SOERTSZ A.C.J.—The King «. Edwin.
1946 Present : Soertsz A.C.J. (President), Wijeyewardene andCanekeratne JJ.THE KING v. EDWIN et al.
S. G. 99—M. G. Gampaha, 27,853.
Court of Criminal Appeal—Sentence—Reduction when excessive.
The Court of Criminal Appeal will reduce a sentence when it is mani-festly excessive.
PPEALS, with leave obtained, against two convictions in a trialbefore the Supreme Court.
G. E. Chitty, for the appellants.
H. A. Wijemanne, C.C., for the Crown.
December 6, 1946. Soebtsz A.C.J.—
This is an appeal, with leave obtained, only against the sentencespassed on the two appellants on a conviction in the case of each of themof the offence of attempt to commit murder. There is some significance,we think, in the fact that three Judges on an earlier occasion thought fitto give the appellants leave to appeal in this case, and, speaking for thethree of us now on the Bench, each of us has reacted in the same manneron hearing the sentence that was imposed on the two appellants. Thisis not adduced as a strong argument in support of the order we are aboutto make, but it is put forward as a matter which has some bearing whenthe question of whether the sentences passed were excessive or not isbeing considered. I think we can also say, each one of us, that in ourexperience as Judges it is rarely, if at all, that we have had occasion in aconviction for attempt to commit murder to pass a sentence of 15 years’rigorous imprisonment unless there were circumstances of a kind thatcompelled us to pass such a sentence. In this case, so far as we havebeen able to ascertain, not only are there no circumstances of a peculiarlyaggravating character but there seem to be one or two matters that canbe urged in favour of the appellants. For instance, in the case of bothof them they appear to be men of good character. No attempt wasmade by the Crown to suggest that they were lawless or violent menwho were disposed to take the law into their own hands. In the case ofone of the accused, the 1st accused, the evidence shows that he is only23 years of age and that is a matter which Courts always take into accountwhen considering the question of sentence in a particular case. Theother accused is said to be 50 years of age. It is true that he is not in asfavourable a position in that respect as the other accused is, but still,for him it can be said that although he had lived to be 50 years of agehe had not compromised his character in any way at all and we thinkthat that is a matter which should be taken into account. Apart fromthat, there are other circumstances in this case which seem to tell infavour of the accused rather than against them. This trouble about thefoot-path, which was the matter over which these parties appear to have
SOERTSZ A.C.J.—The King v. Edwin.
wane into conflict on the day in question, had been brewing for sometime and there had been petitions sent up to the Police on the very dayof this conflict ; but the Police, in characteristic fashion, contentedthemselves merely with warning both parties to keep the peace and beof good behaviour—a counsel of perfection which very rarely results inany practical manner. Another point which one might refer to as apoint telling in favour of the accused is that if, as is suggested by theCrown, this was a case in which this attack upon the injured men hadbeen concerted and plotted and planned, it is hardly likely that theweapons that were used on the injured men would have been the weaponswhich we are told were used—sticks or clubs, and that is a fact whichseems to suggest, as Counsel for the appellants submitted it did, that theassailants when suddenly faced with this situation resorted to suchweapons as were most readily to hand.
In view of all these circumstances, while appreciating the fact that aCourt of Appeal should be slow to interfere with the discretion of a trialJudge on m%£ters of sentence, we think that in this case the interests ofjustice would be sufficiently served by a sentence of 10 years’ rigorousimprisonment.
THE KING v. EDWIN et al