The court ruled on the appropriate use of judicial discretion in sentencing, emphasizing that mitigating factors must be adequately detailed to support any deviation from minimum mandatory sentences.

K.M.G.H. KULATUNGA, J.

Introduction

1. When this matter was initially called in the High Court of Kurunegala my sister Justice Menaka Wijesundera (as she then was) happened to be the presiding High Court Judge but was then heard and determined by her successor. However, when this appeal was taken up for argument Mr. Rikaz Riffard AAL., was appraised of the same. Mr. Riffard then informed that as those were mere mention dates prior to the trial the appellant has no objection to Justice Wijesundera being a member of this bench considering this appeal. Accordingly, this was taken up for argument on 11.11.2024.

2. The accused-appellant was indicted with three counts of grave sexual abuse committed on a girl less than 16 years of age and was convicted of count No. 01 and acquitted of counts 02 and 03 by Judgment dated 25.05.2022. Thereafter, the learned High Court Judge imposed a sentence of ten years rigorous imprisonment and also a fine of Rs. 15,000.00 with a default sentence of three months simple imprisonment. Further, the payment of Rs. 100,000.00 compensation to the aggrieved party was also ordered with a default sentence of six months simple imprisonment. The accused-appellant being aggrieved by the said conviction and the sentence did prefer this appeal. However, when the matter was taken up for argument on 11.11.2024. Mr. Rikaz Riffard, AAL., for the appellant informed that the appellant intends only to pursue with the appeal against the sentence and accordingly abandoned and withdrew the appeal against the conviction.

3. In respect of the sentence, the Counsel submitted that the learned Trial Judge has imposed a sentence of ten years which is above the minimum mandatory sentence and submitted the that the following mitigatory circumstances be considered and a variation of the sentence be made in favour of the appellant. The said grounds are;

i. The incident has taken place almost ten years prior to date of sentencing.

ii. The defence has admitted the Medico Legal Report.

iii. The accused is a father of two children and is the sole breadwinner.

4. In addition to the above, attention was also drawn to the plea in mitigation made on behalf of the appellant on 01.06.2022. They are;

i. Absence of any previous convictions.

ii. Being in remand for over one year prior to the conviction.

5. Mr. Hiranjan Pieris S/DSG in his usual magnanimous form did inform that he would not seriously object to this application and submitted that he would leave the matter entirely to court.

Facts

6. The victim is a girl who was around seven years of age when this incident took place between 2011 and 2012. The accused- appellant is a person living close to their house in the village maybe about half a kilometer away. On that particular day, she had accompanied her mother who has gone for employment where her mother works on and off, along with others making bricks in a land adjacent to the accused’s house. When all were at work, the accused has surreptitiously called the victim into his house, taken her to a room and has placed his penis on her female organ and pressed. After a short while having heard her mother call, she had come out of the house. She had not divulged this to her mother. At a later point of time, she had told this to her grandmother. Then her mother having been informed had taken her to the police and this complaint was thus made. The victim also narrates that she had been so abused on a few other occasions by this accused. These are the basic facts of the offending.

7. After trial, the accused was convicted of count No. 01, that of grave sexual abuse of the victim punishable under Section 365B (2)(b) of the Penal Code . Now this appeal is limited to the se