Court of Appeal
Criminal Appeal No. 4 of 1988
14th September, 1988
SIR JAMES SMITH, P.
KENNETH ST. L. HENRY, J.A.
SIR JOSEPH LUCKOO, J.A.

Criminal Appeal - Appeal against conviction and sentence - Robbery - Ample evidence to support conviction of robbery - Term of imprisonment imposed inconsistent with law - Indictable Procedure Act section 150(1)(c) - Term of imprisonment - Criminal Code section 153(2) - Change in law - Sentence of 2 ½ years imprisonment set aside - Sentence of term of 7 years confirmed - Appeal against conviction of sentence dismissed.

J U D G M E N T

Kent Francis, appearing in person, has appealed against his conviction for robbing Cyril Cain, a private in the Belize Defence Force on 12th August, 1987 of a digital wrist watch, $50.00 in money, and a packet of "Regal" cigarettes contrary to sec. 153(1) of the Criminal Code (Ch. 84). He also sought leave to appeal against a sentence of 7 years imprisonment.

The facts were straightforward. On 10th August, 1987, about 10 p.m. Cain arrived in Belize City from Belizario. Later that night he passed a building in which a game of bingo was being played and decided to join in the game. Before entering he went to a public toilet on the other side of the road and while there he was held from behind by two fellows, one holding both of Cain's hands from behind while the other put a knife on the left side of his waist. They took a packet of 'Regal' cigarettes and $50.00 in cash from his pants pocket and his digital watch from his left wrist. They then freed him and walked away. He saw one of them walking fast to Cemetery Road and the other going to the bingo game at normal walking pace. Cain only saw the face of the latter and recognised him as the one who had taken his watch, which he had bought in NAFFI. Cain reported the incident to the police at Queen Street Police Station. Three policemen jumped into a Bronco along with Cain and on entering Cemetery Road Cain saw the accused, Kent Francis, walking with a young lady. The police stopped the vehicle and searched him. They found the watch and packet of "Regal" cigarettes in his pocket and took him to the police station. This evidence was substantially confirmed by P. C. Henderson who got out of the vehicle and went up to Francis, the accused, who dropped a black digital watch out of his left hand on to the ground, which Cain identified as his. Henderson searched Francis and found in his pants pocket a "Regal" cigarette pack with four cigarettes inside and a red handled knife. At the police station Francis was charged with robbery. He was cautioned but remained silent.

Francis when told of his rights at his trial, remained silent, and after the jury returned with a verdict of guilty, Francis said he had nothing to say. When his previous convictions were tendered he admitted having been sentenced to 5 years imprisonment for robbery in 1979.

There was ample evidence to support a conviction of robbery based on the evidence led for the prosecution. But it may be observed there is a slight discrepancy in the dates the offence was committed. On the evidence the robbery occurred on the night of 10/11 August. In the particulars of the indictment the date of commission of the offence is given as 12th August. We do not think that the Appellant was misled by this discrepancy, and if it were necessary we would have applied the proviso.

The Appellant was sentenced by the learned trial judge on.6th April, 1988, to 2 1/2 years imprisonment.

On 7th April the Director of Public Prosecutions filed a notice of objection under Sec. 150(l)(c) of the Indictable Procedure Act stating:-

"WHEREAS the said KENT FRANCIS was on the 6th day of April, 1988 duly tried and convicted before the Supreme Court sitting at Belize City, of a charge of Robbery, Contrary to Section 153(1) of the Criminal Code, AND WHEREAS the said KENT FRANCIS was for his crime sentenced to serve a term of imprisonment for a period of two and a half years, AND WHEREAS by Section 153(2) of the Criminal Code, as amended by Act 4 of 1987, the minimum period of imprisonment which the Court is empowered to impose for the crime of Robbery is SEVEN YEARS:

NOTICE IS HEREBY GIVEN that the period of imprisonment imposed upon Kent Francis as aforesaid is objected to as being inconsistent, with the law, and is an irregularity which the Court should by its own motion take immediate and appropriate steps to correct."

The Registrar passed the notice to the learned trial judge who on 8th April recalled Kent Francis and informed him that the sentence imposed on 6th April, 1988, "was not in accordance with the minimum prescribed by the amendment to the law" and sentenced him to 7 years imprisonment to take effect from 6th April, 1988.

Section 153(2) of the Criminal Code as amended states:?

"(2) A person guilty of robbery, or of attempted robbery, shall on conviction on indictment be imprisoned for a term which shall not be less than seven years but which may extend to imprisonment for life."

This amendment became the law with effect from 16th April, 1987.

By section 150(1)(c) of the Indictable Procedure Act provides:

"150(1) Objections to a trial on grounds of any irregularity or informality in the proceedings or of improper admission or rejection of evidence shall be made as follows:?

(c) if the irregularity or informality occurs in or after passing sentence, the objection shall be made in writing to the judge within twenty four hours after sentence has been pronounced."

The notice of objection by the Director of Public Prosecutions was in conformity with the provisions of sec. 150(1)(c) as set out above. The learned trial judge at the time he sentenced the Appellant to 2 1/2 years imprisonment was not made aware of the change in the law with effect from 16th April, 1987. The sentence he imposed was no longer lawful as the minimum sentence for robbery had been fixed by the amending Act No. 4 of 1987 at 7 years. The learned trial judge thus had the duty and the right to set aside the sentence of 2 1/2 years before substituting a sentence of 7 years imprisonment. But he appears to have omitted to set aside the order of imprisonment for 2 1/2 years. To avoid confusion we would set aside the said sentence of 2 1/2 years imprisonment and confirm the sentence of 7 years.

Accordingly the appeal against both conviction and sentence are dismissed.

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