016-SLLR-SLLR-1995-V-1-THE-ATTORNEY-GENERAL-v.-MENDIS.pdf
THE ATTORNEY-GENERALv.
MENDIS
COURT OF APPEAL.
GUNASEKERA, J. ANDYAPA, J.
P A A^n/QT
HO. COLOMBO NO. 500/91NOVEMBER 15 1994.
Criminal Law – Mischief – Forgery – Sentences – Principles which should guidethe Court – Plea bargaining and sentence bargaining – White collar andeconomic crimes.
Held:
In assessing punishment the judge should consider the matter of sentence bothfrom the point of view of the public and the offender. The judge should firstconsider the gravity of the offence, as it appears from the nature of the act itselfand should have regard to the punishment provided in the Penal Code or otherStatute under which the offender is charged. He should also regard the effect ofthe punishment as a deterrent and consider to what extent it will be effective. Theincidence of crimes of the nature of which the offender has been found to beguilty and the difficulty of detection are also matters which should receive dueconsideration. Two further considerations are the nature of the loss to the victimand the profit that may accrue to the accused in the event of non-detection. Forsome offences generally speaking longer sentences of imprisonment areappropriate such as for example most robberies, most offences involving seriousviolence, use of a weapon to wound, burglary of private dwelling houses, plannedcrime for wholesale profit, active large scale trafficking in dangerous drugs andthe like.
Once an accused is found guilty and convicted on his own plea or after trial thejudge in deciding on sentence, should consider the point of view of the accusedon the one hand and the interest of society on the other. 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 organization in respect of which it has been committed, is concerned, thepersons who are affected by such crime the ingenuity with which it has beencommitted and the involvement of others in committing the crime are matterswhich the judge should consider.
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 in our view notsurrender this sacred right and duty to any other person, be it counsel or accusedor any other person”.
Whilst plea bargaining is permissable, sentence bargaining should not beencouraged at all and must be frowned upon. No trial should permit andencourage a situation where the accused attempts to dictate or indicate whatsentence he should get or what sentence he expects.
The accused had made use of the letter heads of a Government Departmentand forged or caused to be forged the signatures of highly placed publicofficials. He has also made use of the name of a Cabinet Minister in order toachieve his purpose. This is a serious matter and should have been takencognizance of. Whilst the reformation of the criminal is an importantconsideration where the public interest or the welfare of the State outweighsthe previous good character, antecedents and age of the offender, the publicinterest should prevail.
White collar crimes or economic crimes have been committed with impunity in thepast. Hence the sentence passed should be in keeping with the nature andmagnitude of the offences to which the accused has pleaded guilty.
Cases referred to:
Attorney-General v. H. H. de Silva 57 NLR 121,123.
Gomes v. Leelaratne 66 NLR 233.
Bashir Begum Blbi 1980 Vol. 71 Criminal Law Reports p. 360.
APPLICATION for revision of sentence.
R. Arsekularatne D.S.G. for petitioner.
D. S. Wijesinghe P.C. with Asitha Wijesundera for respondent.
Cur. adv. vult.
December 15, 1994.
GUNASEKERA, J.
The 1st Accused-Respondent abovenamed and three others were
indicted in the High Court of Colombo for committing jointly and
separately the offences set out hereinafter:
that between 5th September 1984 and 20th November, 1985 the2nd, 3rd and 4th Accused committed an offence in terms ofSection 403 read with Section 102 and 113(B) of the Penal Codeby conspiring to cheat the General Manager of the People’s BankHead Office in respect of two loans to the value of 1.2 millionRupees and 2.3 million Rupees respectively.
that on or about 5.12.84 the 1st Accused-Respondent committedan offence in terms of Section 459 read with Section 454 of thePenal Code by tendering as genuine a forged document to obtaina loan from the People’s Bank.
that on or about 11.3.1985 the 1st Accused-Respondentcommitted an offence under Section 454 read with Section 459 ofthe Penal Code by tendering as genuine a forged document toobtain a loan from the People’s Bank.
that on or about 25.9.1985 the 1st Accused-Respondentcommitted an offence in terms of Section 459 read with Section454 of the Penal Code by tendering as genuine a forgeddocument to obtain a loan from the People’s Bank.
that on or about 20.11.1985 the 1st Accused-Respondentcommitted an offence in terms of Section 459 read with Section454 of the Penal Code by tendering as genuine a forgeddocument to obtain a loan from the People’s Bank.
that on or about 12.11.1985 the 1st Accused-Respondentcommitted an offence of cheating under Section 403 of the PenalCode by dishonestly inducing the General Manager of thePeople’s Bank to approve a payment of Rs. 1.2 million through theBorella Branch of the People’s Bank in favour of the 1st Accused-Respondent.
that on or about 20.11.1985 the 1st Accused-Respondentcommitted the offence of cheating in terms of Section 403 of thePenal Code by dishonestly inducing the General Manager of thePeople's Bank to approve the payment of Rs. 2.3 million throughthe Hong Kong and Shanghai Bank in favour of the 1st Accused-Respondent and another.
At the commencement of the trial on 22.2.93 the 1st Accused-Respondent pleaded guilty to the charges levelled against him in theindictment, namely charges 2, 3, 4, 5, 6, and 7 respectively and wasconvicted by the learned High Court Judge and sentenced to 2 yearsrigorous imprisonment, in respect of each count. The said period ofimprisonment was suspended for a period of 5 years. In addition thelearned High Court Judge imposed a fine of Rs. 30,000/- in respectof each count and imposed a term of 2 years vigorous imprisonmentin default of payment of the fine. The learned High Court Judge madefurther order that in the event of the fines being paid that a sum ofRs. 150,000/- be paid to the People’s Bank as compensation. Thelearned High Court Judge also permitted the fines to be paid inmonthly instalments of Rs. 5,000/-.
The Attorney-General has filed this application in revision againstthe above sentence imposed by the Learned Trial Judge. It wassubmitted by the Learned Deputy Solicitor-General who appeared forthe Attorney-General that the 1st Accused-Respondent hascommitted this crime with much premeditation, pre-planning and pre-concert. It was contended that the 1st Accused-Respondent haspleaded guilty to having defrauded a premier State Bank for a sum ofRs. 3.25 million and considering the seriousness of the crime that thenon custodial sentence imposed on the 1st Accused-Respondent isgrossly inadequate and is out of proportion having regard to themagnitude of the crime that had been committed. At the hearingMr. Arsekularatne, learned Deputy Solicitor General submitted thatthe indictment against the 1st Accused-Respondent was founded onthe following material:
that he made an application dated 30.8.84 for a loan ofRs. 8,250,000/- for the purpose of expanding a transport businesswhich he stated that he was engaged in. In this application heoffered as security a mortgage of 55 vehicles which he proposedto acquire. Subsequently in support of this application he tendereda letter P2 dated 5.12.1984 purported to be signed by theAdditional Deputy Director, Government Supplies Departmentwherein it was stated that 22 Tata Benz lorries had been reservedfor him on the instructions of the then Minister of Trade andShipping, Hon. M. S. Amarasiri. In the said letter it was also statedthat the 1st Accused-Respondent had already paid a sum ofRs. 3.5 million and that he was requested to pay the balance ofRs. 70,40,000/- to finalise the transaction and to take overpossession of the said 22 lorries. It was submitted that the writer ofthe purported letter H. R W. Premadasa the Additional DeputyDirector of the Department of Government Supplies in the courseof the investigations had categorically denied that the said letterwas issued by him to the 1st Accused-Respondent and that thesignature appearing in that letter is not his, and that the signatureis a forgery.
Mr. Stanislaus Pieris the Deputy General Manager DomesticFinance who subsequently became the General Manager of thePeople’s Bank having examined the application of the 1stAccused-Respondent refused the loan for Rs. 8 million butrecommended that the 1st Accused-Respondent be granted aloan of Rs. 3.5 million.
After approval of the loan the 1st Accused-Respondent made arequest that Rs. 1.2 million be credited to his Current Account. Hehad stated that he had already paid the Department ofGovernment Supplies Rs. 1.2 million before the approval of theloan and there was a further sum of Rs. 2.3 million outstanding andrequested that a cheque in respect of the balance Rs. 2.3 millionbe drawn in favour of the Department of Government Supplies. Insupport of the said request the 1st Accused-Respondentsubmitted a letter dated 25.9.1985 marked P3 purporting to beissued by the Department of Government Supplies. The AdditionalDirector of Government Supplies had categorically denied that thesignature on the said letter was his and that it was a forgery.
Mr. S. Pieris the Deputy General Manager of the People’s Bankhaving examined the request referred to above made by the 1stAccused-Respondent recommended to the Chairman of thePeople’s Bank that it be granted. However the Chairman turneddown the request stating that all payments should be made out tothe Department of Government Supplies and he categoricallyordered not to pay this sum of Rs.1.2 million to the CurrentAccount of the 1st Accused-Respondent.
On the decision of the Chairman being conveyed to the 1stAccused-Respondent he made an application by letter dated10.10.85 wherein he once again made an application to theChairman stating that he had already paid a sum of 1.24 million tothe Department of Government Supplies out of his businessearnings and borrowings made from friends and relations. Hestated that as a result of this payment he had run short of capital tocontinue his business and appealed to the Bank to re-consider thedecision of the Chairman referred to above.
The Deputy General Manager Stanislaus Pieris recommended tothe General Manager People’s Bank that the request be grantedon the basis that the 1st Accused-Respondent had paid the saidsum of Rs. 1.2 million to the Government Supplies Departmentsince there had been some delay on the part of the People’s Bankregarding the preparation of the documents pertaining to the saidsum. On the basis of the recommendation of Mr Stanislaus Pieristhe General Manager approved the granting of the request of the1st Accused-Respondent.
Subsequent to the approval referred to in the above paragraph,the Borella Branch of the People’s Bank had credited 1.2. million tothe Current Account of the accused. Thereafter in addition to thepay order for Rs.2.3 million in favour of the Department ofGovernment Supplies this cheque had been given to the 1stAccused Respondent to be tendered to the Department ofGovernment Supplies. Subsequently the 1st Accused-Respondenthad submitted a letter dated 20.11.1985 purported to have beenissued by the Deputy Director Department of GovernmentSupplies, stating that the sale of vehicles was handled by the
Transport Unit of the Borella Branch and had requested in the saidletter that the cheque be drawn in favour of the Director of theTransport Unit. The 3rd Accused in the case who was the Managerof the Borella Branch of the People’s Bank had issued a freshcheque in favour of the Director of the Transport Unit. The saidcheque had been handed over to the 1st Accused-Respondentwho had acknowledged receipt of the same. A few days later the1st Accused-Respondent had gone to the Borella Branch of thePeople’s Bank and had requested that the description of the payeein the said cheque be altered from the Director Transport Unit toDirector Colombo Transport Unit . The 3rd Accused had directedone of his subordinates to alter the said cheque. The 1st Accused-Respondent having obtained this cheque had deposited the sameto the credit of an account he had opened earlier at the HongKong and Shanghai Bank styled, Director Colombo Transport Unit,and subsequently the 1st Accused-Respondent had withdrawn allthe monies lying to his credit in this account. Thus the 1stAccused-Respondent had defrauded Rs.3.5 million from thePeople’s Bank in the manner set out above.
It was submitted by the Learned Deputy Solicitor-General that theoffences for which the Accused-Respondent had pleaded guilty arefar too grave to be dealt with a non-custodial sentence and thematerial discloses that it was a planned crime for wholesale profit,for which deterrent punishment was called for. He contended asobserved by Basnayake, A C.J. (as he then was) in the case ofAttorney-General v. H.N. de Silvain 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 only from the angle of the offender. A judge in determiningthe proper sentence should first consider the gravity of the offence,as it appears from the nature of the act itself and should have regardto the punishment provided in the penal code or other statute underwhich the offender is charged. He should also regard the effect ofthe punishment as a deterrent and consider to what extent it will beeffective. The incidence of crimes of the nature of which theoffender has been found to be guilty and the difficulty of detectionare also matters which should receive due consideration.” Learned
Deputy Solicitor-General also submitted that in addition to the criterialaid down by Basnayake A C.J. in the above case that Sri SkandaRajah J. in Gomes v. Leetaratne{Z) has laid down two furtherconsiderations that a judge should take into account in consideringwhat punishment is to be imposed on an offender. They are : 1. Thenature of the loss to the victim and, 2. The profit that may accrue tothe culprit in the event of non-detection.
Learned Deputy Solicitor-General also relied on the observationsof the Lord Chief Justice in the case of Bashir Begum Bibi<3) “that forsome offences generally speaking longer sentences of imprisonmentare appropriate such as for example most robberies, most offences,involving serious violence, use of a weapon to wound, burglary ofprivate dwelling houses, planned crime for wholesale profit, activelarge scale trafficking in dangerous drugs and the like.”
It was contended by the learned Deputy Solicitor-General that theAccused-Respondent has pleaded guilty to offences which attractedsentences of imprisonment ranging from 5 to 7 years and that thesentence of 2 years rigorous imprisonment which had been imposedon the Accused-Respondent which had been suspended for 5 yearsand a fine of Rs.30,000/ – imposed on each of the counts is grosslyinadequate having regard to the nature of the crimes committed.
Mr. D. S. Wijesinghe, President’s Counsel who appeared for theAccused-Respondent contended that the duty of imposing sentenceand the decision as to what sentence should be imposed is entirely inthe discretion of the Trial Judge, and in the instant case havingregard to the fact that the Accused-Respondent was a first offenderand a married man with six children and the fact that he was a heartpatient, the Learned Trial Judge had imposed a jail term of 2 years inrespect of each count which has been suspended for a period of 5years in addition to the fines imposed. Since the Trial Judge haddirected that the sentences imposed should run separately theoperation of the period of the suspension would be 30 years. TheAccused-Respondent who was 36 years at the time of convictionwould have to live practically for the rest of his life with thesuspended sentence hanging over his head. Therefore, he submittedthat this court should not interfere with the sentence imposed by theLearned Trial Judge.
In our view once an accused is found guilty and convicted on hisown 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 consider thepoint of view of the accused on the one hand and the interest ofsociety on the other. In doing so the Judge must necessarily considerthe nature of the offence committed, the manner in which it has beencommitted the machinations and the manipulations resorted to by theaccused to commit the offence, the effect of committing such a crimeinsofar as the institution or organisation in respect of which it hasbeen committed, the persons who are affected by such crime, theingenuity with 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 having regardto the criteria set out above should in our view not to surrender thissacred right and duty to any other person, be it counsel or accusedor any other person. Whilst plea bargaining is permissible in our view,sentence bargaining should not be encouraged at all and must befrowned upon. It is unfortunate to observe in the instant case thatthere has been “sentence bargaining" and in our view no Trial Judgeshould encourage this unhealthy practice. Further no Trial Judgeshould permit and encourage a situation where the accused attemptsto dictate or indicate what sentence he should get, or what sentencehe expects.
In the affidavit of the accused-respondent filed in theseproceedings it is to be observed that he has stated thus “ I state thaton the first date of the trial itself I indicated to the Learned Counselappearing on my behalf that I would be willing to plead guilty to thecharges if I was given a non-custodial sentence. However, LearnedCounsel informed me that this was a matter essentially for theHonourable High Court Judge, but he would meet the HonourableHigh Court Judge in chambers together with the Learned StateCounsel appearing for the prosecution, and attempt to persuade theHonourable High Court Judge to give me a non-custodial sentence inthe event of my pleading guilty to the charges against me at theoutset itself.” (paragraph 4 of the affidavit of the accused-respondent). Further it is stated “that the Learned Counsel appearingon my behalf and the Learned State Counsel saw the HonourableHigh Court Judge in chambers and after a long delay Learned
Counsel and Learned State Counsel came back from the chambersof the Honourable High Court Judge. I was informed by LearnedCounsel appearing on my behalf that there was every possibility ofmy getting a non-custodial sentence and on the strength of thisassuarance I decided to plead guilty to the charges against me”(paragraph 5 of the affidavit of the accused-respondent). The aboveaverment of the accused-respondent gives us the impression that theLearned Trial Judge had been a party to the unhealthy practice ofsentence bargaining and permitted the dictates of the accusedpresented through his Counsel to influence her judicial mind inexercising what sentence should be imposed. This in our view ismost regrettable.
We have carefully considered the submissions made by theLearned Deputy Solicitor-General and the Learned President’sCounsel and on the material set out above we are of the view that theAccused-Respondent had been the perpetrator of a serious crimewhich has been committed with much deliberation and manipulation.In doing so he had made use of the Letter Heads of a GovernmentDepartment and forged or caused to be forged the signatures ofhighly placed public officials. He also has made use of the name of aCabinet Minister in order to achieve his purpose. This in our view is avery serious matter that should have been taken cognizance of bythe Learned Trial Judge in deciding what sentence should beimposed. Had the Learned Trial Judge given her mind to the relevantfactors that should have been taken into consideration as set outabove in imposing sentence we are inclined to take the view that thesentence imposed may well have been different.
We are in agreement with the observations of Basnayake, A.C.J.that whilst “the reformation of the criminal though no doubt is animportant consideration in assessing the punishment that should bepassed on an offender, where the public interest or the welfare of thestate outweighs the previous good character, antecedents and age ofthe offender, that public interest must prevail.” Having regard to themanner and the ingenuity with which the crimes that the Accused-Respondent has committed to which he has pleaded guilty, we are ofthe view that the sentence imposed is grossly inadequate. In our viewthe crimes to which the Accused-Respondent pleaded guilty are of avery serious nature and have been committed with much planning,deliberation and manipulation and called for an immediate custodialsentence. It is to be observed that this type of white collar crimes oreconomic crimes have been commited with impunity in the recentpast. For the reasons stated we are of the view that the sentenceimposed on the accused-respondent is disproportionate andinappropriate having regard to the nature and magnitude of theoffences to which he has pleaded guilty. Thus we set aside thesentence imposed by the Learned Trial Judge and sentence theAccused Respondent to a term of 4 years Rigorous Imprisonment inrespect of counts 2,3,4,5,6,817, the sentences to run concurrently,and affirm the fine of Rs. 30,000/ – imposed by the Learned TrialJudge in respect of each of the aforesaid counts. For the reasonsstated above the application in revision is allowed and the sentenceis varied.
Application allowed.