Jean v R (CN 34/2014) [2016] SCSC 198 (24 March 2016);

 

IN THE SUPREME COURT OF SEYCHELLES

Criminal Side: CN 34/2014

Appeal from Magistrates Court decision 473/2009

[2016] SCSC 198    

 

EXCEL JEAN

versus

THE REPUBLIC

 

 

Heard:                         25thJanuary 2016 and 25 January 2016

Counsel:                      Mr. Nichol Gabriel Attorney at Law for appellant

 

                                    Mr. Andy Asba, State Counsel for the Republic

 

Delivered:                   24th  March 2016

JUDGMENT
Burhan J

 

  1. This is an appeal against sentence.
  2. The Appellant was charged in the Magistrates’ Court as follows:

Count 1

Housebreaking contrary to and punishable under Section 289 (a) of the Penal Code.

The particulars of offence are that Excel Jean, residing at Anse Royale, Mahe, on the 12th day of August 2009, La Retraite, Mahe, broke and entered into the property into the dwelling house of Julienne Mondelly with intent to commit a felony therein namely Stealing.

Count 2

Stealing from dwelling house contrary to and punishable under Section 264 (b) as read with 260 of the Penal Code.

The particulars of offence are that Excel Jean, residing at Anse Royale, Mahe, on the 12th day of August 2009, at La Retraite, Mahe, stole from the dwelling house of Julienne Mondelly the following items namely:- (1) Camera make Kodak, (2) Gold Necklaces, (1) Silver Plated Bracelet, (2) Gold Pendants, (1) broken Gold Earing, (1) broken Gold Necklace, (1) Gold Chain and (1) Gold Earing all amouting to the total value of SR 5350/- being the properties of Julienne Mondelly.

3. The Appellant was convicted on his own plea of guilt and sentenced on Count 1 to a term of 6 years imprisonment and on Count 2 to a term of 4 years imprisonment. It was ordered that both sentences run concurrently. It was further ordered that the said term, should run consecutive to the terms of 3 and 9 years imprisonment imposed on the Appellant in 2 other cases of similar nature.

4. In regard to the submission of learned counsel for the Respondent that the appeal was out of time, it appears the Appellant was sentenced as far back as the 17th day of February 2010. It is to be observed that the Appellant had filed a notice of appeal dated 22st February 2010 received on the 25th of February 2010, in respect of two cases in the Magistrates’ Court nos: 472/ 09 and this case 473/ 09. The registry however sent only one case record 472/09 and not this instant case 473/09 to the Supreme Court in appeal. It was only much later on another notice of appeal dated 3rd April 2014 being filed by the Appellant was case 473/09 eventually sent to the Supreme Court. It cannot therefore be said that the notice of appeal in this instant case 473/09 has been filed out of time as the original notice of appeal is dated 22nd  February 2010 but due to an oversight of the registry, the record had not been sent to the Supreme Court for determination of the appeal.

5. In respect to the submissions made by learned counsel for the Appellant in regard to sentence, learned counsel on the 25th of January 2016, informed court that he would be confining his submission and moving court to only reduce the term of imprisonment of 6 years ordered in Count 1, to a term of 5 years imprisonment as this was the minimum mandatory term of imprisonment in respect of the said offence, at the time it was committed. Learned counsel further stated that the Appellant had appealed against the other sentences imposed and he had already served a large part of the total sentence imposed on him in all cases and if the sentence in this case was reduced by one year, the Appellant would have to serve only a remaining sentence of 1 year in all.

6. On considering the order made at the time of sentencing in this instant case, it is apparent that the learned Magistrate had ordered as far back as the 17th of February 2010, the sentence of 6 years imprisonment imposed in Count 1 to run concurrently with the sentence of 4 years imprisonment in Count 2. According to the prevailing law at the time the offence was committed, the minimum mandatory term for such an offence was 5 years imprisonment.

7. Having considered the delay in the hearing of this appeal which was due to no fault of the Appellant, the fact that the Appellant has already served a large percentage of his accumulated sentence and the fact that the minimum mandatory term of imprisonment for a repeat offender was 5 years at the time the offence in this case was committed, I would reduce the term of 6 years imprisonment imposed  in Count 1 to a term of 5 ( five) years imprisonment, to run concurrently with the term of 4 years imprisonment in Count 2.

8. Therefore in total, the Appellant to serve a term of 5 years imprisonment in this case.

 

9. The appeal against sentenced is allowed accordingly.

Signed, dated and delivered at Ile du Port on 24 day of March 2016

 

 

 

M Burhan

Judge of the Supreme Court