111-NLR-NLR-V-70-THE-QUEEN-v.-B.-M.-A.-S.-THELIS.pdf
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T. S. FERNANDO,—The Queen v. Thelis
[Court of Criminal Appeal]
1967 Present:T. S. Fernando, A.C.J. (President), Abeyesundere, J.,and Alles, J.THE QUEEN v. B. M. A. S. THELISC. C. A. Application No. 139 of 1967S. C. 217 of 1966—M. C. Panadura, 95712
Sentence—Previous conviction—Scope of its relevancy.
In assessing the sentence that should be passed on an accused person whenhe is convicted, the Court must not take into account a conviction of theaccused for an offence committed after the date of the commission of theoffence in respect of which he is being sentenced.
Appeal against a conviction at a trial before the Supreme Court.
C. Ganesh (Assigned), for Accused-Appellant.
Ranjith Abeysuriya, Crown Counsel, for the Crown.
November 2, 1967. T. S. Fernando, A.C.J.—
The appellant who at the relevant time was 18 years of age, andaccording to the evidence, a mechanic by occupation, was convicted ofan attempt to commit the offence of culpable homicide not amountingto murder by causing an injury on the back of a man named Vincent.We are not disposed to interfere with the conviction but the sentenceimposed on the appellant is one of 5 years’ rigorous imprisonment. Whilewe must bear in mind that the weapon used is a pointed one, we have totake into account the fact that the appellant on this occasion caused theinjury in the course of intervening in a quarrel between two of his friendsand Vincent. Having regard to the appellant’s youth and the circum-stances in which he became involved in the quarrel we consider that thesentence imposed on him is excessive. We also think it reasonable toinfer that the learned Judge took into account—in our opinion, contraryto the provisions of the Procedure Code—a conviction of the appellantin respect of an offence committed after the date of the commission of theoffence in this case. The learned Judge had some doubt as to whetherthat conviction could have been taken into account in assessing sentence,but Crown Counsel who appeared at the trial erroneously expressed theview to the Judge that it could be so taken. We have little doubt thathad it not been for the circumstance that this previous conviction hadbeen wrongly taken into account, the appellant would not have hadimposed on him the fairly heavy sentence of 5 years’ rigorous imprisonment.Bearing these considerations in mind, we think a sentence of one year’srigorous imprisonment would serve the ends of justice in this case, andwe alte* the sentence accordingly.
Sentence reduced.