093-NLR-NLR-V-72-W.-H.-AGNES-NONA-Appellant-and-PALIPANA-S.-I.-Police-Respondent.pdf
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WIJAYAT1LAKE, J.—Agnes Nona v. Palipana
1969Present: WijayafHake, J.
V. H. AGNES NONA, Appellant, and PALIPANA (S. I. Police),
Respondent
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S. 0. 413j68—M. G. Galle, 32796
Brothels Ordinance—Section 2 (a)—Ojfence oj keeping or managing a brothel—Sentenceof imprisonment—Duty of Court to exercise its discretion on proper material.
Before an accused is sentenced to a term of imprisonment under the BrothelsOrdinance, the trial Court is expected to exercise its discretion on propermaterial, in tho circumstances of each case.
Appeal from a judgment of the Magistrate’s Court, Galle.
H. Rupasingha,.for the accused-appellant.
Shibly Aziz, Crown Counsel, for the Attorney-General.
October 1, 1969. Wijayatilake, J.—
The accused has been charged with keeping or managing a brothelan offence under Section 2 (a) of the Brothels Ordinance. She -was convictedand sentenced to six months rigorous imprisonment and a fine ofRs. 600. She was also bound over for a period of twelve months in asum of Rs. 300.
Learned Counsel for the appellant submits that the only evidenceled by the prosecution in regard to the charge is that of two accomplices.On their evidence, it would appear that they were common prostitutes andin those circumstances the version given by them has to be assessedwith great care and caufion. However, on a perusal of the evidence,particularly that of the accused herself, I am satisfied that the learnedMagistrate has arrived at a correct verdict. He has stressed the fact thatthe witnesses are not of sound moral character, but that in a case ofthis nature it would be difficult to expect better witnesses and with thenecessary care and caution he has assessed the evidence.
There is nothing against the accused and learned counsel for theappellant submits that the learned Magistrate has chosen to imposea sentence of imprisonment rather than a fine only although this is afirst offence, without giving adequate reasons for the same. He hasreferred me to the case of Podinona Perera v. Hanijfa1 where Swan J.held that " where a magistrate chooses to impose a sentence ofimprisonment rather than a fine for a first offence under the BrothelsOrdinance, he must give reasons for so doing or at least- the proceedingsmust show that he has exercised his discretion properly ”.'
1 (1953) 56 N. L. B. 166.
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WIJAYATILAKJE, J.—Agnes Nona v. Palipana
On a reference to the Brothels Ordinance, it would apjiear that evenon a second or subsequent conviction under this Ordinance, the Magis-trate is given the same discretion. Thus it would seem that the Legislaturehas thought it tit to stress that before an accused is sentenced to aterm of imprisonment under the Brothels Ordinance, he is expectedto exercise hi3 discretion on proper material, in the circumstances ofeach case. In the instant ease, after conviction, the prosecuting Inspectorof Police had mentioned that the accused had escaped a charge againsther all these days although she was carrying on this trade on a largescale in the heart of the Galle city. This statement appears to haveimpressed the learned Magistrate. However,, it is strange why the GallePolice was not sufficiently vigilant in checking the trade carried on bythis woman if it was on such a large scale and why the Police had nottaken any action till their services were called for by the ProbationDepartment in this case.
In view of the fact that (here is nothing against this woman, I deletethe sentence of imprisonment and impose a fine of Rs. 500 in defaultsix weeks rigorous imprisonment. Also acting under Section 2 of theBrothels Ordinance, I order her to enter into a bond in a sum of Rs. 500with one or two sureties to be of good behaviour for a period of twelvemonths, in default of which she shall serve a period of three monthsrigorous imprisonment.
Sentence reduced.