IN THE SUPREME COURT OF SEYCHELLES
Criminal Side: CN 08/2015
Appeal from Magistrates Court decision 459/2014 and 550/2014
[2016] SCSC 17
DAVIS VOLCERE
Appelant
versus
THE REPUBLIC
Respondent
Heard: 29th October 2015 (written submissions)
Counsel: Mr. Nichol Gabriel Attorney at Law for the Appelant
Ms. Michelle St. Ange, State Counsel for the Republic
Delivered: 21 January 2016
JUDGMENT
Burhan J
1. This is an appeal against sentence. The Appellant was charged in the Magistrates’ Court in Case No 549/2014 with the following offences:
Count 1
Housebreaking contrary to and punishable under section 289 (a) of the Penal Code Cap 158.
The particulars of the offence are that Davis Volcere, on the 11th September 2014, at BaieLazare, Mahe, broke and entered into the dwelling house of Mr. and Mrs. Wilson Boniface with intent to commit a felony therein namely stealing.
Count 2
The particulars of the offence are that, Davis Volcere, on the 11th September 2014, at BaieLazare, Mahe, stole from the dwelling house of Mr. and Mrs. Wilson Boniface (1) Samsung Galaxy tablet valued Euro200, (1) laptop make dell valued Sr3500, Sr900 cash, (1) camera make sony valued Sr3800, (1) 16gb memory card valued Sr250, (1) ladies watch make lava, (2) mobile make lava, a pair of boys boxer, a pair of Lakers basketball shorts, (1) white and black Shirt and a pair of caterpillar shoes, all to the total value of Rs 13300 being the property of Mr. and Mrs. Wilson Boniface.
2. The Appellant was convicted on his own plea of guilt and sentenced on Count 1 to a term of 5 ½ years imprisonment and on Count 2 to a term of 3 ½ years imprisonment. It was ordered that both terms of imprisonment run concurrently.
3. In case number 550/2014 the Appellant was charged with the following offences:
Count 1
Housebreaking contrary to and punishable under section 289 (a) of the Penal Code Cap 158.
The particulars offence are that, Davis Volcere, on the 04th June 2014, at Aux Cap, Mahe, broke and entered into the dwelling house of Mr. Ridley Pierre with intent to commit a felony therein namely stealing.
Count 2
Stealing from Dwelling House Contrary to Section 260 as read with Section 264 (b) of the Penal Code Cap 158.
The particulars of offence are that, Davis Volcere, on the 04th June 2014, at Aux Cap, Mahe, stole from the dwelling house of Mr. Ridley Pierre (1) notebook make acer valued Sr600, (2) silver necklace valued Sr5000, a pair of lakers basketball shorts valued Sr250, (1) celtic basketball jersey valued Sr250, a pair of checkered trousers valued Sr250, (2) perfume valued Sr180, (1) shield roll-on valued Sr40, (1) fashion earring valued Sr150, 2ltrs of enjoy juice and 5pkt of original cocktail juice, all to the total value of Rs12041 being the property of Mr. Ridley Pierre.
4. The Appellant in this case too was convicted on his own plea of guilt and sentenced on Count 1 to a term of 4 years imprisonment and on Count 2 to a term of 2 years imprisonment. It was ordered that the terms of imprisonment run concurrently.
5. On the same day, in the same order dated 9th April 2015, the learned Magistrate (Mr. K Labonte) sentenced the Appellant in Case No 551/14 to a term of 1 year imprisonment for another offence of house breaking committed on the 9th of September 2014.
6. In regard to the sentences imposed in Case Nos 549/14, 550/14 and 551/14 the learned Magistrate in his sentencing order, applying the totality principle, made further order that the sentence imposed in Case No 549/14 (5 ½ years) run concurrently with the sentence imposed in Case No 551/14 (1 year) but consecutively to the sentence imposed in Case No 550/14 (4 years). Therefore the Appellant would serve in total a term of 9 ½ years for the 3 cases.
7. In the case of R v Reeve, 2Cr.App.R.(S.) 35, it was held that it was the duty of the court which passes a number of consecutive sentences to review the aggregate of the sentences, and consider whether the aggregate sentence is just and appropriate. This principle, known as the “totality principle”, even applies where one of the sentence is to be mandatory minimum custodial sentence R v Raza [2010] 1 Cr App.R.(S.) 56, Archbold Criminal Pleading, Evidence and Practice 2012, 5-592 and 5-456.
8. Where the court decides to adjust a series of sentences because the aggregate is too high, it is generally preferable to do so by ordering sentences to run concurrently rather than by passing a series of short consecutive sentences R. v Simpson, unreported, February 1, 1972)Archbold 2012, 5-592.
9. Therefore, the learned Magistrate cannot be faulted for not imposing the minimum mandatory term of imprisonment, in order to arrive at a just and appropriate sentence, even though a minimum mandatory term of 8 years imprisonment could have been imposed by the learned Magistrate in each case for the subsequent offences of housebreaking and stealing. He has also correctly resorted to making the sentences imposed run concurrently to arrive at a just and appropriate sentence.
10. Considering the fact that the offences of housebreaking were committed on three different dates i.e. the 4th of June, 9th of September and 11th of September 2014, on three different households, it cannot be said that the offences were committed in the course of the same transaction. Further, the items stolen in Case No 549/14 totalled a sum of SR 13,300/- and in Case No 550/14 SR 12,041 and included items such as a laptop, a galaxy tablet, notebook and silver necklaces. Having considered all these circumstances, it cannot be said that the total term of 9 ½ years imprisonment imposed in all three cases is harsh and excessive.
11. The appeal against sentence is therefore dismissed.
Signed, dated and delivered at Ile du Port on 21 January 2016
M.Burhan
Judge of the Supreme Court