Volcere v The Republic (CN 01/2023 (Appeal from CR 299/2022)) [2024] SCSC 161 (9 September 2024)


ESPARON J

Introduction

  1. The Appellant had been convicted on his own guilty plea for the offence of Stealing from vehicle contrary to section 264 (c) of the Penal Code in CR299/2022. The Appellant filed a noticed of Appeal and his Appeal being against sentence only.
  2. The Appellant being unrepresented after being denied legal aid and chosen to represent himself of which the Court guided him through the entire Appeal process. However, the Court could not impose on the accused to file a memorandum of Appeal as per the law although the Court guided him to do so in view that the Appellant was unrepresented.
  3. Taking the grounds of Appeal from the Notice of Appeal, the grounds of Appeal of the Appellant is that the sentence is too harsh. Although the grounds of Appeal appeared to this Court to be vague and in general terms, since there were no objections on the part of counsel for the Respondent and the fact that the Appellant was unrepresented, this court has decided not to make any adverse inference as to this fact.

Submissions of the Appellant and counsel for the Respondent

  1. The crust of the Appellants submissions are two-fold. That the learned Magistrate failed to keep him on remand for this case so that the Appellant could benefit from time spent of remand. Secondly that the sentences in the present case relating to C. No 299/22 and the other case of which the accused has been convicted namely C. No 300/2022 should have run concurrently to each other rather than consecutively as directed by the learned Magistrate in his sentence.
  2. On the other hand, counsel for the Respondent submitted to the Court that the said sentence should have run consecutively as directed by the learned Magistrate in view that the said two offences were not part of the same transaction.

Analysis and determination

  1. As for the submissions of the Appellant as regards to the learned Magistrate failing to keep him on remand so that he could benefit from the time spent on remand as part of serving his sentence, this Court has gone through the proceedings and found that in the present matter the accused was on remand until both his conviction and sentence and the sentence imposed by the learned Magistrate reflected that the learned Magistrate took into account the time spent on remand as part of her sentence.
  2. Furthermore, this Court is of the view that the argument of the Appellant is misconceived since section 179 of the Criminal Procedure Code gives the discretion to the Magistrate either to remand the accused or to release the accused on bail. As a result, this Court finds that the learned Magistrate cannot be faulted in this respect.
  3. As for the submissions of the Appellant that the sentence should run concurrently rather than consecutively as directed by the learned Magistrate, this Court shall seek guidance from case law.
  4. In the case of Alcindor v R (2007) SLR 32, the Court held that where two or more cases are in reality, one transaction, sentences can be run concurrently.
  5. In the case Laporte v R (1980) SCAR 518 and Marzocchi v R (1985) SLR 30 where the Court held the following;
  1. Sentences imposed for what is essentially one incident or transaction should

            run concurrently.

 

  1. In determining whether offences are part of one incident or transaction, the

           courts should take a broad view. It would be inequitable to treat events of

          one day as virtually one incident for the purpose of inferring guilt and then,

         as distinct and separate, for the purpose of punishment.

  1. In the case of Azemia v R (1988) SLR 33 the Court held the following;
  1. When offences are tried together and arise out of the same transaction it is

 a good working rule to impose concurrent sentences.

 

  1. When offences tried together are considered serious offences it is not

 improper to impose separate and consecutive sentence.

  1. This Court has also considered 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 of any part thereof;

Provided that it shall not be lawful for a court to direct that any sentence under Chapter XXI, 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.’

  1. From the above provision of the law and the above case laws cited, it is clear that the imposition of a consecutive sentence is the rule and concurrent sentence being the exception of which the Court has a discretion in the matter. In the present case, this Court finds that the said two offences in the two separate cases were not part of the same transaction or incident and in fact they were committed on different days not having any nexus with each other. I also find that the two said offences do not fall within the exception provided under section 36 of the Penal Code and they are both serious offences.
  2. As a result of the above, I’m of the view that directing the sentence to run consecutively to any other sentence being served by the convict was appropriate in the circumstances and as such the learned Magistrate did not erred in law and on the facts of the case in exercising her discretion in directing that the said sentence should run consecutively to any other sentence being served by the convict.
  3. As a result of the main ground of Appeal, namely that the sentence being too harsh, I note that the learned Magistrate considered all the mitigating factors in the case as well as the aggravating factors in the case being the accused having previous convictions and not a first offender at all and that the offence is one of serious in nature of which on conviction a person is liable to a term of 12 years’ imprisonment and a minimum term of 5 years’ imprisonment for a second offence.
  4. This Court finds that the learned Magistrate by imposing a sentence of 2 years and 6 months’ imprisonment on the Appellant as a result of taking the above into consideration did not impose a sentence that was too harsh and that the said sentence was reasonable and proportionate in all circumstances of the case.
  5. For the above reasons, I dismiss this Appeal.
  6. The Appellant has a right of Appeal within 30 days from the date of this sentence.

 

Signed, dated and delivered at Ile du Port on the 9th September 2024.

 

 

____________

D. Esparon J  

▲ To the top