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

SENTENCE

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 4th day of February 2020.

…………………………………….. ……………………………………..

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