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

Code of Criminal Procedure Act, sections 183, 317, 303(2), 328-Motor Traffic Act, sections 214(1), 151(1), 216B-Increase of Fines Act, No. 12 of 2005-Penal Code, section 272-Unquafified plea of guilt-Substitution of sentence-Factors to be considered in suspending a sentence

The accused was charged in the Magistrate's Court on six counts under the Penal Code and the Motor Traffic Act for negligent driving causing the death of one individual and injuring another. The accused pleaded guilty to all six counts and the Magistrate passed sentence. On appeal, the High Court substituted the sentence imposed on counts 2 and 6 with a different sentence. The accused appealed to the Supreme Court.

Held:

1. Section 183(1) of the Code of Criminal Procedure Act lays down the procedure to be followed by the Magistrate when there is an admission of the offence by an accused. The Magistrate recorded the plea as nearly as possible in the same words used by the appellant in keeping with the statutory requirement.

2. When the conviction is based on an unqualified admission of guilt under section 183, an appeal will lie only upon a matter of law in terms of section 317(2).

3. The Magistrate did not prevent the appellant from exercising his right to withdraw his plea in terms of the proviso to section

183(1). Therefore, convicting and sentencing the appellant upon the unqualified admission of guilt is flawless.

4. On count 2, the petitioner was charged under section 272 of the Penal Code and a fine of Rs. 1500 was imposed whereas the maximum fine that could be imposed was Rs. 100. On count 6, the petitioner was charged under section 151 (1) read with section 2168 of the Motor Traffic Actand a fine of Rs. 7500 was imposed whereas in terms of section 216B(b) of the Motor Traffic Act, as amended, a person after conviction on such count 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, there is no illegality in the substituted sentence imposed in terms of section 328(b)(ii).

5. It is mandatory on the part of the trial court to suspend the operational period of six months imprisonment imposed in terms of section 303(2) of the Code of Criminal Procedure Act, except in the circumstances specifically provided for in section 303(2) (a)-(d). The passing of a sentence of six months imprisonment on count 1 by the Magistrate with reasons is in accordance with section 303(2)(d).

6. 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 at the first given opportunity, previous convictions, the subsequent conduct of the accused are some of the many mitigating factors that a court may consider.

7. The application of section 183(2) of the Code of Criminal Procedure Act is clearly irrelevant to the facts of this case as this section is applicable where an accused does not make a statement or makes a statement which does not amount to an unqualified admission of guilt.

Cases referred to:

1. R v. O'Neill (1979) 2 NSWLR 582; (1979) 1 A Crim R 59
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)

4. Bandara v. Republic of Sri Lanka (CA/134/1999)
5. Karunaratne v. The State 78 NLR 413
6. Attorney General v. Mendis [1995] 1 Sri LR 138

APPEAL from the Judgment of the High Court of Chilaw.

Wasantha Nawaratna Bandara, P.C., with Pasan Weerasinghe and Ashan Bandara for the