BHINKAH S. v THE STATE 2009 SCJ 102 2009 MR 44 Record No. 7442 IN THE SUPREME COURT OF MAURITIUS In the matter of: S. Bhinkah Appellant V.
The State Respondent JUDGMENT The Appellant pleaded guilty before the Intermediate Court to two counts of an information: namely, larceny whilst being more than two in number, in breach of Sections 301 (1) and 305 (1)(b) of the Criminal Code (Count 1) and larceny whilst being more than two in number and whilst being masked in breach of Sections 301(1), 305(1)(b) and 301A of the Criminal Code (count 3).
Under Count 1, the Magistrate took into consideration the fact that appellant was not the mastermind in the offences, that he had cooperated with the police and helped to locate his confederates, that he had returned his share of the loot, that he had no conviction for any cognate offence and had entered a timely plea of guilty. She exercised her discretion under Section 151 of the Criminal Procedure Act and sentenced him to undergo twelve months imprisonment.
Under Count 3, she was of the view that, by virtue of the provisions of Section 301A of the Criminal Code, the sentence that she could pass ranged from a minimum of five years to a maximum of fifteen years. She sentenced him to undergo the minimum of five years penal servitude.
The Appellant appealed against his sentence initially on the following two grounds: “1. 2. The sentence is one which is imposed by law as mandatory as such is against the principle of our constitution. The sentence is manifestly harsh and excessive.”
An additional ground was subsequently added as follows: “The minimum penalty of five years penal servitude provided by Section 301 A of the Criminal Code for a person convicted of committing the offence of larceny with aggravating circumstances under section 305 of the Code, while being masked is unconstitutional in so far that the mandatory minimum penalty is disproportionate to the seriousness of the offence. Consequently the above section 301 A of the Criminal Code falls foul of section 7 of the constitution because the penalty imposed by law is excessive, harsh, inordinate, inhuman and disproportionate.”
In his address learned Counsel for the Appellant submitted that the provisions of Section 301(A) of the Criminal Code imposing a minimum sentence of five years is mandatory, it therefore fetters the Magistrate’s discretion in passing sentence and is furthermore disproportionate with the seriousness of the offence. He added that the said provision infringes the principle of proportionality as explained in the cases of Pandoo v. The State [2006 MR 323], Gunputh v. The State [2007 SCJ 128], Philibert v. State [2007 SCJ 274] and Madhub v. The State [2007 SCJ 282], and violates Section 7 of the Constitution because the penalty imposed is excessive and inhuman.
Counsel further submitted that in view of the mitigating factors highlighted by the Magistrate in her judgment, the imposition of a five year sentence was shocking and
inappropriate, and a lesser sentence is warranted. He referred to the recent amendment made to this particular section by the Judicial Provisions Act 2008, (Act No. 36/2008) and pointed out that admittedly with the amendment, the maximum penalty has been increased from 15 to 30 years; however, the minimum penalty for 5 years penal servitude has also been reduced to 3 years’ penal servitude indicating the legislator’s view that certain cases deserved less than the minimum 5 years sentence provided under this Section prior to the amendment.
Learned Counsel for the Respondent submitted that the minimum mandatory sentence under Section 301 A is not unconstitutional as it does not infringe the principle of proportionality. He referred to the recent case of Noshib v State [2009 SCJ 6] where the Court of Appeal reiterated the principle that not all minimum mandatory sentences are per se unconstitutional and held that a minimum sentence of 2 years imprisonment under S...
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