28 July 2022 01:02 am
The offence was initially alleged as rape, but after the victim’s evidence was led during the trial, the charge was amended to be under Section 365B (2) of the Penal Code, changing the nature of the offence to Grave Sexual Abuse. According to the evidence led by the victim, she was living with her grandparents who dwelled in close vicinity to the accused, and was abused at his home. The accused pleaded guilty to the amended charge of grave sexual abuse and was sentenced to 10 months of rigorous imprisonment and a fine of Rs. 500/- by the High Court of Rathnapura. The High Court Judge had also awarded compensation of Rs. 50,000/- and sentenced the man to imprisonment for one year if defaulted.
The same year, the State appealed against the judgment of the High Court mainly on the ground that the sentence was illegal and inadequate. By Judgment given in 2017, the Court of Appeal enhanced the sentence to 7 years of rigorous imprisonment and a fine of Rs. 1000/-. The amount awarded as compensation by the High Court Judge of Ratnapura was affirmed.
The accused then took the matter to the final appellate court of the country, the Supreme Court by appeal looking to challenge the decision of the Court of Appeal. Supreme Court granted leave to hear the accused on the question of whether the Court of Appeal had made an error in believing the sentence of the High Court to be illegal or inadequate.
The Appeal was argued in April 2022 in the Supreme Court and Judgment was entered on the 31st of May 2022 written by Justice Padman Surasena where the Court of Appeal Judgment was unanimously affirmed by all Justices of the Bench.
What is Grave Sexual Abuse?
Section 365B of the Penal Code entails the meaning of grave sexual abuse. Put simply, grave sexual abuse is the commission of any act on another person without their consent using genitals or other body parts or any other person’s body part, or any instrument. It does not amount to rape – which is defined under Section 363 of the Penal Code as sexual intercourse by a man with a woman without her consent. It falls short of rape in that the type of act imagined under grave sexual abuse is not penetration, but something less than that. The consent of a person below 16 years of age, or of unsound mind, or in a state of intoxication, or consent obtained by force is not considered real consent.
What is the Punishment for Grave Sexual Abuse?
The point of the contest, in this case, was really the sentence imposed by the Judge of the High Court which was only 7 years rigorous imprisonment and a Rs. 500/- fine. Under Section 365B (2) of the Penal Code, the minimum punishment for an offender of grave sexual abuse is 7 years. The maximum period of imprisonment is 20 years. An offender must also be ordered to pay compensation to the victim determined by the court based on the injuries caused.
Why the State argued that the sentence of the High Court was illegal because the sentence imposed by the High Court Judge was only 10 months, which is much lesser than the minimum term of imprisonment prescribed by law.
Why did the High Court Judge impose a sentence of only 10 months?
Several factors have been considered by the High Court Judge in imposing a lesser sentence.
Among them are the old age of the accused, the fact that he was suffering from a heart ailment, the fact that he had not engaged in any violent activity, and the fact that 10 years had elapsed since the date of the commission of the offence, and the fact that prison authorities would have to bear expenses to look after the accused in prison.
Court of Appeal Judgment
The Court of Appeal observed that the sentence imposed by the high court was “highly inadequate”. The court observed that the tender age of the girl, the mental trauma undergone by her, and the position of trust held by the accused as an elderly relative of the girl among other considerations had not been weighed in by the High Court Judge and a substantially inadequate sentence of 10 months rigorous imprisonment has been imposed as a result. The sentence was enhanced to 7 years of rigorous imprisonment by the Court of Appeal seeking to impose the minimum punishment prescribed by law.
Reason for Supreme Court to affirm the Judgment of the Court of Appeal
The Supreme Court discounted almost all facts taken into consideration by the High Court to impose a lesser sentence.
Citing Basnayake A.C.J. in The Attorney-General Vs. H.N. De Silva, Surasena J quoted as follows:
“In assessing the punishment that should be passed on an offender, a Judge should consider the matter of sentence both from the point of view of the public and the offender. Judges are too often prone to look at the question only from the angle of the offender. A Judge should, in determining the proper sentence, first consider the gravity of the offence as it appears from the nature of the act itself and should have regard to the punishment provided in the Penal Code or other statute under which the offender is charged.”
Thereby the decision of the Court of Appeal was upheld and the High Court judge was ordered to take immediate steps to implement the rest of the sentence on the accused.
Is 7 years of rigorous imprisonment adequate under the law?
Revisiting the punishment for Grave Sexual Abuse prescribed under the Penal Code, it is notable that in terms of section 365B(2)(b), where grave sexual abuse is committed on any person under 18 years of age, the prescribed minimum sentence is 10 years rigorous imprisonment and not 7 years. There is of course judicial precedent recognizing the imposing of sentences below the minimum mandatory sentence in exercising judicial discretion.
However, it appears that both the Court of Appeal and the Supreme Court have considered 7 years of rigorous imprisonment to be the minimum sentence in this case. Whether the minimum sentence for the offence committed on a person under 18 years has gone unnoticed by the judiciary or whether the old age of the man was considered in enhancing the punishment only up to 7 years and not 10 is therefore not clear.