Dogley v R (SCA 2 of 1995) [1995] SCCA 26 (20 April 1995)

IN THE SEyCHELLES_CVRT OF APPEAL a CRIMINAL APPEAL Np. 2 OF 1995 DANIFL DOGIE APPELLANT THE REPUBLIC RESPONDENT Before: Gehurdhun P. Avoola & Adam JJA Hr. J. Renaud for the Appellant Mr. S. Fernando for the Respondent PEASO\ L OF THE RT DELTVERFD ADAM JA The \rpeilant was convicted an the first count of ussmAiT r-nlr-<in2: actual bodil y harm and on the second count of robber y with violence. He was sentenced by Alleear CJ on Februar y Trh 1ee5 on the first count to 1 y ear imprisonment and on the second count to 5 y ears imprisonment and he ordered that both sentences run concurrently. He filed his Notice of Appeal on February 9th 1995 against sentence. His Memorandum of Appeal gives the g rounds as the sentence recorded against him being manifestly excessive g iven at 1 t he circumstances. The A pp ellant on November 30th 1992 at about 11.30 a.m. He had a stick in a bag. the victim. entered the shop of He asked the Leer had not arrived. for 1 crates of beer from her but she informed him The Ap p ellant struck her with the stick on the head causin g an injury that bled. The victim rushed out whereupon the Appellant stole SR.1500 from the cash till of which SR.400 was recovered bv the police. . The learned Chief Justice 'i edtaken into account the Appellant's age that he had pleaded guilty, was remorseful, had saved the uourt's time, had spared the victim the trauma of testifying in Court. According to Alleear CJ the A p pellant's sentence of March 11th 1991 for attem p ted murder reduced by this Court to 5 years' imprisonment did not have any relevance to these two offences an he did not think it proper to run them concurrently. Mr. Renaud for the Appellant submitted that the sentence impoc,ed was manifestly excessive. He mentioned that the victim had not E•ffered serious injury. But he was liable to refer is to an y cases of robbery with violence where the accused had received a lesser sentence. Thrric 1 for the Res p ondent submitted that this *H i rt will onl y interfere in limited instances and referred APC111410,11) Criminal Pleading Flvidence & Practice 1992 ilth edition ‘w1.1 at 1T,21 np.1 220-1221. law He ar g ued that the Penal cf Seychelles, Revised Edition 1991 in 291 far this specifies that the Appellant could get a up to imprisonment for life. He pointed out that , Appellant was not a first offender. This Court will quash or alter a sentence when it is not authorised hv law - R. v Cain (1984) 79 Cr. App. 8.292 at 203; when it has taken into consideration factual matters which l shauld not have been taken into account - Reeves (1983) Crim. L.11.825 at 826; when it has taken into account inadmissible evidence relating to the accused's character and antecedents - R. v. Van Pelz (1942) 29 Cr. Ap p . R.10; when there was som error in principle - R. v. Gumbs (1926) 19 Cr. App. R. at 75 and when the sentence was manifestly C'N. C?SSIVO P. v. Waddingham, (1983) 5 Cr. App. R.(S) 66. tiow in R. v. Turner (19751 61 Cr. App. R.67 at 90 - L.6 wt nn I.. J. when dealing with armed robberies observed: 1 Courts was to were faced lmprisonment with the problem of ,..the be the deterrent for grave crimes what involvin ,' violence er threat of violence. The onl y deter iet they could use was that of long Hence it comes about have tended to get than they were before that date. In the have tended to They have become The means they have used of orm that since lonc:er mar It There was another tte d e cades, pas! heeome hster • reason criminals more dangerens. 1918 sentences for this. much mere sophisticated. His ..3:rntence which can ito;e.sod for Inown to EnglIsh law, of life imprisonment. are imprisonment are discharged ..:;tented fromprison at some time .... Very few, however, are kept in custody after about 15 years. are exceptions, those who life crier. thal m i. created : - s. a reasonable the eNpiration of ths and has before appropria:e eenvieted aspect It is concerned this Court very much... difficult nrc ler for if a man is convicted of murder, chance of bein g let out years, what is the is lesser offence than murder?... of this problem which has e:entence someone for that who or a have to hear in mind. we into cate g ories. There is another aspect of this problem Grave crimes There are some which Their circumstances are the State. he done with those who commit such There are other crimes which are very be regarded as wholly which fall are wholly abnormal. horrifyin g . What. crimes. grave abnormal. hut which cannot They may endan g er is to Into the first cate g ory fall such crimes .... had cases of espionage... We are running era when courts are finding themselves outrages. The of penalties to as into an with bombing having to deal range Courts must deal with those abnormal crimes. have some The other cate g ory, however, consists of too which grave and all robberies crimes frequent these appeals . .re concerned. which such as bank with very are The problem has been whether crimes of 2:ravity, but of common occurrence, should he 1 as conclusion crimes. abnormal that a category dit their own -Whiai.calti-"Ilk We have come to They___ sentences lower thlp those for which would for crimes of an abnormal appropriate treated the fall for be character. into for What then is the appropriate kind of bank robberies... In all the bank we have had to consider, firearms and squirters were carried; and in some of robberies firearms were discharged, usually bank of frightening purpose penalty robberies ammonia the for employees... the We have come to the conclusion that the normal sentence of anyone taking part in a hank robber y or in the hold-up of a security or a Office van, should be 15 years if firearms Post carried and no serious injury done. were It that the starting point for follows therefore considering sentence of these is a all \gain in Attorney-General's Reference (No. 9 of (1989) (R- v. Lacey) (1990) 12 Cr. App. R. (S) 7 Lord Lane C. J. when considering a lenient sentence of 30 months (increased by him imposed for robbery involving the to 5 years) use of baseball bat in a threatening manner, said imprisonment of that means operating those post offices small post offices coupled "Business such as - that is exactly what these with sweetie-shops - are particularly susceptible to premises were They are easy targets for people who attack. wish to enrich themselves at other people's in so far as is That expense. possible the Courts must provide such protection for those who carry out the public as they can service and very important sweetie-sho p s, public suburbs of our large The only way in which the Court can do cities. make it clear that if people do that is to of offence, then, if they are commit this sort discovered and brought to justice, inevitably a severe sentence containing a deterrent element will he imposed upon them in order so far as persuade other like-minded robbers, possible to the greedy candle." function in the which fulfil a that it is not worth persons, Having indicated what principles a sentencing court must he guided by, we turn to the sentence imposed by the learned Chief Justice. Looking at all the factors in this 1 case and bearing in mind all matters which Alleear # question for us is whether correctly took into account, the in those circumstances 5 years imprisonment was so excessive that it cannot stand. It is not a question of what sentence we would have imposed if the matter was before us. In our judgment, this sentence was not manifestly excessive that this Court will interfere. Accordingly the appeal against sentence is dismissed. H. Goburdhun PRESIDENT E. Ayoola M. A. Adam JUSTICE OF APPEAL JUSTICE OF APPEAL Ituv. CL___.c.„ Dated this n -LO tt. day of April, 1995. • I ,