JEETUN A.

v THE STATE

2021 SCJ 185

Record No. 9430

THE SUPREME COURT OF MAURITIUS

In the matter of:-

Atish Jeetun

Appellant

The State

Respondent

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JUDGMENT

The appellant pleaded guilty before the Intermediate Court to a charge of

sexual intercourse with a specified person, that is, his sister. As per the information,
the appellant was 20 years old in 2019 and the offence was committed in 2016. He
was sentenced to a term of one year’s imprisonment.

The four grounds of appeal read as follows –

“1. The sentence meted out by the Learned Magistrate is wrong in

principle and manifestly harsh and excessive.

2. The Learned Magistrate erred in not taking into consideration

mitigating factors such as the clean record of the Appellant, his
poor educational background, the remorse shown and
apologies expressed, the cooperation with the police and the
early confession in relation to the offence for which he was
prosecuted.

3. The Learned Magistrate erred in taking into consideration that

the sexual intercourse between the Appellant and the
complainant was forced when there is no evidence to that
effect and it was not the charge which the Appellant had to
answer before the trial court.
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4. The Learned Magistrate erred when he clearly took on board

the allegations put to the Appellant in the course of his
statements to the police but which did not form part of the
evidence adduced by the prosecution.”

Learned Counsel for the respondent did not resist the appeal at the hearing
before us and submitted that the learned Magistrate wrongly assumed, when
sentencing the appellant to a term of one year’s imprisonment, that he was an adult.
She was of the view that the matter should be remitted back to the Intermediate
Court for the case to be heard anew.

Learned Counsel for the appellant was also of the view that the learned
Magistrate had failed to take into account that the appellant was 17 at the time of the
offence and added that the Magistrate had wrongly stated that the appellant had
used force at the time of the offence. He was of the view that the case should be
remitted back to the learned Magistrate to pass sentence with a direction to consider
factors to be specified by this Court.

Now there is no doubt that the sentencing judgment of the Magistrate bears
some ambiguity as to the age of the appellant. On the one hand, the learned
Magistrate refers twice to the “tender age of the accused” presumably at the time of
the offence and, on the other hand, he states that the appellant “is considered an
adult” presumably for the purposes of sentencing. He also refers to the appellant
having “forced his sister into having sexual intercourse with him” when there was no
evidence to that effect on record.

More fundamentally however, after a careful consideration of the court record,

we find that it is not clear whether the learned Magistrate had actually found the
appellant guilty as charged. The record reads as follows, after the case was closed
for the defence –

“Acc is guilty to as charge

Acc has a clean record & spent 3 days in P cell”

We are unable to construe the above as an unambiguous finding on the part

of the Court that the appellant was guilty as charged on the basis of his plea of guilty
and we find proprio motu that there has been a serious irregularity warranting a fresh
hearing.
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We therefore quash the sentence of imprisonment and order that the case be
remitted back to the Intermediate Court for an early determination of the matter
before a different Magistrate.

A.D. Narain
Judge

P.D.R. Goordyal-Chittoo
Judge

09 June 2021

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Judgment delivered by Hon. A.D. Narain, Judge

For Appellant : Mrs N. Dosoruth-Dosieah, Attorney-at-Law

Mr L. Balancy, of Counsel

For Respondent : Mrs D. Dabeesing-Ramlugan, Principal State Attorney

Mrs P.A.D. Autar-Callichurn, State Counsel