Coder v. Amarasekera
Present: Pulle J.
CADER, Appellant, and AMARASEKERA (S. I. Police),
S. C. 1,246—M. G. Colombo, 21,365
Sentence—Registered criminal—Measure of punishment—Prevention of Crime*
Ordinance (Cap. 18), s. 6.
The mere fact that an offender has a record of several previous convictionsis not in itself sufficient reason for imposing a heavy sentence. In passingsentence regard mast first be had to the intrinsic nature of the offence proved.
Quaere, whether a Magistrate, when he imposes enhanced puniahjnent undersection 6 of the Prevention of Crimes Ordinance, should also pass in everycase a sentence other than imprisonment.
Pittai v. Sirisena (1945) 47 N. L. R. 187 doubted.
PULIjE J.—Coder v. Amarasekera
PPEAL from a judgment of the Magistrate’s Court, Colombo.No appearance for the accused appellant.
J. W. Subasinqhe, Crown Counsel, for the Attorney-General.
Cur. adv. vult.
December 18, 1951. Polle J.—
The appellant was convicted of stealing from a dwelling house a sarongand a shirt valued at jRs. 11.50. He was sentenced, in view of his previousconvictions, to pay a fine of Es. 10 in default ten days’ imprisonment andto undergo a further two years’ imprisonment and two years' police super-vision. He appeals from both the conviction and sentence.
The conviction is plainly right and must be affirmed. The appellantcomplains that the sentence is excessive. That brings me to the questions:
(a} whether the sentence of fiiiei being on the face of it legal, was oneimposed in the exercise of the learned Magistrate’s discretion, and
whether the award of the maximum terms of two years’ imprison-ment can, in the circumstances of this case, be justified.
The provision of law under which the appellant was dealt with is section6 of the Prevention of Crimes Ordinance (Cap. 18), as amended, and itreads as follows: —
“ If any person who has previously twice or oftener been convictedof any crime and has been sentenced on such conviction or convictionsto undergo rigorous imprisonment exceeding in the aggregate one year isagain convicted of a crime before the Supreme Court or before a DistrictCourt or a Magistrate’s Court such court, in any case in which it wouldnot otherwise have jurisdiction so to do, .shall have jurisdiction, anythingin the Criminal Procedure Code, the Penal Code or any other Ordinanceto the contrary notwithstanding, to sentence him to rigorous imprison^ment for a period not exceeding two years, in addition to any punish-ment other than imprisonment to which he may be liable ”.
It is clear to me that the sentence of fine was not imposed in the exer-cise of the learned Magistrate’s discretion but as a matter of legal com-pulsion following on the interpretation- placed on section 6 by SoertszA.C.J., in the case of Pillai v. Sirisena1. In’the case cited the appellantwas sentenced by a Magistrate3 upon a conviction for .a crime, undersection 6 to two years’ imprisonment and two years’ police supervision. Inappeal an additional punishment in the form of a fine of Es. 10 was imposedbecause, to quote the words of the judgment, “ section 6 makes it a conditionprecedent to the imposition of the enhanced punishment provided forby; that section that the Magistrate should pass a sentence other than im-prisonment in respect of the offence charged. ” That the Legislatureintended by section 6 that an offender convicted of a crime should either
1 (1946) 47 N. L. R. 187.
PULLE J.—Coder e. Amarasekcra
be fined or ordered to be whipped before a substantive sentence of imprison-ment in excess of the ordinary punitive jurisdiction of a Magistrate could,be imposed is antecedently improbable. If, however, the words compel aninterpretation of section 6 such as the one placed on it by Soertsz A.C.J.,it ought to prevail, however purposeless it may be to saddle a reconvictedcriminal with the liability to pay a token fine or serve a further period of afew days after he has served the substantive term of imprisonment.
I venture with due respect to doubt the correctness of the ruling inPiUai v. Sirisena *. Prior to the amendment of section 6 in 1938 aMagistrate had no jurisdiction to try a registered criminal for a crimetriable summarily beyond the stage of the prosecution. If a case wasnet made out he was acquitted. Otherwise, he was committed for trialafter non-summary proceedings. This cumbersome procedure wasabandoned and Magistrates were given, speaking generally, the samepowers of punishing with imprisonment as District Judges. Magistrateswhile empowered to punish with imprisonment up to two years could notimpose a fine in excess of Rs. 100. In other words section 6 conferredon Magistrates an extraordinary jurisdiction as to the limits of thesubstantive term of imprisonment for a crime and the words, “ in additionto any punishment other than imprisonment to which he may be liablepreserved the ordinary jurisdiction to impose punishment other thanimprisonment which the law permits. I am unable to read section 6as a mandatory provision requiring Magistrates to impose the maximumterm of two years on a registered criminal or to impose a fine as a conditionprecedent to punishing him with imprisonment for two years or a lesserterm. Cases can be visualised in which a registered criminal may beadequately punished without invoking the special punitive powersconferred by section 6.
For the purpose of disposing of the case under appeal it is not necessaryfor me to go so far as to state that I would prefer not to adopt the rulingin Pillai v. Sirisena ’. As, however, Crown Counsel informs me thatthere have been cases in which the ruling has not been followed, it appearsto be desirable to obtain an authoritative decision from a DivisionalBench.
The appellant has an unenviable list of fourteen convictionscommencing from 1940. His record is that of a petty thief.. In. 1945for theft of rice valued at Rs. 25 he was sentenced to two years’ imprison-ment and two years’ police supervision. In 1949 he was again sentencedto two years’ imprisonment and two years’ police supervision for theftof articles worth Rs. 12.50. ■ Previous to 1945 he had served terms aggre-gating to a little over two years. It is, therefore, apparent that theappellant had more than expiated the offences he had committed-. Twoof the sentences were positively harsh. Can the maximum sentence ' oftwo years’ imprisonment for theft of clothes valued at Rs. 11.50 bejustified in this case? I asked learned Crown Counsel what mighthave been a fair sentence, if the value of the stolen clothes had beenRs. 100. He had to admit that the learned Magistrate could not thenhave imposed a heavier sentence. The antecedents of an offender
1 (1946) 47 N. L. R. 187.
33 – N. L. R. Vol. – Liii
PULLE J.—Coder v. Amaraeekera
ate undoubtedly relevant in assessing sentence but, however numerousthe previous convictions may be, regard must first be had to the intrinsicnature of the offence.
In the case of Arthur Baker 1 the prisoner was sentenced to five years’penal servitude for obtaining £2 by false pretences. The Court ofCriminal Appeal in England reduced the sentence to six months’ hardlabour, although he had several previous convictions for obtaining moneyby false pretence and for forgery. Avory J. said, “ With regard to thesentence, as the Court has frequently said, whatever may be theappellant’s character, regard must always be had to the nature of theoflence. He must not be sentenced to penal servitude merely becausehe has been sentenced before ”. A similar observation was made inErnest Douglas *. The case of Oliver Taylor 3 is instructive becausethe appellant had as many as twenty previous convictions. He pleadedguilty to the charge of stealing a woman's coat from a lobby leading tothe office where she was employed and was sentenced to three years’penal servitude. The Lord Chief Justice said, “ It has been said overand over again in this Court that the mere fact that a man has beenconvicted many times is not in itself sufficient reason for passing a heavysentence on him for an offence which is trivial in itself. The Court issatisfied that the proper sentence here is one of tyvelve months’ imprison-ment with hard labour In reducing a sentence of five years’ penalservitude to nine months’ imprisonment with hard labour the LordChief Justice said in Alfred Thomas Woodward *,“ This Court has
said again and again, and now repeats, that in passing sentence regardmust be had to the intrinsic nature of the offence proved. It is entirelywrong to send a man to a long term of imprisonment or penal servitudemerely because he has received heavy punishment at some other timefor some other offence I do not think that any further citationsare necessary to bring home the principle, which has the quality ofbeing both just and merciful, in dealing with a class of offenders who forwant of proper institutions in this country to train them to earn an honestlivelihood again falL into the temptation of petty thieving to supportthemselves.
For the reasons which I have given I am of the opinion that the punitivepowers of the learned Magistrate in the exercise of his ordinary juris-diction were sufficient to deal with the appellant. I would set aside thefine and substitute for the sentence of two years’ a sentence of six months’rigorous imprisonment which will begin to run from 4th December, 1951.Subject to the variation in the sentence the appeal is dismissed.
3 (1916) 11 Cr. A. B. 175.* (1916) 11 Cr. A. R. 185.
* (1925) 18 Cr. A. R. H3.« (1930) 21 Cr. A. R 137.
CADER, Appellant, and AMARASEKERA ( S. I. Police) Respondent