Supreme Court of Mauritius, 4 février 2020, 2020 INT 21 – Sentence 2020 – Police v P.Boolell

Sentence 2020 – Police v P.Boolell

2020 INT 21

IN THE INTERMEDIATE COURT OF MAURITIUS (CRIMINAL DIVISION) In the matter of :- C.No. 556/2015

Police v Prakash BOOLELL S E N T E N C E For all the reasons set out in the judgment, the now 70 year old Accused who described himself (in his sworn defence statement) as a legal consultant has been found guilty of having on 3 May 2012 swindled his neighbor/declarant out of the sum of Rs.130,000.- in breach of section 330(1) Criminal Code.

The offence occurred after the amendments brought by the Judicial Provisions Act [ Act No. 36/2008 proclaimed on 4 December 2008] and Accused is liable to penal servitude for a term not exceeding 20 years and to pay a fine not exceeding Rs.150,000 rupees.

Accused was not assisted by counsel at Pre Sentence stage.

No evidence was adduced as part of the Pre Sentence process and Accused chose to depose unsworn as regards same. Accused briefly stated that as regards all the Court proceedings, he has at all times acted in good faith and it was unfortunate that things went wrong due to the absence of a witness.

Accused has admitted to a cognate conviction dated 24 March 2003 where a custodial sentence of 6 months imprisonment was substituted for a fine of Rs.10,000.-[ hereinafter referred to as ‘the 2003 conviction’’] and has not spent any time on pre-bail or pre-Trial detention.

There is per se no concept of ‘spent conviction’ applicable by law in Mauritius and subject to certain principles as explained below, it is the practice to disregard previous convictions which are 10 years old and over.

The Court notes that the present offence was committed 9 years after the 2003 conviction.

Albeit it is a matter that occurred 17 years ago, in view of its cognate nature the 2003 conviction is considered as a circumstance which cannot be disregarded and weighs significantly in the balance when deciding on the nature and the extent of the sentence to be imposed in the present case.

The Court takes into consideration Accused’s age, his unsworn deposition given at Pre Sentence stage, the circumstances, nature and seriousness of the offence, the ingenious and devious manner in which Accused exploited declarant’s expectations, the sum swindled – which is not inconsiderable and Accused’s record – as referred to above

The issue of previous convictions dating back more than 10 years was comprehensively addressed in Chedee v State [2012 SCJ 73] wherein reference was made to Tacoorsing v The State [2002 SCJ 107] and the Appellate Court emphasized that discarding convictions which are more than 10 years old was ‘a mere practice and will not be applied where it is in the interest of justice that the conviction be considered.’

Further reference was made to Karuppanan Narainsamy Palivell v The State [1996] SCJ 152] where it was held:- “As it was observed in the case of Khoyratty v. R [1987 MR 169], there is no magic in the figure 10 and it is a false assumption that convictions dating back to more than 10 years were not to be taken into account. An accused who has been convicted of an offence and who persists in committing offences of similar nature, clearly, shows that the sentence meted out to him had no deterrent effect on him and in the circumstances, he cannot expect any leniency from the Court….’’

True it is that as per the conviction in the present matter Accused has offended once after the 2003 conviction and but this is indicative of his conduct and it is the view of the Court that he has not learnt any lesson from his previous encounter with the law in 2003 and the commission of the present offence depicts a persistent dishonesty-related trait.

After assessing all sentencing options, this Court is of the considered opinion that it is in the interest of justice that the previous 2003 conviction be considered and the circumstances of the present case are such that neither a fine, a non- custodial or a suspended sentence would be an appropriate mode of sentencing that would meet the ends of justice and that a custodial sentence is therefore warranted in the circumstances. The Court is furthermore alive to the application of the “Principle of the Appropriate Penalty” taking into account the fact that there should be Proportionality between the penalty prescribed by law and the gravity of the offence as per the principles enunciated in Pandoo v The State [2006] SCJ 225 & Aubeeluck v State [2009 PRV 75]. Lin Ho Wah v State [2012 SCJ 70] emphasized the Principle of Individualization of Sentence … as follows “… while the formulation and application of general principles assist in obtaining a coherence in sentencing amongst the various courts of the land and while the principle of proportionality assists in obtaining a just balance between what the law prescribes and what the particular facts of the case exact, the principle of individualization concretizes the rights and freedoms guaranteed by the Constitution to the individual. A just sentence is an essential part of a citizen’s right to a fair trial.” Thus, the prevailing sentencing principle is that, subject to the penalty provided – the Court should always align the seriousness of the offence with the principle of proportionality depending on the specific circumstances of each case so that the punishment ultimately and appropriately fits the crime. There is no impediment to the application of section 151 Criminal Procedure Act Accordingly and for all the reasons given above and having taken all the above principles on board, this Court sentences Accused to undergo 3 months imprisonment which is considered as fair, reasonable and appropriate. Accused to pay Costs of Rs.500.- Prosecutor ………………………… moves that Prohibition Order against Accused be lapsed after delay of appeal and sentence satisfied.

Same is explained to Accused in English. Accused states he has/ has no Objection to same.

Motion granted. Motion not granted. Prosecution to take a stand ………………………….

Prohibition Order against Accused to lapse after delay of appeal expires AND sentence satisfied.

Dated this 4 th day of February 2020.

…………………………………….. …………………………………….. N.Ramsoondar R.Seebaluck President, IC (Crim) V.President, IC (Crim)