Crime and punishment

by Justice P.H.K. Kulatilaka

[Part 2]

Under section 286[d] President may order a respite of the execution of the warrant. This provision is in conformity with the Article 34 of the Constitution which gives the President power inter alia to grant a pardon, either free or subject to lawful conditions.

Every killing is not a murder

It is pertinent to mention that in a case where the accused had intended to kill one person but killed another still he will be charged and convicted of murder. [In this article the writer will not touch upon instances of causing death or inflicting injuries to the enemy during war]. The law in its wisdom takes into consideration human frailties and circumstances under which the killing was committed which militates against the intention of causing death. mens rea.

There are four such exceptions namely, . grave and sudden provocation. exceeding the right to private defence[ if the doer has exercised his right to private defence the law exonerates him under sections 89 and 93 of the Penal Code and he does no offence. In fact the spokesman for the Police in a recent TV interview explained that the Police had acted under the provisions of the aforesaid law in most cases of Police shooting. where the act was committed without premeditation in a sudden fight.

The offender being a mother of a child under the age of 12 months, causes its death while the balance of her mind is disturbed by reason of her not having fully recovered from giving birth to the child. Quite often the media reports of such incidents.

On the basis of knowledge, e.g. One stab injury killings taking into consideration the location of the injury. In the aforesaid instances the accused will be found guilty of committing culpable homicide not amounting to murder. A judge may at the very commencement of the case accept such a plea or else may come to such conclusion at the end of the trial.

Judicial discretion in sentencing

In deciding the sentence to be imposed upon a person convicted of an offence the judges are vested with a discretion which they exercise judicially. Accordingly penal provisions have been crafted to allow the judges latitude to fashion sentences tailored to suit individual cases.

A former High Court Chief Justice of Australia Sir General Brennan had remarked “Sentencing is the most exciting of judicial duties because the interest of the community, of the victim of the offence and of the offender have to be taken into account in imposing a judicial penalty”.

Recently in a much talked about criminal case a politico who was indicted in the High Court of Puttalam under sections 483 and 486 of the Penal Code for committing criminal acts mentioned therein to a lady teacher was sentenced to a jail term of two year’s rigorous imprisonment suspended for seven years. In addition he was fined in a sum of Rs. 50,000.00 with a default term and ordered to pay Rs. 300,000.00 as compensation to the victim.

One such crimes which concerns the ordinary citizen is robbery which is a nightmare crime because it is filled with potential, not only for the material loss but also violence, injury and even death. Penal Code taking into consideration the gravity of the offence prescribes jail terms varying from seven years to twenty years.

It is interesting to note that under section 395 a person who habitually receives or deals in stolen property ‘shall be punished’ with imprisonment of either description for a term extending up to 20 years.

These offences if not immediately prevented would destroy the entire social strata. In our statute book they are grave crimes. In the aftermath of the war against terrorism every day, not a day spared the media reported cases of grave sexual abuse of children or of child rape.

The legislature concerned of this social menace brought in Penal Code [Amendment] Act, No.22 of 1995. It has created a set of new offences and a mandatory sentencing mechanism. Rigorous sentences ranging from seven to 20 years have been prescribed. The crime statistics indicate a dire necessity to expedite crime investigation and trial procedures.

A daily newspaper on 23 May 2014 reported that the Chief Government Whip told the Parliament that the number of abused children in Sri Lanka averaged 17 a day. I presume that this figure includes both grave child abuse cases and child rape cases as well.

Upward trend in crime statistics created an increasing prison population. A large number of prisoners were languishing in jail for defaulting payment of fines or for committing petty offences. Hence the legislature crafted measures to restrict the imposition of custodial sentences and find an alternative sentencing mechanism to impose non-custodial sentences.

Suspended sentences

Section 303 of the Criminal Code Procedure Act as amended by the Act No. 47 of 1999 provides for the imposition of a suspended term of imprisonment to an accused sentenced to a term not exceeding two years. Here discretion is give to the judge. The operative period of suspension will be for five years or more. Of course if the law prescribes a mandatory minimum the sentence cannot be suspended.

A convict with a suspended term should be careful not to commit another offence during the operational period. If he does so the suspension will be knocked off and the suspended term will take effect immediately or upon the completion of sentence imposed in the subsequent offence.

On the other hand if the offender does not commit any offence during the operational period the conviction and the sentence imposed on him shall be deemed never to have been entered or imposed. This is an important piece of legislation aimed at the rehabilitation of crime doers.

Conditional discharge

In some offences filed in the Magistrate’s Court acting under section 306 of the Code of Criminal Procedure Act if the court thinks that the charge is proved but it is inexpedient to inflict any punishment or any other than a nominal punishment or that it is expedient to discharge the offender conditionally without proceeding to conviction, in the first case the court will warn and discharge the offender.

In the second case court orders the offender to enter into a recognizance to be of good behaviour. The High Court, in similar circumstances will enter a conviction and then without imposing a custodial sentence conditionally discharge him.

To be continued