BANDAGE SUMINDRA JAYANTHI

BANDAGE SUMINDRA JAYANTHI
vs.
ATTORNEY GENERAL

COURT OF APPEAL
H.N.J. PERERA, J.
A.H.M.D. NAWAZ., J.
CA 251/12 - 267/12
HIGH COURT VAVUNIYA
APRIL 2, 2015

Penal Code Section 386 - Offences against the Public Property Act No. 12 of 1982 amended by Act, No. 76 of 1988 Section 5(1) - Criminal misappropriation - 14 indictments against accused appellant - Code of Criminal Procedure Act - Section 13, Section 16, Section 197, Section 167 (1) Section 121 Section 300, Section 303 - Misappropriated funds deposited in court - Duty of the prosecuting counsel - Judicature Act 2 of 1978 Section 14 (b) - Sentencing policy - Accused Pleading guilty - Appeal lies? - Article 138 of the Constitution - Administration of Justice Law - Section 236 (b) - Concurrent -  Consecutive Sentences - Evidence Ordinance Section 58.

In the 14 indictments filed against the Accused Appellant- each Indictment - had distinct counts charging the Accused with Criminal misappropriation under Section 386 Penal Code read with Section 5(1) of Offences against the Public Property Act - When the Accused indicated that she had deposited the misappropriated money, the offences against the Public Property Act was withdrawn. The accused appellant pleaded guilty to the amended indictments. The High Court convicted the accused appellant on the plea recorded. The State left the question of sentence to the discretion of court without making any submissions on the facts. High Court convicted and imposed a sentence of six months rigorous imprisonment on each count with a fine. Imprisonment was to run concurrently. The accused appellant appealed against the sentence.

Held:

(1) Sentencing belongs to the domain of the trial judge but that is no ground for the prosecuting counsel to be complacent about his role in responding to the mitigatory plea of a defense counsel.

Per Nawaz, J.

"I would like to observe that a bare statement to the learned High Court Judge that sentencing is best left to her/ him is hardly the approach that should be followed by prosecuting counsel when confronted with a plea
by an accused."

(2) It is trite law that where an accused has pleaded guilty to the indictment an appeal would not lie against the sentence or it would lie where the appeal bears upon a question of law.

(3) In assessing the punishment that should be passed on an offender, a judge should consider the matter of sentence both from the point of view of the public and the offender. Judges are more often prone to look at the question only from the angle of the offender.

Per Nawaz, J.

Recidivism and recalcitrant conduct have to be averted for the greater good of society and punitive laws that prescribe sanctions for infractions of normative behavior have to be interpreted to advance the objectives of punishments whose parameters have been amply set down by the gladsome jurisprudence of the judicial precedents cited above. In fact some of the incidia such as gravity of the offence, presence of aggravating and mitigating factors, antecedents of the accused, prevention and deterrence have long been recognized in English Courts.

"On the question of aggravating and mitigating factors, I consider the process as laid down. The judges must typically settle on a starting point and adjust the sentence for the aggravation and mitigation as appropriate."

(4) As Section 16 (1) of the Code of Criminal Procedure Act stands, it enacts both a rule and an exception. The rule is that if there are more than one count in one indictment, the separate sentences ordered on each count shall run consecutively. But the exception to the rule as found in the said section is that if the High Court judge chooses to do so., she/he is empowered to order the separate sentences to run concurrently, In fact Section 16 (1) is a neutral provision which applies to both trials in the High Court and the Magistrate's Court

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