ATTORNEY -GENERAL v. JINAK SRI ULUWADUGE AND ANOTHER

018-SLLR-SLLR-1995-V-1-ATTORNEY-GENERAL-v.-JINAK-SRI-ULUWADUGE-AND-ANOTHER.pdf


ATTORNEY-GENERAL
v.JINAK SRI ULUWADUGE AND ANOTHER
COURT OF APPEAL.
GUNASEKERA, J. ANDYAPA, J.
C.A. NO. 469/94
H.C. COLOMBO NO. 5958/93
DECEMBER 06, 1994.
Criminal Law – Cheating – Theft – Using as genuine a forged document -Sentences – Considerations that should weigh in determining sentence – Pleabargaining and sentence bargaining – Change of stand by prosecution in thematter of sentence.
Held:
In determining the proper sentence the Judge should consider the gravity of theoffence as it appears from the nature of the act itself and should have regard tothe punishment provided in the Penal Code or other statute under which theoffender is charged. He should also regard the effect of the punishment as adeterrent and consider to what extent it will be effective. Incidence of crimes ofthe nature of which the offender has been found guilty and the difficulty ofdetection are also matters which should receive due consideration. The Judgeshould also take into account the nature of the loss to the victim and the profit thatmay accrue to the culprit in the event of non-detection. Another matter to be takeninto account is that the offences were planned crimes for wholesale profit. TheJudge must consider the interests of the accused on the one hand and theinterests of society on the other; also necessarily the nature of the offencecommitted, the machinations and manipulations resorted to by the accused tocommit the offence, the effect of committing such a crime insofar as the institutionor organisation in respect of which it has been committed, the persons who areaffected by such crime, the ingenuity with which it has been committed and theinvolvement of others in committing the crime.
Per Gunasekera, J:
“The Trial Judge who has the sole discretion in imposing a sentence which isappropriate having regard to the criteria set out above, should not in my viewsurrender the sacred right or duty to any other person, be it Counsel, or accusedor any other person. Whilst plea bargaining is permissible, “sentence bargaining”should not be encouraged at all and must be frowned upon”.
(2) The opinion of the prosecutor as to what sentence should be imposed isirrelevant. The Attorney-General is not estopped in appeal from taking an entirelydifferent stand on sentence from that taken by his representative who appearedfor the prosecution in the High Court.
Cases referred to:
Attorney-General v. H. N. de Silva 57 NLR 121,123.
Gomes v. Leelaratne66 NLR 235.
Bashir Begum Bibi 1980 Vol. 71 Criminal Appeal Reports p. 360.
Attorney-General v. Ranasinghe and Others (1993) 2 Sri LR 81.
Attorney-General v. J. Mendis C.A. 430/92 C.A. Minutes of 15.12.92.
APPLICATION for revision of sentence.
Rienzie Arsekularatne D.S.G. for petitioner.
A. A. de Silva with P. A. L. Fernando tor accused-appellant.
Cur. adv. vult.
December 16, 1995GUNASEKERA, J.
The two accused-respondents were indicted in the High Court ofColombo on the following charges:
The 1st Accused with using as genuine a forged document to wit,a cheque bearing No. 948680 on 16th February, 1990 issued to aGovernment Department, punishable under Section 454 readwith Section 459 of the Penal Code:
The 1st accused with cheating an officer of the Central Bank,Sumithra Rohini Fernando to part with a sum of Rs. 750,000/ – on16th February, 1990, punishable under Section 403 of the PenalCode.
The 1st accused with having used as genuine a forgeddocument to wit, a cheque bearing No. 948781 valued atRs. 900,000/- on 20th February, punishable under Section 454 ofthe Penal Code.
The 1st accused with cheating an officer of the Central Bank,Kusumalatha Ratnayake and thereby inducing her to authorisethe payment of a sum of Rs.900,000/- on 20th February, 1990,punishable under Section 400 of the Penal Code.
The 2nd Accused with committing theft of six cheques bearingNos. 948779, 948780, 948781, 948679, 948680 and 948681 fromthe possession of Koggala Guruge Susantha de Silva on or about15th February, 1990, punishable under Section 367 of the PenalCode.
At the trial held on 7.3.1994 the 1st accused-respondent pleadedguilty to charges 1 to 5 and the 2nd accused-respondent to charges1 and 6 in the indictment, and submissions in mitigation were put offfor the following day. On the next day 8th March, 1994 learnedcounsel who appeared for the accused-respondents submitted thatthe 1st accused-respondent was 35 years old and having passed theG.C.E. (A.L.) Examination in 1981, that he had entered theSri Jayewardenapura University and had obtained a Special Degreein Business Management in 1985. That he was employed inD. Samson Sons as he could not secure any suitable employment inkeeping with his educational qualifications. Further that he repentshaving committed this crime and that he has no previous convictions.On behalf of the 2nd accused-respondent it was submitted that hewas an employee of the Central Bank, that he is a graduate of the SriJayewardenapura University in Political Science and Valuation, he ismarried and has a 1 1/2 year old child, that he had admitted hiscomplicity in this crime, that he is 34 years old and has no previousconvictions. Learned Counsel therefore moved that the Learned HighCourt Judge be pleased to consider acting in terms of Section 303 ofthe Code of Criminal Procedure Act.
Thereupon the Learned High Court Judge having recorded thatthe State Counsel does not object to the imposition of a suspendedsentence, imposed the following sentences on the accused-respondents. The 1st accused-respondent to 2 years RigorousImprisonment in respect of counts 1 to 5 and suspended theoperation of that sentence for a term of 5 years. Further a fine ofRs. 2000/- was imposed on each of the said 5 counts. In default ofthe payment of the fine 1 years rigorous imprisonment was imposedand the court directed that the fine be paid in ten monthlyinstalments. The 2nd accused-respondent was sentenced to 2 yearsrigorous imprisonment in respect of counts 1 and 6, and it wassuspended for a period of 5 years-. A fine of Rs. 2000/ was imposedin respect of each of the 2 counts and in default of payment of thefine, a further period of 1 years rigorous imprisonment was imposed.A period of 4 months time was given for him to pay the fine. Thesentences were to run consecutively.
The Attorney-General has filed this application in revision on 7thJuly, 1994 and has moved this court to revise the said sentencesimposed on the accused-respondents on the basis that they aretotally disproportionate having regard to the serious nature of theoffences to which the accused-respondents have pleaded guilty. Atthe hearing of this application Mr. Rienzie Arsekularatne, DeputySolicitor-General submitted that the offences for which the accused-respondents have pleaded guilty are of a serious nature andattracted terms of imprisonment ranging from 3 to 7 years and havebeen committed with much planning and deliberation and calls forthe imposition of an immediate custodial sentence. It was hiscontention that the 2nd accused-respondent who was employed atthe Central Bank as a Supervisor was placed in a position of trustand that he has misused his position to commit the crimes for whichhe pleaded guilty. It was submitted that as an employee of the Bankthat he had access to the unencoded cheques and the codingmachines. In addition to conspiring to cheat, the 2nd accused-respondent had commited theft of six cheques two of which hadbeen made use of by the 1st accused-respondent to commit theoffences set out in counts 2 to 5 in the indictment.
Learned Deputy Solicitor-General further submitted that thematerial discloses that the accused-respondents have committed aplanned crime for wholesale profit for which deterrent punishmentwas called for. Relying on the observations of Basnayake A.C.J. (ashe then was) in the case of Attorney-General v. H. N. de Silva theLearned Deputy Solicitor-General contended that “In assessing thepunishment that should be passed on an offender the Judge shouldconsider the matter of sentence both from the point of view of thepublic and the offender. Judges are too often prone to look at thequestion of sentence only from the angle of the offender. The Judgein determining the proper sentence should first consider the gravityof the offence as it appears from the nature of the act itself, andshould have regard to the punishment provided in the Penal Code orother Statute under which the offender is charged. He should alsoregard the effect of the punishment as a deterrent and consider towhat extent it will be effective. Incidence of crimes of the nature ofwhich the offender has been found guilty and the difficulty ofdetection are also matters which should receive due consideration.”In addition to the criteria laid down by Basnayake, A.C.J. it wascontended by learned Deputy Solicitor-General that the Judge shouldalso take into account the nature of the loss to the victim and theprofit that may accrue to the culprit in the event of nondetection, indeciding what sentence is to be imposed. In support of thisproposition he relied on the observations made by Sri Skandarajah, J.in Gomes v. Leelaratne{2).
It was further submitted that the offences to which the accused-respondents had pleaded guilty, being planned crimes for wholesaleprofit, the sentences imposed in this case were grossly inadequate.He relied on the observations of the Lord Chief Justice in the case ofBashir Begum Bibii3) to contend for the proposition that thesentences imposed in this case were out of proportion having regardto the serious nature of the offences.
Mr. A. A. de Silva appearing for the accused-respondentssubmitted that the Learned High Court Judge has taken intoconsideration that both accused-respondents were first offendersand decided to impose a sentence of imprisonment but however hasused her discretion and decided that the operation of the sentencesbe suspended for a period of five years. This he contended was inkeeping with the current trend of sentencing policy which gives anoffender a chance to reform himself and submitted that this courtshould not interfere with the sentence which was imposed by theLearned High Court Judge.
Learned Counsel further submitted that the Attorney-General’srepresentative who appeared in the Trial Court had had no objectionto the sentence being suspended and submitted that it was unethicalfor the Attorney-General to canvass that sentence after a long delayof four months in this court in this proceedings.
We are unable to agree with this contention of Learned Counsel. Inthe case of Attorney-General v. Ransinghe and Others(4) HonourableS. N. Silva, J. with myself agreeing have taken the view that a delay ofsix months to make an application for revision of a sentence imposedby a High Court would not be considered unreasonable havingregard to the circumstances of the case.
In the case of Attorney-General v. J. Mendis(5) I have observed asfollows. “In my view once an accused is found guilty and convictedon his own plea or after trial, the Trial Judge has a difficult function toperform. That is to decide what sentence is to be imposed on theaccused who has been convicted. In doing so he has to considerthe point of view of the accused on the one hand and the interests ofthe society on the other. In deciding what sentence is to be imposedthe Judge must necessarily consider the nature of the offencecommitted, the gravity of the offence, the manner in which it hasbeen committed, the machinations and manupulations resorted toby the accused to commit the offence, the effect of committing sucha crime insofar as the institution or organisation in respect of which ithas been committed, the persons who are affected by such crime,the ingenuity in which it has been committed and the involvement ofothers in committing the crime. The Trial Judge who has the solediscretion in imposing a sentence which is appropriate, havingregard to the criteria set out above, should not in my view surrenderthe sacred right or duty to any other person be it Counsel, oraccused or any other person. Whilst plea bargaining is
permissible, “sentence bargaining” shouRIRfcyg^^Sfiisaggtrat alland must be frowned upon.”
Learned Counsel for the Accused-Respondents submitted that theRecord bears out that the State Counsel who appearing for theAttorney-General before the High Court has had no objection to theimposition of a suspended sentence in this case and contended thatthe Attorney-General is estopped from taking an entirely differentstand from that taken by his representative who appeared for theprosecution in the High Court. It was his submission that the accusedis entitled to the benefit of any concession made by the prosecution.We are unable to agree with the submission of Learned Counselwhen it relates to the question as to what sentence is to be imposed.As observed earlier the sacred duty and function in imposing asentence is on the Trial Judge and he has an unfettered discretion inthe matter.
As observed by me in the case of the Attorney-General v.J. Mendis<5> “It is unfortunate to observe in the instant case that therehas been sentence bargaining. It is to be observed from the twoaffidavits filed by the two accused-respondents and the affidavit filedby Learned Counsel who appeared for them in the High Court, filedin these proceedings marked 2R1 and 2R2, it is clear that there hadbeen sentence bargaining and it appears that the Learned TrialJudge had permitted the dictates of the accused, presented throughtheir Counsel to influence her mind in exercising what sentenceshould be imposed. This is most regrettable. It appears that theLearned Trial Judge had abdicated her right in deciding whatsentence should be imposed. The opinion of the prosecutor as towhat sentence should be imposed in our view is irrelevant.
We have carefully considered the submissions made by theLearned Deputy Solicitor-General and the Learned Counsel and thematerial placed before us.
We are of the view that the Accused-Respondents had been theperpetrators of a very serious crime which had been committed withmuch deliberation and planning. In doing so the 2nd Accused -Respondent had stolen six encoded cheques from the Central Bank,out of which two had been used by the 1st Accused-Respondent todeceive two officers of the Central Bank to part with large sums of
money and has succeded in drawing a sum of Rs. 750,000/- ofpublic money. Had the Learned Trial Judge considered the relevantfactors or criteria referred to above in determining what theappropriate sentence should have been, the sentence imposed onthe accused-respondents may well have been different.
We are in agreement with the observations made by BasnayakeA.C.J. in the case of Attorney General v. H. N. de Silva(1) that “Whilstthe reformation of the criminal though no doubt is an importantconsideration in assessing the punishment that should be passed onthe offender where the public interest or the welfare of the Stateoutweighs the previous good character, antecedents and age of theoffender that public interest must prevail” Having regard to theserious nature and the manner in which these offences have beencommitted by the Accused-Respondents we are of the view that thesentence imposed in this case is grossly inadequate. Thus we setaside the sentence of 2 years rigourous imprisonment imposed onthe 1st accused-respondent in respect of counts 1, to 5 which havebeen suspended for 5 years in respect of each count, and sentencethe 1st accused-respondent to a term of 3 years rigorousimprisonment in respect of counts 1, to 5, the sentences to runconcurrently. We also set aside the sentence of 2 years rigorousimprisonment imposed on the 2nd Accused-Respondent in respectof counts 1 and 6 which has been suspended for 2 years in respectof each count, and impose a sentence of 3 years rigorousimprisonment in respect of count 1, and a sentence of 2 yearsrigorous imprisonment in respcet of count 6. The sentences to runconcurrently. We affirm the fines imposed by the Learned Trial Judgein respect of both Accused-Respondents and the default terms fornon payment of the fines. It is to be noted that although a fine of Rs.2000 /- each has been imposed on the 2nd Accused- Respondent inregard to counts 1 and 6 it is to be observed that he had beenpermitted 4 months time to pay the said fine in Rs. 500 / -instalments. This appears to be an obvious error and we alter thatportion of the judgment to read as 8 months time in eight instalmentsof Rs.500/ -. For the reasons stated above the application in revisionis allowed, and the sentence is varied.
YAPA, J. -1 agree.
Sentence varied.