INDRAWANSA Vs. OFFICER-IN-CHARGE, POLICE STATION, WENNAPPUWA AND ANOTHER
Sri Lanka Law Reports - 2021 -
Volume 3 , Page No - 323
INDRAWANSA Vs.
OFFICER-IN-CHARGE, POLICE STATION, WENNAPPUWA AND ANOTHER
SUPREME COURT - DEHIDENIYA, J. -GOONERATNE,
J. - DE SILVA, J.
SC/APPEAL/191/2016 - SC/SPL/LA/2/16 - HC/CHILAW/HCA/16/15
MC MARAWILA 2389/D - FEBRUARY 24, 2021
2. Amadoru v. Officer in Charge, Special
Criminal investigation Unit, Wennappuwa [2011] 2 Sri LR 315
3. Mudiyanselage Suraj Sanjeewa v.
Officer in Charge Police Station and others (CA/PHC/APN/17/19)
5. Karunaratne v. The State 78 NLR 413
6. Attorney General v. Mendis [1995] 1
Sri LR 138
Wasantha Nawaratna Bandara, P.C., with
Pasan Weerasinghe and Ashan Bandara for the Accused-Appellant-Petitioner.
Varunika Hettige, D.S.G., for the
Attorney General.
cur. adv. vult.
August 4, 2020
GOONERATNE, J.
The Accused-Petitioner (hereinafter referred
to as the Petitioner) was charged in the Magistrates Court of Marawila on 6
counts under the Penal Code and the Motor Traffic Act for negligently driving
vehicle bearing number LA 3777, for causing the death of an individual and
injury to another. When the charges were read out in open Court, the Petitioner
pleaded guilty to all 6 counts. Thereafter, the learned Magistrate passed
sentence on the Petitioner in the following manner: 6 months Rigorous
Imprisonment on count 1, Rs. 1500, Rs. 1000, Rs. 2000, and Rs. 15,000 fine on
count 2, 3, 4 and 5 respectively and Rs. 7500 fine with a default sentence of 1
month simple imprisonment on count 6.
The Petitioner being aggrieved by the
said order dated 07/09/2015, appealed to the High Court of Chilaw. The High
Court having heard submissions made on behalf of the Petitioner and the
Respondents, by order dated 24/11/2015, set aside the sentence imposed on count
2 and count 6 and imposed a substituted sentence on the said counts in the
following manner.
On count 2, where the Petitioner was
charged under Section 272 of the Penal Code, the sentence of Rs. 1500 as fine
was set aside and substituted by a fine of Rs. 100 and on count 6, a charge
under Section 214(1) to be read with Section 151 (1)(a) of the Motor Traffic
Act and Section 216B of the Increase of Fines Act, No. 12 of 2005, the sentence
of a fine of Rs. 7500 was set aside and substituted by a sentence of 2 years
rigorous imprisonment and the cancellation of the Petitioners driving license.
Having taken into consideration the 6 months rigorous imprisonment imposed on
count 1, the learned High Court Judge made order that both custodial sentences
to run concurrently. Thus, an aggregate of 2 years rigorous imprisonment was
imposed.
Varying the sentence on count 2 in terms
of Section 328 of the Code of Criminal Procedure Act, the learned High Court
Judge stated that the sentence of Rs. 1,500 as a fine was not according to law.
Taking into consideration the criminal negligence on the part of the Petitioner
for causing the death of a person and an injury to another and also having
observed that the sentence imposed should act as a deterrent to society,
proceeded to substitute the sentence on count 2 and 6 as noted above.
Aggrieved by the said order of the High
Court Judge, the Petitioner preferred a Special Leave to Appeal application
dated 04/01/2016 to this Court, inter alia, to revise the sentence of rigorous
imprisonment imposed under count 2 and count 6, by substituting it with a
suspended sentence on each count, as prayed for. It is noted that the sentence
imposed on count 2 is a fine of Rs. 1500 which was substituted by a fine of Rs.
100, and not a sentence of 2 months rigorous imprisonment as stated in the
written submissions tendered by the Petitioner.
This Court having considered the
submissions made by the counsel for the Petitioner, granted Special Leave to
Appeal on the following questions of law as set out in paragraph 9(i), 9(v) and
9(vi) of the Petition of Appeal.
1. Is the order
of the High Court of Chilaw marked "Y" wrong in law?
2. Has the
learned High Court Judge of Chilaw erred in law in failing to consider the
relevant facts and the law in varying the verdict and sentence of the
Magistrates Court of Chilaw?
3. Has the
learned High Court Judge of Chilaw acted in excess of his powers in dealing
with the appeal after stating that an appeal does not lie and the only remedy
available is an application to the Court of Appeal?
It is the position of the Petitioner that
on 07/09/2015, he was thrust into an unfortunate situation to enter a plea of
guilty to the charges preferred against him without legal representation, which
has caused a travesty of justice.
Soon after the alleged incident, the
Petitioner was released on bail by the Magistrates Court. The police thereafter
moved for several dates to seek advice from the Hon. Attorney General to
preferer charges against the Petitioner. However, with no instructions from the
Hon. Attorney General, charges were framed in the Magistrates Court of
Marawila. There is no procedural or statutory impediment preventing the police
going ahead and filing a charge sheet against the Petitioner, as they did.
When the Court inquired as to whether
the Petitioner wished to say anything in mitigation, prior to imposing
sentence, the Petitioner replied "I admit the offence. Permit me to pay
the sum in installments."
Section 183(1) of the Code of Criminal
Procedure Act lays down the procedure to be followed by a Magistrate when there
is an admission of the offence by an accused.
Provided that the accused may with the
leave of the Magistrate withdraw his plea of guilt at any time before sentence
is passed upon him, and in that event the Magistrate shall proceed to trial as
if a conviction has not been entered.
It is observed that the Magistrate has
recorded the statement made by the Petitioner as nearly as possible in the same
words used by him in keeping with the statutory requirement. It is important to
note that, when an unqualified plea of guilty is entered by an accused, the
Magistrate having knowledge of the facts becomes aware that the charges are
proved and accordingly, proceed to record a verdict of guilty and pass
sentence.
At this point, it would be pertinent to
note that the Petitioner came before the High Court on the basis that he was
deprived of the opportunity to withdraw his plea of guilty, in terms of the
proviso to Section 183 of the Code of Criminal Procedure Act. The Petitioner
contends that adequate time was not granted to him to seek legal counsel before
sentence was passed and therefore, had no opportunity to avail himself of
mitigating his sentence. Accordingly, the Petitioner prayed inter alia, that
the sentence imposed by the learned Magistrate be suspended.
The learned Judge of the High Court
considered the submissions made by both parties and proceeded to act in terms
of Section 328 of the said Act. Accordingly, the sentence imposed on count 2
and 6 was set aside and a substituted sentence was imposed on the said counts,
as observed above. The Petitioner placed no evidence in mitigation of sentence
before the High Court or before this Court to consider the imposition of a
reduced sentence.
The Petitioner, on summons, appeared
before the Magistrates Court in person and made no application to Court seeking
time to retain counsel.
According to proceedings dated 07/09/2015, the charge sheet was read out in open Court and the Petitioner pleaded guilty to all counts. The statement made in response to the charge sheet consists of a plea in mitigation of sentence. The Petitioner tendered the guilty plea prior to commencement of trial and therefore the evidence against him remained unchallenged. The conviction and sentence imposed were based on the Petitioners unqualified admission to the commission of the offence. Therefore, the statement made by the Petitioner soon after the charge sheet was read, constitutes an unqualified admission of the offence committed. "A plea of guilty constitute an admission of all essential elements of the crime, proof of which is therefore unnecessary." (R v. O'Neill - (1979) 2 NSWLR 582; (1979) 1 A Crim R 59)
A similar view was taken in Amadoru v. Officer in Charge, Special Criminal investigation Unit, Wennappuwa, [2011] 2 Sri LR 315] where Shiranee Thilakawardene J. stated, “it is relevant to consider that the summary trial in criminal procedure is initiated by the framing of charges and, therefore, one of the first tasks of a Magistrate is to ascertain whether there is sufficient ground to frame a charge against the accused as set out in Section 182(1) of the Code of Criminal Procedure Act referred to above. On reading the charge to the accused, if the latter makes a statement amounting to an unqualified admission, the Magistrate has a mandatory obligation in terms of Section 182(1) of the said Act to record a verdict of guilty and pass sentence according to the law.
If the accused
withdraws his admission with leave of the Court, the Magistrate shall proceed
to trial as if a conviction has not been entered. If no such admission is
tendered, the Magistrate will in terms of Section 183(1), (2) of the said Act,
inquire as to whether the accused is ready for trial and, if so, proceed to try
the case. If, however, the accused is not ready for whatever reason, the
Magistrate holds discretion to postpone or proceed with the trial, and the
accused's claim of insufficient or Jack of readiness will not prevent the
Magistrate from taking evidence of the prosecution and of any other witnesses
of the defence as are available”.
In Mudiyanselage Suraj Sanjeewa v. Officer in Charge Police Station and Others, [(CA/PHC/APN/17/19) the Court held that:
In the instant
case, admittedly, the plea of guilty by the Petitioner had been unequivocal.
Nowhere the Petitioner says that he was misled or that he could not understand
the charge. The reason adduced in the application for withdrawal of his guilty
plea is that later he found that the sentence imposed would affect his
employment. The learned Magistrate has not acted illegally or arbitrarily. He
has not acted upon a wrong principle of law. Hence, the learned High Court
Judge had no reason to interfere with the order of the learned Magistrate.
It is also observed that the learned
Magistrate did not in any manner inhibit the Petitioner's right to withdraw his
plea, in terms of the proviso to Section 183(1) of the Code of Criminal
Procedure Act. The Petitioner made no application to withdraw the statement
made, before the sentence was passed. Therefore, the statement made by the
Petitioner amounts to an unqualified admission of guilt of the offence of which
he was charged. The learned Magistrate thereafter, recorded a verdict of guilty
and the Petitioner was convicted and sentenced accordingly.
The learned High Court Judge, having
affirmed the said conviction, proceeded to act in terms of Section 328 of the
Code of Criminal Procedure Act, to set aside and substitute the sentence
imposed on count 2 and 6, as noted above. Before making the said order, the
learned High Court Judge invited both parties to file written submissions and
thereafter, the parties moved Court that an order be delivered taking into
consideration the written submissions filed of record.
As defined in terms of the proviso to
Section 328, the Court sitting in appeal, shall not exceed the sentence which
might have been awarded by the Court of first instance.
On count No 2, the Petitioner was
charged under Section 272 of the Penal Code and a fine of Rs. 1500 was imposed.
However, the maximum fine that can be imposed in terms of the said section is
Rs. 100. Therefore, the learned High Court Judge was correct in substituting
the sentence of Rs. 100 as a fine on count 2. On count 6, the Petitioner was
charged under Section 151(1) to be read with Section 216 of the Motor Traffic
Act. A fine of Rs. 7500, imposed on the said count was varied to 2 years
rigorous imprisonment and also the cancellation of the driving license. The
maximum fine that can be imposed in terms of Section 216 of the Motor Traffic
Act was amended by the Increase of Fines Act, No. 12 of 2005, which reads,
thus;
to a fine not less than five thousand
rupees, of the words to a fine not less than six thousand rupees and not
exceeding fifty thousand rupees
Section 216B(b) of the Motor Traffic Act
states, where he causes injury to any person, to a fine not less than six
thousand rupees and not exceeding fifty thousand rupees or to imprisonment of
either description for a term not exceeding five years or to both such fine and
imprisonment and to the cancellation of his driving license.
In terms of Section 216(b) of the Motor
Traffic Act, (as amended) a person after conviction, is liable to a fine or
imprisonment of either description or to both such fine and imprisonment and to
the cancellation of the driving license.
On both counts, the Court sitting in
appeal did not exceed the maximum punishment and therefore has varied the
sentence on count 2 and 6, according to law.
Before substituting the sentence on
count 6, the learned High Court Judge considered the written submissions filed
of record. The Court also considered the criminal negligence on the part of the
Petitioner in causing the death of a person and injuring to another and also
the deterrent effect of the sentence.
Deterrence has a twofold object. The
first object relates to specific deterrence. It will deter the individual from
committing the same or other offences in the future. The second object is as to
general deterrence. It will convince or deter others that "crime does not
pay" (See Crime and Punishment' by Harry E. Allen & Ors. at 735).
As pointed out earlier, due to the
Petitioners unqualified admission of guilt to all charges, the evidence against
the Petitioner remains unchallenged. The learned Magistrate delivered his order
based on unchallenged evidence, the nature of the offence and the fact that the
Petitioner pleaded guilty to all counts on the first available opportunity.
The learned DSG made submissions in
support of the substituted sentence imposed by the High Court, by citing a
Judgment delivered by the Court of Appeal in Bandara v. Republic of Sri Lanka,4
where Amaratunga J. enhanced the sentence of an accused in terms of Section 366
of the Code of Criminal Procedure Act. When the prosecution case was about to
be closed, the accused retracted his earlier plea of not guilty and pleaded
guilty to all counts. Therefore, in the said case the court had the opportunity
to consider the evidence before passing sentence.
It is observed that the High Court
granted an opportunity to the parties to show cause by way of written
submissions, to justify mitigatory or aggravating circumstances, to be
considered by Court.
I now turn to the question of
sentencing.
In the case at hand, the alleged offence
was committed on or about 16/01/2006. On count 1, the Petitioner was charged
under Section 298 of the Penal Code for causing the death of a person and was
sentenced to 6 months rigorous imprisonment. There was no variation in sentence
by the High Court Judge on that count. On count 6 a fine of Rs. 7500 imposed
under Section 151(1) to be read with Section 216B of the Motor Traffic Act, was
varied to 2 years rigorous imprisonment and the cancellation of the driving
license. On both counts the sentencing Judge had the discretion to impose a
sentence which he thought was just, according to law.
In terms of Section 303(1) of the Code
of Criminal Procedure Act, a Court which imposes a sentence of imprisonment on
an offender for a term not exceeding two years for an offence may order that
the sentence shall not take effect unless, during a period specified in the
order being not less than 5 years from the date of the order (herein after
referred to as the "operational period") such offender commits
another offence punishable with imprisonment (hereinafter referred to as "
subsequent offence").
In terms of Section 303(2), a Court
which imposes a sentence of imprisonment for a term not exceeding six months in
respect of one offence on an offender who had had no previous experience of
imprisonment shall make an order under subsection (1) unless
(a) the offence involved the use or
threat of violence, or the use or possession of a firearm, an explosive or an
offensive weapon;
(b) the offence is one in respect of
which a probation order or order for conditional discharge was originally made;
(c) the offender was subject to a
suspended sentence at the time the offence was committed; or
(d) the court is of opinion that, for
reasons to be stated in writing, it would be inappropriate in the circumstances
of the case, to deal with the offender in terms of this subsection.
Therefore, it is mandatory on the part
of a trial court to suspend the operational period of 6 months imprisonment
imposed in terms of Section 303(2) of the Code of Criminal Procedure Act,
except in the circumstances specially provided for in Section 303(2)(a) to (d)
or as "the Court is of the opinion", for reasons to be stated in
writing.
The learned Magistrate has given reasons
for imposing an imprisonment of six months. As observed earlier, when varying
the sentence imposed on count 6, the learned High Court Judge too has given
reasons for doing so. Therefore, the variation of sentence in count 6, to two
years rigorous imprisonment and the sentence of six months rigorous
imprisonment imposed on count 1, is within the exercise of judicial discretion
of the sentencing Judge.
The question then is whether the said
sentence of imprisonment can be suspended.
In Karunaratne v. The State, [78 NLR 413] the Court looked into the issues relating to suspension of sentence. In a majority decision the Court held that;
while the trial
Judge was right in sentencing the accused to a term of two years rigorous
imprisonment and to pay a fine of Rs. 1000 and that even if the provisions
relating to the suspension of sentences were in operation at that time and the
case was concluded in due time, this was not a case where the sentence I would
have suspended, having regard to the gravity of the offence. But, on the
other hand, when a deserving conviction and sentence have to be confirmed ten
years after the proved offence the Judge cannot disregard the serious
consequences and disorganization that it can cause to the accused's family.
In Attorney General v. Mendis, [[1995] 1 Sri LR 138] Gunasekara J. held that, once an accused is found guilty and convicted on his own plea or after trial the judge in deciding on sentence, should consider the point of view of the accused on the one hand and the interest of society on the other. The nature of the offence committed the machinations and manipulations resorted to by the accused to commit the offence, the effect of committing such a crime insofar as the institution or organization in respect of which it has been committed, is concerned, the persons who are affected by such crime the ingenuity with which it has been committed and the involvement of others in committing the crime are matters which the judge should consider.
When addressing the question of
suspending a sentence, the gravity of the offence, the impact on the offender's
family, delay in sentencing, age or ill health, pleading guilty in the first
given opportunity, previous convictions, subsequent conduct of the accused are
some of the many mitigatory factors that a court may consider. Therefore, a
case by case consideration of the offence, the offender based factors and the
interest of society is essential to decide whether a sentence of imprisonment
should remain or be suspended.
It is observed that there is no delay on
the part of the sentencing court and that the Petitioner has failed to address
this Court of any mitigatory circumstances which could reduce the severity of
the sentence imposed by the Magistrates Court or the substituted sentence
imposed by the Court sitting in appeal. Therefore, I see no reason to deviate
from the sentence of the lower Court to substitute the sentence imposed on
count 2 and 6.
In the circumstances, I answer the 1st
and 2nd grounds of appeal contended by the Petitioner, in the negative.
In answering the 3rd ground of appeal, I find that the High Court Judge makes reference to Section 31 of the Judicature Act which deals with the powers and jurisdiction of the Magistrate's Court with regard to a right of appeal. The learned High Court Judge makes a statement relating to Section 183(2) of the Code of Criminal Procedure Act, regarding the law as it stands.
Section 183(2) of the Act would be
applicable where an accused does not make a statement or makes a statement
which does not amount to an unqualified admission of guilt. Therefore, the
application of the said section would be clearly irrelevant to the facts of
this case.
Accordingly, I answer the 3rd ground of
appeal contended by the Petitioner also in the negative. I am of the view that
the learned High Court Judge has come to a correct finding based on the facts
and the law.
For all the reasons stated above, I
affirm the Judgment of the learned High Court Judge dated 24/11/2015 and
dismiss the appeal. Registrar is hereby directed to send the case record to the
Magistrate of Marawila to implement the sentence. l order no costs.
DEHIDENIYA, J. - l agree.
DE SILVA, J. - l agree.
Appeal dismissed.
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