Ajay Dookee v State of Mauritius (Mauritius)

Time spent in custody awaiting trial should ordinarily attract credit of 80–100 per cent, with 80 per cent as the default. Differences between remand and convicted-prisoner conditions do not ordinarily justify limiting credit to one-half or two-thirds. Credit should be given arithmetically by backdating the sentence, while allowing for any applicable remission. Time spent in custody pending appeal should ordinarily count in full. Any loss of time imposed to deter a frivolous appeal must be proportionate to the abuse.

The appellant was convicted by a majority of aiding and abetting a murder and sentenced to five years’ imprisonment. The Court of Criminal Appeal dismissed his conviction appeal but allowed the prosecution’s sentence appeal, increasing the sentence to 16 years.

The appellant had spent 14 months in custody awaiting trial and 31 months pending appeal. The prosecution accepted that the latter period should receive full credit. The central issue before the Board was the proper credit for the period spent on remand and the method by which that credit should be given.

1. Disposition. The Board allowed the appeal to the extent necessary to give credit for time spent in custody. The 16-year sentence was not itself excessive for aiding and abetting this murder.
2. Custody pending appeal. The approach in Ali and Tiwari v The State [2005] UKPC 41 established that backdating an appellant’s sentence should not be confined to exceptional cases and that the full period between conviction and the determination of the appeal should ordinarily count. The prosecution conceded the appellant’s entitlement to credit for all 31 months spent in custody pending appeal.
3. Custody before trial. Following Callachand v The State [2008] UKPC 49, time spent in custody before sentence should ordinarily be taken fully into account by an arithmetical deduction. The Board rejected the approach in Mbokotwana v The Commissioner of Prisons 2010 SCJ 310, under which a discount of one-half to two-thirds was regarded as appropriate. The differences between remand and convicted-prisoner conditions were minor compared with the fundamental loss of liberty. Credit should ordinarily be between 80 and 100 per cent, with 80 per cent as the default, subject to unusual circumstances.
4. Method of calculation. Credit must be given in a way that reflects the remission available on determinate sentences. A sentence should therefore be backdated by the credited period, rather than merely reduced from the date of sentence. The appellant was entitled to credit for 31 months plus 80 per cent of 14 months, treated as 12 months, totalling 43 months. His sentence was deemed to have begun on 27 July 2006.

1. Privy Council: in [2012] UKPC 21, varied the sentence by giving credit for 43 months’ custody and deemed the 16-year sentence to have begun on 27 July 2006.
2. Court of Criminal Appeal of Mauritius: on 25 February 2010 dismissed the appeal against conviction and allowed the prosecution’s appeal against sentence, increasing the sentence from five to 16 years. No citation is stated in the judgment.
3. Assizes: on 27 July 2007 convicted the appellant by a majority of 7:2 of aiding and abetting murder and sentenced him to five years’ imprisonment.