Petitioner
v.
The State
Respondent
FROM
THE SUPREME COURT OF
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REASONS FOR DECISION OF THE LORDS OF
THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL
UPON A PETITION FOR SPECIAL LEAVE TO APPEAL
OF THE 22nd April 2004, Delivered the 24th May 2004
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Present at the hearing:-
Dame
[Judgment delivered by
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1. On
2. The course adopted is not expressly provided for in the rules. But the Judicial Committee is the master of its own procedure. In appropriate cases the adoption of such a course advances the attainment of a correct and just disposal of the case without the need for a hearing on another date by a full Board. In the present case the parties through counsel consented to this course being taken. This procedure can be adopted even where there is no consent. On the other hand, it is a power that is best reserved for obvious and clear-cut cases.
3. On
4. The accused was a married man. He had three children. He was the sole breadwinner of the family. He had responsibilities to a mother, who suffered from heart problems, and a handicapped sister.
5. The magistrate’s sentencing observations were as follows:
“I have taken into consideration all the circumstances of the case including the Accused’s plea of guilty, the amount of money embezzled, Rupees 46,000, the fact that none of it has, as yet, been refunded, the Accused’s previous convictions for offences involving dishonesty as well as his family commitments.
I find that a custodial sentence is warranted and I accordingly sentence Accused to undergo 18 months imprisonment with hard labour under each count.
Accused to pay Rupees 350 costs.”
It is common ground that the sentences were concurrent. The accused appealed against the total sentence.
6. The Supreme Court decided to increase the total sentence. Giving the judgment of the court Judge P. Lam Shang Leen (with whom
“The record shows that the appellant did not make an outright confession when he gave his statement on
We have not been persuaded, having regard to the state of the evidence on record, that the learned magistrate did not consider all the relevant matters when considering the sentence to be passed. We are of the view that the learned magistrate in fact erred in not considering the fact that the appellant was already under a conditional discharge order when he committed the nine offences which had spread over a period of six months.
We consider the appellant in those circumstances should not benefit from the provisions of the Community Service Order Act 2002. If the learned magistrate had erred, it was on the leniency side the more so as can be gathered from the appellant’s statement to the police that the said
In the light of the above, we are of the view that it is a fit case to increase the sentence passed by the trial court and we shall substitute the one passed by the trial court to three years penal servitude under each of the nine counts bearing in mind that the maximum sentence under section 332(2) of the Criminal Code is 10 years penal servitude.”
This judgment is now under appeal to the Privy Council.
7. Originally there were wide ranging grounds of appeal invoking, amongst other things, provisions of the Constitution. There was also a radical submission that the magistrate ought to have imposed a Community Service Order. The Board was unimpressed with these arguments. In any event, at the oral hearing of the petition counsel narrowed the focus to the ground that the Supreme Court ought not to have increased the sentence on appeal.
8. The Board is content to assume that under section 96(2) of the Intermediate and District Court (Criminal Jurisdiction Act) the Supreme Court has the power to increase a sentence on appeal, and that in principle as a matter of jurisdiction the power was available in the present case.
9. It is, however, a power which must be relatively sparingly exercised and then only in cases where the sentence imposed by the trial court was manifestly inadequate. And in all cases the reasons for exercising this drastic power must be explained.
10. The reasons given by the Supreme Court are less than compelling. It is true, as the Supreme Court observed, that the accused only pleaded guilty immediately before the trial was due to start. But the accused was still entitled to some not insubstantial credit for a plea which made a trial unnecessary. The Supreme Court did not make clear that it was allowing some credit. Secondly, the Supreme Court observed that “If the learned magistrate erred, it was on the leniency side”. This remark reveals a potential error in reasoning. It is not every sentence “on the leniency side” which requires to be increased. Thirdly, although the accused acted in a thoroughly dishonest way and was under a conditional discharge order when he committed the offences, the case was hardly at the top end of the spectrum and did not cry out for correction.
11. The Board approaches an appeal involving the severity of an increased sentence with great deference for the views of the Supreme Court. On the other hand, under section 3 of the Judicial Committee Act 1833, read with the Mauritius Appeals to Judicial Committee Order 1992, the Board has jurisdiction to entertain the appeal. Having concluded that the Supreme Court erred in a fundamental way in the exercise of its discretion, which resulted in an unjust doubling of the total sentence, the Board felt compelled to make the order set out above.
