Court of Appeal
Criminal Appeals Nos. 12 and 13 of 1992
12 February, 1993
KENNETH ST. L. HENRY, P.
SIR. LASCELLES ROBOTHAM, J.A.
P. TELEFORD GEORGES, J.A.

Appellant Campos in person.
Mr. Sampson for Appellant Rodriguez.
Mr. Gonzalez, Director of Public Prosecutions, for the Respondent.

Appeal - Criminal law - Handling of stolen goods - Guilty plea - Sentence excessive for offence - Absence of evidence - Age of Appellant, good character and guilty plea of imprisonment - Appeal allowed - Sentence set aside - Guilty plea with explanation - Duty of try jude to order a plea of not guilty be entered - Appeal allowed - Matter referred to Supreme Court for trial.

REASONS FOR JUDGMENT

The Appellants were charged on an indictment containing four counts, counts 1 and 3 charging the Appellant Campos with aggravated burglary and handling stolen goods respectively while counts 2 and 4 charged the Appellant Rodriguez with abetment of aggravated burglary and handling stolen goods respectively. Each Appellant pleaded guilty to the charge of handling stolen goods "with an explanation" and was sentenced to 8 years imprisonment. The charges of aggravated burglary and abetment of aggravated burglary were then withdrawn by the Crown and the Appellants discharged on those counts. Each appellant appealed against his conviction and sentence.

The charges arose out of an incident in which the home of one Mr. Mahadev Moryani was entered by two men who attacked Mr. Moryani's maid and son and robbed him of some $60,000 Belize , $800 US and 2, 000 pesos. The following day the Police found Campos asleep with $10,562 Belize and $200 US in his pocket. He told them that his brother handed him the money and he went into the bush where the Police found him with it. His explanation following his pleas of guilty was:

"I did not know if money was there. Martha told me to give the money to her brother-in-law and her brother-in-law was to pay me $10,000.00. I was to wait for her in the bush and she was going to pay me more there. That is all."

Before us he reiterated that he was guilty and asked that his previous unblemished record and his youth be taken into consideration in relation to his sentence. In effect therefore he abandoned his appeal against conviction and pursued only the appeal against sentence.

In our view the sentence of 8 years imprisonment was manifestly excessive for the offence to which the Appellant had pleaded guilty. The learned trial judge appears also to have taken into account the fact that only a part of the stolen money was recovered, a matter which would have been relevant to the charge of aggravated burglary but was not relevant to the charge of handling stolen goods, in the absence of any evidence as to the amount of money "handled" by the Appellant and not recovered. In all the circumstances and having regard to the age of the Appellant, his previous good character and his plea of guilty we were of the view that a sentence of 3 years imprisonment was appropriate. We therefore allowed his appeal against sentence, set aside the sentence of 8 years imprisonment and substituted a sentence of 3 years imprisonment. His appeal against conviction having been abandoned was dismissed.

As regards the Appellant Rodriguez, his "explanation" following his plea of guilty was as follows:

"I did not act jointly with nobody. I was at home when Erminio and Rogaciano Campos arrived. When Rogaciano and Erminio arrived at my home with the money but I did not know how they obtained it. After they called me they told me to go with them to see what we would do with the money. I told them to give it to me to take care of it. After when I returned home my wife was not at home she had already been arrested; as how she saw the action she declared everything. After, as I knew I did not take anything I went to present myself so that she could be set free, but when I arrived there I had been accused of stealing. They started to beat me up, I could bear no more and went to show the money and as I knew where Rogaciano had hid himself I went to show. That is all."

It was submitted on his behalf that this explanation amounted to a plea of not guilty since he was asserting that he did not know or believe that the money was stolen, and that therefore the learned trial judge ought to have directed that a plea of "not guilty" be entered and then proceeded to trial.

The Director of Public Prosecutions submitted that on the record it was clear that the Appellant's plea was not ambiguous firstly because the Appellant pleaded not guilty to the more serious charge of abetment of aggravated burglary but guilty to the less serious alternative charge, secondly because from the statement of facts it appears that the Appellant after arrest and caution told the Police that "Campos and his brother came to his house and told him that they stole some money and needed his assistance in counting the money. Campos opened a black plastic bag and showed him a lot of money. Accused Rodriguez agreed and the three of them went in the bushes and counted the money and he was given that portion of money which he buried in his sister's yard "; and thirdly because on the allocutus the Appellant is recorded as saying "I did nothing with no one ? I only handled stolen money".

We do not consider that the approach suggested by the Director of Public Prosecutions can be justified. The fact is that the explanation offered by the Appellant in connection with his plea negatived one of the essential elements of the offence to which he purported to plead guilty - the knowledge or belief on his part that the money was stolen. In those circumstances it was the duty of the trial judge not to accept the plea of guilty but to order that a plea of not guilty be entered and that the matter proceed to trial.

For these reasons we allowed the Appellant Rodriguez' appeal against conviction, set aside the conviction and sentence, ordered that a plea of not guilty be entered and the matter referred to the Supreme Court for trial on the charge of handling stolen goods.

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