Sri Lanka Law Reports
 2 Sri L.R.
GUNARATHNA AND OTHERS
COURT OF APPEALS. N. SILVA, J. (P/C.A.),
DR. RANARAJA, J.
C.A. APPEAL 89/93.
C. AVISSAWELLA 56/93.
JANUARY 11, 1995.
Criminal Law – Robbery – Public Property, Section 4 – Offences against PublicProperty Act 12 of 1982 – Plea of guilt – Non-custodiai sentence – Enhancement -Deterrent punishment.
The accused were indicted on a charge of robbery of a sum of Rs. 58,400/- beingpublic property. They pleaded guilty to the charge. Each accused was sentencedto a term of 2 years' Rigorous Imprisonment suspended for a period of five years,and ordered to pay a sum of Rs. 2,500/- each as State costs.
The Attorney-General appealed against this Order in respect of the sentenceimposed on 1, 2, 3 Accused on the basis that the facts and circumstancesdisclose the commission of a serious offence, and the Accused deserve deterrentpunishment.
The facts present the commission of daring robbery in broad day light, on ahigh road. The offence has been committed in respect of public property, beingmoney to be used to pay salaries of Government teachers and to meet theexpenses in connection with the supply of the free mid day meal to schoolchildren. Two of the accused were Police Officers, whose function it was touphold the law and to preserve order.
The Learned High Court Judge has not given any reasons for imposing only asuspended term of imprisonment. On the basis of the facts relevant, the offencecalls for the imposition of a custodial sentence.
Section 4 of the Offences against Public Property Act provides for amandatory fine to be imposed; the Learned High Court Judge had failed toImpose that fine.
Although the Petition of Appeal has not prayed for the imposition of a fine, theCourt of Appeal has the jurisdiction to impose a sentence which is commensuratewith the offence.
Attorney-General v. Gunarathna and Others (S. N. Silva, J. (P/CA))
AN APPEAL from the Provincial High Court of Avissawella.
R. Arasakularatne, S.S.C. for Attorney-General.
Ranjith Abeysuriya, P.C., with Miss Dilanthika Nawaratna for 1st and fourthRespondents.
Kalinga Indatissa for 2nd and 3rd Respondents.
Cur. adv. vult.
February 04, 1995.
S.N. SILVA, J. P/CA
This matter comes up on an appeal filed by the HonourableAttorney-General from the sentences imposed on the four accused-respondents by the Provincial High Court, Avissawella. At the outsetLearned Senior State Counsel submitted that he is not pursuing theappeal against the 4th accused-respondent. In the circumstances,the appeal is being considered only in respect of the sentencesimposed on the 1st, 2nd and 3rd accused-respondents.
The accused were indicted before the High Court on a charge thaton 20.06.90 at Mattamagoda, they committed robbery of a sum ofRs. 58,400/- being public property, from the possession of V. A.Dharmadasa and thereby committed an offence punishable undersection 4 of the Offences against Public Property Act No. 12 of 1982.On 22.09.93 upon the charge being read to the accused, each of theaccused pleaded guilty to the charge. Learned State Counsel madea comprehensive address as to the facts and circumstances,relevant to the offence that was committed. Thereafter, Learnedcounsel for the defence made a plea in mitigation. At the conclusionof these submissions Learned High Court Judge sentenced eachaccused to a term of 2 years’ R.l. suspended for a period of 5 years.They were also ordered to pay a sum of Rs. 2,500/- each, as statecosts. In default they were sentenced to a term of 6 months’imprisonment.
The appeal has been filed by the Honourable Attorney-General onthe basis that the facts and circumstances disclose the commissionof a serious offence in broad day light. That, the accused were armed
Sri Lanka Law Reports
 2 Sri LR.
at the time of committing the robbery of public property being themoney withdrawn from the Bank by the Principal of the HaloluwaVidyalaya for payment of the teachers’ salaries and for expenses inconnection with the supply of the mid-day meal to school children.That, two accused were functioning as police officers and deservedeterrent punishment for the serious offence committed by them.
Learned President’s Counsel appearing for the accused-respondents submitted that the accused pleaded guilty in the beliefthat they will be imposed a non-custodial sentence. He alsosubmitted that in the event of the case proceeding to trial, some ofthe accused may not have been convicted. That, all four accusedpleaded guilty so that they may collectively get the benefit of alenient sentence. In particular, it was submitted that the State hadacted irresponsibly in indicting the 4th accused against whom therewas no evidence whatsoever. Learned Counsel also submitted thatthis Court will interfere with a sentence that has been imposed onlywhere it is manifestly inadequate. That, since the accused arerelatively young persons, who have suffered loss of employmentconsequent to the conviction, they should not be imposed a custodialsentence at this stage.
The facts relevant to the offence are as follows:
The sum of Rs. 58,400/- referred in the charge was withdrawn fromthe Peoples' Bank and Bank of Ceylon, Ruwanwella by H. T.Gunaratne being the Principal of the Haloluwa Vidyalaya for thepurpose of paying the teachers’ salaries and for meeting theexpenses in connection with the supply of the mid-day meal to theschool children. He was accompanied by another senior teacher ofthe school, V. A. Dharmadasa, who is referred to in the charge. Aftercashing the money it was enclosed in an envelope and kept inside abag which was carried by Dharmadasa. The Principal was riding themotor cycle and Dharmadasa was on the pillion and he carried thebag containing the money. At about 12.30 p.m. whilst on the mainroad, the three accused came on another motor cycle overtook themand ordered them to stop. Two of the accused were armed withrevolvers. They were threatened by the accused. The bag containing
Attorney-General v. Gunaratlma and Others (S. N. Silva, J. (P/CA))
the money was grabbed by one of the accused. Thereafter theaccused went away on their motor cycle having fired a shot in the air.
As noted above, two of the accused were police officers. Theywere assigned to provide security to the then State Minister of Power& Energy. The 3rd accused was engaged as a driver of that Minister’svehicle. They were arrested by the police in the course of theinvestigation and the money stolen was recovered from theirpossession and on information given by them.
The facts stated above present the commission of a daringrobbery, in broad day light, on a high road. The offence has beencommitted in respect of public property being money to be used topay salaries of Government teachers and to meet the expenses inconnection with the supply of the free mid-day meal to schoolchildren. The accused have obviously planned the commission of theoffence, in detail. Two of the accused were police officers whosefunction it was to uphold the law and to preserve order. It is theirfunction to investigate offences and to ensure that perpetrators ofoffences are duly brought to book. In this instance, the very 'guardians of the law have committed a most serious offence.
Learned High Court Judge has not given any reasons for imposingonly a suspended term of imprisonment on the accused. The gravityof the offence committed is fully set out in the address of LearnedState Counsel. In the circumstances, if the Learned High court Judgetook a lenient view of the matter, he should have stated the reasonson which such a view was taken. On the basis of the facts relevant tothe commission of the offence as stated above, we are of the viewthat the sentences imposed are manifestly inadequate. The offencecalls for the imposition of a custodial sentence. The circumstancesrelevant to the commission of the offence and the fact that twoaccused are police officers clearly militate against the imposition of asuspended term of imprisonment. We also note that the penalprovision namely, section 4 of the Offences Against Public PropertyAct provides for a mandatory fine to be imposed of “of one thousandrupees or three times the value of the property of which such offencewas committed, whichever amount is higher." Learned High Court
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Judge has failed to impose this fine and has merely ordered theaccused to pay state costs in a sum of Rs. 2,500/-. LearnedPresident’s Counsel submitted that a fine cannot be imposed by thisCourt since the petition of appeal has not prayed for the imposition ofa fine. We are of the view that when an appeal is filed from asentence and the sentence that has been imposed is found to beinadequate and not according to law, this Court has the jurisdiction toimpose a sentence which is commensurate with the offence that hasbeen committed and which is in accordance with the law. Thejurisdiction of this Court, in this respect is not restricted by the prayercontained in the petition of appeal. In any event, the petition ofappeal specifically states that the sentence is "manifestlyinadequate" having regard to the offence that has been committed.In the circumstances we are of the view that the fine as provided forby Section 4 would have to be imposed by this Court.
As regards the sentence of imprisonment to be imposed we notethat the circumstances of the offence that was committed, the factthat it was committed in respect of public property and by policeofficers whose function it is to uphold law and order, warrant theimposition of a deterrent punishment. However, we have to take intoaccount the fact that the accused pleaded at a very early stage andthat by virtue of the conviction they will lose their employment. It hasalso been submitted that they are young persons. Furthermore, theyhave been imposed a suspended term of imprisonment and havebeen free from the date of conviction. Taking into account all thesecircumstances, we set aside the sentence imposed by the learnedHigh Court Judge on 22.09.93 and impose on each of the 1st, 2ndand 3rd accused-respondents a sentence of 2 years R.l. Section 4 ofthe Offences Against public Property Act requires imposition of a fineof three times the value of the property in respect of which theoffence was committed. Accordingly, we impose on each of theaccused-respondent a fine of Rs. 175,200/-. In default, we sentenceeach of the accused-respondent to a term of 2 years’ R.l.
DR. RANARAJA, J. – I agree.
Custodial Sentence and Fine Imposed.
ATTORNEY-GENERAL V. GUNARATHNA AND OTHERS