Sources of Law in Mauritius
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.
2
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
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.
2
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