FAKEERAH A K v THE STATE OF MAURITIUS

2020 SCJ 145

Record No : 9324
IN THE SUPREME COURT OF MAURITIUS

In the matter of:-

Akshay Kumar Fakeerah
Appellant
v
The State of Mauritius
Respondent
JUDGMENT

1. This is an appeal against the sentence imposed by the learned Magistrate of the
Criminal Division of the Intermediate Court, where she sentenced the appellant
(accused no. 4 before the lower Court) to 3 years penal servitude following his plea of
guilty to a charge of larceny committed in May 2017 by more than 2 individuals, in
breach of sections 301(1) and 305(1)(b) of the Criminal Code.

2. The initial grounds of appeal were set out as follows but learned counsel for the
appellant did not, rightly so in our view, press ground 2:

1. The sentence is manifestly harsh and excessive in all circumstances.

2. The sentence meted out against the Appellant offends the principle of
proportionality in sentencing.
3. The Learned Magistrate failed to properly address her mind to the mitigating
circumstances of the case in sentencing the Appellant.

3. Under the first ground, it is contended that the learned Magistrate laid too much
emphasis on the appellant’s “previous” convictions and that she wrongly considered
them as the only determining factor justifying a more severe sentence, thereby giving
the impression that he was being punished twice for his past offences.
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4. It is thus contended for the appellant that the “approach of the Learned Magistrate is
wrong inasmuch as, in all circumstances, three (3) years of penal servitude would not
have been imposed save and except for the previous convictions of the Appellant vide
Heerah v The State (supra)”.1

5. Considerable time could have been saved had learned counsel simply pointed out at
the onset that the convictions considered by the learned Magistrate in fact post-dated
the offence for which she sentenced him and that her reasoning was therefore flawed.

6. A close examination of her sentence shows that the learned Magistrate listed the
appellant’s “previous” convictions (without mentioning the precise dates of these
convictions and sentences) before stating that the “Court is of the view that the
previous of accused [sic] shows that he is bent on committing these type of offences
and the previous sentence did not prevent a repetition of the offence.”2

7. She thus concluded that the appellant was persisting in committing similar offences,
thereby showing that “the sentence imposed previously had no deterrent effect on him.
In the circumstances the accused cannot expect leniency and the society must be
protected from him.”3

8. The learned Magistrate then went on to state that “The Court is also of the view that a
non-custodial sentence would be of no effect due to the accused’s unresponsive
attitude to the chances to reform himself through initially the imposition of non-custodial
sentence. The accused has also been jailed for similar offences but he seemed not to
have learnt his lesson.”4

1 Page 3, paragraph 7. of Mr Cassim Jeehan’s skeleton arguments

2 Page 27 of the brief
3 Page 35 of the brief
4 Page 35 of the brief
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9. These are clearly material misdirections on the part of the learned Magistrate since her
language shows that she allowed herself to be unduly influenced by the contents of the
appellant’s certificate of convictions when she imposed a heavier sentence after she
concluded that the appellant had been undeterred and that he was therefore
‘unresponsive’ to his ‘previous’ convictions in respect of similar offences. It was as a
result of such unresponsiveness that the learned Magistrate found that the appellant
could not expect leniency.

10. The appellant’s PF 15 however shows that these convictions and sentences were
imposed after the offence for which the learned Magistrate sentenced him was
committed. Mr Bungaroo for the respondent did concede during the hearing before us
that the learned Magistrate had indeed wrongly based her sentence on the appellant’s
convictions in order to impose the sentence that she did.

11. The following extract from the Judgment of V. Glover ACJ and Boolell AJ in Khoyratty
v R [1987 MR 169], (following reference to the decision in Veeren v R [1987 SCJ 400]),
illustrates the correct approach in such situations:

“It is elementary that, on the one hand, no accused should be punished twice for
an offence while, on the other, all convicted persons cannot be treated as first
offenders. When it is established that a person has been convicted of an offence
and has, after the date on which that conviction has been pronounced,
committed another offence, this shows that the first punishment has had no
deterrent effect and is a ground for an exemplary punishment. ... The Courts
should however take care not to make use of the word "previous" indiscriminately,
if not to avoid using it at all.”

[The emphasis is ours].

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12. In Heerah Y. S v The State [2012 SCJ 71], this is what E. Balancy J and S. B. Domah
J had to say:

“[6] In dealing with previous convictions, a distinction should be drawn between,

on the one hand, sentencing an offender twice, as opposed to severely, on account
of his previous convictions, all the more so when they relate to convictions which
are spent. It is in order for a Court to consider the previous convictions of an
offender and inflict a penalty which, except for his past record, the court would not
have imposed. However, it is not in order to so increase the penalty that it would
look as if the court was punishing the offender a second time for his past offence
on a subsequent conviction of his: see Toofany v R [1988 SCJ 171] where the
appellate court cited Coleridge LCJ in R v Betteridge 1942 28 Cr. App R 171, at
p. 172, in the following:

“It is not right to hold over a man’s past offences which have been dealt with
by appropriate sentences …. and add them up and increase accordingly the
severity of the sentence for a later offence.”

[7] The rationale of the distinction resides in the common sense view taken of
past criminal conduct. The record of an offender will speak as to whether or not the
punishment previously administered upon him has had a salutary effect in
preventing him from re-offending. A careful reading of the record will indicate
whether an accused party has shown himself, on the one hand, responsive to
punishment previously imposed: for example, by keeping away from offending
since his previous conviction until what may have been a sudden relapse; or, on
the other hand, unresponsive to past punishment: for example, by invariably
engaging in systematic offending: Veeren v R [1987 MR 195]; [1987 SCJ 400];
see also Carrim v R [1952 MR 39]; Clement Bacorilall v The State [1992 SCJ
360].

[8] It is a matter of concern to us that many cases coming to us on appeal show

that sentencing is barely given the attention it deserves by either the courts or
defence counsel. ...”

[The underlining is ours].

13. The learned Magistrate therefore manifestly erred when she took into account that the
appellant had not been deterred by what she erroneously described as “previous”
convictions in respect of cognate offences. The appellant’s antecedents in fact post-
dated the commission of the offence and could not be considered as deterring
elements which the appellant had chosen to ignore at the time that he committed the
aggravated larceny.
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14. Had the learned Magistrate not been carried away by her excessive citation of the law
and had she instead been more attentive to the elementary facts placed before her,
she would have realized without difficulty that the appellant’s convictions should not
have been a determinant factor in imposing the sentence of 3 years penal servitude.

15. Although we agree that the appellant’s convictions reveal a clear pattern in his criminal
behaviour over a relatively short period of time, we are of the view that they did not per
se warrant the sentence of 3 years penal servitude inflicted by the learned Magistrate.
A sentence of 2 years imprisonment, as suggested by learned counsel for the appellant
himself in the concluding paragraph of his skeleton arguments, will meet the ends of
justice and may achieve the required deterrent effect.

16. In view of what we have said above, and since the mitigating elements were
adequately assessed by the learned Magistrate, there is no need for us to consider the
third ground of appeal.

17. For all these reasons, we quash the sentence of 3 years penal servitude imposed by
the learned Magistrate and substitute therefor a sentence of 2 years imprisonment. The
time already spent in custody by the appellant, as computed by the learned Magistrate
at page 14 of her sentence5, is to be counted as served sentence.

5 Page 36 of the brief

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18. We have duly noted the statement of learned counsel for the appellant before us
confirming that the appellant has been released on bail pending the determination of
this appeal.

N. Devat

Judge

N. F. Oh San-Bellepeau

Judge

This 29 June 2020

Judgment delivered by Hon N. F. Oh San-Bellepeau

For Appellant : Mr S S Murday, Attorney-at-Law

Mr S Cassim Jeehan, of Counsel

For Respondent : Ms S Jeetoo, Temporary State Attorney

Mr R B Bungaroo, State Counsel