Cadeau v R (CN 54/2016 (Appeal from Magistrates Court Decision 270/2016)) [2017] SCSC 751 (01 June 2017);

IN THE SUPREME COURT OF SEYCHELLES

CriminalSide: CN 54/2016

Appeal from Magistrates Court decision 270/2016

[201     ] SCSC     


JEMMY CADEAU

Appellant

versus

THE REPUBLIC


Heard:                         25 April 2017

Counsel:                      S. Rajasundaram for appellant

                                   A. Faure, State Counsel for the Republic

Delivered:                   1 June 2017


JUDGMENT


Dodin J

[1]        The appellant, Jemmy Cadeau, on the 21st October, 2016, pleaded guilty to one count of robbery contrary to section 280 and punishable under section 281 of the Penal Code. The particulars of the offence are that Jemmy Cadeau who at the time was residing at English River, on the 8th day of April, 2016 at Val D’en Dor, Mahe stole SR 3200 in cash from Heinz Schultz and immediately before stealing the money used actual violence to the person of Heinz Schultz in order to take the money.

[2]        On the 14th December, 2016 the learned Magistrate imposed a sentence of 3½ years imprisonment on the appellant and ordered him to pay a sum of SR 3200 upon his release from prison as compensation to the complainant/victim. I must note at this stage that the sentencing order of the learned Magistrate was pretty lengthy and covered almost every aspect that should be considered in determining an appropriate sentence.

[3]        The appellant now appeals against the sentence on the following grounds:

1.         The learned Magistrate failed to consider the grounds of mitigation submitted by the Appellant, more specifically the circumstances under which the offence was constrained to be committed; the age and family background of the appellant; the recommendations of the probation services forwarded to the Magistrate’s Court.

2.         The learned Magistrate failed to consider the necessity of drug rehabilitation programme to be given to the Appellant as referred to in its report by the probation officer.

3.         The sentence of 3½ years harsh and excessive given the background of drug rehabilitation necessary for the appellant.

[4]        Learned counsel for the appellant submitted that the offence was committed without pre-meditation and under provocation by the complainant who had not paid the appellant for work he had done and the appellant took the money as he was due to be paid his wages. Learned counsel further submitted that the learned Magistrate did not consider that the appellant was 36 years old with 2 young children, that he showed remorse and was willing to be considered for rehabilitation given his situation of drug addiction. Learned counsel submitted that these were strong mitigating factors and moved the Court to reduce his sentence to time served.

[5]        Learned counsel for the Republic submitted that this appeal has no merit and that the sentence is fair and reasonable considering the circumstances of the commission of the offence. Learned counsel submitted that all the grounds of appeal rehearsed by the appellant were in fact considered by the learned Magistrate and are contained in the sentencing order.

[6]        Learned counsel submitted that the appellant was presumed to intend the consequences of his act as the facts of the case as admitted by the appellant showed that the appellant pushed the elderly victim to the ground, hit him with his own walking stick on his leg causing him minor injuries and took the victim’s wallet containing the money and ran away with it. This presumption was not rebutted by the appellant. Learned counsel referred the Court to the cases of Poono v Attorney General SCA 48/10, Pool v R [1974] SCAR 88 and Tirant v R [1976] SCAR 137 in support of her submission.

[7]        The facts of the case as admitted by the appellant are that the appellant was an employee of the victim’s partner. On the 21st October, 2016 he had done some work at the house of the victim and asked for his salary. The victim refused to pay him and instead accused him of bad workmanship which resulted in exchanges of swear words and escalated into the victim trying to hit the appellant with his walking stick. In retaliation the victim was pushed to the ground. The appellant then picked up the walking stick and hit the victim with it. He also picked up the victim’s wallet which had also fallen on the ground and took the sum of SR 3200 from it and left.

[8]        Firstly, it is evident that although there might have been an element of provocation initially by the victim, the appellant proceeded to hit the victim and take the money after the victim was not in a position to assault or even threaten him. Secondly taking money belonging to another person can hardly be considered to be an appropriate response to being insulted or assaulted. Thirdly, there is no evidence or admission that the appellant was under the influence of drugs at the time of the incident or that he assaulted the victim and took his money for the purpose of sustaining his drug addiction.

[9]        Section 36(4) of the Misuse of Drugs Act 2016 provides that:

“A person who is charged with an offence under any other written law in circumstances where the offence appears to the Court to be motivated by dependency on a controlled drug shall be identified by the Court as a drug dependent person at the earliest reasonable opportunity and subsequently dealt with as a drug dependent person in accordance with section 39.”

[10]      The records show that the offence in this case was not at all motivated by dependency on a controlled drug. It was a simple dispute regarding payment for work done and the nature of the workmanship. The learned Magistrate was therefore correct not to adhere to any submission or recommendation to treat the appellant as a drug dependent person. I therefore find no merit in the 2nd and 3rd grounds of appeal as they are clearly misconceived. I dismiss them accordingly.

[11]      Section 281 of the Penal Code states that

281. “Any person who commits the felony of robbery is liable to imprisonment for eighteen years.

  If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes, or uses any other personal violence to any person, he is liable to imprisonment for life.”

[12]      Further, section 27 of the Penal Code is applicable to the offence of robbery with violence although in this case the appellant was only charged with robbery. Section 27 reads:

27. (1) Notwithstanding Section 26 and any other written law and subject to subsection (2), a person who is convicted of an offence in Chapter XXVI, Chapter XXVIII or Chapter XXIX shall-

(a) where the offence is punishable with imprisonment for 7 years or more but not more than 8 years and –

(i) it is the first conviction of the person for such an offence, be sentenced to imprisonment for a period of not less than 5 years; or

(ii) the person had within 5 years prior to the date of the conviction, been convicted of the same or a similar offence, be sentenced to imprisonment for a period of not less than 10 years.

 (b) where the offence is punishable with imprisonment for more than 8 years but not more than 10 years and  -

(i) it is the first conviction of the person for such an offence, be sentenced to imprisonment for a period of not less than 8 years; or

(ii)  the person had within 5 years prior to the date of conviction, been convicted of the same or a similar offence, be sentenced to imprisonment for a period of not less than 12 years.

 (c) where the offence is punishable with imprisonment for more than 10 years or with imprisonment for life and -

(i) it is the first conviction of the person for such an offence, be sentenced to imprisonment for a period of not less than 15 years; or

(ii) the person had, within five years prior to the date of the conviction, been convicted of the same or of a similar offence, be sentenced to imprisonment for not less than 25 years.

  (2) A court shall not impose the minimum mandatory sentence provided under section 27(1)(a)(i), 27(1)(b)(i) and 27(1)(c)(i) if the Court is satisfied that –

(a) the person did not use or threaten violence or was not in possession of dangerous weapons or did not aid and abet the commission of the offence, and

(b)  the offence did not result in the death of, or serious bodily injury to, another person,

(c)  the offence did not consist in, include or involve stealing from another person,

(d)  the offence did not consist in, include or involve breaking into or entering into a building, dwelling house, vessel or vehicle.

  (3) For the purposes of subsection (1) “similar offence” means an offence falling within the same Chapter as the offence for which the person is being sentenced.

  (4) An offence referred to in subsection (1) shall be deemed to be an “excepted offence” for the purposes of section 282 of the Criminal Procedure Code.

As correctly pointed out by the learned Magistrate, section 27(1)(c)(i) this offence should carry a minimum sentence of 15 years. It is very obvious that the learned Magistrate gave careful consideration to all the mitigating factors and the concept of proportionality of sentence which led the learned Magistrate to impose a sentence far less than the mandatory minimum sentence of 15 years. Although the learned Magistrate did not mention the age of the appellant or that he was the father of 2 minor children, I do not consider such omission fatal to the determination of an appropriate sentence for the appellant as the learned Magistrate indeed stated that she had considered all mitigating factors in determining the appropriate sentence. I therefore find no merit in the 1st ground of appeal and dismiss it accordingly.

[13]      I therefore find this appeal to have no merit and dismiss it in its entirety.

 

Signed, dated and delivered at Ile du Port on 1 June 2017

 

G Dodin

Judge of the Supreme Court