Judicial Committee of the Privy Council
| DOI | 10.1177/002201837303700207 |
| Published date | 01 April 1973 |
| Date | 01 April 1973 |
| Subject Matter | Article |
of
the
Council
Judicial COIIlrrdttee
Privy
POWER
TO
SUBSTITUTE
VALID
SENTENCE
FOR
INVALID
SENTENCE
Samsoondar Ramcharan v. R.
IN this case
(1972,3
W.L.R.
599),
the
Judital
Committee
had
to consider, inter alia, the question whether,
at
common law, a
court
may substitute avalid for
an
invalid sentence.
The
appellant
was convicted
under
the
Larceny
Ordinance
of
Trinidad
and
Tobago
and
sentenced to pay a fine.
Thereafter,
the
trial
judge
had
doubts as to
the
validity of
that
order
and
referred
the
case
to the
Court
of Appeal.
That
Court
held
(and
its decision was
supported by
the
Judicial
Committee)
that
no fine could be
imposed for larceny.
It
thereupon proceeded to substitute a
sentence of imprisonment.
The
question before
the
Judicial
Committee was
whether
it
had
power so to do.
Upon
the basis
that
the
Ordinance
overrode
the
common law, so
that
no
court
could impose a fine for larceny, the problem before
the
Judicial
Committee was
(i)
whether
the
trial
court
could
at
common law
be ordered to pass some
other
sentence; (ii) whether
the
appellate
court
can
at common law pass some
other
sentence;
and
(iii)
whether the appellate
court
was precluded from so doing by
legislation.
The
Board held
that,
at
common law,
an
erroneous sentence
might be set aside,
but
that
the
court
which passed
the
sentence
was functus officio
and
could
not
be ordered to substitute some
other
sentence. Moreover,
an
appellate
tribunal,
although in the
exercise of its
statutory
powers for dealing
with
appeals, it
may
usually substitute one sentence for another,
appears
to
have
no
power to do so inherent in it by
virtue
of the common law.
Thus,
where, as in the instant case, a
matter
is referred to a higher
court,
merely to determine apoint of
law-whether
asentence could be
validly
imposed-it
is confined to this question,
and
can, where
it considers
the
sentence invalid, do no
more
than
reverse it.
The
former common
law
powers-upon
writ
of
error-having
been
superseded by
statutory
remedies,
the
appellate courts' jurisdiction
with
respect to sentences rests exclusively on statute.
In
the
instant
case, the
Board
held
that
the
relevant enactments
did
not
confer
upon
the
Court
of Appeal
the
power to substitute avalid penalty
127
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