Mathiot v R (SCA 9 of 1993) [1994] SCCA 30 (25 March 1994)

IN THE SEYCHELLES COURT OF APPEAL GODFREY MATHIOT APPELLANT V THE REPUBLIC RESPONDENT Criminal Appeal No. 9 of 1993 Mr. A. Derjacques for Appellant Mr. S. Fernando State Counsel for the Republic JUDGMENT OF THE COURT DELIVERED BY ADAM JA The appellant was charged on three different counts - the first count being attempted rape contrary to section 132 of the Penal Code; the second count being robbery with violence contrary to section 281 of the Penal Code and the third count being unlawful wounding contrary to section 224(a) of the The Supreme Court convicted him on the first Penal Code. count of indecent assault and sentenced him to a term of 7 years imprisonment; violence and sentenced him to a term of 3 years imprisonment; and on the third count of unlawful wounding and sentenced him to 1 year's imprisonment. All the sentences were to run concurrently and time spent on remand was to count towards the on the second count of robbery with sentence. In his Notice of Appeal to the Registrar of the Supreme Court of the 16th November 1993 he appealed against both conviction Memorandum of Appeal sentence of indecent assault. In the filed on his behalf with the leave of and this Court, the appeal lodged was against the sentence only for indecent assault on the grounds that the sentence of 7 years imprisonment was harsh and excessive. The particulars of offence alleged were that on the 16th - 2 - at Mont Buxton, May, 1993, unlawful carnal knowledge consent. Mahe, he attempted to have of the complainant without her At the trial, evidence was given by the complainant on the p.m. 16th May, threatened demanded to have sex with her. that she was a singer and around 6.30 dancer at a hotel and that at 1993, the appellant When she her with a knife and took her to a The appellant slapped her several the face, pulled her hair and tried to remove her A struggle ensued and the complainant fell when remove the pair of accosted her and refused, he place near a big boulder. times on clothes. the appellant tried unsuccessfully to trousers she was the appellant threatened to struggle he When she tried to run away, the appellant caught her and pulled her and sat on her, removed her belt, unslit the "jeans", pulled it down and cut the "leotard" and observed a man and shouted for help. the man, time the Philoe. Jimmy Alcindor, was who came and pushed the appellant down, at which complainant ran to a nearby home belonging to Gina From there the complainant telephoned her mother. As a result her mother and brother in law responded and she The complainant testified that kill her and that during the left index finger. During this time, she her panty. cut her wearing. was taken to the Police Station. The police first took her the hospital where Dr. Ajewole to the scene and later to attended to her. Due to the information provided by the Dr. Ajewole only examined the upper part of her He found abrasions on the left side of her face as complainant, body. well as the right side of the neck and a laceration on the The medical records tendered by him left index finger. confirmed the injuries sustained, that her leotard had been cut on the been sutured. waist and that the laceration on the finger had Jimmy Alcindor indicated in his testimony that at about 7 p.m., he heard someone shouting for help, that on coming down there, he observed the appellant sitting on top of the complainant close to her private part pressing her to the ground with his hands. Alcindor pushed the appellant off and the complainant ran away. In a statement recorded by the police the appellant stated that he pulled the complainant's jeans down as well as her panty and bikini and tore it, that the complainant called Alcindor, that the appellant got off and she left and that he had a knife which he left on the ground. appellant, Before this Court Mr. Derjacques, on behalf of the offences were submitted that indecent assault dealt in with the Magistrates Court and that when comparison is made of the sentences imposed on the in the Magistrates Court on the five previous they fell between 3 months to 9 months to 2 He emphasized that from the evidence at the trial, generally a appellant occasions, years. the injuries suffered by the complainant were not serious, that since and was composed, she was first taken to the scene of the offence it was his view that the complainant did not suffer that much trauma. In his response, Mr. Fernando on behalf of the respondent, specific attention to the appellant's lengthy previous convictions which commenced in 1973 until drew 1993, with over 50 concerned with violence of some form. He indicated that the maximum period that the appellant had He argued actually served for such offences was 18 months. that in light of section 135(1) of this, together with the provisions of the Penal Code that has up to 14 years imprisonment, the sentence imposed could not be faulted. He further submitted that the Seychelles Court of Appeal Rules 1978, under Rule 41(2), even allowed this Court to substitute a more severe sentence if it thought a different sentence should have that the aggravated nature of this offence was what was been passed by the trial court. He maintained considered by the learned trial judge when he sentenced the appellant. In his reasons for sentence the learned trial'judge took into account that the appellant had correctly previous convictions over 20 years, 5 of which were for sexual offences, that in the past 5 years he had been convicted on 9 terrible occasions, that his victims had undergone a He considered that society had to be protected from the likes of the appellant. of this particular offence, he felt that the imposition of a severe and his behaviour was inhuman. aggravated nature Due to the ordeal sentence was essential in order for the appellant to have sufficient time to reflect on perhaps to mend his ways. his deviant behaviour and It is true that under Rule 41(2), this Court may, if it thinks that a different sentence should have been passed, substitute such ought to other sentence warranted in law as it thinks However, in exercising this power, the proper approach for an appellate court in sentence passed. been have appeals is only to intervene where (a) the sentence was wrong in principle; (b)the sentence was either harsh, oppressive or manifestly excessive; (c) the sentence was so far outside the normal discretionary limits; (d) some matter has been improperly taken into consideration or failed to take into consideration something which should have been; sentence illustrative. justified in law. was not (e) the is The list Thus, in R v. Gumbs (1926) 19 Cr. App. R. 74 Hewart LCJ said of the English Court of Criminal Appeal at p.75: Court never "...this with the on the discretion of ground that this Court might have passed a somewhat different sentence; for this Court to revise a sentence there must be some error in principle." the Court below merely interferes Further, in R. v. Sargent (1975)60 Cr. App. R. 74 Lawton LJ observed at p.76-78: The problem for this court is whether the sentence was wrong in principle. What ought the proper penalty be? thought it necessary not only We to to apply to those of principles the facts, but classical the have analyse facts up in four words: sentencing. Those classical principles are summed retribution, deterrence, prevention and rehabilitation. Any judge who comes to sentence ought always have those four classical principles in mind • • • with aspect overlooked: I will start retribution... however, another of retribution which is frequently it is that society, through the Courts, must show abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass... Society, we are satisfied, expects the courts to deal with violence. The weapons which the Courts have at their disposal for doing so are few. I turn now to the element of deterrence, seems to us that the trial judge passed this sentence as a deterrent There are two aspects of deterrence and deterrence of likely because it probably one. of the offender offenders.... whom We come now to the element of prevention. Unfortunately it is one of the facts of life that there are some offenders for nor rehabilitation go on committing crimes as long as they are able to In those cases the only protection which the public has is that such persons should be locked up for a long period ... deterrence They will neither do so. works. rehabilitation want prison training. do him any clanging keep him from crime in the future" Finally, there is the principle of young man does not It is not going to It is his memory of the prison gates which is likely to ... This good. The trial Court has seen the appellant and heard his plea in mitigation It has not been shown to us that the trial court erred in principle on the sentence that was imposed upon taking all the relevant factors the learned the appellant. sentence. account After into of trial judge imprisonment concluded period of was called for and within the maxima provided lengthy that a under the statute. the classical Applying the facts in this case to principles of sentencing, the learned trial judge correctly considered that the element of prevention of importance was rehabilitation was of any use to the appellant. protection The only which people like the complainant will have is deterrence neither since nor for the appellant to be incarcerated for a lengthy period. Accordingly, the appeal against sentence is dismissed. Dated this a5 day of March, 1994. tAL 40---daqq./ A M Silungwe Justice of Appeal E. O. Ayoola Justice of Appeal M. A. Adam Justice of Appeal