086-NLR-NLR-V-42-SOLICITOR—GENERAL-v.-KARITNASAMY.pdf
MOSELEY S.PJ.—Solicitor-General v. Kritnasamy.
347
1941[In Revision.]
Present: Moseley S.P.J.
SOLICITOR-GENERAL v. KRITNASAMY
M.C. Point Pedro, 20,047.
Sentence—First offender—Crimes of violence—Criminal Procedure Code, s. 325.It is not an inflexible rule that a first offender should not be sent toprison when crimes of violence are concerned.
An accused person who uses a knife should not be treated with leniencyunless there are good grounds for so doing.
T
HIS was an application by the Crown to enhance the sentencepronounced in the case.
E. H. T. Gunasekera, C.C., in support.Cur. adv. vult.
N.Nadarajah, for the accused, respondent.
May 30, 1941. Moseley S.P.J.—
This is an application to enhance the sentence imposed upon therespondent who was convicted of causing grievous hurt with a knife.The sentence imposed was a fine of Rs. 250 and imprisonment until therising of the Court. It was further ordered that, if the fine were paid,a sum of Rs. 75 should be paid thereout to the injured man.
Counsel for the respondent has argued that this Court will not interferein such a matter unless it appears that the discretion which is vestedby law in the Magistrate has been improperly exercised. He brought tomy notice the case of Fernando v. Alwis and another1 which was a case ofcheating in which the accused concerned was a first offender and a youngman. The Magistrate dealt with the case under section 325 of theCriminal Procedure Code and bound him over to be of good behaviourfor a period of one year and to come up for judgment when called upon.The Supreme Court was moved by the Crown to enhance this sentencewhich Hearne J. declined to do on tile ground that the exercise by theMagistrate of his discretion was not so improper that interference by thisCourt was desirable. The fact that this Court itself would have passed aheavier sentence would, of course, be no ground for interfering with aMagistrate’s discretion.
In the present case circumstances which the learned Magistrate wouldappear to have taken, into consideration in mitigation of sentence werethat the respondent was an old man with no previous convictions andthat he and his wife were living in separation and that he had a youngdaughter in the house who would be unprotected if a severe sentencewere to be passed. Those facts were admitted' and the learned Magistratein sentencing the respondent to pay what he described as a heavy finereiterated that a setence of imprisonment would leave the respondent’sdaughter, a young girl, unprotected without mother or father. Nowwhile the fact that there were no previous convictions against therespondent is a matter which may, in a great many cases, properly betaken into consideration, it does not appear to me that his age, which isstated to be 50 is so great as to render him exempt from the rigours of
1 i c. L. J. 111.
348
De Soysa v. The Attorney-General.
imprisonment nor, indeed, does the fact that his imprisonment wouldreact harshly upon his daughter seem to be one which should be allowedto weigh in such a case.
In S. C. No. 688—P. C. Colombo 6,470 (S. C. Minutes of November 10,1937), Abrahams C.J. declined to enhance a sentence for a somewhatsimilar offence on the ground that he could not say that a miscarriage ofjustice had been occasioned by excessive leniency. He further contendedhimself with saying that Courts ought not to regard it as a rule that firstoffenders are not to be sent to prison when crimes of violence are con-cerned. Again in S. C. No. 473—P. C. Chilaw No. 3,190m (S. C. Minutesof November 8, 1937), which was a case of stabbing, Abrahams C.J.thought that the fine which was imposed was of such outstanding leniencythat he thought he was justified in enhancing it. In his opinion a man whouses a knife is a man who is not to be treated with leniency unless thereare strong grounds for so doing …. Whether it will be possibleto reduce, such crime by “ the infliction of severer sentences or not, it is noteasy to say, but it is obvious that it would be impossible to reduce thissort of crime if sentences quite out of proportion in leniency to the offenceare inflicted ”.
In the present case the injured man had two incised injuries, one ofwhich was 6 inches long and 3 inches, deep in the neighbourhood of theleft shoulder blade, cutting the seventh rib. It would seem that goodfortune favoured the respondent in that he did not find himself calledupon to answer a much more serious charge. In my view it is eminentlya case for imprisonment. I, therefore, set aside the sentence of a fineand substitute therefor a sentence of 6 months rigorous imprisonment.I am not at all sure that I too am not erring on the side of leniency.Any portion of the fine which has been paid must be repaid to therespondent.
Sentence entered.