SENTENCESENTENCE- punishment which the “Court orders”

after a person is found guilty or is convicted of an offence.

- Sentencing refers to the “process in a trial” after a person is found guilty or is convicted of an offence and has entered his plea of mitigation.

In Safian bin Abdullah & Anor [1983] 1 CLJ 324 stated that:“sentencing offender is a complex process, which depends not on the use of a common mathematical yardstick but on various considerations of facts and circumstances relating to the offence, the offender and the public interest

Objective/Purpose of Sentencing Objective/Purpose of Sentencing Retribution

It is likened to the “Biblical” ‘eye for an eye’ or ‘tooth for the tooth’

For every hurt received, a hurt is given. The punishment seeks to retaliate against the criminal for what he has done. It is as an expression of the society’s natural feelings of revulsion towards and disapproval of criminal acts or conduct of the offender.

Deterrence

The idea of imposing a deterrence sentence is that the experience, treat or example of punishments discourages crime. There are two (2) types of deterrence sentence namely:-

Specific deterrence. (deterrence of the actual offender)

It emphasis on the offender himself, that he is punished so that he will not repeat the offence or commit any other offence.

General deterrence (deterrence of likely offender)

The motive is to emphasis on the public that they will not commit a similar offence as the offender or other offence lest they be similarly punished

◦ Federal Court cases of Loh Hock Seng v PP [1980] 2 MLJ 13 and PP v Oo Leng Swee [1981] 1 MLJ 247, the Lordships reminded themselves of their responsibilities in that:-

“The Court should not shirk their responsibility and refrain from imposing the maximum sentence provided by the law but in applying the principle of deterrence sentencing, the punishment should be reserved for the worst case.”

Rehabilitation.◦ This principle of sentencing means of

restoring to effectiveness by training, restore to privileges, reputation or proper condition.

◦ Its aim is to encourage the offender to be a law abiding citizen.

◦ In R v Ball, it was observed that in deciding the appropriate sentence, a court should always be guided by certain considerations. The first and foremost is the Public interest and public interest is indeed served, and best served if the offender is induced to turn from criminal ways to honest living.

◦ In Abu Bakar v Reg [1953] MLJ 19, the court in considering imposing rehabilitative approach held the importance to call for evidence or information regarding the background, character before passing sentence.

◦ However, the rehabilitative approach has its limitations. Since a rehabilitative approach is necessarily on individual approach, the individual treatment will result in unequal treatment for offenders who commit similar offences hence, disparity in sentencing

Sentencing in the Process of Sentencing in the Process of Administration of Criminal Justice Administration of Criminal Justice Any punishment must be in

accordance to law. The phrase “sentence according to law appears in Sect 172(b), (m), 183 of the CPC and regulation 18(2) of the ESCAR 1975.

◦ When the court finds that the accused is guilty of the crime, the court will invite the accused or his counsel to make a plea of mitigation as prescribed by Sect 176(ii)(r). Accused’s plea of mitigation will usually highly factors which may reduce his sentence such as his personal antecedents, hardship etc.

◦ The reply from the Prosecutor will usually guide the Court with regard to sentencing policy appropriate to the case before the court.

In PP v Jafa bin Daud [1981] 1 MLJ 315, held that the sentence must not only be within the ambit of the punishable section, but it must also be assessed and passed in accordance with established judicial principles.

Jafa’s case contains 2 important principles namely:

- the sentencing court must keep within the prescribed maximum punishment as well as within its sentencing jurisdiction

- the sentence to be imposed must be considered judiciously in line with the sentencing policy for the particular offence.

Power of the Courts in passing Sentence.

Penghulu Court : Requirements under Sect 95(1 and (2) must be fulfilled namely,

i. minor offence◦ offence must be specifically listed in the

Surat Kuasa◦ only fine not exceeding RM25◦ offender must be of n Asian race.

2nd Class MagistrateUnder Sect 88 of the Subordinate Court Act, he may try offences punishable with imprisonment not exceeding 12 months or those punishable with fine only. However for sentencing, section 89 empowers the 2nd class Magistrate to pass sentence of imprisonment of not more than 6 months or a fine not exceeding RM 1000 or any combination of both.

1st class Magistrate- Sect 85 of the SCA laid down the

trial jurisdiction of the 1st class magistrate. There are:i. offence punishable with imprisonment not exceeding 10 yrsii.offence punishable with fineiii.offence under section 392 and 457 of the Penal Code.

Sessions Court.Sect 63 of the SCA states that the Sessions Court can try all offences other than offense punishable with death.

Sect 64 allows the Sessions Court to pass any sentence except death sentence.

High Court.

In respect of its criminal jurisdiction, section 22(1) of the Courts of Judicature Act states that the HC has jurisdiction to try all offences committed within its local jurisdiction, on the high seas on board any ship or any aircraft registered in Malaysia etc.

- Sect 22(2) of the CJA empowers the HC to pass any sentence allowed by law

- Sect 26 bestowed the appellate jurisdictions over matters originating from the subordinate court whilst sect 31 of the CJA speaks of its reversionary jurisdiction over matters originating from the subordinate court.

Shall be liable v Shall be punished.

The Federal Court in Jayanathan v PP [1973] 2 MLJ 68 has defined “shall be liable” as non mandatory legal requirement

Possible Sentences.Possible Sentences.

Death Sentence mandatory

◦ Sect 302 Penal Code◦ Sect 39B DDA 1952◦ Sect 57 ISA 1960

Alternative- Sect 121 Penal Code (waging war v DYMM)- Sect 364 Penal Code (kidnap to murder)- Sect 396 Penal Code (Gang robbery with murder)- Sect 3 Kidnapping Act.

2 exceptions whereby the convict may escape death sentence namely:

convict is a pregnant woman :- Sect 275 Penal Code. In such case the sentence to be passed upon her shall be imprisonment for life.

where accused person is below 18 years old but has attained the age of 10 years at the time of the commission of the offence. The convict shall be detained during the pleasure of the YDPA or the State Authority, as the case may be.

With exception to offence committed under ESCAR. Regulation 3(3) states that “Where a person is accused of or charged with a security offence, he shall, regardless of age, be dealt with and tried in accordance with the provisions of these regulations and the Child Act 2001 shall not apply to this person.”

Imprisonment◦ for life

Sect 3 of the Criminal Justice Act defines the phrase “a sentence of life imprisonment” to mean a sentence of imprisonment for a term of 20 years unless the statute defines life imprisonment as imprisonment for the duration of his natural life or until his death of the person as in Sect 130A of the Penal Code (aiding escape of prisoner) or sect 2 of the FIPA 1971. Relevant case is Che Ani bin Itam v PP [1984] 1 MLJ 1113.

◦ for fixed period.

Sect 282 of the CPC states that every sentence of imprisonment shall take effect from the date on which the same was passed unless the Court passing such sentence otherwise directs.

Court may order the imprisonment from the date of arrest or from the date of judgment.

Concurrent or consecutiveConcurrent or consecutiveWhen there are more than one

sentence of imprisonment, Sect 102 of the Subordinate Court Act 1948 confers the discretion on the Magistrate to order the imprisonment to commence consecutively or concurrent

In deciding whether to decide on concurrent or consecutively, the court is normally guided by 2 sentencing principle:-

one transaction principle.◦ Where two or more offences are committed in

the course of a single transaction, all sentences in respect of these offences should be concurrent rather than consecutively.

◦ The rationale of this principle is that the infringements would be in respect of the same interest and a person should not be punished two or three times over in respect of the same blameworthiness.

The above principle was applied in Abu Seman v PP [1982] 2 MLJ 338 wherein the court of the view that where several offences committed in the same transaction are tried together the sentences imposed for the offences should be made concurrent.

totality principle. The court is required to decide on

what would be the appropriate sentence for each of the several offences. Then the court would look at the aggregate and decide whether in totality, the aggregate is excessive. If so, the court can then order either two or more of such offence to run concurrently so as to reduce its overall excessiveness.

default payment of fine.The courts in imposing fines have

the discretion to stipulate default term of imprisonment and in the event of default, the convicted accused can be made to undergo the stipulated term.

Whipping.The regulating sections are Sect 286 till 287 of the CPC.

- Court orders the place of whipping- Certain person not liable to whipping as stated

in sect 289 CPC namely: females males sentenced to death males who are above 50 years old [except

sexual offences] In Tan Kim Chok [1969] 1 MLJ 211, the

Court sentenced 2 strokes of rattan on a man above 50 years old was held in breach of Sect 289 CPC

Number of strokes

Sect 288 (1) CPC set out the number of strokes that can be imposed on a convicted person in a trial.

In the case of an adult, the stroke should not be more than 24 strokes and not more than 10 strokes in the case of youthful offender.(10 but below 16 years old)

◦Whipping cannot be executed by way of installments as stated in section 289 of the CPC

In Liaw Kwai Wah v PP [1987] 2 MLJ 69, the whipping imposed by the Magistrate’s Court had already been executed when the High Court in revision increased the stroke from 1 to 5. Abdul Hamid CJ in delivering the judgment of the Supreme Court held that “the Code prohibits whipping to be executed in instalment.

Policy of sentencing that whipping is usually reserved for offenders who commit crimes involving the use of violence such as in Lim Thien Hin & Ors v R [1953] MLJ 213 and Mohammed Ali v PP [1956] MLJ 84.

Fine.◦Sect 283 (1)(a) of the CPC states that where

no sum is expressed to which the fine may extend, the amount to which the offender is liable is unlimited but shall not be excessive.

◦Sentencing jurisdiction of the court as guideline eg; Magistrate jurisdiction to fine not exceeding RM10,000 as empowered under sect 87(1) of the SCA unless the case fall under the exception set out under the proviso of Sect 87(1) or (2) of SCA.

◦In imposing a fine, it is a court’s practice to stipulate the term of imprisonment in the event of default of payment. [S.283(1)(b)(iv).

◦However certain principles must be borne in mind;-

the default term of imprisonment must bear some proportion to the amount of fine imposed : R v Lim Cheng Thong [1956] MLJ 77

in computing the term of default sentence, the court must adhere to the scale set out under sect 283 (1)(c)

Compensation.

- Sect 426(1)(b) CPC governs payment of compensation to any person, or to the representative of any person, injured in respect of his person, character or property by the crime or offence for which the sentence is passed.

- In Raja Izzuddin Shah v PP [1979] 1 MLJ 270, compensation was paid to a complainant who was injured by the accused in addition to the binding over order made by the Court under sect 294 CPC.

Police Supervision.Usually ordered by the court in addition

to some form of imprisonment in respect of recalcitrant offenders who need to be watched over when they come out from prison to minimize the possibility of their being involved in crime again

.Before such order can be made, sect

295(1) of the CPC requires fulfillment of the following requisites:-

the offender must have been previously convicted of an offence punishable with imprisonment for a term of 2 years or upwards; and

the present conviction must also be in respect of an offence punishable with imprisonment for a term of 2 years or upwards.

◦ Sect 295(i)(a) and (b) empowers the High Court and Sessions Court to subject the accused to police supervision for a period not more than 3 years but a magistrate can make such order not exceeding 1 year.

S295(1A) states that irrespective whether the person has no criminal records, he shall be subjected to police supervision had he committed an offence under s.376,377c,377cA or 377E

The court order the convict to attend a rehabilitative counseling within the period of detention

Bond of good behaviour Provisions for bound over on a bond

of good behaviour are found in section 173A, 293(1)(b) and 294 of the CPC

A convict will not have a criminal record if he is bound over under sect 173A of the CPC unlike bond under sect 293(1)(b) and 294 of the CPC

Sect 173A is an order of dismissal and non recording of conviction whereas Sect 293(1)(b) and 294 require a conviction to be recorded.

Sect 293 applies in respect of youthful offender whereas 294 applies to adult offender.

S.293(e) community service not exceeding 240 hours in aggregate.

Sect 294: punishment is suspended

In either case, the court would have to have regard to factors such as the character, antecedents, age, health, mental condition, nature of the offence extenuating circumstances under which the offence was committed.

Debate over Sect 294 application in respect of mandatory sentence offences (shall be punished with imprisonment)

In PP v Idris [1955] MLJ 234, it was held that sect 294 applied to offences punishable with imprisonment only without the option of fine or any other option. Oppose to PP v Yeong Yin Choy