Moustache v The Republic (CN 13 of 2022) [2025] SCSC 4 (24 January 2025)

Moustache v The Republic (CN 13 of 2022) [2025] SCSC 4 (24 January 2025)

 


 

ESPARON J

Introduction


 

  1. This is an appeal against the decision of the learned Magistrate is in CR-CO 0097/2022.


 

  1. The only ground of Appeal as per the Memorandum of Appeal is that the sentence of 8 years’ imprisonment for the offence of breaking and entering into a building and committing the felony of stealing, is wrong in law and contrary to principles, in being harsh and excessive.


 

  1. In this matter, it appears that the case CN 97 of 2022 was consolidated with CN 184/22 and CN 185/22 of which the Court sentenced the accused in all three cases with separate sentences for the different cases and made the various sentences for the 3 cases to run concurrently.


 

Submissions of Counsels


 

  1. Counsel for the Appellant submitted to the Court that the fact that the Appellant pleaded guilty to all three cases and is taken to be a first offender this is something that the Magistrate should have appreciated. Counsel admitted before the Court that the offence was committed during the night at Box to box and that the value of the property stolen was given at Twelve Thousand Rupees He also admitted that the offences in all 3 cases where committed on different dates but involved similar offences.


 

  1. According to counsel, the sentences in all 3 cases should have been similar since in the present case he received a sentence of 8 years’ imprisonment. However, in the case CN 184, the convict was sentenced to a term of years’ imprisonment for the offence of breaking into building and 2 years’ imprisonment for the offence of stealing. In CN 185/2022, the convict was sentenced to a term of 3 years’ imprisonment for the offence of breaking into building and 4 years for the offence of stealing.


 

  1. In view of the above, counsel for the Appellant submitted that there must be parity between sentences when there are a number of cases involving the same person and that the person pleaded guilty at the 1st instance but in this particular case the learned Magistrate did not distinguish between the 3 cases and did not seem to justify why he imposed a sentence of 8 years in this particular case whereas in the 2 other cases he gave a different sentence.


 

  1. Furthermore, the one that he was sentenced 8 years’ imprisonment is the one with the lesser amount of value stolen. Furthermore, although the learned Magistrate considered that he was a first offender, he seemed to have taken into account the fact that the Appellant had previous convictions that had already been spent as provided for under the Rehabilitation of Offenders Act.


 

  1. On the other hand, counsel for the Respondent submitted to the Court that none of the items were recovered in all 3 cases. According to counsel, in view that there was a series of breaking in the town area at night, the magistrate found that this was an aggravating factor which weighs against the Appellant and took into consideration the mitigating factors.


 


 


 


 

  1. Counsel further submitted that the sentence was fair and reasonable given the circumstances of the case and taking into account the maximum sentence prescribed by law under section 291 being 14 years and that the said sentence was well below the minimum prescribed by law. Counsel referred to section 27(1) (c) of the Penal Code which prescribe for a minimum sentence for such an offence.


 

  1. Furthermore, the total value lost according to counsel is quite substantial. Counsel for the Respondent relied on the case of Laurence V The Republic, 1990 and the case of Kelson Alcindor V/S the Republic.


 

Analysis and determination


 

  1. From the outset, it is important for this Court to lay down the principles as to sentencing on Appeal. In the case of Mathiot V R SCA 9/1993, LC 29, the Court of Appeal laid down the following guiding principles as to sentencing on Appeal;


 

‘In sentencing Appeals Court will typically intervene only where-


 

  1. The sentence is harsh, oppressive or manifestly excessive;


 

  1. The sentence was wrong in principle;


 

  1. The sentence was far outside the discretionary limit;


 

  1. A matter had been improperly taken into consideration, or a matter that should have been taken into consideration was not; or


 

  1. The sentence was not justified in law.


 

  1. In the case of Suki V/S R SCA 10 of 2019, prof Tibatemwa- Ekirikubinza JA, stated the following at paragraph 25 of the Judgment;


 

‘In exercising discretion to arrive at a sentence, the Judge should balance the mitigating factors with the aggravating factors and then consider the cumulative effect thereof. It may be that in the opinion of the Judge, the aggravating factors outweigh the mitigating factors even to the extent that the-would be mitigating factors have little or no effect on the sentence. In such circumstances, the factors cited in mitigation will necessarily recede into the background. It is only if the mitigating factors carry sufficient weight to tip the scale in favour of the accused that a lenient sentence would be given.’


 

  1. This Court takes note that the maximum sentence prescribed by law for such an offence is 14 years’ imprisonment with a minimum sentence of 10 years’ imprisonment in event of his first conviction in accordance with section 27(1) (C) of the Penal Code. This Court finds that the learned Magistrate correctly applied the case of Ponoo V/S Attorney General (2011) SLR in exercising her discretion to sentence the accused below the minimum sentence.


 

  1. 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 being that the Appellant has pleaded guilty and as such has shown remorse. The Court has also taken into account the convict’s youth and his good character after being arrested by the police and that he has cooperated with the police from the time of arrest by confessing to the offence of which he stands convicted.


 

  1. In the present matter the Court has considered as aggravating factors the fact that the items stolen had not been recovered of which the victim had made a complete lost bearing in mind the total value of the items stolen. Furthermore, the Court found that the fact that the offences were committed during the night to be an aggravated circumstance and further laid emphasis that such offences of which the accused has been convicted being serious.


 

  1. Since the sentence in all three cases was made to run concurrently 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. 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.


 

  1. 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. 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 3 offences in the 3 separate cases were not part of the same transaction or incident and in fact they were committed on different days. I also find that the three said offences do not fall within the exception provided under section 36 of the Penal Code.

  2. However, be that as it may, the learned Magistrate exercised his discretion and decided to have the sentences run concurrently being fair to the accused in the present matter. In doing so, the Court took into consideration that should these sentences take effect consecutively, the convict will end up spending a substantial time incarcerated and this may go against the principle of totality of sentencing and thus the learned Magistrate correctly applied such principle.


 

  1. Counsel submitted that the learned Magistrate had passed comments about the previous conviction of thereof the convict although he had considered the accused to be a first offender and that the learned Magistrate was prejudiced by the past conviction of the accused although these convictions had already been spent in accordance with the Rehabilitation of Offenders Act. This Court disagrees with the submissions of learned counsel for the Appellant since this Court is of the view that the comments passed by the learned Magistrate was said Obiter since the Judge had stated that he had considered the fact that the accused was a first offender as one of the mitigating factors in favor of the accused.


 

  1. As regards to the submissions of counsel for the Appellant that the learned Magistrate did not distinguish between the 3 cases and did not seem to justify why he imposed a sentence of 8 years in this particular case whereas in the 2 others a different sentence. With all due respect to counsel for the Appellant, this Court is of the view that counsel for the Appellant is splitting hairs in raising this issue. This Court finds that after the Appellant had pleaded and convicted in case CN 97 of 2022, in respect to CN 184/ 22 and CN 185/22 this Court is of the view the learned Magistrate should have considered at that point that the Appellant has now a previous conviction which would have attracted the minimum in accordance with section 27(1) (C) of the Penal Code of which this Court is of the view that the sentences passed in CN 184/ 22 and CN 185/22 was too lenient which was a sentence of 3 years and 4 years for a similar offence in view of the minimum sentence applicable and in view that the amount stolen was on the higher side namely 14,099.88 in the case CN 184/22 and SR 91,550 CN 185/22.


 

  1. In the case of the Andre Sopha V/S V/S The Republic CN 15/2013, on Appeal to the Supreme Court, the Court upheld a sentence of 6 years’ imprisonment for an offence of Breaking and entering into a building and committing a felony therein namely stealing 2 packets of Bin Liners Valued at R80/-.


 

Burhan J. Stated the following;


 

‘The issue to consider in sentencing in this instant case is that the sentence is not in relation to stealing two packets of Bin liners but in relation to the offence of Breaking and Entering into a building which is a distinct offence to that of stealing and demands a stiffer sentence. The fact that the Appellant had committed a similar offence of House Breaking under the same Chapter XXIX is an aggravating factor but yet the learned Magistrate had sought to impose only a term of 6 years’ imprisonment. In the Light of the above, the sentence imposed by the learned Magistrate, cannot be said to be harsh and excessive. Learned counsel for the state has not moved for enhancement of the sentence and I therefore uphold the sentence imposed by the learned Magistrate in respect to Count 1’.


 

  1. In the case of Nady Volcy v The Republic CN 31/ 2014, the Appellant was convicted of offences of Breaking and entering into a building and committing a felony in 4 different files and was sentenced;


 

  1. File 412/13 he was sentenced to 4 years and a half imprisonment.


 

  1. File 411/13 he was sentenced to 5 and a half years’ imprisonment.


 

  1. File 410/13 he was sentenced to 6 and a half years’ imprisonment.


 

  1. File 34/14 he was sentenced to7 and a half years’ imprisonment.


 

  1. File 556/13 he was sentenced to 6 months’ imprisonment for the offence of retaining stolen property and had them to run consecutively making a total of 24 years that the Appellant was to served.


 

On Appeal the Court upheld the various sentences but ordered that they run concurrently.


 

  1. The above case laws show that the Courts view such offences as breaking and entering into a building and committing a felony to be serious as distinct from the offence of stealing. Hence it cannot be said that a sentence of 8 years’ imprisonment in view of the circumstances whereby the accused had been convicted for multiple similar offences to be harsh and excessive.


 

  1. This Court has taken note of section 316 (a) (ii) and (iii) of the Criminal Procedure Code which deals with the powers of the Court to increase the sentence on Appeal in the event there is a need. In the present case, in view that the learned Magistrate had ordered that the sentences in all three cases should run concurrently and in view of the principle of totality of sentence and the fact that counsel for the Respondent did not move for enhancement of the sentences in the case of CN 184/22 and CN 185/22, this Court is of the view that a sentence of 8 years’ imprisonment is most appropriate for the accused to serve in the circumstances of the case. As a result, this Court finds that there is no necessity to interfere with the sentence.


 


 


 

  1. As a result of the above, this Court finds that the sentence of 8 years’ imprisonment for the offence of breaking and entering into a building and committing the felony of stealing, is not wrong in law and not contrary to principles, as well as not being harsh nor excessive of which the learned Magistrate did not erred in this respect. As a result, I accordingly dismiss this Appeal.


 

Signed, dated and delivered at Ile du Port on the 24th January 2025.


 


 

…………………………………………

D. Esparon J.


 


 

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