K. R. KARUNARATNE, Accused- Appellant and THE STATE, Complainant-Respondent

048-NLR-NLR-V-78-K.-R.-KARUNARATNE-Accused-Appellant-and-THE-STATE-Complainant-Respondent.pdf


Karunaratne v. The State
413
1975 Present : Rajaratnam, J., Vythialingam, J., and Ratwatte, J.K. R. KARUNARATNE, Accused-Appellant and THE STATE,Complainant-Respondent
S. C. 29/72—D. C. (Crim.) Negombo 4687/14942
Admission—Proof against the accused—False statement—Can it amount
to an admission—Evidence Ordinance S. 17.
Where the accused-appellant was charged with criminal breachof trust and the prosecution sought to prove as against theaccused a false statement (P3) made by the accused, two mattersarose for consideration, namely (a) the truth of the contents ofthe statement and (b) the fact that such statement was madeby the accused.
Held: that if the prosecution relied on the truth of such astatement it is prevented from doing so by the rule againsthearsay, unless it sought to prove it under section 17 of theEvidence Ordinance. The hearsay rule is offended only when theprosecution relies on its truth but the rule is not offended whenthe prosecution seeks to prove the fact that such a statement wasmade by the accused’. Thus, the proposition that statements which arefalse cannot be regarded as admissions within the meaning ofsection 17 of the Evidence Ordinance is limited to a situationwhere the prosecution leads evidence of a statement as anadmission under section 17 of the Evidence Ordinance, but doesnot apply where the prosecution leads it as an item of evidencerelating to the subsequent conduct of the accused under section 8of the Evidence Ordinance.
Queen v. Wilegoda 60 N.L.R. 246 distinguished.
Sentence—Offence committed ten years ago—Considerationsapplicable in suspending sentence
Held by Rajaratnam, J. and Ratwatte, J. (Vythialingam, J.dissenting) that while the trial judge was right in sentencing theaccused to a term of two years rigorous imprisonment and to paya fine of Rs. 1000 and that even if the provisions' relating to thesuspension of sentences were in operation at that time and thecase was concluded in due time, this was not a case where thesentence would have been suspended, having regard to the gravityof the offence. But, on the other hand, when a deserving convictionand sentence have to be confirmed ten years after the proved offencethe judge cannot disregard the serious consequences anddisorganisation that it can cause to the accused’s family.
Therefore the delay of 10 years to finally conclude the case isa very relevant circumstance to be taken into consideration andin the circumstances of the case a suspended ' sentence isappropriate.
Per Vythialingam, J. :
“ In the instant case the essential question is, is the strain thatthe accused would have undergone during these ten years whenthe charge was hanging over his head such as to outweigh thedemands of public policy that for this type of offence and thisclass of offender a deterrent sentence of immediate imprisonmentshould be imposed ”.
/It PPEAL from a conviction by the District Court Negombo.
V. S. A. Pullenayagam with M. Nazeem for accused-appellant.
Tilak Marapona, Senior State Counsel for the Attorney-General.
Cur. adv. vult.
414
RAJARATNAM. J.—Karunaratne v. The Slate
October 11, 1975. Rajaratnam, J.—
In this case the accused-appellant was charged with havingbetween the 25th May, 1965 and 29th May, 1965 committed crimi-nal breach of trust of a sum of Rs. 9,450.84 entrusted to him in hiscapacity as a Cashier of the Co-operative Wholesale Establish-ment, Minuwangoda, an offence punishable under s. 389 of thePenal Code.
According to the prosecution the accused was a Cashier of theC. W. E. Stores. One Dayananda de Silva was the Manager of thestores and he went on leave on 25.5.65. He made the necessarylog entries and handed over the depot keys to the accused. Theaccused acted as the Manager during .the absence of Dayanandade Silva. The cash collection, whether the accused was acting asthe Manager or not, was always the responsibility of the accusedcashier.
On 25.5.65 the cash collection acknowledged and signed by theaccused was Rs. 7,714.19 and on 26.5.65 the cash collection hadbeen Rs. 3,159.14 which also had been acknowledged and signedby him. On 27.5.65 the collection was Rs. 2,035.88 which also hadbeen acknowledged and signed by the accused. The 28th Maywas a holiday. On an admission made by the accused which hadbeen proved against him the prosecution proved that he had kepta sum of Rs. 9,587.37 in the iron safe on the 27th at about 2 p.m. Bythis admission which was produced as a document marked P3 theaccused has acknowledged the fact that he had in his custody asum of Rs. 9,587.37 which he put into the iron safe. The 28thbeing a holiday the accused came back to the stores only on the29th and discovered according to him when he opened the safeall the money missing except for a sum of Rs. 136.53.
The prosecution further sought to prove through two watcherswho were called as witnesses that no one had entered the premisesafter the accused left on the 27th till the accused re-entered thepremises on the 29th morning. There is in evidence that the sealwith which the door was sealed was intact. The Police who wentfor the investigations found no signs of anyone entering thepremises. So that if the prosecution evidence led through thewatchers and the Police is accepted there was no likelihood ofanyone having made an entry into the premises on the 27th or28th after the accused left the premises with the keys of the ironsafe and the door. The only question left for the Court to decideis whether there was a reasonable possibility of anyone entering
RAJARATNAM, J.—Karunaratne v. The State
415-
the premises and removing the money in which case the accusedcould not be held responsible for the loss of the money. If theprosecution over-ruled this possibility on the evidence led thenon the admission made by the accused in P3 the following factshave been established by the prosecution : —
The accused made a statement that the sum specified was
put into the iron safe.
This alleged sum except for a small amount of Rs. 136.55
was not found in the safe on the 29th.
No person, not even the accused, could have entered the
premises and taken the sum of Rs. 9,450.84 which wa»missing out of the safe, that is to say, a theft in relationto this amount could never have taken place. –
There is no question that the prosecution proved the 1st andthe 2nd facts mentioned above. The question arises whether theprosecution proved the 3rd fact, that is, the impossibility of any-one including the accused taking this money out of the iron safebetween the 27th and the 29th. If the prosecution succeeded inproving this fact then the question arises whether the prosecutionhas proved its case of criminal breach of trust against the accusedsince he made a false statement in P3. The prosecution relied onthe three circumstances enumerated above.
Learned Counsel for the appellant made two submissions, thefirst submission was that the prosecution did not over-rule thepossibility of a theft or burglary on the evidence before Courtbetween the 27th and 29th. His second submission was analternative submission that even if the prosecution proved forpurpose of argument this fact that there could not have been atheft or burglary yet having relied on an admission made bythe accused that he placed the specified sum of money in theiron safe they were confined to rely on the truth of that state-ment. Therefore the prosecution could not be thereafterheard to say that they were relying on the falsity of thisadmission. Mr. Pullenayagam appearing for the accused-appellant put his case so high on this point as to say that theprosecution for all its trouble only proved that the accusedcould not have mis-appropriated this sum of money as on theirown case the accused put the money into the safe on the 27thand thereafter no one, not even the accused, could haveremoved this money before the 29th morning when it was
416RAJARATNAM, J.—Karunaratne v. The State
discovered in the presence of others that this sum of money wasmissing. He cited the case of Queen v. Wilegoda, 60 NLR 246where it was held that statements which are false cannot beregarded as admissions within the meaning of s. 17 of theEvidence Ordinance. It is, however, established in law thatwhere a statement is proved against the party making anadmission under s. 17 of the Evidence Ordinance the partyaffected by such admission can elicit the contents of the fullstatements such as will explain or afford the context of such astatement. The prosecution in such a case may rely on &portion of a statement without relying on the other portion ofthe statement and there could be different degrees or credibilityattached to the contents. We have considered the judgmentin King v. Edwin, 48 NLR 337, and the observations of Cross onEvidence, 3rd Edition at page 434.
In this case quite apart from the admission being provedunder s. 17 of the Evidence Ordinance, it has not beenchallenged. It is an admitted fact that the accused had madesuch a statement. When he was questioned by the authorities,he made a statement that he had placed the money inside theiron safe. This statement has two matters for consideration :
the truth of the contents of such a statement, and
the fact that such a statement was made by the
accused. If the prosecution relied on the truth ofsuch a statement it is prevented from doing so by therule of hearsay unless it sought to prove it unders. 17 of the Evidence Ordinance. On the other handthe prosecution can rely on the fact that such a state-ment was made by the accused as a circumstance rela-ting to his subsequent conduct. In our view thehearsay rule is offended only when the prosecutionrelies on its truth but that rule is not offended whenthe prosecution seeks to prove the fact that such astatement was made by the accused and also thatsuch a statement could not be true in view of theother evidence that is to say the evidence that themoney was not there, and no one including theaccused could have taken it. The prosecution caseto sum up was that the accused made a false state-ment when the iron safe was opened and the money
417
RAJARATNAM, J.—Karunaratne v. The Slate
which was in his custody was not found, no one everhaving had any access to it and there being no possi-bility of a theft. It is our considered opinion thatthe decision in Queen v. Wilegoda has to be limitedwhere the prosecution leads evidence of a statementas an admission under s. 17 of the Evidence Ordi-nance, but not where it leads it as an item ofevidence relating to the subsequent conduct of theaccused under s. 8 of the Evidence Ordinance. Thesubmission of learned Counsel for the appellanttherefore that the said admission had to be reliedupon as a true admission and as part of the prosecu-tion case as the truth must fail when the prosecutioncould have led it as subsequent conduct of theaccused.
The only question now is whether the iron safe could havebeen tampered with during the relevant time between the28th and the 29th. The evidence of the watchers and thePolice has been accepted by the trial Judge after due considera-tion and the accused has chosen to remain silent without him-self helping the Court with regard to the security measures pre-vailing in the depot. The seal on the door lock was foundintact and the police found no signs of any one having enteredthe premises and the Police stated that “ the cobwebs and thedirt near the windows were untouched ”. The locks were nota production and neither key was produced but according tothe prosecution the seal on the door lock was intact. The trialJudge satisfied himself on the evidence that no one, that is in-cluding the accused in the circumstances, could have enteredthe premises and spirited away the cash, in which case thenecessary inference is that the accused did not place the cashwhich he said he did place in the iron safe on the 27th. Hisconduct in making that statement which was revealed to be falseby the subsequent discovery of the money being not found inthe iron safe when no one could have forced an entry betweenthe 27th and 29th and the keys being in the custody of theaccused during this time clearly point the finger of guilt to theaccused and the Court made the necessary inference from these
418
RAJAJIATNAM, J.—Karunctralne v. The State
circumstances. The accused himself gave no evidence. Wetherefore hold that the charge against the accused has beenproved beyond reasonable doubt. The conviction therefore isaffirmed.
The question of sentence caused me great anxiety in view ofthe fact that the proved offence has been committed sometimein May 1965 more than 10 years ago. The conviction in thiscase was in August 1972 more than 7 years after the provedoffence. The inquiry and the trial in this case must havecaused hardship and unhappiness in the home of the accusedfor the last 10 years till the final determination had been arrivedat by this Court. But at the same time we have to be mindfulof the fact that the accused has been guilty of a very despicableand anti-social act in defrauding a co-operative Society.
Learned trial Judge was quite right jn sentencing him to servea term of 2 years rigorous imprisonment and to pay a fine ofRs. 1000/-. Even if the provisions regarding the suspensionof sentences were in operation at that time, and if the accusedcame up before him in due time I am certain that this was nota case where the sentence would have been suspended by theJudge in view of the correct view he formed with regard to thegravity of the offence. But on the other hand when a deser-ving sentence has to be confirmed 10 years after the provedoffence I cannot dis-regard the serious consequences and dis-organisation that it can cause in the accused’s family. If therewas a final determination of this case within a reasonable time,the accused by now would have served his sentence and comeout of prison to look after his family. I find, however, that thecharge had been hanging over this accused for the past 10 yearstill it reached a conclusion before us. The effect and conse-quences of this sentence cannot be totally dis-regarded whenthe sentence is imposed 10 years after the proved offence.Under the Administration of Justice Law this situation couldand would never arise with the abolition of non-summaryinquiries.
iiAJARATNAAI, J.—Karunaratne v. The State
■419
The plaint in this case was filed on the 30th September 1965and the accused was ultimately committed to trial after comply-ing with the instructions of the Attorney-General in December1967. The long delay in the non-summary inquiry was due tothe defects under the old Law. I find that the accused has inno way been the cause of the delay'in the non-summary procee-dings. Thereafter an indictment went out against the accusedin December 1971. The accused pleaded not guilty on the firstdate of trial and the Crown Proctor begged for a postponementas the prosecution was not ready. In May 1972 the trial wastaken up and postponed and in June 1972, on the 3rd date oftrial, the prosecution asked for a date as the Registrar of FingerPrints was on medical leave. On the 4th date in Juy 1972 theCourt has journalised that it had not had the time to take upthis case as there was another case part-heard. On the 5th dateof trial, the case was concluded at last when the accused wasfound guilty. The accused was convicted and sentenced inAugust 1972. So that I find that the accused was compelled to gothrough a non-summary inquiry and trial through no fault of hisfor 7 years. After that the accused filed a petition of appeal.
This appeal came up in May 1973 for the first time whenlearned Counsel for the State moved for the appeal to stand out.In February 1974 when the appeal was listed a second time theSenior State Counsel appearing for the prosecution stated toCourt that he had not been furnished with the brief in this caseand the case was again re-listed but was not reached. The 4thdate of listing, I find, is the only occasion on which the postpone-ment was due to the appellant and that was when his counselfell ill. On the 5th and the 6th occasions the appeal was notheard due to no application made on behalf of the appellant.
At this stage therefore the delay of 10 years to finally concludethis matter is in my view a very relevant circumstance to betaken into consideration before allowing the sentance of 2 yearsimprisonment to operate immediately. I am not aware of anycase where an accused person has been kept in suspense for solong a period due to no fault of his own. The accused has alwaysbeen present in Court and ready to receive justice at the hands
420
KAJARATNAM, J.—Karunaralne v. The State
of Court. He has made no contribution to the delay. If therehas been such an earlier case I should imagine there would havebeen better reasons for the delay. The fact that I am unableto lay my hands on any precedent does not deter me from consi-dering this delay in the circumstances of this particular case asa relevant factor for the imposition of an appropriate sentence.
Under s. 2Tb) and (d) of the Administration of Justice Lawthere should be fairness and justice in the administration anddetermination of a judicial proceeding. The circumstance ofdelay in this particular case is not without significance orrelevance for consideration before the imposition of a justsentence. A just sentence is not always a lenient sentence. Itis far from my mind to impose a lenient sentence in this case.But it has become my concern to impose a just sentence inthis case. No doubt the accused was sentenced in 1972. Thissentence, however, will be affirmed only today when s.239, sub-section (1) provides that “a Court which imposes a sentence ofimprisonment on an offender for a term not exceeding 2 yearsfor an offence may order that the sentence shall not take effectunless during a period specified in the order being not less than5 years from the date of that order (hereinafter referred to asthe “ operational period ”) such offender commits another offencepunishable with imprisonment (hereinafter referred to as “ sub-sequent offence ”). It is true that this imperative provision doesnot bind this Court at this stage. On the other hand the circums-tances in this case make it obligatory for the conscience ofthis Court to review the sentence passed by the original Court.The accused has been made to wait for justice for 10 years andall his dependants too. Though it is not obligatory it would notbe inappropriate nevertheless in the circumstances of this caseto deal with the offender in terms of s.239(l).
I am therefore of the view that the sentence of 2 years rigorousimprisonment should be suspended for an operational period offive (5) years from the date of the communication of this orderto the accused in the trial Court. The fine of Its. 1000 will standto be recoverable under the provisions of the law. Subject tothe suspension of the jail term in terms of this order the convic-tion is affirmed and the appeal is dismissed. The trial Court isdirected to comply with the terms of s.239 (4) and (6).
VYTHIALIN'GAM, J.—Karunaratne v. The State
421
VYTHIALINGAM, J.
I have had the advantage of reading the judgment proposedby my brother Rajaratnam, J. and I agree that the convictionand sentence should be affirmed. But I regret that I am unableto agree that the sentence of two years’ rigorous imprisonmentshould be suspended for an operational period of five years.
The accused was convicted and sentenced by the DistrictJudge of Negombo on 10.8.1972. The power to suspend asentence of imprisonment was first introduced by Law No. 9 of1972 which was certified on 22.11.1972 but was brought intoforce by notification in the Gazette only with effect from
3.1973. This law amended the old Criminal Procedure Codeto make provision for the imposition of suspended sentences. TheCriminal Procedure Code itself as amended was repealed bythe Administration of Justice Law No. 44 of 1973 and replacedby a new Criminal Procedure Code, which re-enacted the provi-sions in regard to the imposition of suspended sentences bysections 239 to 241.
The trial Judge could not have availed himself of these provi-sions at the time he convicted and sentenced the accused asthey were not in force at that time. However, jt is clear fromthe reasons he has given for the sentence that even if the powerto suspend the sentence had been available to him at that timehe would not have exercised the discretion to do so. In his orderhe has said “Cases of this type involving misappropriation oflarge sums of money belonging to public institutions byunscrupulous officials are often difficult to prove and whereproved must be severely punished in the public interest. I seeno circumstances in this case in mitigation of sentence. Thefact that the accused had no previous convictions is of no availin a case of this type where the embezzlement of money belong-ing to a public institution is involved. I have considered thefactors urged on behalf of the accused by his Counsel but amunable to take a lenient view.”
422
VYTHIAUNGAM, J.—Karunaratne v. The State
He accordingly sentenced the accused to a term of two years’rigorous imprisonment and to a fine of Rs. 1,000/- in defaultto a further period of six months’ imprisonment. It cannot besaid that in doing so the trial judge has misdirected himselfor gone wrong in principle. Nor, having regard to the natureof the offence, is the sentence in any way inappropriate so asto call for interference by this Court with the exercise of thetrial judge’s discretion.
Under Section 239 of the Administration of Justice Lawwhere a court imposes a sentence not exceeding six months,suspension is mandatory except in the circumstances speciallyprovided for in section 239(a) to (e) or where the Court is ofthe opinion that, for reasons to be stated in writing, it wouldbe inappropriate in the circumstances of the case to deal withthe offender in this way by suspending the sentence of impri-sonment. Where the sentence of imprisonment is more than sixmonths but does not exceed two years the Court may suspendsuch sentence. If the sentence is more than two years thequestion of suspension does not arise at all.
It will be seen that the court must in the first instancedecide that it is a fit case for the imposition of a sentence ofimprisonment and then decide on the length of the term ofimprisonment. The question of suspension will only arise there-after and will depend on the length of the term of imprison-ment. In England suspension although also of recent origin, hasbeen in existence for eight years now and English decisions willbe a useful guide, particularly so, as there are as yet nodecisions of our courts on this point. In the case of Rex Vs.O’Keefe (1969, 1 All E. R. 426) Lord Parker, C.J. pointed out.
where the Act is almost identical with ours, at page 42P
it seems to the Court that before one gets to a suspendedsentence at all, the Court must go through the process of elimi-nating other possible courses such as absolute discharge,conditional discharge, probation order, fines and then say toitself: this is a case for imprisonment, and the final question, itbeing a case for imprisonment, is, immediate imprisonmentrequired or can I give a suspended sentence?”
VYTHIALESTGAM, J.—Karunaratve v. The Slate
423
There are therefore three stages at which decisions have to
he made. The first or primary decision involves a choice of two
conflicting penal objectives which today exist side by side. The
first is that which takes into consideration the offender’s
culpability and is based on the demands of public policy and on
concepts of retribution and general deterrence. The other is
based on the claims of the offender, his character and needs
«
and the possibility of his reform. Here the choice is which ofthe individualised measures like probation, conditional release,borstal etc. would be most appropriate to the offender.
Where the primary decision is not in favour of an individua-lised approach then the amount of the fine or the length of thesentence where imprisonment is decided on has to be determined.This secondary decision of fixing a sentence appropriate to theoffender’s culpability is loosely and for convenience referred toas the tariff. Here, one would take into consideration all theaggravating factors as well as all the mitigating circumst ances,such as age, good character etc. in arriving at the length ofthe term of imprisonment. When this has been done the thirdquestion arises: Is it a fit case where the sentence of impri-sonment should be suspended? What are the factors whichshould be taken into consideration in deciding this question?
If the factors to be taken into consideration at this stage ofthe process are the same as those considered at the first stagewhen individualised measures were rejected then the processbecomes circular and the judge is back where he started from.Tf they are the same as those considered in the second stage inthe calculation of the length of the sentence of imprisonmentor between fine and imprisonment such as mitigating factorsthen is it proper to give double weight to a particular factor ?If the length of the sentence of imprisonment makes a substan-tial allowance for the offender’s good record then can the.same factor be used to justify suspension? In England thesolution is not yet clearly established.
424
VYTHIALINGAM, J.—Kamnaraine v. The State
But D. A. Thomas in his Principles of Sentencing points outat page 228 “The factors which determine whether to suspendthe sentence are not yet clearly established, but it appears thatthe process is essentially one of eliminating cases where thesentence must be ordered to take effect immediately, rather thanlooking for positive factors justifying suspension. This approachto the question is an inevitable consequence of the decisionprocess imposed by the present statutory framework; long beforethe question of suspension has been reached the court hasconsidered and rejected the claims of the offender in positiveterms to individualised treatment”.
The first person to be eliminated in this process on the basisthat an immediate sentence of imprisonment is necessary is ofcourse our friend the “bad man” who has been in and out ofprison. For, if one of the objectives of suspension is, as pointedout by the Law Commission, in their memorandum to the Hon:Minister “that imprisonment with its obviously criminal associa-tions should not bring a non-criminal offender within its ambit(Dr. G. L. Pelvis, Criminal Pro : under the Administration ofJustice Law 478) then there is no point in suspending a sentence-if a man has already shown by his conduct that prison is nota deterrent. This however is not a rule of thumb. A previoussentence of imprisonment sometime ago or where a person hasshown by his conduct that he has turned over a new leafand that the instant offence is an isolated recurrence of hisprevious conduct, should not be a disqualification for suspension.For a discussion of this aspect see The Suspended Sentence forEx Prisoners by K. L. Soothil (1972 Criminal Law Review 535).
Thomas points out at pages 229, 230 “ within the remainingcategory of offenders there are several kinds of cases where theCourt usually considers an immediate sentence necessary. TheCourt has refused to order suspension of a sentence for whatamounted to a series of offences rather than an individual one ; incases where the offence exhibits a degree of careful premedita-tion, or where the offence amounts to a serious breach of trust.The Court is also reluctant to order suspension where the lengthof the term of imprisonment imposed already makes substantial
VYTHIAX.INGAJI, J.—Karunaratne v. The State
425
allowance for mitigating factors, which are urged as a basis forsuspension. Sentences have not generally been suspended incases involving violence, particularly where the victim was astranger to the offender or a public servant; but there are a fewexceptions.
“The kind of offender left at the end of this process of elimi-nation is typically a man of good character possibly with one ortwo minor convictions, who is not considered a suitable personfor probation and who has committed a more or less isolatedoffence of a moderately serious nature. ” This passage adequatelysummarises the attitude of the English Courts to the question asto the circumstances in which a sentence of imprisonment mayproperly be suspended. I would adopt this as the correctapproach under our law as well. The accused in this case hasno previous convictions and is apparently a man ox goodcharacter. The offence is also an isolated one. These are in hisfavour. But it is impossible for me to regard the offence as beingonly of a moderately serious nature. It is an extremely seriousoffence involving a position of trust and in respect of publicfunds.
At the time of the offence the accused was the cashier of theMinuwangoda Co-operative Stores and he used to act for theManager when the latter went on leave. In this country the Co-operative Stores handles the distribution of essential foodstuffsmid other necessary consumer goods. They were establishedunder government control and supervision to secure an equitabledistribution of hard to get essential commodities to the ordinarypeople at fair prices. Profits are necessarily minimal. Whentrusted officials help themselves to such a large sum as JRs. 9,450.84it is bound to hit the people very hard and to dislocate thedistributive system. In these circumstances an immediatesentence of imprisonment is called for as much in the interestsof the safety of public funds as for protection of society and alsoas a deterrent to others in similar positions and of a like mind.
426
VYTHIAL.INGAM, J.—Karunaralne v. The State
Criminal breach of trust and misappropriation specially ofpublic or semi public funds by persons in positions of trust havealways been treated as very serious offences meriting immediatepunishment. Rex Vs. Rendall, 1973 Criminal Law Review, 585was a case of a postman who committed theft of registeredpackets and who had no previous convictions. He was sentencedto one year’s imprisonment on each of two counts consecutively.The Court of Appeal in refusing to interfere said that offenceswere very easy to commit and difficult to detect. They involveda grave breach of trust, eroded public confidence in a public
service and caused at the least disappointment and sometimesdistress or worse to those directly affected. The amounts involved
were small, £.185 and £15 but the Court said that this was notnecessarily a conclusive yardstick to the appropriate sentence.
In Rex Vs. Williams (1972 Crim. Law R. 651) the accused wasa Railway porter who pleaded guilty to several offences includingthree of opening a mail bag. He also had no previous convictionsand was sentenced to four years’ imprisonment. Here again theCourt of Appeal refused to interfere saying that a railway porterwas as much a trusted servant as a postman. Stealing and riflingmailbags was a very serious offence and a stern sentence wouldalways be imposed. Despite his previous good character, hiscontrition and the distress caused to his family the sentence wasnot out of scale. The Court said that it was the sort of sentenceto be expected for this type of crime. In both cases a plea for asuspension of the sentence was rejected.
In the case of Rex Vs. Bazeley, 1969 Crim. L. Review a postmanwho pleaded guilty to three counts of stealing postal packets andasked for 54 other cases to be taken into account and who hadno previous convictions was sentenced to two years’ imprison-ment. In refusing a plea for suspension the Court observed thatit was always tragic when a public servant loses his goodcharacter, job and pension because of criminal stupidity, but ithas always been recognised that that is no ground for notimposing a severe sentence. The sentence was lenient and therewas no question of suspending it.
VTfTHXAJjEN’GAM, J.—Karunaratne v. The State
427
In this country too criminal breach of trust by persons inpositions of trust has always been regarded as an extremelygrave offence requiring exemplary punishment. Our Penal Codegives recognition to this by providing for an increase in themaximum sentence imposeable accordingly as the trust increases.Section 388 which applies to all members of the public providesfor a maximum of three years’ imprisonment. In section 390 and391 which apply to a carrier, wharfinger or warehouse keeperand to a clerk or servant the maximum is seven years while insection 392 which applies to a public servant, banker, merchant,factor, broker, attorney or agent the maximum is ten years.
Referring to these sections Lord Parker said in the PrivyCouncil in the case of Cooray Vs. The Queen, 54 N.L.R. 409 at 412“ It will be observed that the widest and most general provisionis that contained in section 388 in as much as it applies to allmembers of the public. On the other hand sections 390 to 392Aapply to limited classes, treat their behaviour as more heinousand impose a heavier penalty.” The accused in that case wasconvicted under section 392 and was sentenced to five years’imprisonment. It was held by the Privy Council that he was notan agent and therefore the conviction under section 392 waswrong. But the Privy Council substituted a conviction undersection 389 and sentenced him to three year’s rigorous imprison-ment. He was the President of a Co-operative Union and also ofthe Depot at Moratuwa and had misappropriated Rs. 57.000from the Depot by substituting his own cheques which were notcashed.
In the instant case the accused had also been charged underSec. 389 although as a servant of the Society he could have beencharged under Section 391. The principles which should guide acourt in assessing the sentence which should be imposed on anaccused were laid down by Basnayake, A.C.J. in The Attorney-G.eneral Vs. H. N. de Silva, 57 N.L.R. 121. That was a case inwhich an employee of the Food Control Department had forgedcertain documents to enable certain non-nationals to obtainresidence permits. The trial judge bound him over under section325 of the Criminal Procedure Code. The Attorney-Generalappealed against the order although it is rare for him to do so.
428
VYXHIAXiINGAjM, J.—Karunaralne v. The State
Basnayake, A.C.J. said at page 123 “ It is clear that the learnedDistrict Judge has only looked at one side of the picture, theside of the respondent, his age, his youth, his previous goodcharacter, that he has lost his employment and will not be takeninto the Clerical Service even though he has passed the qualify-ing examination. These are certainly matters to be taken intoaccount; but not to the exclusion of others which are of greaterimportance. He has failed to take into consideration the gravityof the offence and the circumstances in which it was committed,the degree of deliberation involved in it, the trusted positionwhich the respondent held, the punishment provided by the Codefor the offence, and the reprehensible conduct of the respondentafter the offence was detected showing his criminal mind. ”
Frauds, thefts, criminal breach of trust and criminal mis-appropriation by employees in Co-operative Societies which areestablished to relieve the public of the hardship occasioned byshortage of essential commodities are frequent, wide spreadand difficult to detect. The Courts should not give theseemployees the impression that when they commit theseoffences they can get away with it by getting a suspended
sentence and going scot free, provided they do not commitanother offence during the operational period. In England the
position is quite different from the position in Sri Lanka in thisrespect because section 39(7) of the English Act provides that asuspended sentence which has not been actuated during theoperational period, shall be treated as a sentence of imprison-ment for the purposes of all enactments and instruments madeunder enactments except any enactment or instrument whichprovides for disqualification for or loss of office or forfeiture ofpensions of persons sentenced to imprisonment.
Thus Parker, C.J. said in O’ Keefe (supra) that a suspendedsentence is a sentence of imprisonment and ranks as a convic-tion unlike a probation order or a conditional discharge. Thenagain in Rex Vs. Mark. (1975) Crim. Law Review 112 a womanof 25 pleaded guilty to three counts of stealing from shops goodsworth £15. She had no previous convictions and was
VYTHIALINGA1I, J.—Karunaratne v. The State
429
sentenced to six months’ imprisonment which was suspended fortwo years and fined £250 so that “ she did not get away with italtogether On this point the Court of Appeal said that itwas incorrect to regard a suspended sentence as getting awaywith it altogether. It was a sentence of imprisonment whichwent on a person’s record.
Under our law however section 239(5) provides that “If theoffender does not commit a subsequent offence during theoperational period the suspended sentence imposed on theoffender shall be deemed, for all purposes, never to have beenimposed. ” In these circumstances it will not rank as a sen-tence of imprisonment at all though . probably the convictionwill remain but without any penalty being imposed. Such asituation is of course possible. In the case of S. RamcharenVs. The Queen. (1972 Crim. Law R. 581) the accused was con-victed of a felony and fined. The appeal court held that thejudge had no power to impose a fine and substituted a sentenceof imprisonment. The Privy Council held that the trial judgehad no authority under the law of Trinidad and Tobago toimpose a fine and also that there was no authority for the ordermade by the Appeal Court for imposing a sentence of imprison-ment. If the sentence was unlawful the judgment mustsimply be reversed. The matter could not be remitted to thetrial Court as it was functus. The Privy Council said that theresult of quashing the imprisonment was that the appellantwent free but the conviction stood.
There are also certain other features which ought to be takeninto consideration when the court is asked to take a mercifulview. Here is no man of penitent soul and contrite heart. Onthe day the money was found to be missing the accused made astatement P3 to the Internal Audit Clerk where he stated thatthe Manager was not on good terms with him and that he sus-pected him of having burgled the store. The Manager wasalso cross-examined on the basis that he could have got dupli-cate keys and seals made. The acccused’s counsel in hisaddress also suggested that the Manager could have got dupli-cate keys made and taken the money. The accused had triedto put the blame on an innocent man.
430
VYTHIALINGAM, 3—Kaninaratne v. The State
The offence also shows premeditation and planning. Theaccused had to wait till the manager was on leave, as then hewould have the keys to the building to-gether with the keys ofthe safe which were always with the accused and also shiftthe blame. He had also to wait till sufficient money wascollected in the store to make a haul. The evidence is that theco-operative department collected the cash on the 25th and theofficers would come again only after two or three days. Theaccused was in sole charge on the 26th and 27th when monieswere accumulated by sales. The 28th was a holiday and themoney was found missing on the 29th. No part of the moneyhas ever been recovered. While these are not factors whichone would take into consideration in sentencing the accused toa longer term than the norm, nevertheless it would be correctto take them into consideration in refusing to take a mercifulview.
The only ground that has been urged for the suspension ofthe sentence is the delay of ten years between the date of theoffence and the final disposal in appeal of the case. That theaccused has had to undergo great anxiety and considerablestrain over such a long period is certainly most deplorable. Theoffence was committed between 27.5.1965 and 29.5.65. Nonsummary inquiry was completed and the accused was com-mitted to stand his trial in the District Court on 27.12.1967 andthe record was forwarded to the Attorney-General. Theindictment, however, was forwarded only four years later,which certainly shocks the conscience. Sentence was passedon 10.8.1972 when Counsel for the accused pointed out that theaccused had to bear the strain for seven years. The trial judgesaid that he took this submission into consideration.
The accused was not in custody at any time during this period.Nor is it his position that he was handicapped by the delay inputting forward his case as fully as he could. Delays of this naturethough, happily very rare, are not at all that unknown in SriLanka. Recently a case came up in appeal in October, 1975where the offence was committed on 6.11.1964 eleven yearsearlier. However, delays of this nature are generally regardedas mitigating factors.
VYTHIAL.INGAM, J.—Karunaratne v. The State
431
In Whitefield the appellant was sentenced to a total of sixyears for offences including offences of incest committed tenyears previously. The court said that “ it does not desire toencourage the wholly mistaken belief in the mind of anybodythat offences such as these can be regarded other than in a mostgrave manner, but having regard to the lapse of time since theincest offences were committed ” the sentences on those countswere reduced — Thomas (supra) 198, Note 1.
Delay of a much shorter period was also taken into consider-ation in R. Vs. Sanders (1972 Crim. L. Rev. 658) in suspending asentence of imprisonment. The appellant pleaded guilty to threecounts of making a false statement in an account and balancesheet and three of publishing fraudulent statements and wassentenced to two years’ imprisonment. He had no previousconvictions. Three and a half years passed between his makinga full disclosure to the receiver and the police seeing him and afurther year before proceedings against him were started.Although it was held that it was a grave case meriting a sentencein excess of two years, yet having regard to the delay in prose-cuting him the sentence was suspended for two vears.
The court however treated it as a wholly exceptional case, andthere were other mitigating factors. He had made a full dis-closure and had pleaded guilty. He had been led into trouble inthe first place by dishonesty on the part of his employees and adisastrous trading year in 1961. During the period the case waspending he had lived and worked honestly. The decision in thatcase must therefore rest on its own peculiar facts. In the instantcase the essential question is, is the strain that the accused wouldhave undergone during these ten years when the charge washanging over his head such as to outweigh the demands of publicpolicy that for this type of offence and this class of offender adeterrent sentence of immediate imprisonment should beimposed ? I do not think it does, for the reasons I have alreadygiven Public condemnation of conduct so grave is unavoidable—see R. Vs. Pottinger (1974) Cr. L. R. 675. In the result I woulddismiss the appeal and affirm the conviction and sentence.
I have proceeded on the basis that even though the trial judgedid not, at the time he passed the sentence, have the power tosuspend the sentence of imprisonment, yet we have the power todo so by reason of a later amendment to the law providing foran altered form of sentence. However there appears to be somedoubt in regard to this. See for example C.J.C. Foreign Ex-change Offences 21st case No. 11/75 — 19th. August, 1975.
432
VYffHIALINGAM, J.—Karunaratne v. The State
However as this matter was not argued before us I reserve thedecision on this point for a more appropriate occasion.
Ratwatte, J. :
I have had the advantage of reading the judgments of both mybrothers, Rajaratnam, J. and Vythialingam, J. and I agree thatthe conviction should be affirmed.
I have given much thought to the question of the sentence inthis case. I agree that, in cases of this nature where offences arecommitted in respect of public funds by persons in positions ofauthority or trust, the Courts should not take a lenient view andthat such offences are as stated by Vythialingam, J., seriousoffences meriting immediate punishment. One of the principlesunderlying the imposition of sentence in such a case is that thesentence should act as a deterrent. But in the instant case the-offence was committed over ten years ago. Rajaratnam, J. hasdealt fully with that aspect of the matter and I concur with thereasons given by him for suspending the sentence of two years'imprisonment for an operational period of five (5) years, interms of section 239 (1) of the Administration of Justice Law,No. 44 of 1973.
Vythialingam, J. states in his judgment that there seems to besome doubt as to whether the Appeal Court has the power tosuspend a sentence of imprisonment imposed by the tjrial Courtbefore the new law came into operation. The provisions ofsection 239 of the Administration of Justice Law, are proceduralin nature. The Appeal Court when it affirms a conviction caneither affirm the sentence or vary the sentence by reducing orenhancing it. This case will reach finality only when the AppealCourt disposes of the appeal, and in my view, when we areconsidering the question of sentence in this case, we have thepower to suspend the sentence of imprisonment. I, therefore,agree with the order made by Rajaratnam, J. as regards thesentence in this case. The fine imposed stands but the sentenceof two years’ rigorous imprisonment will be suspended as perRajaratnam, J’s. order. Subject to the suspension as aforesaid,the appeal is dismissed.
Conviction affirmed. Sentence varied_