I II IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA

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1 , 1 1 N THE COURT OF APPEAL OF THE DEMOCRATC SOCALST REPUBLC OF SR LANKA n the matter o an application against an order o the High Court under Section 331 o the Code o Criminal Procedure Act No. 15 o 1979.! Attorney General CA HC Gampaha COMPLANANT Vs. Mohommed Amza Mohommed Roshan alia Nana ACCUSED AND NOW BETWEEN Mohommed Amza Mohommed Roshan alia Nana ACCUSED - APPELLANT Vs. Attorney General Attorney Generals Department Colombo 12. COMPLANANT - RESPONDENT l ~ r ~ J l! t l BEFORE: P.R. WALGAMA J S. DEVKA DE LVERA TENNEKOON J

2 2 COUNSEL: Nayantha Wijesundara Attorney-at~Law or the Accused - Appellant Harippriya Jayasundara - DSG or the Complainant - Respondent ARGUED ON: WRTTEN SUBMSSONS - Accused - Appellant Complainant - Respondent DECDED ON: S. DEVKA DE LVERA TENNEKOON J The Accused - Appellant (hereinater reerred to as the Appellant) was indicted in the High Court o Gampaha or committing oences punishable under Section 354 and Section 365(B) o the Penal Code. The irst charge was or kidnapping a minor under the age o 14 years by the name o Mohommed Raaideen Mohommed lruain on or about the 18 th o November 2013 in Rukmale rom the custody o his lawul guardian Mohommed Razik Mohommed Raaideen which is an oence punishable under Section 354 o the Penal Code. The second charge was or committing the oence o grave sexual abuse on the said Mohommed Raaideen Mohommed lruain in the course o the same transaction as the 1 st charge by placing his penis on the genitals o the said Mohommed Raaideen Mohommed ruain which is an oence punishable under Section 365B (2)(b) o the Penal code as amended by Act No. 22 o 1995 and Act No. 29 o 1998.

3 3 The Appellant pleaded not guilty to the oence and upon conclusion o the trial against the Appellant the Learned Trial Judge by Judgement dated convicted the Appellant or both chargers as contained in the indictment in the ollowing manner; 1 st Count - 1 year rigorous imprisonment and a ine ors. 2,5001- carrying a deault sentence o 3 months simple imprisonment. 2 nd Count - 7 years rigorous imprisonment and a ine ors. 7,5001- carrying a deault sentence o 9 months simple imprisonment. Being aggrieved by the aoresaid conviction and sentence the Appellant preerred the instant appeal under Section 331 (1) o the Criminal Procedure Code Act No. 15 o 1979 inter alia to set aside the conviction and the sentence o the Learned High Court Judge dated , to pardon and acquit the Appellant and to reduce the penal sanctions imposed on the Appellant. The prosecution lead the evidence o 6 witnesses including the victim and his ather, to establish the case or the prosecution. n evidence it was revealed that on or about at around 7.00 pm the victim who was a boy 8 years o age was sent by his grandather to borrow Rs.2,0001- rom the Appellant. Having given the money to the victim the Appellant had thereater sent the boy to buy a sim card rom the nearby boutique. When the victim returned rom this chore the Appellant had orced the victim on to his bed, removed his clothing and placed his penis on the penis o the victim. The victim had then pushed the Appellant away and run home and inormed his grandather and the other inhabitants o the house about the incident.

4 4 The Appellant in his dock statement while denying the verson o the prosecution admitted that the victim was sent to his place to borrow money by the grandather o the victim and maintained that the prosecutions version was a abricated story since the grandather o the victim harboured a grudge against the Appellant or being an inormant to the Police. The Appellant took up the position that the victim had peeped in to the Appellants room when he was retrieving money rom the cupboard and the Appellant had thereore knocked the victim on the head and that it was this knock-on-the-head which the victim had complained o to the grandather who eventually misrepresented it to the Police. {, When the appeal was taken up or argument the learned Counsel or the Appellant inormed Court that the conviction o the Appellant will not be challenged and that submissions will be made or the limited purpose o reducing the sentence. The contention o the Appellant was three old; i) The Learned High Court Judge was seemingly in avour o sentencing the Appellant or a lessor term than the mandatory minimum sentence or was in avour o imposing a suspended sentence, ii) That it is violative o Article 4( c) o the Constitution to mpose a mandatory minimum sentence, and iii)that the sentence o 7 years or Count No.2 is disproportionate and excessve. Beore consider the contention o the Appellant it is prudent to note that although the learned Counsel or the Appellant has submitted that there is no indication in the sentencing order whether the sentences are to concurrently or

5 5 consecutively, it is clearly stated by the learned trial Judge that the sentences are to run concurrently (vide page 194 o the Appeal Brie). shall now consider the arguments submitted by the learned Counsel or the Appellant or the limited purpose o reducing the sentence. The learned Counsel or the Appellant submits that the learned trial Judge was seemingly in avour o sentencing the Appellant or a lessor term than the mandatory minimum sentence or was in avour o imposing a suspended sentence. He urther submits that the learned High Court Judge has stated in the Judgment that there are no legal provisions to hand a suspended sentence or the Accused Appellant. To test the accuracy o the submission must consider the provisions under which a trial Judge may make an order suspending a sentence o imprisonment. As correctly submitted by the learned DSG on behal o the Complainant-Respondent (hereinater reerred to as the Respondent) the operative provision in this regard is Section 303(2)(a) o the Code o Criminal Procedure Act No. 15 o 1979 as amended by Act No. 47 o 1999 which reads; i i A court shall not make an order suspending a sentence o imprisonment i- (a) a mandatory minimum sentence o imprisonment has been prescribed by law or the oence in respect o which the sentence is imposed; or... n light o the above provision it was correct or the learned High Court Judge to state that there are no legal provisions to hand a suspended sentence or the Accused-Appellant as there is a mandatory minimum sentence o 7 years rigorous imprisonment as per Section 365 B (2) (b) o the Penal Code.

6 i 6 must now consider whether the learned trial Judge had intended to pass a suspended sentence but could not do so as she was legally barred considering that her hands were tied in view o the mandatory minimum sentence prescribed by law. As submitted by the learned DSG on behal o the Respondent nowhere in the Judgement o the learned High Court Judge is it stated that this case warrants giving a suspended sentence. The learned High Court Judge has however applied her judicial mind to the culpability o the Appellant and has correctly evaluated that the evidence presented by the prosecution as establishing the oences contained in the indictment. The Learned trial Judge points out that the evidence o the prosecution is void o any contradictions or omissions, is consistent and has concluded that the prosecution has proved its case beyond reasonable doubt. t is only on the date o sentencing i.e on that the learned High Court judge states that there are no legal provisions to hand a suspended sentence or the Accused-Appellant in light o the chargers in the indictment. t is thereore the view o this Court that the leaned Trial Judge was merely articulating the act that Section 365B (2)(b) o the Penal code as amended by Act No. 22 o 1995 and Act No. 29 o 1998 carries a minimum mandatory sentence. The learned Counsel or the Appellant relies on the ratio in Supreme Court Reerence 03/2008, 2008 BLR 160 in which the acts are dierent to the acts o the instant case. The case o Rohana Vs. The Attorney General (S.C. Appeal No. 89A12009) relied upon by the learned Counsel or the Appellant as ollowing the ratio in Supreme Court Reerence 03/2008 is also a case in which the prosecutrix had a love aair with the accused and was charged or the oence o statutory rape and as such must be distinguished rom the instant case.

7 The instant case relates to an act o grave sexual abuse on a boy o 8 years o age with no consent whatsoever. The learned DSG or the Respondent relies on the Judgment o my brother Judge Sunil Rajapakse J in the unreported case o The Attorney General Vs. Hewa Welimunige Gunasena CA (PHC) APN No. 110/2012 delivered on in which a suspended sentence was awarded to the Accused or a charge o grave sexual abuse on a minor in the High Court. His Lordship cites the case o AG V s. Ranasinghe 1993 (2) SLR 81 which lists down reasons where an oence o rape calls or an immediate custodial sentence and aggravating actors. His Lordships urther cites the cases o Attorney General vs H.N.de Silva 1 {1956} 57 NLR 121 and Attorney General vs Mendis SLR 138 in which cases it was held that; "in assessing punishment the Judge should consider the matter o sentence both rom the point o view o the public and the oender. The Judge should irst consider the gravity o the oence as it appears rom the nature o the act itsel and should have regard to the punishment provided in the Penal Code or other statute under which the oender is charged. He should also regard the eect o the punishment, as a deterrent and consider in what extent it will be eective.' 7 J t l 1 His Lordship thereater states that; " am o the opinion that the acts relating to this case warrants that the accused should be severely dealt with. Thereore a sentence o two years rigorous imprisonment suspended or ten years on the accused or a grave child abuse is a very lenient sentence considering the beastliness o the crime. When an oence o child abuse is proved victims o tender age and

8 , 8 innocent behaviour the sentence o imprisonment should be imposed severely." His Lordship Sunil Rajapakse J, thereater enhanced the sentence o 2 years R.. imposed on the accused by the learned High Court Judge, which has been suspended or a period o ten years and sentenced the accused to a term o seven (7) years rigorous imprisonment. Although this Court is not bound by this precedent do ind that this sentiment echo the attitude adopted by this Court in dealing with cases relating to grave sexual abuse especially that o a minor. The learned Counsel or the Appellant contends that certain serious crimes which involve the killing o another person do not have a mandatory minimum sentence (For instance Sections 297, 298 and 300 o the Penal Code) and in contrast the oence o grave sexual abuse does not justiy a minimum mandatory sentence. However, cannot agree with this contention especially where in the instant case the Appellant is a ather o two children who attend the same school as the victim and in a context where the conviction o the Appellant is not challenged in Appeal. ind that the oence committed by the Appellant is very serious in nature and this Court takes note o the conduct o the Appellant and the age o the victim (8 years o age) when the crime was perpetrated on him. Thereore, cannot agree with the argument made on behal o the Appellant that the sentence o 7 years rigorous imprisonment or Count No. 2 is disproportionate and excessive. t must also be noted that the sentence imposed on the Appellant was only the minimum mandatory sentence and that the learned Trial judge did not extend

9 9 judicial discretion to consider any other custodial sentence between the minimum sentence and the maximum sentence prescribed by law been 7-20 years. n considering whether the mandatory minimum sentence is disproportionate and is in violation o Article 4( c), 11 and 12( 1) o the Constitution it is conceded that it was held in S.C. reerence 03/2008 and S.C. Appeal No. 17/2013 that the minimum mandatory sentence is in conlict with the above mentioned Articles o the Constitution and the High Court is not inhibited rom imposing a sentence that it deems appropriate in the exercise o its judicial discretion notwithstanding the minimum mandatory sentence. J J t is pertinent to note the case o Dharma Sri Tissa Kumara Wijenaike V s. The Hon. Attorney General S.C. Appeal No. 179/2012 in which Her Ladyship Tilakawardena J considered the application o Supreme Court Reerence 03/2008, 2008 BLR 160 on the minimum mandatory sentence and held that it should be in only limited instances. n the said case it was held that; "it is the Courts belie that the legislation, as ound in the Penal Code, relects the law as it should be, as it is a result o the will o the Parliament and the will o the People." And urther that; "... the Court accepts that with regards to sentencing, the views o all parties involved in the case must be considered in a balanced manner, in particular where violations are carried out with impunity, even ater the legislature has placed a minimum mandatory sentence." Her Ladyship in the said case was o the view that;

10 10 "Court ratiies the principle that in such cases, where the Accused is under 16 years o age, the sentencing would depend on the acts and circumstances o each case and i the age o the Accused was 16 years or under, their age would be a material and relevant act. This however, in the eyes o this Court, would only apply in cases where the Accused is under the age o 16." Having considered the circumstances o the instant appeal in its totality take the view that 7 years rigorous imprisonment imposed on the Appellant by the learned trail Judge is lawul and appropriate. urther hold that judicial discretion should not be exercised to impose a lesser sentence and/or a suspended sentence in matters concerning serious oences such as the oence or which the Appellant in the instant application stands convicted. Thereore, airm the conviction and the sentence imposed by the learned trial judge against the Appellant on both counts by judgment dated and the sentence is to run concurrently as mentioned in the said order. However, taking into consideration the period the Appellant has been remand prison, order that the sentence o 7 years rigorous imprisonment takes eect rom the date o conviction o the Appellant i.e Appeal Dismissed. Judge o the Court o Appeal P.R. W ALGAMA J Agree. Judge o the Court o Appeal t