ATTORNEY GENERAL VS UDAYA DE SILVA AND OTHERS

ATTORNEY GENERAL VS. UDAYA DE SILVA AND OTHERS

COURT OF APPEAL
SISIRA DE ABREW.J
UPALY APEYRATNE.J
CA 133/2007
HC 2914/06 - COLOMBO
SEPTEMBER 2,2009

Penal Code - Section 102, 113, 456, 459, 454 - Code of Criminal Procedure Act No. 15 of 1979 - Section 331 Judicature Act No. 2 of 1978- Appeal by the Attorney General - Failure to comply with Section 303 (2) of the Criminal Procedure Code? - Sentence inad - equate- Jurisdiction of the Appellate Court assessing punishment- Guidelines? - Plea bargaining- Sentence bargaining

The 1st and 2nd respondents were indicted under 11 counts punishable under Sections 102, 113, 456, 459, 403 and 454 of the Penal Code.

At the trial the 2nd respondent pleaded guilty to all the counts and the High Court sentenced her on all the counts. The 2nd respondent also pleaded guilty and certain sentences were imposed. The state contended that the sentences are inadequate having regard to the law, the nature of the offences and the order of suspending the sentence is illegal-as the trial Judge has failed to comply with Section 303 (2) (d) of the Criminal Procedure Code.

Held:

(1) In assessing the punishment that should be imposed on an offender the judge should consider the matter of sentence both from the point of view of the public and the offence. Judges are too often prone to look at the question only from the angle of the offender.

(2) A judge in determining the proper sentence should first consider the gravity of the offence as it appears from the nature of the act itself and should have regard to the punishment provided in the Penal Code or other statute under which the offender is charged. He should also regard the effect of the punishment as a deterrent and consider to what extent it will be effective.

The incidence of crimes of this nature of which the offender has been found to be guilty and the difficulty of detection are also matters which should receive due consideration. The Judge should also consider as to what punishment is to be imposed viz. the nature of the loss to the victim and profit that may accrue to the culprit in the event of non detection.

(3) Whilst plea bargaining is permissible sentence bargaining should not be encouraged at all and must be frowned upon. The opinion of the prosecutor as to what sentence should be imposed is irrelevant.

Per Upaly Abeyratne.J

"I am of the view that the respondents had been the perpetrators of a very serious crime which had been committed with much deliberation and planning. In doing so, the 1st respondent had gone with the 2nd respondent to a Notary Public and the 2nd respondent had personated and dishonestly signed a deed as a MP. The property which was dishonestly transferred by the said deed was sold to RRP and had obtained a sum of Rs. 215,000/- Both the respondent had shared this sum".

(4) Whilst the reformation of the criminal though no doubt is an important consideration in assessing the punishment that should be passed on the offender where the public interest or the welfare of the state outweighs the previous good character, antecedents and age of the offender that public interest must prevail.

APPEAL from the judgment of the High Court of Colombo.

Cases referred to:-

1. Attorney General vs. H.N. de Silva 57 NLR 12 1, 123

2. Gomes vs. Leelaratne 66 NLR 223

3. Bashir Begum Bibi 1980 Vol71 Cri. Appeal Report p. 360

4. Attorney General vs. Mendis (1995) 1 Sri LR 138

5. Attorney General vs. Jinak Uluwaduge and another (1995) 1 Sri LR 157

Harippriya Jayasundara SSC for the respondent-appellant.

Rienzi Arsacularatne for the 2nd accused-appellant-respondent.

September 30th 2009
UPALY ABEYRATHNE, J.

    This is an appeal preferred by the Attorney General under section 15 (b) of the Judicature Act No. 2 of 1978 read with section 331 of the Code of Criminal Procedure Act No. 15 of 1979 against the sentence imposed on the 1st and 2nd Resp

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