1951 Present : Pulle J.

CADER, Appellant, and AMARASEKERA (S. I. Police),
Respondent

S. C. 1,246-M. C. Colombo, 21,365

Sentence-Registered criminal-Measure of punishment-Prevention of Crimes Ordinance (Cap. 18), s. 6.

The mere fact that an offender has a record of several previous convictions is not in itself sufficient reason for imposing a heavy sentence. In passing sentence regard must first be had to the intrinsic nature of the offence proved.

Quaere, whether a Magistrate, when he imposes enhanced punishment under section 6 of the Prevention of Crimes Ordinance, should also pass in every case a sentence other than imprisonment.

Pillai v. Sirisena (1945) 47 N. L. R. 187 doubted.

APPEAL from a judgment of the Magistrate's Court, Colombo.

No appearance for the accused appellant.

J. W. Subasinghe, Crown Counsel, for the Attorney-General.

Cur. adv. vult.

December 18, 1951. PULLE J.-

The appellant was convicted of stealing from a dwelling house a sarong and a shirt Valued at Rs. 11.50. He was sentenced, in view of his previous convictions, to pay a fine of Rs. 10 in default ten days' imprisonment and to undergo a further two years' imprisonment and two years' police supervision. He appeals from both the conviction and sentence.

The conviction is plainly right and must be affirmed. The appellant complains that the sentence is excessive. That brings me to the questions:

(a) whether the sentence of fine, being on the face of it legal, was one imposed in the exercise of the learned Magistrate's discretion, and

(b) whether the award of the maximum terms of two years' imprisonment can, in the circumstances of this case, be justified.

The provision of law under which the appellant was dealt with is section 6 of the Prevention of Crimes Ordinance (Cap. 18), as amended, and it reads as follows :-

" If any person who has previously twice or oftener been convicted of any crime and has been sentenced on such conviction or convictions to undergo rigorous imprisonment exceeding in the aggregate one year is again convicted of a crime before the Supereme Court or before a District Court or a Magistrate's Court such court, in any case1 in which it would not otherwise have jurisdiction so to do, shall have jurisdiction, anything in the Criminal Procedure Code, the Penal Code or any other Ordinance to the contrary notwithstanding, to sentence him to rigorous imprisonment for a period not exceeding two years, in addition to any punishment other than imprisonment to which he may be liable "

It is clear to me that the sentence of fine was not imposed in the exercise of the learned Magistrate's discretion but as a matter of legal compulsion following on the interpretation placed on section 6 by Soertsz A.C.J., in the case of Pillai v. Sirisena1[(1946) 47 N. L. R. 187.]. In the case cited the appellant was sentenced by a Magistrate, upon a conviction for a crime, under section 6 to two years' imprisonment and two years' police supervision. In appeal an additional punishment in the form of a fine of Rs. 10 was imposed because, to quote the words of the judgment, "section 6 makes it a condition precedent to the imposition of the enhanced punishment provided for by that section that the Magistrate should pass a sentence other than imprisonment in respect of the offence charged." That the Legislature intended by section 6 that an offender convicted of a crime should either

be fined or ordered to be whipped before a substantive sentence of imprisonment in excess of the ordinary punitive jurisdiction of a Magistrate could be imposed is antecedently improbable. If, however, the words compel an interpretation of section 6 such as the one placed on it by Soertsz A.C.J., it ought to prevail, however purposeless it may be so saddle a reconvicted criminal with the liability to pay a token fine or serve a further period of a few days after he has served the substantive term of