Francis v R (CA 39/2014) [2016] SCSC 392 (01 April 2016);

IN THE SUPREME COURT OF SEYCHELLES
Criminal Appeal : CA  39/2014

       [2016] SCSC 392

 


FREDDY FRANCIS

versus

THE REPUBLIC

 

Heard:            28th January 2016

Counsel:Ms. Domingue for the Accused
            Ms. Ste. Ange for the Republic
            
Delivered:        1st April 2016

 

JUDGMENT
Akiiki-Kiiza J


[1] The appellant was convicted upon his on plea of guilty on 2 counts of House breaking Contra Section 289 (a) of the Penal Code and punishable under the same section, in that he on the section 8/8/13 at Union Vale, Mahe broke and entered the dwelling house of Taciana Marie Confiance.
[2] On the second count, he was charged with stealing from dwelling house contra section 264 (b) and punishable under section 264 of the Penal Code. The particulars  whereof was he on the same day and place stole from the dwelling house of the same victim as on the first count: One “X” box  valued at 10,000/- Rupees and one pair of shoes make BK valued at SR 900/- the property of one Samuel Gill.
[3] The third count was withdrawn by the prosecutor after he had pleaded guilty on the first two counts.
[4] He was eventually sentenced  to serve a term of 3 years on the first count and 2 years on the second count. These sentences were ordered by the learned and Magistrate to run concurrently.
[5] However the trial court made a further order under Section 36 of the Penal code that the 3 years concurrent sentences was to run consecutive to an earlier sentence which the appellant was serving. This turned out to make a total of 11 years imprisonment.
[6] The memorandum of appeal in the following terms:
(1)     The learned Magistrate erred in making the sentences of the appellant to run consecutive  to the term that the appellant was serving at the time that the learned Magistrate sentenced the appellant.
(2)     That the learned Magistrate failure to consider the totality principle regarding the sentences.
(3)     That the sentences was manifestly hash and excessive and wrong in principle.
     
[7] Mrs. Karen Domingue represented the appellant and Ms. Ste. Ange appeared for the Respondent / Attorney General.
[8] Ms. Domingue argued that although the original total sentence of 58 years had been reduced on appeal to 11 years imprisonment, it was still harsh  and the contrary to the totality of sentences to make the 3 years on him to this case to run consecutive to it, hence making 14 years imprisonment on the hand.
[9] On the other hand Ms. Ste. Ange submitted that the Magistrate was right to order a consecutive sentence with the previous conviction in light of section 36 of the Penal Code and that the exception under that section does not apply here. She relied on the Court of appeal case of NEDDY ONEZIME in support.
[10] I have carefully considered all the submission of both learned Counsel and I have also carefully reviewed the lower Court’s proceedings and judgment. I find that the sentence of 3 years and 2 years imprisonment on first and second count respectively by the learned trail magistrate were appropriate in circumstances of the case. The maximum sentence for House breaking is 14 years and for Stealing 8 years. A total sentence of 3 years in my view was if anything on the linient side. Hence the 3rd ground of appeal fails.
[11] As to the 1st and 2nd ground of appeal ever since the Court of Appeal case of PONOO , the  Court is no longer bound by the mandatory or minimum provisions of sentences imposed by the Legislature. This is also in regard to section 27 and 36 of the Penal code. This was the view of recent decision of the Court of Appeal in the case of RODDY LENCLUME VS THE REPUBLIC  SCA 32/13 and in the case of NEDDY ONEZIME VS THE REPUBLIC SCA 6/13. In the latter case the Court of Appeal stated as follows:
“notwithstanding the above general position of the law (Section 36 of the Penal Code) the question in this case is whether in the justice of this case the order for consecutive sentence meets the best interest of justice.”  This is a crucial question we have to answer for purposes of a fair decision in the matter. In answering the above question, we are satisfied that the decision as in JEAN FEDERICK PONOO provides useful inspiration’ (emphasis mine).
[12] In the instance case the accused pleaded guilty. It is not known whether any of the property stolen were recovered or not. Noting that the appellant is now serving a sentence of 11 years (previously reduced on appeal from the appeal of 58 years). The Court’s should avoid imposing a cruel and in human punishment. Also the total sentence showed not to be outrageous as to amount to indecency. A fair hearing under the Constitution, includes a fair sentence (see RODDY LENCLUME CASE ABOVE).
[13] Having said that, a careful perusal of the lower court record reveals 2 short comings which escaped the learned counsel for the appellant:
(1)  The plea of guilty was equivocal as the facts were never accepted by the accused person but by his defence counsel ( see ESTICO VS THE REPUBLIC [2014] SLR 483).
(2) The learned trial Magistrates never convicted the appellant but simply sentenced him without entering a conviction  contra section 188 (1) of the CPC.
[14] The Lower court record shows the following entries on the 13/5/2014 “ court reads the charges.
“ Accused: I am guilty.
Court:  A guilty plea is entered on the record against the accused person in respect of count number one.
Accused: I am guilty.
Court: A plea of guilty is entered on record against the accused person in respect of count number two.
Republic: You Worship, I am now to have count number 3 withdrawn as per section 145 of the CPC.
Court: Count number 3 withdrawn. Would the prosecution narrate the facts”.
Then the prosecutor narrated the facts.
Court: Are the facts admitted.
Defender: Yes the facts as admitted.
Court: Any previous criminal conviction.’

[15] Then the prosecutor informed the court of the appellants previous convictions. Then the defence addressed the court in mitigation and there after the learned Magistrate passed the sentences on the appellant.
[16] Clearly on the authority of ESTICO VS THE REPUBLIC  SLR 483, the plea is equivical and cannot be allowed to stand. Secondly as it can be a ascertained from the lower court record above , the learned trial Magistrate never entered a conviction after the accused had reportedly accepted the facts.
[17]  Section 188 of the CPC provides that :
“ when the evidence and the address if any have been completed, the Court SHALL record a conviction”. (emphasis supplied)
[18] This without any doubt applies equally to where an accused has pleaded guilty to the charges. Hence the appellant was irregularly sentenced.
[19] The third abnormally I would like to point out is that by virtual section 145 of the CPC any extra charges / counts the prosecutor would like to withdraw must be done AFTER a conviction has been entered by the Court but not before.
Section 145 of CPC provides as follows:
“145: Where there are more charges than one against the same accused and he has been convicted of one or more of them the person conducting the prosecution, may with the consent of the Court, withdraw  the others”. (emphasis mine). See also the case of QUATRE VS REPUBLIC [2014] SCR 291 .     
[20] The effect of the 3 errors appearing on the face of lower court record, is as follows:
(a) Failure to comply with section 145 and 188 (1) of the CPC, has not occasioned a miscarriage of justice and is curable under section 344 of CPC.
(b) As for the equivocal nature of the plea, the “conviction” cannot be allowed to stand. It is only the accused person who can accept the correctiveness and the truth of the facts narrated by the prosecutor. If this is not the case, the conviction can not stand.
[21] All in all the appeal succeeds and the conviction is quashed and the sentence is set aside. Given the circumstances of this case especially the fact that the appellant has another sentence he is serving.  I will not order a retrial.

Order accordingly

 Signed, dated and delivered at Ile du Port on 1st April 2016.

 

D Akiiki-Kiiza
Judge of the Supreme Court