IMPAR

Vs.

OFFICER-IN-CHARGE, POLICE STATION SEWANAGALA AND ANOTHER

SUPREME COURT
JAYAWARDENA, J.
DEHIDENIYA, J.
THURAIRAJA, J.
SC/APPEAL/204/2015
HC Embilipitiya APL/02/2015
MC Embilipitiya 94991/13
JUNE 12, 2019

Plea bargaining and sentence bargaining-Previous convictions-Suspended sentence-Code of Criminal Procedure Act, section 303

Upon pleading guilty to the charge of theft, the appellant was convicted and sentenced to six months rigorous imprisonment and a fine of Rs. 1,500/- by the Magistrate's Court. The High Court affirmed the sentence on appeal. The appellant appealed to the Supreme Court on the basis that he should have been given a non-custodial sentence upon his plea of guilty and his offer to pay Rs. 50,000/- to the complainant as compensation.

Held:

1. The appellant cannot engage in sentence bargaining merely because he pleaded guilty to the charge. It is the constitutional obligation of the court to award an appropriate sentence. Punishment should fit the criminal as well as the crime, be fair to society, and be blended with a measure of mercy according to the circumstances.

2. Retribution and deterrence are the proper purposes of punishment and they must be accorded due weight in any sentence that is imposed. Each of the elements of punishment is not required to be accorded equal weight, but instead proper weight must be accorded to each according to the circumstances. Serious crimes will usually require that retribution and deterrence should come to the fore and the rehabilitation of the offender will consequently play a relatively minor role.

3. The trial judge who has the sole discretion to impose an appropriate sentence should not surrender his duty to any other person, be it counsel or the accused or any other. Whilst plea bargaining is permissible, sentence bargaining should not be encouraged.

4. Suspended sentences could be considered a progressive method of sentencing as it aims at rehabilitating the offender. When a suspended sentence is imposed, the offender is made aware that he has violated the tenets of society and provoked its wrath, but is immediately forgiven and permitted to continue to live in society in the hope that he would not repeat that form of behaviour.

5. The appellant committed the offence to which he pleaded guilty when he was already serving a suspended jail sentence. Hence he cannot expect the court to award him a second suspended sentence. There is no illegality or impropriety in the sentence.

Cases referred to:

1. State ex rel Clark v. Adams 111 S.E.2d 336 (1959)
2. State of Gujarat v. Natwar Harchandji Thakor 2005 Cri LJ 2957
3. State of Uttar Pradesh v. Chandrika 2000 Cri LJ 384 at 386
4. S v. Rabie 1975 (4) SA 855 (A) at 862G-H
5. S v. Karg 1961 (1) SA 231 (A) at 236A
6. Attorney General v. Mendis [1995] 1 Sri LR 138

APPEAL from the Judgment of the Provincial High Court of Sabaragamuwa.

Lakshan Dias with Shafnas Shanteen and Dayani Panditharatne for the 2nd Defendant-Appellant.

Chrisanga Fernando, S.C., for the Respondents.

cur. adv. vult.

January 29, 2020

THURAIRAJA, J.

Background

The Second Suspect-Appellant Mohomed lrupan lmpar (hereinafter sometimes referred to as Appellant) was originally charged under Section 368(a) of the Penal Code by the Magistrate of Embilipitiya on the 1st of December 2012, for theft of five cows and a buffalo. The Appellant pleaded guilty. The Magistrate accepted the plea of the Appellant and sentenced him to 6 months rigorous imprisonment and imposed a fine of Rs 1500 or, in default, one-month simple imprisonment. Being aggrieved by the said sentence, the Appellant preferred an appeal to the Provincial High Court of Sabaragamuwa and submitted that the sentence is excessive and that he should be given a non-custodial sentence. After the matter was argued, the Learned High Court judge after giving reasons dismissed the appeal.

The Appellant being dissatisfied with the said order submitted an appe