Tutorial 8

Question 15

Lawton LJ in R v Sargeant (1974) 60 Cr App R74, held that the courts must consider
the classical principles relating to sentencing which are retribution, deterrence,
rehabilitation, public interest and prevention. Further, he mentions that any judge who
comes to sentencing ought to always have these classical principles in mind and apply
to the cases he is hearing. Therefore, according to Lawton LJ, the classical principles
which are also referring to the aims of sentencing are relevant for the courts to
consider when deciding on a sentence for the accused.

Malaysian courts have also taken the same approach with regards to the aims of
sentencing. In PP v Loo Choon Fatt [1976] 2 MLJ 256, Hashim Yeop Sani J held that
while courts generally exercise a discretion when they pass a sentence, these ought to
be within well established judicial principles. In PP v Safian bin Abdullah & anor
(1983) 1 CLJ 324, Wan Yahya J held that when the courts are sentencing, they need
to consider facts circumstances relating to the offence, offender and public interest
and not depend on some mathematical yardstick. This case decided that a more severe
sentence on a young offender was justified in a case involving the use of force.

The aims of sentencing that has to be considered by the courts are divided into 5
different aims. The first is a deterrent sentence which is usually a heavy sentence
relied on by the Prosecution with the purpose of deterring the offender and future
offenders from committing a crime. A deterrent sentence imposes fear into the public
so that they do not get involved with crime and would especially be effective in
combating serious rampant crimes such as rape, burglary, and drug related crimes. In
Abdul Kassim bin Idris v PP [2007] 4 MLJ 738, the court was of the opinion that the
despicable acts of the young offender was cold blooded and merciless which justifies
a deterrent sentence imposed on him.
The second aim of sentencing would be retribution. A retributive sentence is a heavy
sentence, usually death or life imprisonment, which would be requested for by the
prosecution. A retributive punishment is based on the principle of an eye for an eye,
tooth for tooth which implies that what was done onto others should be met with a
punishment of either the same or similar severity. In Malaysia, this principle is
reflected in the death punishment imposed for murder and drug trafficking. Lawton LJ
in R v Sargeant (1974) 60 Cr App R 74, which was also referred to in PP v Muhari
bin Mohd Jani & anor [1996] 2 AMR 2029, it was held that the concept of an eye for
an eye and tooth for tooth is an aspect of retribution and that it is the way for society,
through the courts, to show abhorrence of particular types of crimes.

The third aim of sentencing is prevention where the prosecution reminds the court not
to sympathise with the accused and to prevent the accused from the public. Therefore,
it would involve a heavy sentence of imprisonment so that the accused can be kept
away from the general public. In R v Sargeant, Lawton LJ justifies prevention
sentences by stating that the only protection that the public has against offenders that
would go on committing crimes as long as they are able to do so are for such
offenders to be locked up for a long period of time.

The fourth aim is rehabilitation which is often applied for by the defence for a lenient
sentence to give an opportunity to the accused to start anew. Judges tend to allow
rehabilitation sentences to first offenders or for trivial offences. In Raja Izzuddin Shah
v PP [1979] 1 MLJ 270, the accused who had slapped a police officer was sentenced
to imprisonment for 3 years. However, on appeal, Hashim Yeap A Sani J referred to
the rehabilitative aim of sentencing and reduced the sentence to a bond for good
behaviour and fine because the accused was remorseful and had compensated the
victim. For rehabilitation, reference would be made to S, 173A and S. 294 of the
Criminal Procedure Code.

The last aim of sentencing would be the protection of public interest. Courts, in
achieving this aim, would take into account public interest and the interest of the
accused as well. In R v Ball, Hilbery J held that the court should always be guided,
firstly by public interest. A sentence, according to Hilbery, should be passed to serve
the public by deterring others who might be tempted to try crime and to deter the
criminal from committing a crime again or to induce him to turn from a criminal into
an honest person. This approach was followed by Malaysian courts in Lim Yoon Fah
v PP [1971] 1 MLJ 37 where the court held that public interest would be best served
by giving the offender an opportunity to turn from criminal ways to an honest living
since there was a possibility that the appellant would turn over a new leaf.

English cases and Malaysian courts have evidently taken into account the aims of
sentencing when delivering their judgement. Therefore, the aims of sentencing are
relevant to be considered by the court because it determines the types and severity of
the punishments that should be imposed on the accused so that it would be fair to the
public and to the accused.
Question 16

Based on the facts, Reborn was charged for theft of a bicycle and for causing injury to
Arcobaleno using a blunt object. Reborn was sentenced by the Magistrate court to 3
year’s imprisonment and RM2,000 fine with 2 strokes of the rattan.

The first issue to be considered here is whether Reborn can appeal against the
sentence of whipping? In the case of Ho Kin Luan & anor v PP [1959] MLJ 159, the
judge agreed with the submission that sentences of corporal punishment should not be
imposed except in cases involving violence or brutality from the offender.
Furthermore, in PP v Roslan Imun [1999] 3 AMR 3706, Abdul Malik Ishak J, upon
revision of the sentence provided by the Sessions Court, added 20 strokes of rattan
due to violence and pain inflicted on the victim. In Kharudin v PP [1969] 1 MLJ 45,
the court had also imposed a whipping of 3 strokes for a non-violent crime of theft of
a bicycle as a deterrent punishment because the accused has had 13 previous
convictions.

Based on Ho Kin Luan’s case, the court has discretion to impose whipping on Reborn
since Reborn was convicted of a violent offence that is causing injury to Arcobaleno
using a blunt object. The facts also did mention that Arcobaleno had suffered injuries
so according to Roslan Imun’s case, the court may impose whipping on Reborn for
violence and pain inflicted on Arcobaleno. The facts had also stated that the court
considered the fact that Reborn had previous convictions in imposing the whipping
sentence. Therefore according to Kharudin’s case, the fact that Reborn has previous
convictions would justify the court in imposing whipping onto Reborn.

The next issue to be considered is whether the DPP can appeal on the point that the
Magistrate had considered merely on the guilty plea in determining Reborn’s
sentence?
In PP v Jessica Lim Lu Ping & Anor, the High Court held that it is customary for the
court to give the convict a reduced sentence for pleading guilty and that a discount of
between one quarter and one third of the original sentence would usually be given.
However, in the case of Bachik bin Abdul Rahman v PP [2004] 3 AMR 429,
Augustine Paul JCA held that it was a principle in sentencing that a convicted person
should be given a discount for pleading guilty. However, it is not a strict rule and is
still within the court’s discretion to refuse to grant any discount depending on the
severity of the offence, the existence of a previous conviction or necessity to uphold
public interest.

Therefore, by applying the principles in Jessica Lim Lu Ping, it is within the

Magistrate court’s discretion to allow the plea of guilt as a mitigating factor for the
court to impose a lesser sentence against the accused. However, by applying Bachik’s
case, it seems that the courts would consider the severity of the offence in question,
the existence of a previous conviction and public interest in allowing a lesser sentence
on the accused. By applying it to the facts in question, Reborn has had two previous
convictions of a similar offence of theft and a conviction for dishonestly receiving
stolen property. It is arguable that the previous convictions may not be a serious
offence but Reborn’s current offence of causing injury to Arcobaleno may be
considered as a serious offence. The existence of previous convictions and public
interest may be argued to impose a higher punishment on Reborn. Ultimately, it will
be the discretion of the court whether or not to allow a lesser punishment.

The last issue to be considered is whether the DPP can argue on public interest in
imposing a higher sentence on the accused?

In the case of Lim Yoon Fah v PP [1971] 1 MLJ 37, the court held that public interest
in that case would be best served by giving the offender an opportunity to turn from
criminal ways to honest living as there was a probability that the appellant would turn
over a new leaf. Furthermore, it was held in PP v Jessica Lim Lu Ping as cited above
that it would be in the public interest to show a degree of leniency to the accused who
had readily co-operated with the police, the Public Prosecutor and the Court. The
court in Leken @ Delam Ak Gerik (M) v PP [2007] 3 AMR 230 had also held that
although public interest is an important consideration, it cannot be the only
consideration in assessing punishment and that other considerations must be taken
into account.

Therefore, based on Lim Yoon Fah’s case, public interest may best be upheld by
allowing the accused to start anew especially if he has shown remorse by confessing
to the offence. Furthermore, by taking into account Jessica Lim Yu Ping’s case, it
would be considered to be within public interest by allowing a more lenient sentence
to an accused who was ready to co-operate in court. Since Reborn had been
co-operative in court by pleading guilty and saving much of the court’s time and cost,
it would only be on public interest to allow a lesser sentence to be imposed onto him.

However, although the court should take into account public interest in imposing a
sentence, it would not be the only consideration as per the decision in Leken @
Delam’s case. Seeing the fact that Reborn has had multiple previous convictions for
the same offence of theft and is now facing the same charges with an additional
charge for causing injury, it would no longer be on public interest to allow a lenient
sentence on him since it can already be seen that Reborn is highly likely to repeat the
offence. As such, a heavier sentence should be imposed onto him as deterrence
against any future offences by him.