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| Thursday, 9 October 2003 |
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Appeal Court sets a side conviction The Court of Appeal while affirming the conviction of an accused in a rape case set aside the 8 years rigorous imprisonment imposed substituting it with term of 2 years RI suspended for a period of five years. The Court considering the submission by the counsel for the Accused-Appellant that having regard to the fact that the trial judge had enlarged the accused on bail considering his age and attendant circumstances was of the view that it was appropriate that it should consider imposing a non custodial poll on the accused-appellant. The Bench comprised Justices Raja Fernando and G.W. Edirisuriya. Justice Edirisuriya's judgement(with which the other judge agreed) states: The counsel refers us to the following cases in Emming's book on sentencing which, deals with some factors which may in the court's direction be taken into account as mitigation. Emming says in Varden (1981) CLR 272 the Court of Appeal upheld a reduction in sentence on a 71 year old offender of low intelligence because his advanced years would probably make a term of imprisonment all the more unpleasant for him. In Wilkinson (1974) CSP C2-2BOI the offender pleaded guilty to various charges of indecent assault, indecency with a child and unlawful intercourse with a girl aged under 13. All the offences were committed on the offender's grand nieces. Prison sentences of four years were reduced as an act of mercy to two and a half years. In that case Roskill L.J. has stated that "No Court willingly sentences a man of 60 to spend a large part of the remainder of his life in prison". The learned Counsel for the accused-appellant further submits that the accused-appellant does not have previous convictions and that court be pleased to consider that too as a mitigatory factor. Again he cites Emmins on sentencing thus: "The offender has a good character of clean record or relatively few prevous convictions; there are numerous decisions which, can be taken to illustrate this point and it offers one of the most frequently advanced matters in litigation. Even where the offence is so serious that a custodial sentence is inevitable there is an argument for discounting such a sentence for a first offender since 'for a man of good character undergoing his first prison sentence conviction and a prison sentence are in themselves a substantial punishment'. (per Lord Lane CJ in Vision (1982) Crm. CR 192) In the circumstances whilst affriming the conviction I set aside the sentence of 8 years' rigorous imprisonment imposed on the accused-appellant and substitute therefore a term of 2 years' rigorous imprisonment suspended for a period of five years. The fine of Rs. 5,000 imposed on the accused-appellant remains. Dr. Ranjith fernando appeared for the Accused-Appellant while Allen David SC appeared for the AG. |
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