HOWARD CJ.—The King v. Rankira
[Court of Criminal Appeal.]
Present: Howard C.J., Soertsz and Hearne JJ.THE KING v. RANKIRA.
2—M. C. Matale, 5J!39.
Sentence—Discretion of Judge will not be interfered with—Discretion exercisedon wrong principle—Power of Court of Criminal AppealThe Court of Criminal Appeal will not interfere with the judicialdiscretion of a Judge in passing sentence unless that discretion has beenexercised on a wrong principle.
Where the sentence passed by the Judge ignored the verdict of thejury and in no way reflected that verdict,—
Held, that the Judge had exercised his judicial discretion on a wrongprinciple.
HE accused was charged with attempted murder and the jury found
him guilty of attempted homicide not amounting to murder on theground that he had committed the act under grave and sudden provocation.They also found that he was exercising the right of private defence whichhe had exceeded.
The Judge in passing the maximum sentence stated that he did so, asthe accused might have been found guilty of attempt to commit murder.
J. E. M. Obeysekere (with him S. S. Kulatileke), for accused, appellant.—The Court of Criminal Appeal would not usually interfere with asentence except where the presiding Judge had proceeded upon a wrongprinciple—Squire Sidlo1; James Nuttall'. In this case the Judgepassed a sentence which involved the rejection of the jury’s verdict.When a Judge differs from the jury, he should pass such a sentence as hewould have passed had he agreed with the jury—Queen v. S. G. Mustaffa *.
Nihal Gunesekera, C.C., for the Crown.—In imposing sentence theJudge must accept the jury’s finding—Frederick Marshall *; CharlesRoper".
January 27, 1941. Howard C.J.—
Like the Court of Criminal Appeal in England this Court is veryreluctant to interfere with the judicial discretion of a Judge in passingsentence. That judicial discretion is one vested in him by law. ThisCourt will only do so when it is apparent that that discretion has beenexercised on a wrong principle.
In this case the appellant was charged with attempted murder.The jury found him guilty of attempted homicide not amounting to murderon the ground that he had committed the act under grave and suddenprovocation. They also found moreover that he was exercising the rightof private defence which he had exceeded.
Cur. adv. vult.
* 3 Sutherland's W. B. 29 (Criminal Rulings.)4 12 Cr. App. R. 208.
* 16 Cr. App. R. 195.
1 1 Cr. App. R. 28.
* 1 Cr. App. R. 180.
Gabrial v. Adikaran.
In passing th maximum sentence the learned Judge stated as follows: —“ Maximum punishment that I can inflict, on you is one of seven years’imprisonment (rigorous) and I give you that as I think that you mayhave been found guilty of attempt to commit murderThe jury have definitely found that the appellant was not guilty ofattempted murder for reasons stated by them. Those were facts whichwere in the jury’s province alone to decide. The sentence passed by thelearned Judge therefore ignored the verdict of the jury and in no wayreflected that verdict. It is not merely a question that we consider thatwe ourselves, if we had been trying this case, would have passed a lesssevere sentence. That in itself would not justify us in modifying thesentence. We think, however, that the Judge has passed this maximumsentence as the result of exercising his discretion on a wrong principle.We, therefore, substitute for the sentence of seven years’ rigorousimprisonment one of four years’ rigorous imprisonment.