R vs Jumaye (CR SCA NO. 8 OF 2011) [2014] SCCA 26 (14 August 2014);

 

JUDGMENT

MSOFFE, J.A.

1.     We wish to paraphrase this judgment by stating that SCA CR No.8 of

2011 and SCA CR No.11 of 2011 are consolidated because both arise from the decision of the Supreme Court of Seychelles in Criminal Side No. 5 of 2011.  For ease of reference RAHIM JUMAYE, TREVOR LAIRA, BRIAN LOUISE AND NIGEL ANTAT will henceforth be referred to as the first, second, third and fourth Appellants, respectively.

2.     The Appellants stood trial for a total number of five counts comprising one count of attempted robbery with violence contrary to section 282 of the Penal Code read together with section 23 of the said Code, one count of murder contrary to section 193 of the Penal Code read together with section 23 of the said Code and punishable under section 194 of the same Code, and three counts of robbery with violence contrary to section 280 of the Penal Code read together with section 23 of the said Code and punishable under section 281 of the same Code.

3.     In Seychelles, the offence of murder is triable by a jury.  Under normal circumstances, therefore, in this case only the second count would be triable by a jury.  However, under section 112 of the Penal Code, the law allows for accused persons to be charged and tried in a single proceeding if the offences charged are founded on the same facts or form or are part of the same or similar transaction and are of the same or similar characteristics.  It was in the spirit of this law that the offences of robbery with violence were tried by a jury alongside the offence of murder.

1.           After a full trial, the first Appellant was convicted of the second, third, fourth, and fifth counts and sentenced to concurrent terms of imprisonment for life, 15 years, 12 years and 12 years, respectively.  The second, third and fourth Appellants were convicted of the fourth and fifth counts and each was sentenced to concurrent terms of 12 years imprisonment.

5.     Very briefly, the prosecution case was that in the evening of 31st December 2010, PW1 Zou Jian Quing, PW2 Jin Jiam and PW3 We Zheng Tuin came to Victoria with about 20 – 30 others for sight- seeing and to enjoy New Year eve.  They met up with the deceased and three others and went further towards the bus terminal and later to an Indian supermarket then across a football pitch and sat at the entrance of the pitch and started chatting.  At the gate they met about 6 to 7 persons they did not know prior to that date.  The persons started searching the pockets of the deceased.  After a short while the deceased got away from them and called upon his Chinese colleagues to run.  They ran in the direction of La Promenade.  When PW1 stopped running he realized that he was alone.  He went to get help and with 10 friends they went back to the scene where they saw the deceased lying face down on the ground, his pockets turned over, socks and shoes removed.  They called him but there was no response.  They tried to shake his shoulder but there was no movement.  They tried to turn him over, still there was no movement.  There was blood on the ground, on his body and around the chest.

 

6.     Other aspects of the prosecution case were borne out by the evidence of PW7 Hashim Adil, PW10 Tracey Isabelle Labiche and PW12 Darren Vidot.  PW7 testified that, on 31st December 2010, the first Appellant called him at around 9.00 p.m and asked him to lend him a knife.  PW10 and PW12 were a girlfriend and a boyfriend, respectively.  On 31st December 2010, near MCB bank, they were attacked by a group of about 5 – 6 persons wielding a knife and on 10th January 2011 PW12 identified the first Appellant as having been one of their attackers on that fateful night.  PW12 identified the knife as the one with the same description that was admitted in court.

 

7.     Yet again and very briefly, PW13 Don Jessie testified that he was also a victim of a robbery on the night of 31st December 2011 at Victoria when he had gone to urinate at a bus stop near the playground close to Marine Charter and the Library.  PW11 Ian Jean-Luc Lenclume testified that on 1st January 2011 he bought a watch from the third Appellant, Brian Louise, which he later identified in court.  PW8 Selwyn Louis-Marie testified that on 4th January 2011 he was in police remand custody when the first Appellant told him that, on 31st December 2010, he stabbed a “Chinese” in the course of a robbery.  It is also on record that the Appellants later made cautioned statements which were eventually produced and admitted in evidence at the trial.

8.     In this appeal, the second, third and fourth Appellants are appealing against sentence(s) only.  Their grounds of appeal in the notices of appeal have one common feature:  Their being first offenders the sentences meted were/are too harsh.  The second and third Appellants are also of the view that the period(s) they spent in remand custody ought to have been considered in passing the sentences.

9.     The first Appellant has listed seven grounds of appeal which read as under:-

Ground 1

The learned trial judge erred in that he did not put to the jury sufficiently or at all the case for the Appellant.

Ground 2

The learned trial judge did not put to the jury the fact that the Appellant could be convicted to the lesser charge of manslaughter in Count 2.

Ground 3

The trial judge erred in admitting the confessions of the

Appellant as there was sufficient evidence to prove that he had never written any statement;

Ground 4

The trial judge failed to appreciate and to fully analyse the exact nature of the unlawful act that caused the death of the victim.

Ground 5

The trial judge failed to address the jury on the fact that

the prosecution produced no murder weapon as the knife produced had no traces of blood.

Ground 6

By not addressing the jury on the above, the trial judge failed to exercise his mind to the possibility that there were exonerating facts that would have benefitted the Appellant.

Ground 7

The trial judge did not address the jury extensively on the evidence of prosecution witness Selwyn Louis Marie.

 

10.      We wish to begin with the appeal by the second, third and fourth Appellants which, as already stated, is against sentence.

 

 

11.      In Seychelles the law relating to an appeal against sentence is settled.  In the much celebrated case of Dingwall v Republic S.L.R205 at page 206 it was stated:-

The Appellate court will only alter a sentence imposed by the trial court if it is evident that it has acted on a wrong principle or overlooked some material factor or if the sentence imposed is manifestly excessive (or inadequate) in view of the circumstances of the case.

 

12.      Quoting Archbold, 35th Edition, paragraph 947, the Court in Dingwall also observed that a court of criminal appeal does not alter a sentence on the mere ground that if it had been trying the case, it might have passed a somewhat different sentence.

 

13.      The Dingwall principle, which incidentally has also been quoted with approval in other jurisdictions, specifically in Tanzania as per Robert Avon v Republic, CAT Criminal Appeal No.68 of 2007and Seleman Rashid@Daha v Republic, CAT Criminal Appeal No.190 of 2010 (both unreported), is in line with a long and unbroken chain of authorities on the subject to the effect that an appellate court may alter a sentence imposed by a trial court where any of the following is evident:-

1.       The sentence is manifestly excessive.

2.       The sentence is manifestly inadequate.

3.       The sentence is based on a wrong principle of sentencing or of law.

4.       A trial Court overlooked a material factor.

5.       The sentence is based on irrelevant factors.

6.       The sentence is plainly contrary to law.

7.       The sentence does not take into consideration the long period an Appellant has spent in remand or police custody awaiting trial.

 

14.      We have carefully looked at the submissions made by the respective learned counsel in their Heads of Argument in relation to the sentences that were meted to the Appellants.  We take it that the advocate for the Appellants is generally of the view that the sentences were on the high side.  On the other hand, the State counsel is of the view that the sentences were appropriate and justified in all of the circumstances of the case in that there were a number of aggravating factors in respect of the offences which must be taken into account in considering whether the sentences were harsh, to wit:-

a)     The offences were carried out by a group, as opposed to by a sole offender, thus increasing the level of intimidation to the victim;

b)          The offences occurred at nighttime, when a victim is more vulnerable;

c)           A weapon, namely a knife, was used;

d)          Each offence formed part of a series of robberies that were carried out by the appellants and another that evening ?the court was not just dealing with an isolated offence;

e)           The learned judge could properly infer that there was a degree of pre-planning to the attacks, as each appellant knew which role to play;

f)            As the learned judge observed in his sentencing remarks, the offences would cause others to fear for their safety on the streets.  One legitimate aim of the sentencing process is to impose such sentences as will deter others from committing similar offences.

15.      In our considered view, a determination of this ground of appeal poses no difficulty and we will be very brief on this.  Applying the principles in Dingwall and in balancing them with the above undisputed aggravating factors, we do not think that the sentences were too harsh.  On the contrary, we are satisfied that the sentences were appropriate and justified, save that as conceded by the State counsel, the period(s) spent by these Appellants in custody before conviction was a strong mitigating factor that ought to have been taken into account in passing the sentences.

16.      This brings us to the appeal by the first Appellant.  To start with, we note that the third ground of appeal which had been intended to challenge the admission in evidence of the first Appellant’s confession (Exh.P17B) has been abandoned.  Secondly, we wish to state from the outset that in view of the position we have taken on the second ground of appeal, we will not address the other grounds of appeal.

17.      The complaint in the second ground of appeal is premised on the fact that the Judge did not at all put to the Jury the possibility of a conviction of the lesser offence of manslaughter.  Our own appreciation of the record confirms that the Judge did not address the Jury on this alternative offence.  Indeed, the State counsel also concedes that the Judge did not leave the option to the Jury that the Appellant could be convicted of the lesser charge of manslaughter save that she was of the view that the absence of a direction on manslaughter does not render the conviction for murder unsafe.  With respect, we do not agree with her for reasons which will become apparent hereunder.

18.      As we did in Justin Sirame v Republic, SCA No.6 of 2013, it is instructive to state the law on manslaughter before addressing the complaint in this ground of appeal.  Section 192 of the Penal Code provides:-

192- Any person who by an unlawful act or omission  causes the death of another person is guilty of the felony termed “felony”. An unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health, whether such omission is or is not accompanied by an intention to cause death or bodily harm.

                  [Emphasis added.]

19.      Yet again, as we stated in Sirame, citing BLACK’S DICTIONARY, Ninth Edition by Bryan A. Garner and the Textbook on Criminal Law, Fifth Edition by Michael Allen, manslaughter entails the killing of a human being without malice aforethought and that it covers all homicides which are not murder.

20.      Manslaughter is divided into two generic types ?voluntary and involuntary.  Voluntary manslaughter consists of those killings which would be murder because the accused person has the relevant mens rea but are reduced to manslaughter because one of the defences like diminished responsibility, provocation, etc. exists in the case in question.

21.      Involuntary manslaughter arises where there is an unlawful killing committed by an accused person who did not have malice aforethought but who, nevertheless had a state of mind which the law treats as culpable.  As stated in BLACK’S LAW DICTIONARY (supra) it is a “homicide in which there  is no intention to

killor do grievous bodily harm, but that is committed with criminal negligence or during the commission of a crime not included in the felony-murder rule …… involuntary manslaughter is a “catch-all” concept.  It includes all manslaughter not characterized as voluntary.

                   [Emphasis added.]

 

22.      It is trite law that one of the essential ingredients of the offence of manslaughter is the existence of an unlawful act.  In order to secure a conviction for manslaughter the accused person’s act must be unlawful in that it constitutes a criminal offence in its own right.

23.      In our considered view, the facts of the case of the Appellant were such that the Judge ought to have directed the Jury on the possibility of finding for the lesser offence of manslaughter in the light of the law we have attempted to show above.  In the process, he could have explained to them the distinction between voluntary and involuntary manslaughter and left it to them to decide whether they found either of these proved in the case.  As we stated in Sirame, the failure to do so

 “was an irregularity of such a nature that can be cured by an appreciation of what the verdict the Jury would have returned if they had been directed on the law regarding manslaughter”.

24.      From our own analysis and appreciation of the evidence on record, we are satisfied that the Appellant was not contradicted by the prosecution in his assertion in the cautioned statement (Exh.17B) where he stated at page 448 thus:-

…….. When I was attacking the Chinese my intention was to steal but during the strangling (sic) together with the Chinese, the knife that was in my hand stabbed him but I (sic)was not my intention to injured (sic)him or to kill him ..…….

      [Emphasis added.]

25.      In both law and fact, the following matters can be discerned from the above statement:-

(i)     In terms of the provisions section 192 of the Penal Code       (supra) the first Appellant committed an unlawful act.

(ii)    The unlawful act in the justice of this case was the intention to steal resulting in the stabbing of the deceased, which in law constituted a criminal offence in its own right.  Indeed, the unlawful act in this case fits in well with the principle laid out in Republic v Ernesta (1985) SLR 58 that where an unlawful act, which all sober and reasonable people would inevitably recognize must subject another to at least some risk of harm, results in the death of that person, the person engaging in the unlawful act is guilty of manslaughter.

(iii)    In executing the unlawful act the first Appellant killed the deceased, that is the person he referred to as the “Chinese”.

(iv)   The first Appellant did not have malice aforethought but had a state of mind which the law treats as culpable.

26.      In the end, for reasons stated, we hereby allow the first Appellant’s appeal to the above extent and amend the sentence imposed to fall in line with the evidence adduced.  Accordingly, the conviction of the first Appellant for murder contrary to section 193 of the Penal Code is substituted for a conviction for manslaughter contrary to section 192 of the said Code.  The sentence of life imprisonment meted in the second count is hereby set aside subject to a sentence of manslaughter.

27.      In sentencing the first Appellant for manslaughter we take into account the overall circumstances in which the offence was committed.  We take note that apart from the Appellant’s account there is no evidence by anyone else as to what exactly happened at the time of the incident.  Inspite of this, the offence formed part of a series of robberies, all taking place within a period of around one hour, that were carried out by the first Appellant and the other Appellants on that fateful night.  A weapon, namely a knife, was used and according to the Doctor, PW9 Dr. Betsy Chavez, the deceased died as a consequence of trans-aortic wound which passed in his pulmonary artery.  The wound was 7 centimetres deep and was inflicted on a vulnerable part of the body.  The Appellant borrowed the knife from an acquaintance, PW7 Hashim Adil, and went to Victoria to look for people to rob.  As the trial Judge observed, and quite correctly in our view, the offences would cause others to fear for their safety on the streets.  The first Appellant had a previous conviction, albeit while he was a juvenile, for stealing.  The offence, together with the robberies, occurred at night when a victim is more vulnerable.  Having taken into consideration all the above factors, we are of the settled view that a sentence of 15 (fifteen) years imprisonment from the date of the first Appellant’s arrest will meet the justice of the case for the offence of manslaughter, and we hereby sentence him accordingly.  This sentence shall run concurrently with the other sentences in the third, fourth and fifth counts meted by the Supreme Court save that the period he spent in remand custody before conviction shall be taken into account.

28.      As for the second, third and fourth Appellants we allow the appeal partly in the sense that we maintain the concurrent terms of imprisonment passed by the Supreme Court except that the periods they spent in remand custody before conviction shall also be taken into consideration.

 

 

S. Domah                         A. F. T. Fernando                  J. H. Msoffe                

Justice of Appeal               Justice of Appeal                  Justice of Appeal

 

Dated this 14th day of August 2014,at Palais de Justice, Ile Du Port, Mahé, Seychelles