Bibi & Ors v R (SCA 10 of 1993) [1994] SCCA 25 (31 March 1994)

IN THE SEYCHELLES COURT OF APPEAL PAUL BIBI APPELLANT V. THE REPUBLIC RESPONDENT Cr. Ap. No. 2 of 1994 Mr. S. Fernando for the Republic JUDGMENT OF THE COURT The appellant was convicted by the Senior Magistrate of the offences of (1) breaking and entering a dwelling house of one Shanmoogum Moothoosamy, on the night of 30th June 1991, to commit a felony therein contrary to sec. 289(1) of the Penal Con and (2) stealing certain items of jewelry from the same house on the same night contrary to section 260 and punishable under section 264(1) of the Penal Code. He was sentenced to two years imprisonment on the first offence and run one year on the secpnd. He appealed to the Supreme Court against his concurrently. the sentence was manifestly sentence on the ground that excessive. The sentences were to The learned Judge who heard the appeal found that the sentence of the Senior Magistrate erred on the side of the sentence of two years leniency and imprisonment on the first charge to three years and the The sentence of one year on the second charge to two years. run learned judge further ordered the two sentences consecutivetly. he enhanced to The appellant who is not assisted by counsel has now appealed against the decision of the learned appellate judge. -2- Mr. Fernando Counsel for the Republic submitted to us that an appeal does not lie to this Court against severity of sentence and as both the sentence and order of the learned . judge were in accordance to law, there can be an appeal only in law. of law. We agree that a second appeal is limited to matters As there is no memorandum of appeal, appellant being inops consilii, we have closely examined the record and we find that both charges arose out of a single transaction. and since no eceptional circumstances That being the case have been disclosed, the learned judge should not have substituted consecutive sentences for concurrent sentences passed by the Senior Magistrate. The learned judge has also found fault with the Senior Magistrate for not taking into account that...,a large part of the stolen articles was not recovered. In our xiew recovery of stolen goods has little bearing on sentence and the learned judge has given undue importance to On consideration of all the circumstances of the case we, with respect, find the sentence passe/ .by the learned judge harsh and We accordingly set aside the sentence of the excessive. and restore the sentence passed by the Senior learned judge Magistrate, i.e. 2 years imprisonment on the first charge and 1 year on the second. The sentences to be concurrent. it to enhance the sentence. - H Goburdhun, P. .... A. Silungwe, J. A. L114.1.4 2q:44(4 E. 0. Ayoola, J. A. Delivered on fittttii...