Estico v R (SCA 25 of 1996) [1997] SCCA 49 (2 April 1997)

IN THE SEYCHELLES COURT OF APPEAL ROY ESTICO APPELLANT VERSUS THE REPUBLIC RESPONDENT Criminal. A eal No. 25 of 1996 (Before: GOBURDHUN, P. SILUNGWEANDAYOOLA, •.•••••...••..•.••.•.•••••••••• , ••••••••••••••••.••••• " •••••• , ••••••• , •••••••.•••••• JJ. A.) .j __/~2_?l' ~)~ ~.;r.::}. , ••..•. c: •./ •••••••.•••• Mr. A. Derjacques for the Appellant Mr. R. Kanakaratne for the Respondent ' ! I, \\< " Y" j, / J un GME NTOFTHE COURT This is an appeal against sentence only. On August 19, 1996, the appellant, together with Vincent Marie and Tony Joseph, alias, Togo,' appeared before the Supreme Court on a joint charge of robbery with violence, contrary to Section 281 as read with Section 23 of the Penal Code. The allegation was that on February 23, 1995, at Mont Buxton, Mahe, they all robbed Marie Andre Wester of a handbag containing SR4725/- US$6943, Holland Guilder 800, Dubai Dirhams 325, Kenyan Shillings 1,500, Italian Lira 100,000, South African Rand 325, Sri Lankan Rupees 100, three gold necklaces two gold earrings, one gold bracelet, two gold cross pendants, two small earrings, three gold rings and some personal documents. All the accused pleaded not guilty to the charge but, before they could be tried, Togo jumped bail. Thereafter, trial proceeded against the appellant and Vincent only. When Marie - the virtual complainant (a shop Manager) had deponed, the appellant and Vincent changed their respective pleas from not guilty to guilty and were both convicted as charged. Marie, who knew the appellant and his co-accused well prior to the commission of the crime depicted their respective roles at pages 36, 37 and 38 of the record of appeal as para-phrased hereunder. "They came to the shop and Roy Estico and Togo and Vincent Marie were standing on the Toad very close to the shop. Roy came inside, he did not talk to me, my handbag was behind the counter and then there were banana cakes and everything on the counter, he just jumped over the counter and got hold of the handbag. I quickly grabbed him and we were struggling in the shop with him and all the things in the shop fell on the floor. Estico was stronger than me, he pulled me outside and I fell down but I was still grabbing him outside and I started screaming. When I fell down on the ground and then the handbag fell down, Tony Joseph quickly picked it up and started running. I did not want to let go Roy Estico but then Vincent Marie said: 'Deal with her brother,' then I was so afraid, I let go because I thought maybe he was going to harm me. I was shocked, my whole dress was dirty. I was bleeding. I had injuries on my elbow and on my knees. I started screaming. I did not know what to do. They all ran down English River District. I shouted: 'Please, call the police.' I then left the shop open and went straight to the police station. My back was scratched and blood was coming out. My dress was torn. My elbows, ankles and knees were bleeding and my head was a bit swollen. I saw Dr. Vel who examined me and gave me some treatment. He gave me antibiotics, dressing on my body and panadol." The appellant had two previous convictions for theft by servant in March 1991 and theft in August 1992. But Vincent was a first offender. At the behest of the learned Chief Justice, a social welfare report on both these persons was represented. Having considered this report and mitigating factors in respect of the accused persons, the appellant was sentenced to imprisonment for five years while the co-accused received three years. It is against the five year prison term that the appellant's appeal now lies before us. It is Mr. Derjacques' submission that the sentence of imprisonment for five years is manifestly excessive, bearing in mind:- (a) (b) The appellant's plea of guilty and the remorse shown. Violence was not only minimal but was also occasioned in the process . of the appellant's getting away with the burglary; the said violence was not dangerous to life; no dangerous weapon was used; and the injuries suffered were superficial. (c) The peer pressure brought to bear on the appellant in that it was one "Togo"who instigated the entire affair. (d) The appellant is a young man with a dependant family. (e) The second accused, Vincent Marie, was sentenced to undergo three years imprisonment for the same offence and therefore, the Appellant's sentence of five years is unproportionately high. It is noteworthy that, apart from ground (e) above, the remainder of the grounds are virtually a rehearsal of the mitigating factors that the learned counsel for the appellant placed before the learned Chief Justice at the sentencing stage. It cannot, therefore, be argued that the said factors were not taken into account during the process of assessing what sentence would be appropriate in the circumstances of this case. The sentencer , for instance, considered that the Appellant had pleaded guilty, though not at the first opportunity but after the complainant had deponed in the case. The learned sentencer continued in these terms:- "Had he been convicted on a not guilty plea, he would have received at least eight years for this offence." Further, other relevant factors were taken into account, such the appellant's previous convictions for dishonesty, the seriousness of the offence, its prevalence, the maximum penalty (i.e life imprisonment), the .___ social welfare report and the plea in mitigation. As regards the disparity in the punishment between the appellant and Vincent, this should be looked at from the stand point that the appellant played a physical and most crucial role in the perpetration of the crime; whereas Vincent's participation was limited to moral support. The appellant had two relevant previous convictions; but Vincent had none. The Learned sentencer cannot thus be blamed for having differentiated the sentences that he imposed on the two persons. In conclusion, we are satisfied that the learned Chief Justice did not fall into error in his assessment of the sentence against the appellant. Consequently, the appeal against sentence is dismissed. Given at Victoria this ;w <JJ.. . April, 1997. {G-~ H. GOBURDHUN PRESIDENT ~~ E. OAYOOLA JUDGE OF APPEAL JUDGE OF APPEAL