Attorney-General v. Ranasinghe and Others
ATTORNEY – GENERAL
v.RANASINGHE AND OTHERS
COURT OF APPEALS. N. SILVA, ACTG P/CA.
D, P. S. GUNASEKERA, J.
HC GAMPAHA 42/89.
AUGUST 20 AND SEPTEMBER 16, 1992.
Criminal Law – Abduction and Rape – Sections 354 and 364 of the Penal Code- Sentence – Revision of sentence – Do the provisions of S. 306 of the Codeof Criminal Procedure Act apply to the High Court? Section 364 of the Codeof Criminal Procedure Act No. 15 of 1979 – Considerations affecting sentencefor the offence of rape – Aggravating circumstances – Failure by AG to exerciseright of appeal under s. 15 (b) does not preclude his right to seek revision unders. 364 of the Code of Criminal Procedure Act.
An offence of rape calls for an immediate custodial sentence. Reasons
are -(1) to mark the gravity of the offence
to emphasize public disapproval
to serve as a warning to others
to punish the offender
to protect women.
Aggravating factors would be-ta) use of violence over and above force necessary to commit rape
use of weapon to frighten or wound victim
repeating acts of rape
careful planning of rape
previous convictions for rape or other offences of a sexual kind
extreme youth or old age of victim
effect upon victim, physical or mental
subjection of victim to further sexual indignities or perversions
In a contested case of rape a figure of five years imprisonment should be takenas the starting point of the sentence subject to aggravating or mitigating features.Where the public interest (synonymous with the welfare of the state) outweightsthe previous good character, antecedents and age of offender, public interestmust prevail.
The fact that the Attorney – General has not exercised his right of appealin terms of section 15 (b) of the Judicature Act in respect of any inadequacyin the sentence imposed on an accused, does not preclude the Attorney-Generalfrom inviting the Court of Appeal to exercise its revisionary jurisidiction in termsof section 364 of the Code of Criminal Procedure Act No. 15 of 1979.
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[19931 2 Sri L.R.
A delay of six months to make the application for revision of sentence willnot be considered unreasonable in view of the circumstances of the case – see
The Court has a wide power of review in revision.
There is no provision to discharge the accused with a warning in the HighCourt where the accused is tried upon indictment and he pleads guilty to thecharge. The provisions of section 306 of the Code of Criminal Procedure Actapply only in relation to the Magistrates' Court.
The aggravating circumstances in the case were removal of the prosecutrixwhen she was sleeping with her mother, the fact that she was very young (11years old), below the age where she may consent to sexual intercourse, thedegree of preplanning and the repeated commission of the offence for 2 daysbefore rescue by the Police. Public interest demands a custodial sentence insuch circumstances.
Cases referred to :
Ruston v. Hapangama [1978/79] 2 Sri LR 225, 235.
Attorney -General v. H. N. de Silva 57 NLR 121.
Gomes v. Leelaratne 66 NLR 233.
Roberts (1982) Vol 74 Criminal Appeal Reports 242, 244.
Keith Billam (1986) Vol 82 Criminal Appeal Reports 347.
APPLICATION for revision of sentence by Attorney-General.
R. Arasacularatne, SSC for Attorney-General.
Raja Peiris for 1st and 2nd respondents.
(Note by Editor: Special leave to appeal from this judgment (APPLN. No. SC176/92) was refused by the Supreme Court on 22-01-93).
Cur. adv. vult.
September 16, 1992.
S.N. SILVA, J.
The Hon. Attorney-General has invited this Court to exercise itsrevisionary jurisdiction in terms of Section 364 of the Code of CriminalProcedure Act No. 15 of 1979 and to revise the sentences imposedon the accused-respondents. The record of the High Court was calledfor pursuant to this application and notices were issued on theaccused-respondents. The 1st and 2nd accused-respondents havefiled objections and a joint affidavit in opposition to the enhancement
Attorney-General v. Ranasinghe and Others (S. N. Silva, J.)
of the sentences imposed on them. 3rd and 4th accused-respondentsare absent and unrepresented notwithstanding the notices sent tothem. The other accused were dead at the time of the trial.
The accused-respondents were indicated before the High Courton the following charges ;
Count (1) that on 8.11.1982 the 1st accused-respondent abductedthe girl named Rasika Priyangani from lawful guardianship, an offencepunishable under Section 354 of the Penal Code.
Count (2) that in the course of the same transaction the 1staccused commited rape on the said Rasika Priyangani.
Count (3) and (4) were against the other accused for havingabetted the 1st accused in the commission of the offences statedabove.
The accused-respondents pleaded guilty to the respective offencesbefore the High Court. Submissions were made by learned StateCounsel and defence Counsel regarding the matter of sentence.Thereupon, learned High Court Judge sentenced the 1st accused toa term of 2 years Rigorous Imprisonment on the respective charges,suspended for a period of 10 years. The 1st accused was alsodirected to pay a sum of Rs. 25,000 as compensation to the girlRasika Priyangani being the victim of the offence, 2nd and 3rdand 4th accused were sentenced to a term of 1 year RigorousImprisonment suspended for a period of 5 years. The 5th accusedwho is now the 4th accused-respondent was discharged with awarning.
According to the proceedings before the High Court, thecircumstances in which the offences were committed are asfollows
The 1st accused-respondent, who was 35 years of age at therelevant time is a relative of the girl Rasika Priyangani (prosecutrix).He owned a lorry and carried on the business of transporting goodsfor hire. He lived in the house of the prosecutrix for about 2 yearsand left the house about one month prior to the date of the offence.The prosecutrix was 11 years and 7 days old at the time the offences
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were committed. It appears that she attained age about 1 month priorto the incident. It was not disputed that she was below the age of12 and as such that this case is one of statutory rape, where thepresence or the absence of the consent of the prosecutrix is irrelevant.
On 8.11.1982 the prosecutrix was sleeping with her mother in aroom in their house. Her father had gone to attend a pirith ceremonyin a nearby house and at about 9.30 p. m. when the prosecutrixand her mother were asleep, they heard a knock on the door. Motheropened the door and saw the 1st accused who was a relative ofher husband. At that stage, the 1st accused forced his way into thehouse and carried the prosecutrix who was lying on the bed. Motherstruggled with the accused and in the process clothes worn by theprosecutrix and the sarongs worn by the 1 st and 2nd accused cameout. Mother was inflicted an injury with a knife on her head. Thereafterthe accused took the prosecutrix away in a car. On the way, thecar was stopped to get sarongs for the 1st and 2nd accused andfinally, the prosecutrix was taken to the house of the 6th accusedat Matale. There, she was taken to a room that had been arrangedand the 1st accused committed rape on her on several occasionsfor two days. Mother of the prosecutrix went to the police withthe bleeding injury, to make a complaint. Her complaint was notentertained at the out set. It transpired in the proceedings that theofficer who had refused to record the complaint was later dismissedfrom service. Subsequently, her complaint was recorded and inves-tigations commenced. The police finally tracked dowh the 1st accusedto the house at Matale and the prosecutrix was rescued, there.
Upon the accused pleading guilty, learned State Counsel madea comprehensive submission as to the facts and circumstances ofthe case. She submitted that this was a case distinct from the ordinaryrape case and it evoked sympathy for the hapless victim of theoffence. She invited the Court to impose appropriate sentencesconsidering the serious nature of the offence, which should serve asa deterrent. Learned High Court Judge gave the following reasonsin his order for imposing suspended sentences.
that although the 1st accused's conduct is disgraceful hehas shown repentance in pleading guilty.
that he has not had any previous convictions.
CAAttorney-General v. Ranasinghe and Others (S. N. Silva, J.)85
We have to note that learned High Court Judge has failed to giveany reason for disregarding the specific plea of learned State Counselas to the seriousness of the offence and the requirement to imposedeterrent punishment.
Mr. Raja Peiris appearing for the 1st and 2nd accused-respondentssubmitted that the Hon. Attorney-General has failed to exercise theright of appeal provided in terms of section 15 (b) of the JudicatureAct. It was submitted that in view of the failure to exercise the rightof appeal this Court should exercise its revisionary jurisdiction onlyif there is an illegality and in any event in exceptional circumstances.In this connection, learned Counsel relied on the judgment of thisCourt in the case of Rustom vs. Hapangama (1>. It was also submittedthat there is a delay in invoking revisionary jurisdiction, in that theapplication has been made 6 months after the date of conviction.Learned Counsel submitted that in the joint affidavit filed by the 1stand 2nd accused-respondents they have stated the basis on whichtheir plea was tendered and that the sentence should not be revisedin view of these circumstances. It was finally submitted that a periodof over 10 years has now lapsed after the commission of the offences,and that the 2nd accused-appellants have got married subsequentto the commission of the offences, and that they have their childrennow to look after.
We have carefully considered the submissions of learned Counselregarding the sentence, particularly in relation to the matters urgedby learned Counsel for the 1st and 2nd respondents. It is correctthat the Hon. Attorney-General has a right of appeal in terms ofsection 15 (b) of the Judicature Act in respect of any inadequacyin the sentence imposed on an accused. However, the fact that Hon.Attorney-General has not exercised this right of appeal, by itself, doesnot precluded the Hon. Attorney-General from inviting this Court toexercise its revisionary jurisdiction in terms of section 364 of the Codeof Criminal Procedure Act No. 15 of 1979. In terms of section 364this Court has power to call for and examine the record of any casewhether already tried or pending, in the High Court or the Magistrate'sCourt. This power can be exercised for any of the followingpurposes ;
(1) to satisfy this Court as to the legality of any sentenceor order passed by the High Court or Magistrate's Court.
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to satisfy this Court as to the propriety of any sentenceor order passed by such Court.
to satisfy this Court as to the regularity of the proceedingof such Court.
Thus it is seen that revisionary jurisdiction in terms of section 364of the Code of Criminal Procedure Act No. 15 of 1979 is wide andis specially directed at vesting a jurisdiction in this Court to satisfyitself as to the legality or propriety of any sentence passed by theHigh Court or the Magistrate's Court. The judgment relied upon bylearned Counsel in the case of Rustom vs. Hapangama (supra) relatesto a civil proceeding where the matter of sentence does not arise.It is clear on a perusal of the judgment, that this Court refused toexercise revisionary jurisdiction primarily on the basis that thepetitioner had not availed himself of the leave to appeal procedureset out in the Civil Procedure Code. Thus, it was observed that thepetitioner should not be permitted to circumvent the procedure whichrequires that notice be issued on the respondent and an opportunitybeing given to them to object to leave being granted. We have toobserve that this consideration does not apply in relation to a criminalcase where the jurisdiction is exercised in terms of section 364 ofthe Code of Criminal Procedure. Furthermore we are inclined to agreewith the submission of the learned SSC that the decisions of theSupreme Court in the cases of the Attorney-General vs. H. N. deSilva (2> and Gomes vs. Leelaratne (3) firmly establish the principlethat in considering the propriety of a sentence that has been passed,this Court has a wide power of review, in revision. This jurisdictionis not fettered by the fact that Hon. Attorney-General has not availedof the right of appeal.
We are also of the view that the delay of 6 months in filing theapplication cannot be considered as unreasonable in the circum-stances of this case. As regards the matters stated in the jointaffidavit of the accused-respondents, we note that they havespecifically stated that learned State Counsel agreed that a suspendedterm of imprisonment will be imposed in the case. It is obvious thatlearned State Counsel would not have had any discussion with theaccused-respondents who were represented by Counsel. It may bethat this statement is based on some information given to theaccused by their Counsel. If so the proper course was for Counsel
Attorney-General v. Ranasinghe and Others (S. N. Silva. J.)
to have filed an affidavit to that effect. In any event the submissionsof learned State Counsel made at the High Court and referred toabove, do not suggest that there was any agreement that a suspendedsentence will be imposed. These submissions completely contradictthe position taken by the accused in their affidavit. If learned StateCounsel acted contrary to an undertaking given by her, surely Counselfor the accused would have brought this matter to the notice of theHigh Court whilst making his submission in reply. This has nothappened. In the circumstances we place no reliance at all on thissubmission of learned Counsel. As regards the final submission oflearned Counsel we note that although a period of 10 years haslapsed after the commission of the offence, there was a non-summaryproceeding and indictment was finally sent only in 1989. The accusedwere obviously not married at the time the offences were committed.The fact that they got married when charges of this nature werepending against them, is not a matter that can be taken into accountin considering sentence.
Learned SSC submitted that this case presents a serious incidentwhere a 11 year old girl was forcibly removed when she was sleepingpeacefully in her house with her mother. The 1st Accused-Respondenthad pre-planned the commission of the offences. A car had beenarranged to take the victim to a distant place to commit theoffence of rape. She was there for 2 days and subjected to severalinstances of rape until the police finally rescued her. We are inclinedto agree with learned SSC that these are aggravating circumstances.As to the matter of assessing sentence in a particular instance,Basnayake A. C. J. in the case of Attorney-General vs. H. N. deSilva (Supra) observed as follows
" in assessing the punishment that should be passed on anoffender, a Judge should consider the matter of sentence bothfrom the point of view of the public and the offender. Judges aretoo often prone to look at the question only from the angle ofthe offender. A Judge should, in determining the proper sentence,first consider the gravity of the offence as it appears from thenature of the act itself and should have regard to the punishmentprovided in the Penal Code or other statute under which theoffender is charged. He should also regard the effect of thepunishment as a deterrent and consider to what extent it will beeffective. If the offender held a position of trust or belonged to
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a service which enjoys the public confidence that must be takeninto account in assessing the punishment. The incident of crimesof the nature of which the offender has been found to be guiltyand the difficulty of detection are also matters which should receivedue consideration. The reformation of the criminal, though no doubtan important consideration is subordinate to the others I havementioned. Where the public interest or the welfare of the State(which are synonymous) outweighs the previous good character,antecedents and age of the offender, public interest must prevail.
These observation were followed by Sri Skanda Raja J. in thecase of Gomes vs. Leelaratne (supra).
It is also appropriate to cite an observation made by the LordChief Justice in the Court of Appeal of England, with regard tothe sentence to be imposed for an offence of rape. In the case ofRoberts (4) at page 244. It was observed as follows
" Rape is always a serious crime. Other than in wholly excep-tional circumstances, it calls for an immediate custodial sentence.This was certainly so in the present case. A custodial sentenceis necessary for a variety of reasons. First of all to mark the gravityof the offence. Secondly to emphasise public disapproval. Thirdlyto serve as a warning to others. Fourthly to punish the offender,and last but by no means least, to protect women. The lengthof the sentence will depend on all the circumstances. That is atrite observation, but these, in cases of rape vary widely from caseto case. “
In the case of, Keith Billam (5) the Lord Chief Justice repeatedthe foregoing observations and stated that in a contested case ofrape a figure of five years imprisonment should be taken as thestarting point of the sentence, subject to any aggravating or mitigatingfeatures. He observed further as follows 11
11 The crime should in any event be treated as aggravated byany of the following factors : (1) violence is used over and abovethe force necessary to commit the rape ; (2) a weapon is usedto frighten or wound the victim ; (3) the rape is repeated ; (4)the rape has been carefully planned : (5) the defendant has
Attorney-General v. Ranasinghe and Others (S. N. Silva, J.)
previous convictions for rape or other serious offences of a violentor sexual kind ; (6) the victim is subjected to further sexualindignities or perversions ; (7) the victim is either very old or veryyoung ; (8) the effect upon the victim, whether physical or mental,is of special seriousness. Where any one or more of theseaggravating features are present, the sentence should be substan-tially higher than the figure suggested as the starting point
It is seen that several of these aggravating circumstances arepresent in the case. The forcible removal of the prosecutrix whenshe was sleeping with her mother, the fact that she was very young,below the age where she may consent to sexual intercourse, thedegree of preplanning by the accused and the repeated commissionof the offence for 2 days until the Police rescued the prosecutrix aresome of these aggravating circumstances. On the whole we are ofthe view that public interest demand that a custodial sentence beimposed in this case. Learned High Court Judge was in error whenhe considered this case as merely being one of disgraceful conducton the part of the accused where a suspended term of imprisonmentmay be imposed.
We accordingly set aside the sentence of 2 years RigorousImprisonment on counts 1 and 2 imposed on the 1st accused bylearned High Court Judge which has been suspended for a periodof 10 years and, sentence the 1st accused to a term of 2 yearsRigorous Imprisonment on count 1 and to a term of 3 years RigorousImprisonment on count 2. Sentences to run concurrently. Thecompensation ordered by learned High Court Judge is affirmed. Asregards the 2nd accused, we note that he was a employee of the1st accused and it appears that he assisted his master in thecommission of the offence. He has not committed the offence of rape.It appears that in fact he has only assisted the 1st accused in theincident of Kidnapping. In these circumstances we see no reason tointerfere with the sentence imposed on the 2nd accused-respondent.These observations apply in relation to the 3rd accused-respondentand we see no reason to interfere with the sentence imposed onhim as well. The 5th accused K. A. Chandrasiri who is now the 4thaccused-respondent has been discharged by learned High CourtJudge with a warning on the basis that he is an employee of theAir Force and that he only drove the car in which the prosecutrixwas taken.
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We note that there is no provision to discharge an accused witha warning in the High Court where the accused is tried upon indict-ment and he pleads guilty to the charge. The provisions of section306 of the Code of Criminal Procedure Act apply only in relation toMagistrate's Court. We accordingly set aside the order of the learnedHigh Court Judge and sentence this accused to a term of 1 yearRigorous Imprisonment suspended for 5 years. Learned High CourtJudge, Western Province sitting at Gampaha is directed to complywith the provisions of Section 303 (4) and (6) of the Code of CriminalProcedure Act with regard to the suspended term of imprisonmentimposed. He is also directed to give effect to the order for paymentof compensation to the prosecutrix.
GUNASEKERA, J. – I agree.