COURT OF APPEAL.
BANDARNAYAKE. J. AND JAYALATH. J.
C.A. APPLICATION No. 1365/85.
M.C. KULIYAPITIYA 84555. 84556, 84557 AND 84558.
MARCH 3. 1986.
Prevention of Crimes Ordinance-Interpretation ot previous conviction '-Sentence.
Two accused persons pleaded guilty to the charge of the robbery of gold chains on thehighway in four cases, viz:
No. 84555-offence committed on 27.9.85No. 84556-offence committed on 10.10.85No. 84557-offence committed on 1 5.10.85No. 84558-offence committed on 15.10.85
The Registrar of Fingerprints reported no previous convictions against them. Heavierpunishment was imposed in case No. 84555 than in the other three: There was nodoubt the Magistrate acted so taking into account the convictions in the other three
cases although the offences in those cases were committed on dates after the date ofthe offence in case No. 84555 was committed. In dealing with the accused in case No.84556 the Magistrate referred to cases No. 84557 and No. 84558 where the date ofcommission of the offence was subsequent.
There is no objection to a Magistrate dealing with an accused in several casesagainst him on the same day where the accused pleads guilty.
For the purpose of passing an enhanced sentence a previous conviction ascontemplated by the Prevention of Crimes Ordinance is a conviction of an offencecommitted on a date prior to the date of offence of the crime charged, that is aconviction for an offence committed anterior to the date of offence of the case beinginquired into. The Magistrate had therefore made a wrong use of the provisions of thePrevention of Crimes Ordinance.
N. K. M. Perera with Miss L. S. Abeysekera for petitioner.
A. Gooneratne, S.C. for State.
Cur. adv. vult.
April 3. 1986.
Four cases were instituted in the Magistrate's Court of Kuliyapitiyaagainst two accused persons, Dias and Jayaratne with havingcommitted offences of robbery in each case punishable under s. 380of the Penal Code. These cases were registered under the numbers84555, 84556, 84557 and 84558. When these cases wereinstituted on 17.10.85 each of the accused who were notrepresented by counsel pleaded guilty to the charges in each of thesaid cases They were convicted in each case upon their own pleas.The- Registrar of Fingerprints certified that both accused had noprevious convictions.
On 31.10.85 the learned Magistrate proceeded to sentence eachaccused in each of the cases upon their own pleas of guilt. In case No.84555 he has sentenced each accused to two(2) years' rigorousimprisonment plus a fine of Rs. 500, in default three (3) months'rigorous imprisonment. In Case No. 84556 the journal entry of
states that each accused has been convicted in casenumbers 84555, 84557 and 84558. He.has thereafter proceeded tosentence each accused to one years' rigorous imprisonment. In case
No. 84557 the journal entry of 31.10.85 reads that the accused havebeen punished in case Nos. 84555 and 84556 today and theMagistrate has proceeded to sentence each accused to one year'srigorous imprisonment. In case No. 84558 the journal entry of
is to the effect that "the accused have no record of previousconvictions. Today each has been punished in case No. 84555". The■Magistrate has thereafter imposed a sentence of one (1) years'rigorous imprisonment on each of the accused. From the referencesmade to other convictions of that day it would appear that theMagistrate took up case No. 84555 first for sentence and then tookup 84558, 84557 and 84556 in that order;.
The four cases have been amalgamated for the purpose of thisapplication.
Two matters of law were urged-by learned counsel appearing for thepetitioner. In the first place it was submitted that the Magistrate has-been biased on account of the number of cases he has taken upagainst each accused that day. The Magistrate should not have dealtwith a number of cases against an accused person on the same, day assuch a course would inevitablyresult in prejudice to the accused. Thesecond matter of law raised was that by the fact that reference-hasbeen made in each of the cases to the convictions entered in the othercases that day the Magistrate has when dealing with each casetreated the orders he made in the other cases as a previous convictionand has taken such previous conviction' into account in assessing thequantum of punishment he should award in the case. This it wassubmitted was an error which prejudiced the accused in regard to thesentence that was imposed on him. As the report of the Registrar ofFingerprints showed that these accused had no previous convictions itwas wrong for the Magistrate to treat the convictions of that day,namely the 17th of October 1985, against each accused as previousconvictions and enhance sentence. The convictions of 17.10.85 do .not show the accused as being non-repentant. unreformed personscontinuing in criminal activity notwithstanding earlier punishments andthus attracting the provisions of the Prevention of Crimes Ordinancemeant for the supervision of criminals and their- more effectivepunishment and for their prolonged detention away from society Inthe result counsel urged that: this Court should interfere with thesentences.
It is observed that when the cases were instituted against the> accused they voluntarily pleaded guilty in each of the cases evenwithout representation by counsel. They thus acknowledged thejurisdiction of the Court and accepted the bona fides of the Court.They cannot now therefore be heard to complain of bias or prejudiceby reason of the fact that there was an expeditious disposal of thecases upon the pleas of guilt which apparently they themselvesdesired. The Magistrate's Courts of this country often experience‘ persons charged with criminal offences being brought up before thesame Court on numerous occasions and it is the duty of the Court tohear those cases impartially and without bias. In each of the casesunder discussion the accused have pleaded guilty for the commissionof a serious crime, namely, of robbery of gold chains on the highway.
The second matter of law raised as I have stated was that the-convictions of 17.10.85 should not have been treated as previousconvictions for the purpose of enhancement of sentence. It wassubmitted that convictions of that day were not 'previous convictions'as contemplated by the Prevention of Crimes Ordinance. I am of theview that a 'previous conviction' as contemplated by the statute is inrelation to an offence committed prior to the date of offence of thecrime charged. That is a conviction for an offence committed anteriorto the date of offence of the case being enquired into.
It is necessary therefore to examine the records to ascertainwhether the learned Magistrate has in effect acted under thePrevention of Crimes Ordinance in determining the sentence in eachcase. The charge in each case is identical. Except for the particulars inthe charge no other facts were before the Court. But in this setting,differences in sentence in case No. 84555 and the other three casesis striking. In case No. 84555 each accused has been sentenced to2 years' rigorous imprisonment, whilst only a sentence of 1 year'srigorous imprisonment has been imposed in each of the other cases.Again in case No. 84555 each accused has been fined Rs. 500 indefault 3 months' imprisonment whereas in the other cases no finehas been imposed. How was this distinction made? In the other threecases reference has also been made to the convictions of 1 7.10.85It is apparent fn this background that the learned Magistrate has in facttaken into his reckoning the convictions of 17.10.85 in assessingsentence in each case. He has imposed a heavier sentence in the firstcase 84555 and in view of that given lighter sentences in the other
cases. Some convictions entered on 17.10.85 were not previousconvictions' attracting the provisions of the Prevention of CrimesOrdinance. For instance in,imposing a very heavy sentence of 2 years'rigorous imprisonment and Rs. 500 fine in case 84555 there is nodoubt he has taken into account the convictions in the other threecases. But those offences have been committed- after the date ofoffence in case No. 84555. The date of offence in case No. 84555was 27.09.85 whereas the dates of offences in the other cases were•10.10.85 and 15.10.85 respectively. Again in case 84556 when thedate of offence was 10.10.85, the Magistrate re.fers to cases Nos.84557 and 84558 where the offences have been committed on15.10.85. i.e. after the offence committed in case No. 84556. Therewas thus a wrong use of the provisions , of the Prevention of CrimesOrdinance. This approach could well have influenced the quantum ofsentence in cases 84557 and 84558. I, therefore, set aside thesentences in all the cases against each accused. Each offence towhich the accused have pleaded guilty involves the use of violence. Isentence each accused to 6 months rigorous imprisonment in each of
the cases 84555, 84556, 84557 and 84558.
JAYALATH, J. – I agree.
2-LILIAN MALINEE v. THE ATTORNEY-GENERAL