SENTENCING

SENTENCING

1. INTRODUCTION
2. AIMS OF SENTENCING
3. SENTENCING IN PROCESS OF ADMINISTRATION
OF CRIMINAL JUSTICE
4. JURISDICTION OF THE COURTS
5.TYPES OF SENTENCES
6. MITIGATION FACTORS
7. AGGRAVATING FACTORS
8. APPEALS AND REVISION ON SENTENCING
 INTRODUCTION

PP V LOO CHOON FATT [1976] 2 MLJ 256, HASHIM YEOP A

SANI J OBSERVED THAT:
“IN RESPECT OF SENTENCING THERE CAN BE ONLY
GENERAL GUIDELINES. NO TWO CASES HAVE
EXACTLY THE SAME FACTS TO THE MINUTEST
DETAIL. FACTS DO DIFFER FROM CASE TO CASE AND
ULTIMATELY EACH CASE HAS TO BE DECIDED ON
ITS OWN MERIT. IN PRACTICE SENTENCES DO
DIFFER NOT ONLY FROM CASE TO CASE BUT ALSO
FROM COURT TO COURT. ALL THINGS BEING EQUAL
THESE VARIATIONS ARE INEVITABLE IF ONLY BECAUSE
OF THE HUMAN ELEMENT INVOLVED. BUT, OF COURSE,
THERE MUST BE LIMITS TO PREMISSABLE VARIATIONS.
THE PRINCIPLES TO BE APPLIED IN IMPOSING
SENTENCES HOWEVER ARE THE SAME IN EVERY CASE.”
WAN YAHYA J IN SAFIAN BIN ABDULLAH & ANOR
[1983] 1 CLJ 324 STATES :
“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”
AIMS OF SENTENCING:

1.1 RETRIBUTIVE

1.2 DETERRENCE

1.3 REHABILITATIVE

1.4 PUBLIC INTEREST

1.1 RETRIBUTION

-IN A CLASSIC CASE OF R V SARGEANT [1975] 60 APP CR APP R

74. LAWTON LJ OBSERVED THAT:

“ …..THERE IS ANOTHER ASPECT OF RETRIBUTION WHICH IS

FREQUENTLY OVERLOOKED; IT IS THAT SOCIETY.THOUGH THE
COURTS. MUST SHOW ITS ABHORRENCE OF PARTICULAR
TYPES OF CRIME, AND THE WAY IN WHICH THE COURTS CAN
SHOW THIS IS THE SENTENCES THEY PASS.THE COURTS DO
NOT HAVE TO REFLECT PUBLIC OPINION. ON THE OTHER
HAND, COURTS MUST NOT DISREGARD IT. PERHAPS THE MAIN
DUTY OF THE COURT IS TO LEAD THE PUBLIC OPINION.”

-IS VERY HEAVY WHICH MAY BE DEATH OR LIFE IMPRISONMENT.

-CONCEPT OF AN EYE FOR AN EYE AND TOOTH FOR TOOTH.
1.2 DETERRENCE (PENCEGAHAN)

-CASE OFTEN QUOTED IS REX V KENNETH JOHN BALL 35 CR. APP R.164

“ A PROPER SENTENCE, PASSED IN PUBLIC SERVES THE PUBLIC INTEREST

IN 2 WAYS. FIRSTLY, IT MAY DETER OTHERS WHO MIGHT BE TEMPTED TO
TRY CRIME AND SECONDLY, IT DETERS THE PARTICULAR CRIMINAL FROM
COMMITTING A CRIME AGAIN OR TO INDUCE HIM TO TURN FROM A
CRIMINAL TO HONEST LIFE.”

-ABDUL KASSIM BIN IDRIS V PP [2007]4 MLJ 738

THE COURT HELD THAT EVEN BEARING IN MIND THAT THE ACCUSED
WAS OF A RELATIVELY YOUNG AGE, AND THAT THE TOTAL PERIOD OF 21
YEARS’ IMPRISONMENT IS LONG AND WILL HAVE A CRUSHING EFFECT
ON HIM,THE ACCUSED DESERVED THE DETERRENT SENTENCE IMPOSED
ON HIM.THE COURT GAVE ITS REASONING AS FOLLOWS:

IT COULD NOT BE FORGOTTEN THAT THE ACCUSED HAD ACTED IN

DESPICABLE MANNER WHICH HAD BEEN NOTED BY THE LEARNED
JUDGE AS ‘COLD-BLOODED’ AND ‘MERCILESS’
1.2 DETERRENCE (PENCEGAHAN)

- IS IMPOSING A HEAVY SENTENCE TO DETER THE

OFFENDER AND FUTURE OFFENDERS AND IS USEFUL
FOR RAMPANCT OFFENCES SUCH AS RAPE, BURGLARY,
ROBBERY,THEFT, ETC.
1.3 REHABILITATION (PEMULIHAN)

-IN ABU BAKAR V REG [1953] MLJ 19,THE COURT IN

CONSIDERING IMPOSING REHABILITATIVE APPROACH HELD
THAT THE IMPORTANCE FOR EVIDENCE OR INFORMATION
REGARDING THE BACKGROUND, CHARACTER BEFORE PASSING
SENTENCE.

- A REHABILITATION SENTENCE IS A LENIENT SENTENCE TO

AFFORD AN OPPORTUNITY OF STARTING ANEW AND IS
IMPOSED USUALLY FOR FIRST OFFENDERS.

-RAJA IZZUDDIN SHAH V PP [1979] 1 MLJ 270

-USUALLY ITS FOR THE AIM OF S.173A AND S.294 OF THE CPC.
1.4 PUBLIC INTEREST VS ACCUSED INTEREST

-OFFENDER IS TO BE PUT IN PRISON TO PROTECT

THE PUBLIC WITH THE HOPE OF PREVENTING IT E.G
OFFENDER IS A SERIAL RAPIST OR HAS PREVIOUS
CONVICTIONS OF ROBBERY OR BURGLARY.
-R V BALL 35 CR APP R 164, HILBERY J
- PP V MUSLIM AHMAD [2013] 5 CLJ 822
- PP V RAMAKRISHNAN SUBRAMANIAM & ORS
[2012] 9 CLJ 443
2. SENTENCING PRINCIPLES

2.1 THE COURT SHALL PASS SENTENCE ACCORDING TO

THE LAW AND THE COURT SHALL PASS SENTENCE
ACCORDING TO ITS SENTENCING JURISDICTION.

2.2 PROCEDURE BEFORE SENTENCING:

IMPOSE SENTENCE

ADJOURN TO IMPOSE SENTENCE

AGGRAVATING FACTORS
(PROSECUTION)

SUBMISSIONS

MITIGATING FACTORS
(ACCUSED)
“PASS SENTENCE ACCORDING TO THE LAW” STATED IN SS
173(m),183CPC

IN JAFA BIN DAUD, MOHAMED AZMI J., EXPLAINED WHAT THAT MEANS:

A ‘SENTENCE ACCORDING TO LAW’ MEANS 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. IN ASSESSING SENTENCE, ONE OF THE
MAIN FACTORS TO BE CONSIDERED IS WHETHER THE CONVICTED PERSON IS A FIRST OFFENDER.
IT IS FOR THIS PURPOSE THAT BEFORE PASSING SENTENCE, A MGT IS REQUIRED TO CALL FOR
EVIDENCE OR INFORMATION REGARDING THE BACKGROUND, ANTECEDENT AND CHARACTER
OF THE ACCUSED. WHERE THE CONVICTED PERSON HAS PREVIOUS RECORDS AND ADMITS THEM
AS CORRECT, THE COURT MUST CONSIDER WHETHER THE OFFENCE OR OFFENCES COMMITTED
PREVIOUSLY WERE OF SIMILAR NATURE AS THE ONE WITH WHICH HE IS PRESENTLY CHARGED.
THE COURT MUST THEN CONSIDER THE SENTENCES IMPOSED IN THE PREVIOUS CONVICTIONS
FOR SIMILAR OFFENCES TO DETERMINE WHETHER THEY HAVE HAD ANY DETERRENT EFFECT ON
HIM. WHERE HE IS FOUND TO BE A PERSISTENT OFFENDER FOR A SIMILAR TYPE OF OFFENCES,
THEN IT IS IN THE INTEREST OF JUSTICE THAT A DETERRENT SENTENCE SHOULD BE PASSED AND,
IN SUCH A CASE, UNLESS THERE ARE EXCEPTIONAL CIRCUMSTANCES, THE QUANTITY, NATURE
OR VALUE OF THE SUBJECT MATTER OF THE OFFENCE WITH WHICH HE IS CURRENTLY CHARGED
CAN VERY RARELY CONSTITUTE A MITIGATING FACTOR.”
3. JURISDICTION OF THE COURTS

3.1 SENTENCING JURISDICTIN OF THE COURTS

3.2 WITH REFERENCE TO THE PUNISHMENT PROVISIONS
UNDER THE PENAL CODE.
3.3 MEANING OF “SHALL BE LIABLE” AND “SHALL BE
PUNISHED”.
3.4 MAXIMUM SENTENCE

4. TYPES OF SENTENCES
4.1 DEATH
4.2 IMPRISONMENT
4.3 WHIPPING
4.4 FINE
4.5 COMPENSATION AND COST
4.6 POLICE SUPERVISION
4.7 BON OF GOOD BEHAVIOR
4.8 DISCHARGE
4.9 YOUTHFUL OFFENDER
4.10 ORDERS RELATED TO CHILDREN
5. MITIGATION FACTORS (ACCUSED)

5.1 AGE OF THE OFFENDER

5.2 RECORD OF THE OFFENDER

5.3 PLEA OF GUILTY

5.4 CONDITIONS/CIRCUMSTANCES BEFORE THE

COMMISSION OF THE OFFENCE

5.5 EFFECTS OF THE CONVICTION AND SENTENCE

5.6 CONDUCT OF THE OFFENDER

5.7 GAP PRINCIPLES

5. 8 OTHER PRINCIPLES.
6. AGGRAVATING FACTOR

6.1 PREVALENCE OR RAMPANCY OF OFFENCE

6.2 PREVIOUS CONVICTIONS OR BAD RECORD

6.3 POSITION OR STATUS OF THE OFFENDER

6.4 USE OF FORCE AND MODE OF COMMITTING THE

OFFENCE.