R v Hypolite (CN 22/2015 Appeals from Magistrates Court Case Nos 128/2015, 129/2015, 130/2015, 131/2015, 132/2015 and 133/2015) [2016] SCSC 364 (30 May 2016);

IN THE SUPREME COURT OF SEYCHELLES

Criminal Side: CN 22/2015
Appeals from Magistrates Court Case Nos 128/2015, 129/2015, 130/2015,  131/2015, 132/2015 and 133/2015

[2016] SCSC 364


STEPHANE HYPOLITE
 

versus

THE REPUBLIC

Respondent

Heard:  19 February 2016 and 7 March 2016


Counsel: Mr. Nichol Gabriel Attorney at Law for Appellant
           
             Ms. Amanda Faure, State Counsel for the Republic


Delivered: 30 May 2016

 

JUDGMENT

Burhan J


[1] The appellant was charged in the Magistrates’ Court in 6 different cases. He was convicted and sentenced on his own plea in all 6 cases by sentencing order dated 20th July 2015.
[2] The appellant initially appealed against the sentences imposed in cases 131/2015 and 132/2015 but subsequently, as his appeal was based on the principle of totality in sentencing, with the consent of parties and the sanction of this court, all the other sentences imposed in the same sentencing order dated 20th July 2015, in cases 128/2015, 129/2015, 130/2015 and 133 / 2015 were consolidated with this appeal for the consideration of the total sentence.
[3] In Magistrates’ Court case no 128/2015, the appellant was charged with the following offences:
Count 1
Entering dwelling house with intent to commit a felony therein namely stealing Contrary to and Punishable under Section 290 of the Penal Code.
The particulars of the offence are that Stephane Hypolite of Port Glaud, Mahe on the 29 day of January, 2015, at Port Launay, Mahe entered into the dwelling house Darrel Matombe with intent to commit a felony therein namely stealing.
Count 2
Stealing from Dwelling House Contrary to and Punishable under Section 264 (b) of the Penal Code.
The particulars of offence are that Stephane Hypolite of Port Glaud, Mahe on the 29 day of January, 2015, at Port Launay, Mahe stole from the dwelling house of Darrel Matombe 1 black external hard drive make Accer to the value of R1700/- being the property of Darrel Matombe.
[4] The learned Magistrate proceeded to convict the appellant on both Counts on his own plea and proceeded to sentence him to a term of 3 ½  years imprisonment on Count 1 and to a term of  3 years imprisonment on Count 2 and made further order that both terms run concurrently.
[5] In Magistrates’ Court case no 129/2015, the appellant was charged with the following offences:


Count 1
Housebreaking Contrary to and Punishable under Section 289 (a) of the Penal Code.
The particulars of the offence are that Stephane Hypolite of Port Glaud, Mahe on the 4th day of November 2014, at Port Glaud, Mahe broke and entered into the dwelling house of John Anderson with intent to commit a felony therein stealing.
Count 2
Stealing from Dwelling House Contrary to and Punishable under Section 264 (b) of the Penal Code.
The particulars of the offence are that Stephane Hypolite of Port Glaud, Mahe on the 4th day of November 2014, at Port Glaud, Mahe stole from the dwelling house of John Anderson the following items: 29 fishing lures, 28 rapalas, 2 nylons, 2 fishing hooks, 2 fishing lines, and several other fishing equipments all being the properties of the John Anderson.
[6] The learned Magistrate proceeded to convict the appellant on both Counts on his own plea and proceeded to sentence him to a term of 3 years imprisonment on Count 1 and to a term of  2 years imprisonment on Count 2 and made further order that both terms run concurrently.

[7] In Magistrates’ Court case no 130/2015, the appellant was charged with the following offences:
Count 1
Burglary Contrary to and Punishable under Section 289 (a) of the Penal Code.
The particulars of the offence are that Stephane Hypolite of Port Glaud, Mahe during the night of the 31st day of October, 2014, at Port Glaud, Mahe broke and entered into the dwelling house of John Anderson with intent to commit a felony therein namely stealing.
Count 2
Stealing from Dwelling House Contrary to and Punishable under Section 264 (b) of the Penal Code.
The particulars of offence are that Stephane Hypolite of Port Glaud, Mahe on the 31st day of October 2014, at Port Glaud, Mahe stole from the dwelling house of John Anderson the following items: a wallet containing R3000/- cash, 50 euros, ID card, Bank cards, driving licence, yatch certificate and yatch club card all being the properties of the John Anderson.
[8] The learned Magistrate proceeded to convict the appellant on both Counts on his own plea and proceeded to sentence him to a term of 4  years imprisonment on Count 1 and to a term of 2 1/2   years imprisonment on Count 2 and made further order that both terms run concurrently. He further ordered that the sentence run concurrently with the sentence imposed in case 129/2015 but consecutively with the sentence imposed in case 133/15.
[9] This would mean that the appellant would serve in cases 129/2015 and 130/2015 a total of 4 years imprisonment.
[10] In Magistrates’ Court case no 131/2015 the appellant was charged with the following offences:
Count 1
Housebreaking Contrary to and Punishable under Section 289 (a) of the Penal Code.
The particulars of the offence are that Stephane Hypolite of Port Glaud, Mahe on the 4th day of February 2015, at Port Glaud, Mahe broke and entered into the dwelling house of Jemmy Brigillia with intent to commit a felony therein namely stealing.

Count 2
Stealing from Dwelling House Contrary to and Punishable under Section 264 (b) of the Penal Code.
The particulars of the offence are that Stephane Hypolite of Port Glaud, Mahe on the 4th day of February 2015, at Port Glaud, Mahe stole from the dwelling house of Jemmy Brigillia, 1 Transcend external hard drive and a USB cord being the property of Martina Esparon.
[11] The learned Magistrate proceeded to convict the appellant on both Counts on his own plea and proceeded to sentence him to a term of 4 years imprisonment on Count 1 and to a term of  3 years imprisonment on Count 2 and made further order that both terms run concurrently.
[12] In Magistrates’ Court case no 132/2015 the appellant was charged with the following offences:
Count 1
 Burglary Contrary to and Punishable under Section 289 (a) of the Penal Code.
The particulars of the offence are that Stephane Hypolite of Port Glaud, Mahe during the night of the 2nd day of February 2015, at Cap Ternay, Mahe broke and entered into a dwelling house namely the dormitory at the EX-NYS Cap Ternay, being occupied by staffs of Global Vision International with intent to commit a felony therein namely stealing.
Count 2
Stealing from Dwelling House Contrary to and Punishable under Section 264 (b) of the Penal Code.
The particulars of offence are that Stephane Hypolite of Port Glaud, Mahe during the night of the 2nd day of February 2015, at Cap Ternay, Mahe stole from a dwelling house namely the dormitory at the EX-NYS Cap Ternay, being occupied by staffs of Global Vision International the following items: 1 Roxy brand wet suit value 160 Euros, 1 Aqualung wet suit value 250  US Dollars, 1 pair of diving shoes value 60 US Dollars, 1 dagger value 60 Pounds Sterling, 1 polo t-shirt value 20 Euros value and R300/- cash all being the properties of the staffs of Global Vision International.
[13] The learned Magistrate proceeded to convict the appellant on both Counts on his own plea and proceeded to sentence him to a term of 5 years imprisonment on Count 1 and to a term of  3 ½ years imprisonment on Count 2 and made further order that both terms run concurrently.  He further ordered that the sentence run concurrently with the sentence imposed in case 128/2015 and 131/2015 but consecutively with the sentence imposed in cases 130/2015 and 133/15.
[14] This would mean that the appellant would serve in cases 128/2015 and 131/2015 and 132/2015 a total of 5 years imprisonment.
[15] In Magistrates’ Court case no 133/2015 the appellant was charged with the following offences:
Count 1
Stealing from Dwelling House Contrary to and Punishable under Section 264 (c) of the Penal Code.
The particulars of the offence are that Stephane Hypolite of Port Glaud, Mahe on the 28 May 2014 at Port Launay, Mahe stole from vessel Sea Lovers 1, two anchors one Suzuki Propellor, one gear box and some fuel all to the value of SR55,000/= being the property of Michel Gardette.
[16] The learned Magistrate proceeded to convict the appellant on his own plea and sentence the accused to a term of 9 months imprisonment. He further ordered that the time spent in remand be reduced from the sentence.
[17] In summary the term of imprisonment imposed by the learned Magistrate would be in cases 129/2015 and 130/2015 a total of 4 years imprisonment, in cases 128/2015 and 131/2015 and 132/2015 a total of 5 years imprisonment  and in case 133/ 2015 a term of 9 months imprisonment.
[18] In his sentencing order the learned Magistrate also specifically mentioned that the concurrent terms of imprisonment in cases 128/2015, 131/2015 and 132/2015 totalling 5 years run consecutively with the sentences imposed in 130/2015 (totalling with case no 129/2015 refer para 9 herein) 4 years and consecutive to the sentence imposed in case 133/2015 which is 9 months (refer para 13 herein). Thus accordingly the appellant was sentenced to a total term of 9 years 9 months imprisonment in all 6 cases.
[19] Learned counsel for the appellant’s main contention is that the sentence imposed is harsh and excessive. I observe from the record that the charges against the appellant are in respect of serious offences namely Burglary, Housebreaking and Stealing. I also note that the sentence would have been very much more in all 6 cases had the learned Magistrate proceeded to act strictly according to the provisions in respect of consecutive sentencing, contained in section 36 of the Penal Code and followed the minimum mandatory terms of imprisonment provided for in section 27 (1) of the Penal Code as amended by Act 5 of 2012.
[20] The learned Magistrate however after considering the provisions in section 36 of the Penal Code and the minimum mandatory terms  states in his order “if this court is to strictly enforce the provisions of section 36 of the Penal Code the total number of years of imprisonment which this accused would have to serve would be more than 50 years which, in my view, would be harsh and excessive, thus violating the principle of proportionality advocated in Jean Frederick Ponoo v The Attorney General (SCA 38/2010)”.
[21] The learned Magistrate in his sentencing order has further taken into consideration the mitigating circumstances i.e. that the accused had pleaded guilty at the first instance in all 6 cases and that he had co - operated with the police investigations resulting in the recovery of several stolen items. He also considered the fact that some of the offences were committed in close proximity in time to each other and decided to consider them as offences in the same transaction and impose concurrent terms of imprisonment, followed by this court in the case of Christopher Dorizo v The Republic in Supreme Court Cr App 15 of 2008.
[22] It is clear from the above that the learned Magistrate has addressed his mind to the harshness and excessiveness of the penalty prescribed by law and in conformity with the principles laid down in the Ponoo case (supra), imposed a very much lesser term of imprisonment than that prescribed by law, by imposing concurrent sentences and thus arrived at a just and appropriate sentence, proportionate to the gravity of the multiple offences committed by the appellant.
[23] Having considered the seriousness of the offences with which the appellant has been charged with and the value of items stolen, I see no reason to interfere with his reasoning in his sentencing order. I am inclined to state further that the learned Magistrate Mr. K. Labonte has been very considerate and reasonable in imposing a total term of 9 years 9 months for 6 different cases containing charges of Burglary, Housebreaking and Stealing.
[24] The appeal against the sentences imposed are dismissed.  


Signed, dated and delivered at Ile du Port on 30 May 2016

 

M Burhan

Judge of the Supreme Court