Singh v State [2022] FJCA 28; AAU0049.2017 (3 March 2022)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the Magistrates Court]

CRIMINAL APPEAL NO. AAU 0049 of 2017

[In the Magistrates Court at Suva Case No. 1682 of 2016]

BETWEEN:
RAJIT SINGH
RAMNIK CHAND

Appellants

AND:
STATE

Respondent

Coram: Gamalath, JA
: Prematilaka, JA
: Bandara, JA

Counsel: Ms. A. Singh for the Appellants

: Ms. P. Madanavosa for the Respondent

Date of Hearing: 08 February 2022

Date of Judgment: 03 March 2022

JUDGMENT

Gamalath, JA

[1] I agree with the conclusion arrived at by Prematilaka, JA.

Prematilaka, JA

[2] The appellants had pleaded guilty in the Magistrates court at Suva on one count of aggravated robbery contrary to section 311(1)(a) of the Crimes Act, 2009 and one count of attempted aggravated robbery contrary to section 44(1) and 311(1)(a) of the Crimes Act, 2009. The learned Magistrate exercising extended jurisdiction convicted and sentenced both of them on 15 March 2017 to 08 years and 11 months of imprisonment with a non-parole period of 05 years on each of the charges; both sentences to be served concurrently.

[3] The first appellant’s appeal was only against sentence and he had been granted leave to appeal against sentence by the single judge of this court. The second appellant appealed against both conviction and sentence and he had been granted leave against sentence and on a single ground on conviction.

[4] As per the court record, having pleaded not guilty in the first instance, both appellants had admitted their guilt and summary of facts subsequently. The Magistrate had been satisfied that the pleas were voluntary and unequivocal and tendered upon by the appellants understanding full consequences. The appellants had indicated to the Magistrate that they had obtained legal advice as recorded in the Magistrates court record.

[5] The summary of facts is as follows:

‘On 29 September, 2016 Aya Yamaguchi Murray (complainant 1) and a friend were walking along Fletcher Road in Vatuwaqa, Suva at around 3.30pm – 4pm on their way to the complainant’s house, when they saw Rajit Singh (A1) 29 years old together with Ramnik Chand (A2) walking towards them from the opposite direction as they were approaching the Suva Point Apartments. A1 was recognised by the complainant when they had passed the Vodafone Arena earlier.

A1 and A2 attacked the complainant and her friend and managed to steal a Samsung S5 mobile phone and a “Rip Curl” brand wallet by grabbing it from the complainant. Both items were valued at $200.00 and $15.00 respectively.

Afterwards, A1 and A2 then attempted to rob Jean Walker Gubon (complainant 2) who was walking with complainant 1, of her iPhone 5S mobile phone valued at $300.00.

A1 then ran towards Laucala Bay Road and the complainant 1 gave chase and alerted bystanders who helped apprehend A1. Only the wallet was recovered.

A1 was interviewed under caution where he admitted to the first count at Q&A 36 onwards. The wallet was identified by A1 at Q&A 53. A2 was interviewed under caution where he admitted to the both counts at Q&A 43 onwards.

A1 and A2 were charged with one count of Aggravated Robbery contrary to section 311 (1) (a) of the Crimes Decree No. 44 of 2009 and one count of Attempted Aggravated Robbery contrary to section 44 (1) and 311 (1) (a) of the Crimes Decree No. 44 of 2009.’

[6] The appellants have urged the following grounds of appeal:

01^st Appellant

Ground 1

THAT the Learned Magistrate exercising the extended jurisdiction of the High Court erred in law when he did not properly analyse the charge of “Aggravated Robbery”. He failed to consider that the present case lacked the elements/factors described by the Supreme Court in the case law Wallace Wise v State Supra (Petition for Special Leave to Appeal No. CAV 0004/2015 {On appeal from the Court of Appeal; Crim. App No. AAU 0020 of 2011} (High Court Criminal Case No. HAC 178 of 2010) “which should be dealt within the range of 8-16 years imprisonment and that sentence will be enhanced where additional aggravating factors are also present.” We submit that the Learned Magistrates failure to do this is prejudicial to the 1^st Appellant and result in a substantial miscarriage of justice especially so, as the 1^st Appellant was not legally represented at the trial.

Ground 2

THAT the Learned Magistrate exercising the extended jurisdiction of the High Court erred in law when he did not offer the 1^st Appellant the option of seeking Legal Aid to represent him at the trial. The 1^st Appellant was not legally represented and was disadvantaged because he was not aware of the seriousness of the charge and the heavy sentence it incurs.

Ground 3

THAT the Learned Magistrate exercising the extended jurisdiction of the High Court erred in law and facts when he did not undertake a proper analysis of the evidences before the Court before sentencing the appellant. With all due respect the summary of facts of the case did not support the charge of “Aggravated Robbery” and one count of “Attempted Aggravated Robbery”.

Ground 4

THAT the Learned Magistrate erred in facts and law when he failed to consider that similar offences of the same nature where items stolen involve a higher value, their sentences are much lower than the current case. With respect we submit that this inconsistency caused grave and substantial miscarriage of justice to the 1^st Appellant.

Ground 5

THAT the Learned Magistrate erred in facts and law when he stated that the act was pre meditated. This is not supported by the facts of the case and his Caution Interview. He took this and the fact that it was committed in the broad daylight as aggravating factors and add 4 year to reach 15 years imprisonment. (Paragraph 10 of the sentence refers). He failed to consider that there was no weapons used and the complainants were not injured in any way, nor was there any report that the complaints suffered from any injury.

Ground 6

THAT the Learned Magistrate exercising the extended jurisdiction of the High Court erred in law and passed a sentence that is “harsh and excessive” and wrong in principle in all circumstances of the case and took irrelevant matters into consideration when passing sentence. He took 11 years as a starting point of his sentence which we submit is very high for offences of similar nature. He sentence the appellant to 8 years 11 months with a non-parole period of 5 years. He did not take into account Section 15 (3) of the Sentencing and Penalties Decree 2009 which state I quote:

“As a general principle of sentencing, a court may not (emphasis and underline is mine) impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this Part.”

Ground 7

THAT the Learned Magistrate erred in law and facts when he did not consider that the appellant is a first offender and he pleaded guilty at the first opportunity, saving the Courts time. Moreover he looks after his old mother and had sought the forgiveness of the Court. In his Caution Interview he admitted that he was remorseful for what he did. Furthermore he did not consider a suspended sentence for the appellant.

2^nd Appellant

Ground 1

THAT the Learned Magistrate erred in law when he convicted the appellant for the offence of Aggravated Robbery and Attempted Aggravated Robbery when in facts the offence should have been Robbery and Attempted Robbery.

Ground 2

THAT the Learned Magistrate erred in law in that:

(iv) He convicted the appellant with another as joint accused;

(v) Erred when he failed to consider that there were two separate complainants; and

(vi)That the offence occurred simultaneous by reason of which circumstances (the circumstances) there was a material irregularity in the course of the proceedings before the Court such that a substantial miscarriage of justice occurred.

Ground 3

THAT the appellant’s plea was equivocal in that:

(i) The Resident Magistrate to put extreme pressure on the appellant to plead guilty; and or
(ii) That if appellant don’t plead guilty and admitted the offence whereby if the Learned Magistrate finds him guilty the Learned Magistrate will give appellant the maximum sentence; and/or
(iii) That if the appellant plead guilty, he will be given the discount sentence by the Learned Magistrate.

Ground 4

THAT there had been a miscarriage of justice when the learned State Counsel produced summary of facts to the Learned Magistrate that were contrary to the witness’s statement.

Ground 5

THAT the Learned Magistrate erred in law regarding the principle of sentencing.

[7] As both appellants have been given leave to proceed against sentence, I shall first deal with sentence appeals. The gist of the sentence appeals could be found under the first appellant’s 06^th ground of appeal and second appellant’s 05^th ground of appeal. As observed by the single judge in the ruling the rest of the grounds raised on behalf of the 01^st appellant are more appropriately related to the conviction. He had appealed only against sentence which he confirmed at the hearing before the full court.

[8] The main complaint against sentence is based on the learned Magistrate having adopted a wrong sentencing tariff resulting in a harsh and excessive sentence. Therefore, I shall now proceed to consider this main issue as far as the sentence appeals are concerned.

Robbery with violence under section 293 (1) (b) of the Penal Code

[9] Section 293 of the Penal Code re follows:

(1) Any person who-

(a) being armed with any offensive weapon or i or instrument, or being together with one other person or more, robs, or assaults with intent to rob, any person; or

(b) robs any person and, at the time of or immediately before or immediately after such robbery, uses or threatens to use any personal violence to any person, is guilty of a felony, and is liable to imprisonment for life, with or without corporal punishment.

(2) Any person who robs any person is guilty of a felony, and is liable to imprisonment for fourteen years, *with or without corporal punishment.
* Inserted by, Act No. 15 of 1973.

(3) Any person who assaults any person with intent to rob is guilty of a felony, and is liable to imprisonment for five years, *with or without corporal punishment. * Inserted by, Act No. 15 of 1973.

[10] It appears that section 293 (2) deals with robbery simpliciter (maximum 14 years of imprisonment) while sections 293(1)(a) and (b) describe aggravated forms of robbery involving offensive weapon/instrument or more than one offender or use/threat of physical violence (maximum life imprisonment).

Robbery and Aggravated robbery under the Crimes Act, 2009

[11] Crimes Act, 2009 separately identifies robbery (section 310) and aggravated robbery (section 311).

310. — (1) A person commits an indictable offence (which is triable summarily) if he or she commits theft and —

(a) immediately before cting thng theft, he or she—

(i) uses force on another person; or

(ii) threatens to use force then and there on another person —

with intent to commit theft or to escape from the scene; or

(b) at the of committing theft,heft, or immediately after committing theft, he or she—

(i) uses force on another person; or

(ii) threatens to use force then and there on another person—

with intent to commit theft or to escape from the scene.

Penalty — Imprisonment for 15 years.

(2) for the purposes of this Decree, an offence against sub-section (1) is to be known as the offence of robbery.

311. — (1) A person commits an indictable offence if he or she —

(a) commirobbery in company wity with one or more other persons; or

(b) commits a robbery and, at ihe time of the robbery, has an offensive weapon with him or her.

Penalty — Imnment for 20 years.

[12] Sections 310 (1) (a) and (b) (use/threat of force) are almost similar to section 293 (1) (b) (use/threat of personal violence) while sections 311(1) (a) and (b) (involving more than one offender or offensive weapon) or are similar to section 293 (1)(a) (involving offensive weapon/instrument or more than one offender).

[13] The appellants argue that the offences of which they were convicted on the plea of guilty were those of ‘street mugging’ and it was wrong for the learned Magistrate to have applied the tariff of 08-16 years of imprisonment set in Wise v State [2015] FJSC 7; CAV0004.2015 (24 April 2015). Before considering the factual circumstances in which the Supreme Court set the tariff in Wise, I think it useful to consider the range of sentences imposed by courts in the past on different forms of aggravated robberies both under the Penal Code and the Crimes Act, 2009.

Under the Penal Code

[14] In Lilo v State [2008] FJSC 36; CAV 0006.2007 (25 February 2008) the Supreme Court had agreed with the trial judge’s sentencing remarks who ordered a sentence of 5 years to be imposed against the petitioner for street mugging robberies. The sentence was further reduced to 4 ½ years after time spent in custody was deducted from the total sentence.

[15] In Raqauqau v State [2009]FJSC 2; CAV 0023.2008S (10 February 2009) the Supreme Court upheld a sentence of 04 years imposed by the High Court and dismissed the appeal against sentence by the petitioner for ‘street mugging robberies’.

[16] In Caniogo v State [2013]FJCA 60; AAU 115.2011 (28 June 2013) a sentence of 03 years with a non-parole period of two years was upheld by higher courts and was not changed concerning ‘street mugging robberies’.

[17] Even with the changes brought about by the Crimes Act, 2009 one cannot disregard the above decisions on sentences under the Penal Code on the kind of robberies called street mugging as under the Penal Code too there was no separate offence named ‘street mugging’.

[18] Calanchini P in v State&#160 Criminal NU15 and 16 of 201f 2011: 26 October 2012 [2012] FJCA 71 which wncernth robb;robbery with vio nce nce under section 293 (1) (b) of the Penal Code said:

‘....there is ample authority in thin this Juis Jurisdiction for concluding that the approprtariff for robbery with violence is now 10 to 16 years impr imprisonment. In selecting 10 years as a starting point the learned trial judge has started as the lower end of the range.’

[19] In Nawalu v State &C160;naimippeal CAV 0012 o012 of 2012: 28 August 2013 [2015] FJSC 22 (two persons armed a cane kane knife entered a gas station and took away a mobhone, laptop and money after threatening the gas station aton attendant) the Supreme Court once again confirmed Nawalu in the follofollowing words:

‘......the range for aggravated robbery is well established. The range is 10 to 16 years imprisonment (Nawalu ve Cr. ;Cr. App. No.CAV0012 o2 2012)’

[21] In Mani v State AAU0087 of 2013:14 September 2017 [2017] FJCA 119 where one was section 311(1)(b) of the Crimes Act, 2009 the Cohe Court of Appeal acknowledged that the tthe tariff was 10-16 years.

‘..... the tariff of 10-16 years for the offence of aggravated robbery as laid down in several judicial pronouncements (see Samuel Donald Singh v State Crim. AAU15 and 16 of 2011, Nawalu v State<16>&##16;&Criminal Apal Appeal CAV 0012 of 2012: 28 August 2013 [2013] FJSC 11, Nabainivalu v St v State Criminal Appeal CAV 027 of 2014 : 22 October 2015 [2015’

[22] In Waisele v State AAU0081 of 2013: 30 November 2017 [2017] FJCA 136 which was also a case of aggravated robbery in the form of home invasion in the early hours of day by a group of offenders armed with offensive weapons, the Court of Appeal affirmed that the tariff was 10-16 years after stating that there is nothing in the passage quoted above in Nawalu v State (supra) to infer the tariffariff of 10-16 years should only be for spate of robberies because spate of robberies is only one factor among many that had been considered in determining the t of 1yearsrobberies with violencolence.

>

[23] The Supreme Court in Wise v State CAV0004 of 2015: 24 April 2015 [2015] FJSC 7 presided over by His Lordship the then Chief Justice dealt with aggravated robbery under section 311(1)(a) of the Crimes Act, 2009. The factual background in Wise#160;was as f as follows:

‘[5] Mr. Shiu Ram was aged 62. He lived in Nasinu and ran a small retail grocery shop. He closed his shop at 10pm on 1pril 2010. He had a painful ear ache and went to bed. He coHe could not sleep because of the pain. He was in the adjoining living quarters with his wife and a 12 year old granddaughter.

[6] At around 2.30am he heard the sound of smashing windows. He went to investigate and saw the door of his house was open. Three persons had entered. The intruders were masked. Initially Mr. Ram was punched and fell down. One intruder went up to his wife holding a knife, demanding her jewellery. There was a skirmish in which Mr. Ram was injured by the knife. Another of the intruders had an iron bar.

[7] The intruders got away with jewellery worth $550 and $150 cash. Mr. Ram went to hospital for his injuries. He had bruises on his chest and upper back, and a deep ragged laceration on the left eye area around the eyebrow, and another laceration on the right forehead. The left eye area was stitched.’

[24] The Supreme Court made following remarks on the sentencing tariff clarifying tariff of 10-16 years stated in Nawalu:

‘We are concerned with a single case here and not a spate of robberies Livai Nawalu v The State CAV0012/20 paragraphs 27-2927-29, where the tariff for violent crimes of this nature was set at 10-16 years’
‘.......... for what was a home invasion at night with violence inflicted, by oup of men, armed with weap weapons, namely a knife and an iron bar. For circumstances such as these, rightly abhorrent to the law-abiding community, will compel courts to harden their hearts and to impose harsher sentences’
‘We believe that offences of this nature should fall within the range of 8 - 16 years imprisonment. Each case will depend on its own peculiar facts. But this is not simply a case of robbery, but one of aggravated robbery. The circumstances charged are either that the robbery was committed in company with one or more other persons, sometimes in a gang, or where the robbers carry out their crime when they have a weapon with them.’
‘ It is our dutyake clear ther these type of offences will be severely disapproved by the courts and be met with appropriately heavy terms of imprisonment. It is a fundamental requirement of a harmonious civi and secure society that itat its inhabitants can sleep safely in their beds without fear of armed and violent intruders’.

[25] According to Wise (i) offence committed during a home invasion, (ii) in the middle of the night when victims might be at home asleep, (iii) carried out with premeditation/some planning, (iv) committed with frightening circumstances/ smashing of windows, damage to the house or property, or the robbers being masked, (v) the weapons in their possession were used and inflicted injuries to the occupants or anyone else in their way, (vi) injuries were caused which required hospital treatment/stitching and the like, or which come close to being serious and (vi) the victims frightened were elderly or vulnerable persons such as small children, are some additional aggravating factors which will lead to enhance the sentence further. Obviously, this is a non-exhaustive list.

[26] However, it is clear that none of the above decisions espousing the sentencing tariff of 8-14 years or 10-16 years for aggravated robberies were street mugging cases. The Supreme Court or the Court of Appeal had not differed from the sentencing approach adopted under the Penal Code to street mugging cases except Kirikiti v &#16te;#160; [160; [2015] FJCA 150; AAU015.2011 (3 December 2015) where the Court of Appeal had affirmed a term of imprisonment of 08 years and 06 months based on Wise v StateRaqauqau v State [2008] FJCA 34; AAU0100.2007 (4 August 2008) on street mugging. Nor had the court disagreed with Lilo v State (supra), Raqauqau v State (supra) and Caniogo v State (supra) on sentencing for street mugging cases.

[27] Raqauqau v State (supra) was a case where the complainant, aged 18 years, after finishing off work was walking on a back road, when he was approached by the two accused and one of them had grabbed the complainant from the back and held his hands, while the other punched him. They stole $71.00 in cash from the complainant and fled. The appellant was charged for robbery with violence under Section 293(1)(b) of the Penal Code. The Court of Appeal remarked;

‘[11] Robbery with violence is considered ious offence because the mahe maximum penalty prescribed for this offence is life imprisonment. The offence of robbery is so prevalent in the community that in Basa v The State Criminal Appeal No.AAU00240of 2005 (24 March 2006) the Court pointed out that the levels of sentences in robbery cases should be based on English authorities rather than those of Neland,ad been the previprevious practice, because the sentence prce provided in Penal Code is simto that in English lesh legislation. In England the sentencing range depends on the forms oegories of robbery.

[12] The leading Engg English authority on the sentencing principles and starting points in cases of street robbery or mugging is the case of Attorney Gene8217;s Refe References (Nos. 4 and 7 of 2002) (Lobhan, Sawyers and James) (the so-called &#8obile phoe phones’ judgment). The particular offences dealt in the judgment were charized by serious threats of s of violence and by the use of weapons to intimidate; it was the element of violence in the course of robbery, rather than the simple theft of mobile telephones, that justified the severity of the sentences. The court said that, irrespective of the offender’s age and previous record, a custodial sentence would be the court’s only option for this type of offence unless there were exceptional circumstances, and further where the maximum penalty was life imprisonment:

• The sentencing bracket was 18 months or 5 years, but the upper limit of 5 years might not be appropriate ‘if the offences are committed by an offender who has a number of previous convictions and if there is a substantial degree of violence, or if there is a particularly large number of offences committed’.
  
• An offence would be more serious if the victim was vulnerable because of age (whether elderly or young), or if it had been carried out by a group of offenders.
  
• The fact that offences of this nature were prevalent was also to be treated as an aggravating feature.
  

[28] Raqauqau is in accord with the thinking of the Supreme Court to street mugging cases as expressed in Lilo v State (supra), Raqauqau v State (supra) and Caniogo v State (supra).

[29] The sentencing tariff for street mugging was once again discussed by the Court of Appeal in Qalivere v State [2020] FJCA 1; AAU71.2017 (27 February 2020) in the following terms and followed Raqauqau:

‘[15] The learned single Justice of Appeal, in giving leave to appeal, distinguished facts in Wallace /b> (supra)upra), which involved a home invasion as opposed to the facts in Raqauqau v Sta>&#/b> [2008] FJCA 34a>; AAU0100.2007 (04 August 2008), w where aggravated robbery was committed pers the street by twby two accused using low-level physical vial violence.

[16] Low threshold robbery, with or without less physical violence, is sometimes referred to as s-mugging informally illy in commrlanarlance. The range of sentence for that type of offence was set at eighteen months to five years by the Fiji Court of Appeal in Raqauqau’ casera).

‘[19] Upon a consideratieration of the matters, as set-out above, I am of the view that the learneistrate had acted a upon wrong principle when he applied the tariff set for an entirely dify different category of cases to the facts of this case, which involved a low-threshold robbery committed on a street with no physical violence or weapons. When the learned Magistrate chose the wrong sentencing range, then errors are bound to get into every other aspect of the sentencing, including the selection of the starting point; consideration of the aggravating and mitigating factors and so forth, resulting in an eventual unlawful sentence.’

[30] The state counsel informed this court at the hearing that the Supreme Court is scheduled to hear an appeal in the coming full court session where the DPP has sought a guideline judgment on aggravated robbery cases. Therefore, until the Supreme Court sets down new sentencing guidelines, if any, on street mugging cases or any other forms of aggravated robbery cases, I am inclined to adopt the sentencing tariff of 18 months to 05 years for street mugging cases (set in Raqauqau) as the Court of Appeal did Qalivere.

[31] The summary of facts in the case now before this court reveals a case of aggravated robbery in the form of street mugging. The sentencing tariff of 08-16 years was set for home invasions or similar offending mostly at night with violence inflicted, by a group of men, armed with weapons (as in Wise) while the higher sentencing tariff of 10-16 years was decided for spate of robberies with more or less the same aggravating features associated with home invasions or similar offending (as in Nawalu). The sentencing tariff for street mugging has been taken between 18 months and 05 years but the upper limit can go up further if the one more or all (the list is not exhaustive) aggravating features mentioned in Raqauqau are present.

[32] When a sentence is challenged in appeal the guidelines are whether the trial judge (i) acted upon a wrong principle (ii) allowed extraneous or irrelevant matters to guide or affect him (iii) mistook the facts (iv) failed to take into account some relevant consideration [vide Naisua v Stat&#16> CAV0010 of 2013: 20 Nor 201r 2013 [2013] FJSC 14;&#1>Hv The [1936] HCA 40; (1936) 55 CLR 499, >Kim ae v tate Crim;Criminal Appeal No.AANo.AAU0015U0015 and& and Chirg Yam v The StateState Cal Appeal No095 of 2011]. 11].

[33] Therefore, there is a sentencing eing error on the part of the Magistrate in adopthe scing tariff set iset in Wise v State (supra) pra) and then picking a starting point at 11 years of imprisonment. After making adjustments upward for aggravating features and downward for mitigating factors and discounting the remand period, he had fixed the final sentence at 08 years and 11 months which to me is harsh and excessive given the nature and gravity of the offending. In my view, the sentence does not fit the crime. Therefore the sentence appeal of both appellants should be allowed.

[34] I shall follow the guidance provided by the Supreme Court in Koroicakau v The State [2006] FJSC 5; CAV0006U.2005S (4 May 2006) and Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015) in fulfilling the rest of the task of this court in identifying the appropriate sentence.

[35] The Supreme Court in Koroicakau v The State [2006] FJSC 5; CAV0006U.2005S (4 May 2006) held that it is the ultimate sentence that is of importance, rather than each step in the reasoning process leading to it and when a sentence is reviewed on appeal, again it is the ultimate sentence rather than each step in the reasoning process that must be considered.

[36] Similar sentiments were echoed in Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015) where it was held that in determining whether the sentencing discretion has miscarried the appellate courts do not rely upon the same methodology used by the sentencing judge. The approach taken by appellate courts is to assess whether in all the circumstances of the case the sentence is one that could reasonably be imposed by a sentencing judge or, in other words, that the sentence imposed lies within the permissible range.

[37] In other words, the appellate courts in revisiting the propriety of the sentence would not necessarily follow the same process as in the original court but would take a holistic view of the final sentence.

[38] The appellants have already served 04 years 11 months and 09 days of imprisonment. Added to that the period of remand of 01 month, they have served over 05 years. In my view, for the offences they had admitted to having committed they need not be subjected any further term of imprisonment and should be released forthwith upon this court pronouncing the judgment.

[39] The 02^nd appellant had also appealed against his conviction. His counsel had submitted that the 02^nd appellant’s conviction should be set aside and a retrial should be ordered. Thus, the counsel has conceded that even if the 02^nd appellant succeeds on his grounds of appeal against conviction the end result is likely to be a retrial. I am not inclined to order a retrial in this case and subject the 02^nd appellant to the burden of further litigation. Therefore, it would be futile to go into his conviction appeal in view of the order I have proposed on his sentence appeal.

Bandara, JA

[40] I have read the draft judgment of Prematilaka, JA and agree with his reasoning and conclusions.

Orders

(1) 01^st and 02^nd appellants’ appeal against sentence is allowed.

(2) 01^st and 02^nd appellants should be released from imprisonment forthwith.

Hon. Mr. Justice S. Gamalath

JUSTICE OF APPEAL

Hon. Mr. Justice C. Prematilaka

JUSTICE OF APPEAL

Hon. Mr. Justice W. Bandara

JUSTICE OF APPEAL