Pool v R (CA 65 / 2013) [2016] SCSC 391 (05 April 2016);

IN THE SUPREME COURT OF SEYCHELLES
Criminal Appeal: CA  65 / 2013

[2016] SCSC 391


PAUL POOL

versus

THE REPUBLIC

 

Heard:            1st April  2016

Counsel:        Ms. Ste. Ange standing in for Ms. Cesar for the Republic
            
Delivered:        5th April 2016

JUDGMENT
Akiiki-Kiiza J

 


[1] The appellant was charged with stealing on contra section 260 of the Penal Code and punishable under the same section along with section 23 of the Penal Code.
[2] It was alleged that the appellant, Paul Pool, at Anse Boudin, Praslin and Roy Bonne of Cote D’or Praslin on the 5/10/2012 at Paradise Sun at Cote D’or Praslin, stole 1 rescue boat namely Sagittarius with 40 horse power marked Yamaha engine with a value of Rs. 85,000/- being the property of Kevin Lesperance.
[3] The accused person pleaded not guilty and the case started by the prosecution calling witnesses. After the closure of the prosecution case the learned trial Magistrate found it was a case to answer for both accused person. When they were called upon to make their defence, both opted to change their plea from not guilty that of guilty.
[4] The prosecutor relied on the evidence of the prosecution already adduced earlier during the trial and both accused persons accepted the evidence (facts) as true and correct. They were both convicted upon their own plea of guilty.  
[5] The case was adjourned for sentence which was delivered on the 13/06/2013. The learned trial Magistrate sentenced the appellant to 5 years imprisonment and his co - accused to a term of 3 years. He appears to have based this disparity in sentence to the alleged leading role the appellant had played in the case as the brains behind the crime. The appellant started serving the sentence straight away but later he delayed to lodge this appeal.
[6] When he appeared before me, he opted to represent himself despite explaining his right to legal counsel. He assured me that he was capable of representing himself, and that in any case as there were only 7 months of his 5 years sentence remaining seeking legal counsel would delay the case further.
[7] Ms. Cesar represented the Republic / Respondent during the hearing of this appeal. She told Court that she would not raise the question of late appeal given the fact that the appellant was in prison. The appellant basically relied on his notice of Appeal filed on the 8/7/2013, 5 days after his conviction and sentence.
[8] The main ground the appellant relied upon is that the learned trial Magistrate erred in imposing on him a different sentence from that he imposed on the co - accused. Ms. Cesar learned Counsel for the respondent did not support the sentence.
[9] I have carefully considered the lower court’s record and I find that the learned trial Magistrate erred in imprisoning a different sentence from that of his co-accused. He imposed 2 years more than he imposed on his co-accused. He imposed 5 years imprisonment, instead of 3 years.
[10] In the case of KELSON ALCINDOR VS THE REPUBLIC SCA No. 28/13. The PCA, his Lordship Mac Gregor had the following to say:
“Where two people are convicted of similar charge it is wrong in principle to impose a particular form of sentence on one and then a different form of punishment on the other. There should be parity in sentencing. (see CASE REPUBLIC VS BERRY, 7 Criminal Appeal Reports 392.CA). It would therefore be fair, and in his interest of Justice not to punish the appellant more harshly than those others convicted of similar offence.”
[11] I respectfully agree with his Lordship in above case and I accordingly I reduce the sentence of 5 years imposed on the appellant to 3 years so as to make it even with his co-accused.
[12] As the accused appear to have served almost the entire unfair sentence, I order his immediate release from prison.

Order accordingly.

Judgment read in open Court.


           Signed, dated and delivered at Ile du Port on 5th April 2016.

 

D Akiiki-Kiiza
Judge of the Supreme Court