IN THE SUPREME COURT OF SEYCHELLES
Criminal Side: CN 41/2014
Appeal from Magistrates Court decision 369/2014
Appeal from Magistrates Court decision 370/2014

       [2016] SCSC 576

KEVEN RAOUL

versus

THE REPUBLIC
Respondent

Heard:            1 July 2016 and 11 July 2016

Counsel:Mr. Nichol Gabriel Attorney at Law for appellant
           
            Mr. Kalyaan Karunakaran,  State Counsel for the Respondent

Delivered:        22 July 2016

JUDGMENT
Burhan J

[1] This is an appeal against sentence.
[2] In Magistrates’ Court case 369/2014, the appellant was charged with the following offence;

Count 1
Breaking into building and committing a felony therein namely Stealing Contrary to and Punishable under Section 291 (a) of the Penal Code.
Keven, Jovanni Raoul a Diver residing at Barbaron, Mahe, between the 22nd day of May 2014, and the 24th day of May, 2014, broke and entered the store of Sanet Bursik and stole one grass cutter to the total value of eight thousand rupees (Rs 8,000/-) being the property of Cecil John Laurent.
[3] The appellant was convicted in his own plea and sentenced to a term of 5 years imprisonment.
[4] In Magistrates’ Court case number 370 /2014, the appellant was charged with the following offence:
Count 1
Breaking into building and committing a felony therein namely Stealing Contrary to and Punishable under Section 291 (a) of the Penal Code.
Keven, Jovanni Raoul a Diver residing at Barbaron, Mahe, on the 29th day of May, 2014, broke and entered the store or Sanet Bursik and stole one bicycle to the total of two thousand rupees (Rs 2,000/-) and one suit case to the total value of two thousand rupees and its content in it value five thousand rupees (Rs 5,000/-) being the property of the aforesaid.
[5] The appellant was found guilty of the said charge on his own plea and sentenced to a term of 15 years imprisonment. Both terms of imprisonment were ordered to run consecutively.
[6] Learned counsel for the appellant filed submissions in respect of sentence. His main ground of appeal was that the total sentence of twenty years imposed by the learned Magistrate was harsh and excessive and was in “excess of his jurisdiction”.
[7] The learned Magistrate in his sentencing order dated 13th  June 2014 in respect of case 370 /2014, referred to the minimum mandatory term of imprisonment for the said offence as 15 years and sentenced him accordingly. It cannot be said that the learned Magistrate had exceeded his sentencing limit as by then Act 4 of 2014 an amendment to the Criminal Procedure Code was in effect from the 14th of April 2014, in which the sentencing limit of a Magistrate had been increased to 18 years.  
[8] It is also the contention of learned counsel for the appellant that the learned Magistrate had failed to take into consideration the mitigating factors as the appellant was not allowed to mitigate after conviction.
[9] On perusal of the record, it is apparent that the learned Magistrate had proceeded to sentence the appellant without giving him an opportunity to mitigate. Learned counsel for the appellant in his submissions further elaborated that by not giving an opportunity for the appellant to mitigate, the learned Magistrate failed to consider the following factors.
a) that the building which was broken into was a commercial building and not a private resident.
b) there was no violence used or injuries sustained.
c) the incident happened during the day and not night.
d) the items stolen had no big value and were retrieved.
e) the appellant had pleaded guilty and was expecting some leniency from court.
[10] It is apparent from the record in case 370/2014 that items stolen were recovered and the appellant had pleaded guilty at the first instance, thereby expressing remorse and regret and expecting leniency from court. Considering the value of the stolen items namely a bicycle and suitcase valued at SR 2000 each and the total value of items stolen being SR 9000/, I am of the view considering the aforementioned facts in mitigation that a term of 15 years imprisonment for such an offence is harsh and excessive.  
[11] On considering the aforementioned facts set out in mitigation which the learned Magistrate had failed to do, I would proceed to set aside the sentence of 15 years imposed in case 370/2014 and substitute the sentence with a term of 7 (seven) years imprisonment which I further hold is a just and appropriate total term of imprisonment for both cases, considering the facts in mitigation and the circumstances of each case. I therefore make further order that the term of 5 years imprisonment imposed in case 369/2014 run concurrently with the term of 7 years imprisonment imposed in case 370/2014.
[12] The total sentence of 20 years imposed in cases 370/2014 and 369/2014 is reduced to a total term of 7 (seven) years imprisonment.
[13] Copy of this judgement to be filed in each of the aforementioned Magistrates’ Court 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 1st August 2014

M Burhan

Judge of the Supreme Court