Headnote: This case
involves the appeal by the 2nd accused-appellant against the sentence imposed
upon him by the High Court of Tangalle for the offence of attempted murder
under Section 300 read with Section 32 of the Penal Code. The appellant, an
Army soldier, pleaded guilty alongside the 1st accused, and while their jail
terms were suspended, the appellant challenged the imposition of a Rs. 5000/-
fine, arguing it would affect his employment. The Court of Appeal reviewed the
sentence, considering legal precedents and mitigatory factors, and allowed the
appeal to the extent of setting aside the fine and imposing state costs
instead. The judgment emphasizes the rehabilitative purpose of suspended
sentences and concludes by ordering increased compensation to the injured
party. Background of
the Case: The
appellant, alongside the 1st accused, was charged in the High Court of Tangalle
for causing grievous injuries to Indika Sandaruwan on 22nd December 2016,
amounting to attempted murder under Section 300 read with Section 32 of the
Penal Code. Both the appellant and the 1st accused pleaded guilty when the
indictment was read out on 23rd September 2020. Mitigating
factors were submitted on behalf of the appellant, emphasizing that he was a
married father of three, a serving Army soldier in the Sri Lanka Army since
2009, and had no prior convictions. A compensation offer of Rs. 75000/- was
made to the injured party. It was requested that the sentence not affect the
appellant’s employment, specifically urging the court to impose state costs
instead of a fine. The State Counsel did not insist on a jail term, and the
injured party expressed willingness to accept compensation, which was a factor
considered by the High Court in sentencing. The High
Court sentenced both the appellant and the 1st accused to two years of
imprisonment, suspended for five years, and ordered them to pay Rs. 75000/-
each as compensation, along with a Rs. 5000/- fine, with a one-month
imprisonment in default of payment. The appellant appealed against the fine,
arguing that it would impact his employment and livelihood as a government
employee. Legal Issues: 1. Whether
the fine of Rs. 5000/- imposed on the appellant should be set aside to avoid
affecting his employment. 2. Whether
state costs could be imposed instead of the fine. 3. The
appropriateness of a suspended sentence in this case. Arguments by
the Appellant: The
appellant's counsel argued that the imposition of a fine would negatively
impact his employment as a serving Army soldier, which could lead to his
dismissal and, consequently, severe hardships for his family. The counsel
relied on the precedent set by the case *Kumara Vs. The Attorney General*
(2003) 1 SLR 139, which outlined principles for mitigating sentences,
particularly for offenders without previous convictions who had shown remorse
and taken steps toward rehabilitation. The counsel
for the appellant emphasized that the High Court Judge had acknowledged the
appellant's mitigatory circumstances but had still imposed a fine, thereby
potentially affecting his employment. The counsel submitted that instead of a
fine, the Court should impose state costs, which would not harm his future
livelihood. Arguments by
the Prosecution: The State
Counsel maintained that the High Court Judge had fully considered the
appellant's employment and the other mitigatory factors presented in
sentencing. It was contended that the Rs. 5000/- fine was a mandatory aspect of
the sentencing for an offence of this nature, and there was no justifiable
reason to replace it with state costs. The State Counsel argued that the appeal
should be dismissed, as the High Court had already demonstrated leniency by
suspending the jail term. Precedents
Discussed: 1. **Kumara
Vs. The Attorney General (2003) 1 SLR 139**: This case
involved a reduction of a sentence from murder to culpable homicide not
amounting to murder. It laid down important principles for suspended sentences,
highlighting their purpose as rehabilitative rather than punitive. The case
emphasized that imprisonment should be avoided unless necessary for public
protection and offender reform, and that suspended sentences could allow an
offender to continue contributing to society. The
principles outlined in *Kumara* were crucial in the appellant's argument,
specifically: Suspended sentences should aim to rehabilitate
rather than isolate offenders. Imprisonment could have a devastating effect on
both the offender and their family. The court should consider the offender’s past
behaviuor, plea of guilt, and efforts to compensate the victim in determining
the sentence. Educational
Note by BLOGGER: This case
illustrates the delicate balance courts must strike between punishment and
rehabilitation, particularly when the offender has no prior convictions and has
shown genuine remorse. The case emphasizes that sentencing must not only serve
justice but also consider the long-term impact on the offender and their
family, especially in cases where the offender has already been contributing
positively to society, as was the case with the appellant, a long-serving Army
soldier. The ruling
demonstrates that while fines and imprisonment are typical punishments for
serious offences, courts may exercise discretion in reducing penalties, such as
replacing fines with state costs, to prevent disproportionate harm to the
offender’s livelihood. The case also highlights the importance of mitigating
circumstances, such as an unconditional guilty plea, compensation to the
victim, and a previously clean record, in influencing sentencing decisions. Conclusion: In
considering the appeal, the Court of Appeal acknowledged the mitigatory
circumstances presented by the appellant, particularly his employment and
family obligations. The Court found that imposing a fine could indeed affect
the appellant’s employment and livelihood, contrary to the rehabilitative
purpose of a suspended sentence. Accordingly, the Rs. 5000/- fine was set
aside, and the appellant was instead ordered to pay Rs. 10000/- as state costs.
Furthermore, the compensation to the injured party was increased to Rs.
125000/-. This
judgment reaffirms the principle that courts should seek to rehabilitate
offenders through suspended sentences and avoid penalties that could unjustly
harm their future employment and family stability.
DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA VS AMARATHUNGA ARACHCHIGE DAYANANDA ALIAS MADDUMA MAHATHTHAYA Court of Appeal No: CA/HCC/112/2020
High Court of Tangalle Case No: THC/185/2019 In the matter of an Appeal in terms of section 331 (1) of the Code of Criminal Procedure Act No- 15 of 1979, read with Article 138 of the Constitution of the Democratic Socialist Republic of Sri Lanka. Democratic Socialist Republic of Sri Lanka
COMPLAINANT
Vs. 01. Amarathunga Arachchige Dayananda
alias Madduma Mahaththaya 02. Geegana Gamage Chamara Nilanga
ACCUSED
AND NOW BETWEEN
Geegana Gamage Chamara Nilanga
2nd ACCUSED-APPELLANT
Vs.
The Attorney General
Attorney General's Department
Colombo 12
RESPONDENT
Before : Sampath B. Abayakoon, J.
P. Kumararatnam, J. Counsel : Charuka Dharmasiri with Nuwan Beligahawatte for the Accused Appellant Shaminda Wickrama, S.C. for the Respondent Argued on : 02-06-2022 Written Submissions : 21-01-2022 (By the Accused-Appellant) 01-06-2022 (By the Respondent) Decided on : 18-07-2022 Sampath B Abayakoon, J.
This is an appeal by the 2nd accused appellant (hereinafter referred to as the appellant) on being aggrieved by the sentence imposed upon him by the learned High Court Judge of Tangalle.
The appellant, along with the 1st accused named in the indictment, was indicted before the High Court of Tangalle for causing grievous injuries to one Indika Sandaruwan on 22nd December 2016 and thereby committing the offence of attempted murder, punishable in terms of Section 300 read with Section 32 of the Penal Code.
Both the 1st accused as well as the appellant pleaded guilty to the charge when the indictment was read out to them on 23rd September 2020.
On behalf of the appellant, submissions have been made in mitigation of the sentence and a compensation in a sum of Rs. 75000/- has been offered to the injured. It has been urged that he is a married person of 39 years of age, having 3 children at that time and he is also a serving Army soldier attached to the Engineering Regiment of the Sri Lanka Army. Under the circumstances, it has been pleaded for the consideration by the Court for a sentence that does not affect his employment. It has been specifically pleaded that he may be ordered to pay state costs instead of a fine. It appears from the proceedings that the learned State Counsel who prosecuted the matter has not insisted on imposing a jail term on the appellant as well as the first accused. Having considered the fact that the injured, who is the PW-01 named in the indictment, has also expressed his willingness to accept compensation and to conclude the matter, it has been urged the Court to consider these factors and impose a suitable sentence.
In his sentencing order, learned High Court Judge has considered the fact that the appellant and the first accused tendered an unconditional plea and also the fact that the injured, namely, PW-01 named in the indictment, has expressed his wish to obtain compensation, as mitigatory factors.
Accordingly, the appellant and the other accused have been sentenced to 2 years imprisonment which has been suspended for a period of 5 years. In addition, they have been ordered to pay a sum of Rs.75000/- each to PW-01 as compensation. In addition to the above, the appellant and the 1st accused have been ordered to pay Rs.5000/- each as fines. In default, they have been sentenced to one month imprisonment.
It appears from the sentencing order that the submission made on behalf of the appellant to the effect that he is a serving Army soldier and to consider imposing a punishment which would not affect his employment has drawn the attention of the learned High Court Judge. However, he has not been ordered to pay state costs instead of a fine, but a note of his application has been made in the sentencing order.
In the appeal under consideration, the appellant is only challenging the sentence where he was ordered to pay a fine of Rs.5000/-, and seeking this Court's indulgence to set aside the fine imposed and to consider imposing a state cost in place of the fine.
At the hearing of this appeal, the learned Counsel for the appellant as well as the learned State Counsel after making oral submissions invited this Court to consider their respective written submissions as well, and pronounce a judgment deemed appropriate.
As I have stated before, the appellant along with another, has been indicted for the offence of attempted murder, punishable in terms of section 300 read with section 32 of the Penal Code. The indictment has been served on 21st May 2020 and on the day where the appellant and the 1st accused were explained of the charge against them, have chosen to tender an unconditional plea of guilty to the charge.
The appellant has pleaded several grounds in mitigation and has urged the indulgence of the learned High Court Judge to consider imposing a state cost rather than a fine on him on the basis that a fine may affect his employment in the Sri Lanka Army. It really appears from the sentencing order that the intention of the learned High Court Judge was also to make a sentencing order that will not affect the employment of the appellant. It appears that it was on that basis that the learned High Court Judge has decided to mention that application in his sentencing order.
In his submissions before this Court, it was the view of the learned Counsel for the appellant that considering the fact that he was an army soldier serving in the Sri Lanka Army since 2009 with a distinguished record, and then a father of three children, and the fact that he has had no previous convictions or pending cases, the learned High Court Judge should have considered imposing a state cost rather than a fine on him. He relied on the judgment by Edirisuriya, J. in the case of Kumara Vs. The Attorney General (2003) 1 SLR 139 to substantiate his position.
The view of the learned State Counsel was that the learned High Court Judge has well considered the application of the appellant to decide whether to order him to pay a state cost rather than a fine in the sentencing order. It was his view that after considering the facts and the circumstances, the learned High Court Judge has decided to suspend the jail term imposed on the appellant but not to order state costs in lieu of the mandatory fine that has to be imposed on a charge of this nature. It was his view that there exists no reasonable basis to allow the application of the appellant with regard to the sentence imposed upon him by the learned High Court Judge. He moved that the appeal should stand dismissed as there is no merit in the application.
In the case of Kumara Vs. The Attorney General (Supra) it was held:
1. A suspended sentence is a means of reeducating and rehabilitating the offender rather than alienating or isolating the offender.
2. No offender should be confined to in a prison unless there is no alternative available for the protection of the community and to reform the individual.
3. Imprisonment has an isolating and alienating effect on the family of the imprisoned offender because of the hardships they are faced with during the imprisonment of the family members.
4. Suspended sentence with its connotation of punishment and pardon is supposed to have integrative powers. The offender is shown that he has violated the tenets of society and provoked it wrath, but is immediately forgiven and permitted to continue to live in society with the hope that he wouldn't indulge in that form of behavior again.
5. The accused does not have previous convictions; he surrendered to police; he pleaded guilty on the first date of trial; he offered compensation to the aggrieved party; these amply demonstrate the mitigatory factors.
The above mentioned was a case where the accused was charged for the offence of murder, but where he pleaded guilty for the lesser offence of culpable homicide not amounting to murder under Section 297 of the Penal Code on the basis of a sudden fight. He was sentenced to seven years rigorous imprisonment and a fine. Considering his appeal against the sentence, Edirisuriya, J. in suspending his sentence and in addition, ordering him to pay compensation to the next of kin of the deceased, held as earlier, which are the grounds that should be considered in mitigation by a trial judge.
In the instant case, the appellant was indicted for the offence of attempted murder for which he has pleaded guilty on the first available opportunity when he was charged based on the indictment.
It is clear from the proceedings that the learned Counsel who represented the appellant before the High Court has placed clear mitigatory circumstances for the consideration of the Court. His only application with regard to the sentence had been to consider imposing of a state cost rather than a fine, as it would affect the appellant's employment.
When one considers the underlying principles that have been laid down by Edirisuriya, J. in the above-mentioned case, it is clear that the purpose of imposing a suspended sentence is to allow an offender to rehabilitate himself and to continue to live in the society. The appellant is a serving army soldier, and if a fine is imposed, it would affect his employment as a government servant which may result him been deprived of his livelihood. Such a situation would affect his family members and may change his life altogether.
In my view, this is not the expected purpose of suspending a sentence imposed upon an accused. By suspending a sentence for a minimum period of 5 years, the appellant, if he complies with the conditions of the suspended sentence, will be treated as a person who did not receive a punishment before the eyes of the law. But if he is fined, as contended by the learned Counsel for the appellant, it may affect his employment. Therefore, it is nothing but fair to allow the application of the appellant considering the facts and the circumstances that led to the imposition of a fine and a suspended sentence on the appellant.
Therefore, I set aside the Rs.5000/- fine imposed on the appellant and order him to pay a state cost of Rs.10000/-. As he is now benefiting from this judgment and he is yet to pay the compensation ordered, it is ordered that he shall pay a compensation of Rs.125000/- to PW-01. In default, he shall serve a simple imprisonment period of 6 months.
If the appellant fails to pay the state cost ordered, it shall be recovered as a fine and in default, he shall serve a simple imprisonment period of 3 years.
The appeal is allowed to the above extent.
Judge of the Court of Appeal P. Kumararatnam, J. I agree. Judge of the Court of Appeal | 
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