and whether this total sentence is just and appropriate taking the offences as a whole into account.

Looking at all the circumstances and especially the small quantity of drugs involved I am of the view that the aggregate sentence is too high and I order that the substituted sentence of 6 years imprisonment for breaking and entering to commit a felony shall run CONCURRENTLY and not consecutively with the earlier sentence of 12 months imprisonment in respect of the drugs offence.

Signed, dated and delivered at Ile du Port on 13 February 2014

C Mckee

Judge of the Supreme Court

Judgment

Mckee J

The Appellant was charged with the offence of Breaking and Entering into a Building and Committing a felony therein contrary to section 291[a] of the Penal Code.

The Particulars of the offence read as follows:

I have considered the Notes of Proceedings, the written Judgment, the Reasons for Sentence and the Submissions made on behalf of the Appellant and the Respondent.

[3] FACTS OF THE CASE.

PW2, WPC Santache, took the initial report from PW1. She went to the shop and found the lock and padlock broken.

Following a submission at the end of the prosecution case the Magistrate ruled that there was a case to answer.

[4] SUBMISSIONS.

[5] FINDINGS IN RESPECT OF APPEAL AGAINST CONVICTION.

Accordingly the appeal against conviction is DISMISSED.

[6] FINDINGS IN RESPECT OF APPEAL AGAINST SENTENCE.

Section 6[2] reads as follows:

(2) The Magistrates’ Court when presided over by a Magistrate other than a Senior Magistrate may pass any sentence authorised by law:

Provided that such sentence shall not exceed, in the case of imprisonment, 8 years, and in the case of a fine, Rs75,000.

I find that the Magistrate in imposing the sentence he did exceeded his statutory powers. I set aside the present sentence of 10 years imprisonment. I look again at the circumstances of this case.

On the day prior to the delivery of the above judgment I received proceedings relating to a further appeal lodged by this Appellant. Only the Notice of Appeal had been lodged.

Signed, dated and delivered at Ile du Port on 13 February 2014

C Mckee

Judge of the Supreme Court

R v Nicholas (CN 10 of 2013) [2014] SCSC 274 (30 July 2014);

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Judgment

Burhan J

[1] The Appellant in this case was charged in the Magistrates’ Court as follows;

Count 1

Breaking into building and committing a felony therein namely Stealing Contrary to and Punishable under Section 291 (a) of the Penal Code.

The particulars of offence are that Gerard Nicholas residing at Saint Louis, Mahe, on the 10^th day of March, 2009, broke and entered the office of Felicite Island Development and stole the amount of eight thousand, two hundred and seventy rupees.

[2] The Appellant was found guilty after trial, convicted and sentenced to a term of five years imprisonment on the aforementioned charge.

[3] Learned counsel for the Appellant appealed from the said conviction and sentence on the following grounds;

a) the learned Magistrate erred in law and the facts in convicting the Appellant on the finger print evidence found at the alleged crime scene.

b) the learned Magistrate erred in law and the facts in wrongly and insufficiently assessing the evidence of PW4 namely Natasha Marie.

[4] The background facts of the case are that on the 11^th of May 2009 around 6.45 a.m, Natasha Marie a cleaner working at Felicite Island Development had opened the main door of the office and noticed that the door leading to the accounts section had been broken open. She had immediately telephoned the Human Resources Manager and reported the incident. She had also noticed the sliding window was slightly open. Therafter the police together with the finger print division of the Scientific Support and Crime Record Bureau (SSCRB) had been called in to investigate the crime scene.

[5] Lance Corporal Tony Joseph had arrived and observed that the lock of the office door had been tampered with and the door forced open and the office ransacked. Sub Inspector James Tirant attached to the Scientific Support and Crime Record Bureau described the manner in which the fingerprint was lifted from the wooden door lipping from the door that had been forced open. Chief Superintendent Elizabeth in his evidence described how the finger print lifted from the door lipping matched the finger print of the Appellant and stated he had found 10 points of characteristics on both impressions which were alike and agreed in sequence and details of ridge characteristics and produced the chart confirming same.

[6] The main ground urged by learned counsel for the Appellant as borne out in his submissions is that the learned Magistrate had failed to take into consideration the evidence of Natasha Marie who stated that the Appellant had worked earlier with her at Youth Enterprise Services. It is apparent from the evidence of Conrad Johnson that Youth Enterprise Service and Felicite Island Development were two different offices with the same director situated close to each other. The break in however had occurred at the office of Felicite Island Development and not Youth Enterprise Service where the Appellant was supposed to have worked earlier.

[7] The evidence of Josepha Adam who was the Accounts Assistant at Felicite Island Development is that the Appellant worked at Youth Enterprise Services and she categorically states that the Appellant did not work in her office and had never come to the accounts section in Felicite Island Development, the place where the break in occurred. The evidence of Natasha Marie too is that the Appellant did not work at Felicite Island Development. It is apparent therefore the place she refers to in her evidence that the Appellant had frequented was not Felicite Island Development where the break in occurred but Youth Enterprise Services.

[8] Therefore based on the aforementioned facts, the learned Magistrate cannot be faulted in arriving at his finding of guilt based on the circumstantial evidence as there was no explanation before him as to how the Appellant’s finger print appeared on a door lipping of a door forcibly opened to gain entry to the office of Felicite Island Development.

[9] It is apparent that the learned Magistrate had carefully analysed the evidence of the finger print experts namely Sub Inspector Tirant and Superintendent Elizabeth, in coming to a conclusion that the evidence was authentic and could be accepted by court. Identification by finger prints by a person expert in such prints is allowed and maybe sufficient even though the only evidence of identification R v Court (1960) 44 Cr.App.R. 242.

[10] The learned Magistrate had thereafter addressed his mind to the requisites of circumstantial evidence in coming to his finding of guilt. I see no reason as to why the learned Magistrate’s findings in respect of same should be set aside. This court will not seek to interfere with the findings of the trial judge in respect of the truthfulness of the witnesses as it is not apparent that the witnesses’s testimonies in this instant case are so improbable that no reasonable tribunal would believe it Eddison Alcindor v The Republic SC. Cr. App, Side No. 20 of 2008.

[11] For the aforementioned reasons both grounds urged by learned counsel for the Appellant bear no merit. The conviction is upheld and the appeal in respect of conviction dismissed.

[12] In regard to the appeal against sentence, the Appellant after conviction was sentenced to a term of 5 years imprisonment. The offence was committed on the 10^th of May 2009. A person convicted under section 291(a) of the Penal Code in terms of the amending Act 16 of 1995 was liable to a term of 14 years imprisonment. Section 27 A (1) (c) (i) of the Penal Code as amended by Act 16 of 1995 sets out that a person convicted for the first time of such an offence be sentenced to imprisonment for a period of not less than 5 years.

[13] Therefore the learned Magistrate cannot be faulted for sentencing the Appellant to a term of 5 years imprisonment. Considering the nature of the offence, the manner it was committed and the amount stolen, the sentence cannot be said to be harsh and excessive.

[14] For the aforementioned reasons the conviction and sentence of the learned Magistrate is upheld.

[15] The appeal is dismissed.

Signed, dated and delivered at Ile du Port on 30 July 2014

M.Burhan

Judge of the Supreme Court

Judgment

Burhan J

[1] The Appellant in this case was charged in the Magistrates’ Court as follows;

Count 1

Breaking into building and committing a felony therein namely Stealing Contrary to and Punishable under Section 291 (a) of the Penal Code.

[2] The Appellant was found guilty after trial, convicted and sentenced to a term of five years imprisonment on the aforementioned charge.

[3] Learned counsel for the Appellant appealed from the said conviction and sentence on the following grounds;

a) the learned Magistrate erred in law and the facts in convicting the Appellant on the finger print evidence found at the alleged crime scene.

b) the learned Magistrate erred in law and the facts in wrongly and insufficiently assessing the evidence of PW4 namely Natasha Marie.

[11] For the aforementioned reasons both grounds urged by learned counsel for the Appellant bear no merit. The conviction is upheld and the appeal in respect of conviction dismissed.

[14] For the aforementioned reasons the conviction and sentence of the learned Magistrate is upheld.

[15] The appeal is dismissed.

Signed, dated and delivered at Ile du Port on 30 July 2014

M.Burhan

Judge of the Supreme Court