Estro v R (CN 39/2015) [2016] SCSC 454 (30 June 2016);

IN THE SUPREME  COURT OF SEYCHELLES

Criminal  Side: CN 39/2015

Appeal from  Magistrates  Court decision 509/2011

 

[2016] SCSC  454

 

ALVIN ESTRO
Appellant

versus

THE REPUBLIC
Respondent

 


Heard:25 March and 16 May 2016

Counsel: Mr. Nichol Gabriel Attorney at Law for Appellant

             Mr. Kalyaan Karunakaran, State Counsel for the Respondent

Delivered:30 June 2016

 

JUDGMENT

Burhan J


[1]        This is an appeal against sentence.


[2]      The appellant in this case was charged in the Magistrates' Court as follows;


Count 1


Entering  a  dwelling  house with  intent to  commit a felony  therein  Contrary  to  and Punishable under Section 290 of the Penal Code.

Particulars of offence Alvin Estro residing at Mont Buxton, Mahe, on the 16th 1ay of May, 2011, at Mont Buxton, Mahe, entered the dwelling house of Dorren Arrisol with intent to commit a felony  therein namely Stealing.

[3]      The appellant was found guilty of the said charge and sentenced to a term of 10 years imprisonment.

[4]      During the hearing of the appeal, learned counsel for the appellant brought it tl the notice of court that the appellant was convicted of several similar offences and was serving a term of over 30 years imprisonment and in order to support this fact with the consent of learned counsel for the respondent and committals tendered copies of the committals in support of same.

[5]       He further urged court that it consider the totality of the sentences imposed on the appellant and grant the appellant the necessary relief, by making order that the sentence imposed run concurrently with the other sentences.                                                        


[6]      It is apparent from the committals before court, read together with the relevant case records that the appellant was serving the following terms of imprisonment:

a) in Magistrates' COM case 507/2011, a total term of  11 years 6 months which term was upheld in appeal by the Supreme Court.

b) in Magistrates' COM case 508/2011, a term of  3 years 6 months with appeal was withdrawn by the Appellant.

c) in Magistrates' Court case 509/2011, a term of 10 years imprisonment which is the appeal before court at present.

d) in Magistrates'  Court  case 510/2011, a term  of 3 years imprisonment .which term was upheld in appeal by the Supreme Court.

e) in Magistrates'  Court case   51112011 a term of 5 years imprisonment which sentence was ordered to take effect immediately i.e. from the 12th day of february
2013.

[7]       Accordingly as the sentences in Magistrates' Court cases 507, 508. 509 and 510/2014 were ordered  to  run  consecutively,  the  appellant  would  serve  a  total  term  of  28  years imprisonment in these 4 cases. It is also observed the first sentence was imposed in case 507/2011   on the 16th day of August 2012. Therefore, the sentence in case 511/2011   of 5 years imprisonment imposed on the  12th of February 2013 and ordered to take effect immediately, could be considered to run concurrently with the total sentence of 28 years imprisonment.                                                                                                   


[8]    In this instant case 509/2011,   I would firstly observe that in imposing the sentence  of 10 years imprisonment, the learned Magistrate had exceeded his sentencing power under section 6 (2) of the Criminal Procedure Code which is limited to the imposition  of a term of imprisonment up to 8 years. Therefore I would first reduce the term of  10 years imprisonment to a term of 8 years imprisonment.

[9]      No doubt the offences are of a serious nature and include offences such as Burglary, Entering a dwelling house, Stealing and Escape from lawful custody but considering the totality of the term the appellant is serving i.e. 28 years, this court is of the view that the sentence imposed is harsh and excessive. Therefore this court makes order that the reduced sentence of 8 years in this case, run concurrently with all other terms of imprisonment.

[10]    This would result in the total sentence of 28 years of imprisonment, being reduced to a total of 18 years imprisonment which court is of the view is a just and appropriate Sentence, proportionate to the multiple offences committed by the appellant. Time served and time spent in remand to count towards sentence.                                                      

[11]     Copy of this judgement to be filed in each of the aforementioned cases in the event of further appeal and a copy to be served on the Commissioner of Prisons.

 

 

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

M Burhan
Judge of the Supreme Court