Onezime v R (SCA 6/2013) [2014] SCCA 39 (12 December 2014);

 

IN THE SEYCHELLES COURT OF APPEAL

 

[Coram: MacGregor P, Fernando J.A, Msoffe J.A]

 

Criminal Appeal SCA 06/2013     

Appeal against Supreme Court decision CR 65/2012     

 

Neddy Onezime

versus

The Republic

 

Heard:               1st December 2014         

Counsel:            Mr. Anthony Derjacques for Appellant

                          Mr. David Esparon for Respondent

Delivered:         12th December 2014       

 

Msoffe, J.A

[1]        The Appellant Neddy Onezime appeared before the Magistrates’ Court of Seychelles to answer   a charge of Robbery with violence contrary to section 280 as read with section 281 and punishable under the same section 281 of the Penal Code.  When the charge was read over and explained to him he readily pleaded guilty and he was accordingly convicted as charged.  Thereafter, the trial Magistrate invoked section 7 (1) of the Criminal Procedure Code and committed the case to the Supreme Court for sentencing.  On 25/1/2013 Dodin J. sentenced the Appellant to a sentence of 15 years imprisonment with an order for the sentence to run consecutively with another sentence the Appellant was serving.  Aggrieved, the Appellant has preferred this appeal where two grounds are specified in the memorandum of appeal, namely:

i.          The Honourable Judge erred in law in failing to consider a concurrent sentence, with the present sentence of 15 years imprisonment that the Appellant was undergoing, at the time of sentencing, on the 25th of January 2013.

ii.         The Honourable Judge erred in law in failing to properly analyse the effect of sentence passed, ie 15 years of imprisonment, consecutive to the sentence of 15 years that the Appellant was serving, on the 25th of January 2013 and that the cumulative effect was 30 years of imprisonment which is harsh and excessive and wrong in principle.

[2]        It is pertinent to observe at the outset that although two grounds of appeal are preferred in the memorandum of appeal, in arguing the appeal learned counsel addressed them together.  We too propose to deal with the grounds generally and together.

[3]        The thrust of the complaint in this appeal is best captured under paragraph 9 of the Appellant’s Skeleton Heads of Argument which reads as follows:-

9)         Courts, in sentencing, should also take into account, the totality principle i.e the effect of the sentence passed in terms of years of incarceration.  Normally, such applies when sentencing on different Counts, in one charge sheet.  It is submitted that if the convict is already serving a sentence of imprisonment, when considering whether the present sentence should have effect immediately, on the date sentence is passed, or whether the end of the sentence being served, the same principles apply.  The total number of years of incarceration, is a consideration.

[4]        In reference to the “totality principle”, Mr. Derjacques referred us to a passage in this Court’s decision in John Vinda v Republic, Criminal Appeal No.6 of 1995 (unreported), to wit:-

We venture to think that the “totality principle” when applied may justify the application of the exception permitted by section 36 to the general rule of consecutive exemption of sentence.

[5]        On the other hand, it is the Respondent’s view that the Judge did not err in view of the clear provisions of section 36 of the Penal Code where consecutive sentences in relation to separate indictment are the rule and concurrent sentencing is the exception.  In the Respondent’s further view, a close reading of the proviso to section 36 will show that a sentencing Judge cannot impose concurrent sentences in circumstances where the indictment involves convictions in respect of Chapters xxvi, xxviii or xxix of the Penal Code.  Therefore, since the Appellant was convicted of robbery with violence which falls under chapter xxviii and was serving a sentence in relation to a conviction under Chapter xxix the Judge in this case could only order the sentence to run consecutively with the other sentence.

[6]        In order to appreciate the above arguments in support of and in opposition to the appeal, it is instructive at this stage to cite the provisions of section 36, as amended:-

“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, other than a sentence of death or of corporal punishment, which is passed upon him under  the subsequent conviction, shall be executed after the expiration of the former sentence, unless the court directs 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 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.”

[7]        In our plain reading of section 36, we are in agreement with the Respondent that consecutive sentencing is the rule and concurrent sentencing is the exception.  It is also true that under the proviso thereto “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 …….”  In other words, in an ideal case, a sentence under any of the above Chapters has to run consecutively with a previous sentence.  Hence, in law the order for consecutive sentence ordered in this case is well grounded in terms of section 36.

[8]        Notwithstanding the above general position of the law, the question in this case is whether in the justice of this case the order for consecutive sentence meets the best interests of justice.  This is the crucial question we have to answer for purposes of a fair decision in the matter.  In answering the above question we are satisfied that this Court’s decision in Jean Frederick Ponoo v The Attorney General, SCA 38/2010, provides useful inspiration.  We are aware that in Ponoo the issue before the court was the constitutionality or otherwise of section 27A(1)(c)(i) and section 291(a) of the Penal Code whereas in this case the constitutionality or otherwise of section 36 is not the issue.  However, as already stated, an appreciation of the position taken in Ponoo will provide useful inspiration and guidance in determining the appeal before us.

[9]        We consider the nature of the offence with which the Appellant was convicted of, in that it was by an assault on a tourist in the open public, the value of the property involved, and the personal circumstances raised in mitigation in which, inter alia, the Appellant readily pleaded guilty to show how remorseful he was.  We consider that a further additional mandatory sentence of 15 years imprisonment would violate the principle of proportionality advocated in the Ponoo case.

[10]      In the overall circumstances of this case, we reduce the sentence to 5 (five) years so that the total sentence the Appellant would serve after taking into account the consecutive order would be 20 (twenty) years imprisonment.

 

F. MacGregor                                      Anthony Fernando                                 January Msoffe

President                                             Justice of Appeal                                   Justice of Appeal

 

Signed, dated and delivered at Palais De Justice, Ile du Port on 12th December 2014.