[2012] UKPC 21
Privy Council Appeal No 0026 of 2011
JUDGMENT
Ajay Dookee (Appellant) v State of Mauritius
(Respondent)
From the Supreme Court of Mauritius
before
Lord Hope
Lord Brown
Lord Mance
Lord Dyson
Lord Sumption
JUDGMENT DELIVERED BY
LORD BROWN
ON
28 May 2012
Heard on 26 March 2012
Appellant
Sanjeev Teeluckdharry
S. Tsang Mang Kin
(Instructed by MA Law (Solicitors) LLP)
Respondent
Satyajit Boolell SC DPP
Ms Sulakshna Beekarry
(Instructed by Royds Solicitors
LLP)
LORD BROWN
1. This
appeal is directed to sentence and, as will shortly appear, more narrowly still
to the correct approach to be taken by both sentencing and appeal courts to the
question of credit for time spent in custody whether on remand awaiting trial
or, thereafter, pending appeal. In the
present case the appellant spent 14 months in custody on remand, a further 31
months in custody pending the outcome of his appeal. It is necessary, however, to set this
question in the particular factual context in which it presently arises and it
is to this that the Board now turns.
2. The
brutal killing of Mujeeb Mir, a wealthy Indian businessman, on the night of 31
January 2005, must rank amongst Mauritius’s most notorious murders of all
time. Four men were eventually
convicted: three directly of murder:
Takah, a security officer at Mr Mir’s bungalow, Koonjul, a taxi driver and
Mungrah, a gardener; the fourth, the appellant, involved during the night as a
second driver, of aiding and abetting the murder,
3. Taking
the facts at their simplest – and for the purposes of this appeal no
elaboration is required – Takah obtained access to the bungalow for Koonjul on
the pretence that the latter had come to check the alarm system; Takah and
Koonjul then beat Mr Mir, tied him up and gagged him, stole his bank cards and
mobile phone containing his pin code, and bundled him into the boot of his own
red contract car. Koonjul then drove his
taxi to pick up the appellant and bring him to the bungalow to drive the red
contract car. Initially the appellant
drove this car with Takah and Koonjul as passengers and with Mr Mir tied up in
the boot, following Koonjul in his taxi.
At some point, however, the drivers switched – the appellant’s case
being that when he heard noises from the boot and was told that there was a man
inside he refused to drive further.
Koonjul then drove the red contract car to a secluded spot where he,
Takah and Mungrah committed the murder.
Mr Mir was beaten, driven over and ultimately burned to death with his
car left on top of him. Meanwhile,
whilst the appellant was waiting elsewhere with Koonjul’s taxi, he was
questioned by police officers making a
routine check and lied about why he was there.
4. Having
killed Mr Mir, Konjul then phoned the appellant to bring his taxi to pick up
the three killers and, when it arrived, himself drove all four men back to town
(the appellant on one account being present when the deceased’s bank card was
then used at an ATM). There was
evidence, it may be noted, of extensive phone contact between the appellant and
Takah in the days before the killing.
5. The
trial of the four men took place at assizes before Paul Lam Shang Leen J and a
jury between 16 and 27 July 2007. On the
first day Takah and Mungrah changed their pleas to guilty and were sentenced
respectively to 32 and 26 years imprisonment.
On 27 July Koonjul was convicted by a majority of 8:1 and sentenced to
30 years imprisonment; the appellant was convicted by a majority of 7:2 and
sentenced to five years imprisonment.
The judge’s sentencing remarks in the appellants’ case were brief
indeed. Noting the appellant’s youthful
age and clean record the judge observed: “I know the jury didn’t follow my
direction, so five years imprisonment”.
6. The
direction to which the judge was referring appears in the summing-up thus:
“As regards [the appellant], I direct you to acquit
him of the charge levelled against him if you find that he did not know that
when he drove the contract car for some 3.5km from the bungalow . . . [the
other accused] were to murder the victim, you should return a verdict of not
guilty for he drove the car without knowing that the person in the boot would
be murdered. If you find that [the
appellant] knew that the victim was to be murdered when he drove the car with
the victim, gagged and tied . . . then you can find him guilty, but I have told
you I doubt whether there is evidence.”
It is not now suggested that there was insufficient
evidence upon which the jury could properly convict the appellant as they did.
7. On 10
August 2007 the appellant appealed against his conviction. Five days later the DPP cross-appealed
against the appellant’s sentence.
Koonjul too appealed against conviction and in his case too the DPP
cross-appealed. The appeals were heard
by the Court of Criminal Appeal (Y K J Yeung Sik Yuen CJ, S B Domah and N
Matadeen JJ) on 28-30 May 2008, 10 June 2008, 29 July 2008 and 16 March 2009,
judgment following, almost a year later, on 25 February 2010. The appeals against conviction were
dismissed, those (by the DPP) against sentence allowed. Koonjul’s sentence was increased from 30 to
38 years (the Court noting particularly that he lacked the mitigation of a plea
of guilty), the appellants from 5 to 16 years.
8. Subject
to the question of credit for time spent in custody prior to the increase in
his sentence, the appellant has no justifiable complaint about that
increase. For aiding and abetting a
murder as horrendous as this, a sentence of five years was not merely unduly
lenient; it was derisory. Indeed, as
already suggested by the sentencing judge’s own remarks, it is clear that he
was piqued by the jury having taken a less benevolent view than he had of the
weight of evidence against the appellant.
The judge in short was not loyal to the jury’s verdict. Sixteen years, substantial as such a sentence
undoubtedly is, was beyond criticism for aiding and abetting this particular
murder.
9. When
granting the appellant leave to appeal against his sixteen year sentence, the
Judicial Committee of the Privy Council (consisting of three members of the
Board as presently constituted) expressly did so “having regard in particular
to the fact that no credit was given for the 45 months that the appellant spent
on remand”. That no such credit was
given is, indeed, expressly accepted by the DPP.
10. How,
then, should these 45 months be brought into account? This is by no means an entirely novel
question. The first time it appears to
have been considered with any care was in Lord Carswell’s judgment for the
Board in Ali and Tiwari v The State [2005] UKPC 41, conjoined appeals from the
Trinidad and Tobago Court of Appeal concerned with determining the date from
which an unsuccessful appellant’s sentence should run. The governing law of Trinidad and Tobago –
section 49(1) of the Supreme Court of Judicature Act, in terms virtually
identical to those of section 16(3) of the Criminal Appeal Act of Mauritius –
provides in effect that, unless the Court of Appeal gives express direction to
the contrary, any time spent by an appellant in custody pending appeal
(assuming he is “specially treated as an appellant” – section 49(1) of the
Trinidad and Tobago Act; “is specially treated under this section” ie “in like
manner as prisoners awaiting trial” – section 16(1)(3) of the Mauritian Act),
is not to count as part of his sentence.
Rather that sentence is to begin to run from the date of the
determination of the appeal.
11. The
Board decided in Ali and Tiwari – contrary, it appears, to previous practice,
that “the making of orders backdating sentences to the date of conviction
should not be restricted to exceptional cases”.
It further decided that any loss of time imposed by way of “penalty for
bringing or persisting with a frivolous application” should be “proportionate”,
ie it should “fairly reflect the need to discourage wasting the Court’s
time”. Such loss of time orders “should
be made with regard to the abuse which they are designed to curb and [the
Board] would not expect them to exceed a few weeks in the large majority of
cases”. All these quotations are from
para 17 of the judgment. At para 20,
their Lordships concluded “that the Court of Appeal ought to have directed in
the case of each appellant that the full period of time spent between his
conviction and the disposition of his appeal should count towards his
sentence”.
12. I may
note at this stage that the DPP has conceded from the outset of this appeal
that the appellant is similarly entitled to credit for the whole of the 31
months spent in custody pending his appeal in the present case. The real question arising here is how to deal
with the 14 months earlier spent by the appellant in custody awaiting
trial. This question, as to the proper
approach to time spent in custody awaiting trial, was considered by the Board
in Callachand v The State [2008] UKPC 49.
The following passages from Sir Paul Kennedy’s judgment for the Board
are now in point: “9. The Board is not concerned in the present case with time
spent by a person in custody as an appellant.
So their Lordships need not consider the need to deter frivolous appeals. But they are concerned with the basic right
to liberty. In principle it seems to be
clear that where a person is suspected of having committed an offence, is taken
into custody and is subsequently convicted, the sentence imposed should be the
sentence which is appropriate for the offence.
It seems to be clear too that any time spent in custody prior to
sentencing should be taken fully into account, not simply by means of a form of
words but by means of an arithmetical deduction when assessing the length of
the sentence that is to be served from the date of sentencing. We find it difficult to believe that the
conditions which apply to prisoners held on remand in Mauritius are so much
less onerous than those which apply to those who have been sentenced that the
time spent in custody prior to sentence should not be taken fully into
account. But if that is thought to be
the position there should be clear guidance as to the extent to which time
spent in custody prior to sentence should not be taken fully into account
because of the difference between the prison conditions which apply before and
after sentence. That is something which,
as [it] seems to their Lordships, should now be considered by the Supreme
Court, as it is familiar with local conditions and will be able to apply its
own knowledge to this case.
10. Their
Lordships recognise that there may be unusual cases where a defendant has
deliberately delayed proceedings so as to ensure that a larger proportion of
his sentence is spent as a prisoner on remand.
In such a case it might be appropriate not to make what would otherwise
be the usual order. . . .
Conclusion
11. The
Board invites the Supreme Court of Mauritius to consider in the light of . . .
this judgment whether, and if so to what extent, the time spent by the
appellants in custody prior to sentence should count towards their sentences,
to explain the reasons for its decision for the benefit of the appellants and
the assistance of all sentencing judges and in the light of that decision to
sentence the appellants anew . . .”.
13. Following
the Board’s decision in Callachand, section 135 of the Criminal Procedure Act
was amended by Act No 30 of 2008 to provide:
“Where an accused has been in custody or has been
imprisoned under a warrant or process before his trial for an offence of which
he has been convicted, the Court or judge in passing sentence shall take into
account the time spent by the accused in custody and may sentence the accused
to a term less than the minimum by a term not exceeding the aggregate of the
term of imprisonment already served”.
14. The
next, and indeed last, decision to which the Board must refer is that of the
Court of Civil Appeal (Y K J Yeung Sik Yuen CJ, S Peeroo J) in Mbokotwana v The
Commissioner of Prisons 2010 SCJ 310 dated 27 September 2010. The following passages in the judgment are
those most particularly to be noted:
“While it may be a good thing, for the sake of
transparency, to resort to some form of arithmetical deduction for time spent
on remand, such deduction would not necessarily represent the time actually
spent on remand. There are other factors
which could have a bearing on the deduction to be granted in each individual
case.
The Law Lords themselves [in Callachand] asked a
question about the equality of treatment afforded to a detainee on remand as
compared to a convicted prisoner. If
conditions on remand are significantly less rigorous, the deduction should
reflect this fact.
. . . Since conditions are not the same, there is a
case for debate that a point-to-point arithmetical deduction would not
apply. Indeed, from the affidavit
evidence of the Assistant Commissioner of Prisons, the conditions of applicant
whilst on remand from 4 January 2002 to 5 August 2003 appear significantly lighter
than conditions applicable to him after his conviction. They are set out in List A and List B
respectively:
List A
Conditions of applicant whilst on remand
(a) applicant
was kept separate from convicted detainees.
The sleeping conditions were the same as for convicted detainees.
(b) applicant
did not have to work whilst on remand.
(c) applicant
was allowed up to one visit per week.
(d) applicant
could write as many letters as he wishes to his relatives/friends.
(e) applicant
was wearing civilian clothing.
(f) applicant
was allowed to purchase canteen goods for an amount not exceeding MRU1,000 per
week from private cash.
(g) applicant
was not compelled to have his hair cut or to shave.
List B
Conditions of applicant as convicted detainee
(a) applicant
is compelled to work (about 40 hours a week) in the workshops at the Prisons
and entitled to an earnings scheme.
(b) applicant
is restricted to two visits per month.
He could only write two letters per month.
(c) applicant
has to wear prisons uniform.
(d) applicant
is allowed to purchase canteen goods for an amount not exceeding MRU200 weekly
from private cash.
(e) applicant
is required to have regular haircuts and shaving.
Furthermore, a subjective appreciation of the
percentage which would be open to each individual trial Court to deduct from
the time spent on remand could create havoc and uncertainty since no sentencing
guidelines exist. We propose to cure
this to a certain degree as we shall expatiate later. . . .
While it would be advisable, following Callachand,
that henceforth trial Courts mention the sentence they would normally have
imposed and then deduct what they consider a fit allowance for the time spent
on remand therefrom, we believe that the old formula whereby the trial Court
imposes the sentence to be served in the light of the time already spent on
remand does not contain any intrinsic flaw.
Considering that detention on remand is a deprivation of liberty prior
to a finding of guilt, and considering equally the difference in the conditions
of detention between a remand prisoner and a convicted one as we have seen
outlined in Lists A and B, we believe that it would be fair to allow a discount
of between one half to two thirds of the time spent on remand when passing sentence. We also believe that a scale must exist to
take into account individual situations, like for example rights of visit which
may not be exercised effectively where the detainee is a foreign national for
example and the family lives abroad. It
is such individual situations which would influence on the scale of discount
between one half to two thirds as we have mentioned above.”
15. Their
Lordships confess to some difficulty with that judgment. When one comes to analyse the differences in
the conditions imposed respectively on remand prisoners and convicted prisoners
these really seem to amount to very little, certainly compared to the
altogether graver conditions which they have in common: their loss of liberty
(in, be it noted, identical physical conditions). The right to wear one’s own clothing, to four
rather than two visits a month, to write more than two letters a month, not to
work, to grow one’s hair and not shave, to spend (if one has it) MRU1000 instead
of only 200 in the canteen: these are minor benefits indeed compared to the
fundamental fact of confinement in prison.
16. In the
Board’s view a discount of only one half to two thirds (half being apparently
the default position) cannot properly be regarded as sufficient or, indeed, as
consistent with the approach rightly recognised to be appropriate in the case
of time spent in custody pending appeal.
The value of liberty demands greater credit than this for time spent in
custody on remand.
17. The
Board’s conclusion, therefore, is that, the differences in conditions
notwithstanding, credit should ordinarily be given for time spent in custody on
remand to the extent of 80-100% (80% being the default position unless, for
example, the detainee is a foreign national whose family lives abroad and
cannot visit).
18. It is
important too that this credit be given in such a way as properly gives effect
to the fact that, as the Board understands it, all determinate sentences save
in drugs cases attract remission of one-third of the sentence imposed. Assume, therefore, that the appropriate
sentence is six years imprisonment and the defendant has spent 15 months on
remand in custody awaiting trial. He
should (save in an exceptional case) be given 12 months credit for the time
spent in custody and his sentence should be backdated by a year. That way he will obtain the full two years
remission on his six year sentence. Were
the sentencing judge instead to sentence him to five years imprisonment to
start at the date of sentence, the sentence would attract only 20 (instead of
24) months remission.
19. The
result in the present case is that the appellant is entitled to credit for 31
months plus 80% of 14 months (say 12 months) namely 43 months in all. His enlarged sentence of 16 years
imprisonment should accordingly be deemed to have been begun on 27 July 2006
(ie 12 months before he was actually first sentenced).
