UKPC 19
Privy Council Appeal No 0050 of 2013
Sabapathee (Appellant) v The Director of Public Prosecutions (Respondent)
From the Supreme Court of Mauritius
JUDGMENT DELIVERED BY
25 June 2014
Heard on 27 March 2014
(Instructed by MA Law (Solicitors) LLP)
Geoffrey Cox QC
(Instructed by Royds Solicitors)
"However, in the present case a fine sits uncomfortably with the circumstances of the present offence. The appellant is not at his first offence, the present one is his fourth offence, all drug related. It is his second drug dealing offence albeit after five years. The amount found on him exceeds what would be found on a small-time dealer or someone feeding his own drug addiction. Two hundred packets worth Rs30,000 indicates a medium range stock of illegal drugs. He did not plead guilty at the first available opportunity; he did not assist the police in arresting other persons involved in the illegal business; the time spent on remand was on the low side and finally, even after his guilty plea, he did not wholeheartedly embrace the fact that the drugs were in his possession for distribution but attempted to downplay his criminality by saying the drugs were for consumption. In principle, the present circumstances deserve a custodial sentence and is in keeping with precedents in sentencing for such offences."
"Where any person is charged with an offence before a Magistrate or before the Intermediate Court, an appeal shall lie to the Supreme Court against any final decision of the Court –
(a) by the person charged, against his conviction or sentence, where he is sentenced to undergo penal servitude or imprisonment with or without payment of a fine, or to pay a fine of Rs500 or more;
(b) by the Director of Public Prosecutions or, in the case of a private prosecution, by the prosecutor, against any dismissal of a charge or, in the case of a conviction, against the imposition of any sentence."
The powers of the Supreme Court on hearing such an appeal are set out in section 96. Under subsection (2), it may affirm or reverse, amend or alter the conviction, order or sentence.
The proper approach on an appeal against sentence
"It is . . . a power which must be relatively sparingly exercised and then only in cases where the sentence imposed by the trial court was manifestly inadequate. And in all cases the reasons for exercising this drastic power must be explained."
"Their Lordships consider that this section confers a full right of appeal by way of rehearing in the Supreme Court. That Court will 'revise', ie go over again, the 'information, depositions and other evidence and conviction before the Intermediate or District Court' and after such revision may 'affirm or reverse, amend or alter' the conviction, order or sentence. The reference to affirming the conviction, rather than dismissing the appeal, shows that the Supreme Court is not concerned merely to decide whether the lower court acted within its powers. If it affirms the conviction after revising the evidence, it makes that verdict its own. This requires that the Supreme Court should itself be satisfied that the prosecution has proved the guilt of the defendant beyond reasonable doubt.
The great difference between the hearing in the District or Intermediate Court and the revision of those proceedings in the Supreme Court is that the former Court hears oral evidence and is able to observe the demeanour of the witnesses. The Supreme Court has only the written record, which is seldom verbatim and often translated. It follows that in hearing an appeal the Supreme Court is ordinarily entitled to assume that the findings of the lower court on questions of credibility were properly founded upon their assessment of the merits of the witnesses. It will therefore be unusual for such findings to be set aside merely because on a reading of the record the Supreme Court would have been inclined to form a different view. But this observation is not based on any rule of law restricting the revising jurisdiction of the Supreme Court. Acknowledgement of the advantages enjoyed by the magistrates in assessing credibility is no more than a matter of common sense. On the other hand, the facts may be such that the Court of Appeal is nevertheless left with a genuine doubt about the guilt of the defendant; a feeling that the magistrates may have made a mistake in accepting the prosecution evidence. Much depends upon the nature of the case. If, however, the Court is not satisfied that the prosecution have proved the guilt of the defendant beyond reasonable doubt, it is their duty to allow the appeal."
". . . sentencing is not a science of mathematical application of any set formula. It is a normative science rather than a physical science which takes into account the circumstances of the offender as well as the offence and the impact of the offence on the community. A sentence may look to be lenient because it is tailored to fit the offender, the offence and the offended but, in our system of justice, the trial court is the only constitutional institution which is empowered and sovereign in determining which sentence to impose on an offender on the facts of the particular case. An appellate court would scarce intervene unless the sentence is wrong in principle or manifestly harsh and excessive or unduly lenient. However, even if there is nothing wrong with the principle, the sentence may be increased by the appellate court if it is unduly lenient. The principle of proportionality pervades through the whole system of justice, in procedure, substance and sanctions."
The DPP's decision to appeal
"Where any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial Court established by law."
The Supreme Court's decision