018-SLLR-SLLR-2003-1-KUMARA-v.-THE-ATTORNEY-GENERAL.pdf
Kumara v The Attorney-General (Edirisuriya, J.)
139
3Cfl:
KUMARA
v.
THE ATTORNEY-GENERAL
l
COURT OF APPEAL |
FERNANDO, J.,AND~
EDIRISURIYA, J.
CA 50/200117TH JUNE, 2002
Penal Code, section 296 – Murder reduced to culpable homicide not amount-ing to murder – Suspended sentence – Re-education and re-habilitation -General principles of sentencing – Mitigatory circumstances.
Held:
(I) A suspended sentence is a means of re-educating and re-habilitatingthe offender, rather than alienating or isolating the offender.
No offender should be confined to in a prison unless there is no alter-native available for the protection of the community and to reform theindividual.
Imprisonment has an isolating and alienating effect on the family ofthe imprisoned offender because of the hardships they are faced withduring the imprisonment of one of the family members.
Suspended sentence with its connotation of punishment and pardonis supposed to have integrative powers. The offender is shown that hehas violated the tenets of society and provoked its wrath, but is imme-diately forgiven and permitted to continue to live in society with thehope that he would not indulge in that form of behaviour again.
The accused does not have previous convictions; he surrendered tothe police; he pleaded guilty on the first date of trial; he offered com-pensation to the aggrieved party; these amply demonstrate the miti-gatory factors.
APPEAL from the judgment of the High Court of Avissawella.
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Sri Lanka Law Reports
[2003] 1 SnLJ
Dr. Ranjith Fernando with J.P. Gamage for appellantV.K. Malalgoda, Senior State Counsel for Attorney-General
Cur.adv.vutt
July 12, 2002EDIRISURIYA, J.
The accused in this case was indicted with having committedthe murder of one Yakgala Hewage Anura Kumara, an offence pun-ishable under section 296 of the Penal code.
On the date of the trial the accused pleaded guilty to the less-er offence of culpable homicide not amounting to murder undersection 297 of the Penal code on the basis of a sudden fight. Thiswas accepted by court and accordingly a conviction was entered.
The learned trial Judge sentenced the accused appellant toseven years’ rigorous imprisonment. He also imposed a fine of Rs.500/- on the accused appellant with a default term of six months’rigorous imprisonment.
It is admitted that on the day of the incident the deceasedintervened to resolve a dispute, which arose between the accusedand Janaka Polpitiya. It appears that there was another quarrelbetween the same parties on the day prior to the day of the inci-dent.
Sentencing the accused, the learned trial Judge states thatfacts in the case do not indicate that the accused acted with theintention of causing the death of Anura Kumara. He further statesthat the evidence disclosed that Anura Kumara the deceasedreceived the stab injury when he attempted to intervene in the fightbetween Janaka and the accused.
The learned trial Judge is of the view that the manner inwhich the accused responded to the advice tendered by a matureperson such as Anura Kumara is a compelling reason to impose a
Kumara v The Attorney-General (Edirisuriya, J.)
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custodial jail sentence for the accused appellant and that there wasno other way of rehabilitating the accused appellant with regard tohis losing his self control than imposing a custodial jail term.
The learned counsel for the accused appellant submitted thatthe youth of the offender, his good character, the assistance he ren-dered to the police, remorse shown by him and plea of guilt are fac-tors which may in the court’s discretion be taken into account asmitigation. In support of his argument he cited certain passagesfrom Emmins Book on Sentencing (Second Edition).
It is an admitted fact that the accused does not have previ-ous convictions. It is also not in dispute that he surrendered to thepolice station. Furthermore he pleaded guilty on the first date of trialand offered compensation to the aggrieved party.
The aforesaid facts amply demonstrate that the mitigatoryfactors referred to by the learned counsel for the accused appellantare relevant and applicable to the instant case.
The learned High Court Judge has misinterpreted the offer-ing of compensation to the family of the deceased which is a bonafide voluntary gesture of demonstrating regret and remorse by theaccused appellant as legally unacceptable.
The learned counsel for the accused appellant invited theattention of court to the following passages from the memorandumsubmitted to the Minister of Justice by the Law Commission on the30th October 1970 cited in Criminal Procedure in Sri Lanka by G.
Peiris (at pgs.478-479)
Professor C.H.S. Jayawardane, Professor of Criminology inthe University of Ottawa is of the view that:
“the suspended sentence with its connotation of punishmentand pardon is supposed to have integrative powers. Theoffender is shown that he has violated the tenets of societyand provoked its wrath, but is immediately forgiven and per-mitted to continue to live in society with the hope that hewould not indulge in that form of behaviour again. To this isadded the supportive argument that imprisonment has anisolating and alienating effect on the family of the imprisonedoffender because of the hardships they are faced with during
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the imprisonment of one of the family members. (Paragraph5 of the memorandum)”
”lt may safely be inferred that the growing use of the sus-pended sentence in countries throughout the world is anargument in favour of its adoption in Sri Lanka, for it is.proofthat the sentence is a means of re-educating and rehabilitat-ing the offender rather than alienating or isolating him.(Paragraph 8 of the memorandum.)”
‘That no offender should be confined in a prison unless thereis no alternative available for the protection of the communi-ty and reform of the individual. (Paragraph 04 of the memo-randum)”
It seems to me that the learned trial Judge has not directedhimself on the general principles of sentencing accepted in law.
Having regard to the above circumstances I am of the viewthat a custodial jail term is not warranted in this case and accord-ingly whilst affirming the conviction. I set aside the sentence of rig-orous imprisonment of seven years’ imposed on the accusedappellant and substitute therefor a sentence of two years’ rigorousimprisonment on the accused appellant suspended from the date ofthe conviction (i.e. 27.09.2001) for a period of five years’. In addi-tion I order the accused appellant to pay compensation in a sum ofthirty thousand rupees (Rs. 30,000/-) to the next of kin of thedeceased. This sum of thirty thousand rupees shall be recoveredas a fine imposed by court. In lieu of payment I impose a term oftwo years rigorous imprisonment on the accused appellant.
Subject to this variation the appeal is dismissed.
FERNANDO, J.
I agree.
Sentence varied.