Sentencing

Underlying principle of sentencing

to strike a balance between public interest and the interest of the A

• is the punishment proportionate to the gravity of the offence

Deterrent sentence

to deter the public from committing the offence - stern punishment

[PP v Jafa bin Daud] - crt will impose if the previous convictions were of similar offence

Rehabilitative sentence

to induce the A to turn from criminal ways to honest living - if it is in the best interest of the public

Mitigating factors

• guilty plea - show repentance

• first offender - Abdul Karim - imposed fine instead of imprisonment

• effect of sentence on family

• circumstances before commission of offence - financial position

• effect of conviction on job

Must the court convict the A if a person is found guilty beyond reasonable doubt?

No, - s380 PC - court has discretion

• court can choose not to convict the A - invoke s173A - admonish A and dismiss the charge or release A on the bond of good behaviour under s294

• [Maung Min Aung v PP] - a conviction must only be recorded after the plea of mitigation has been made, the court has assessed the sentence to be passed and is satisfied that the sentence warrants a conviction

• s173A - Any conviction recorded before a plea of mitigation will be rendered nugatory

an order of binding over

• s173A - no conviction is recorded - period of bond not more than 3 years -

• may order the offender to pay costs of prosecution

• not for serious offence or domestic violence

release on good behaviour bond

• [PP v Yeong Yin Choy] - s294 - can be ordered in case of conviction foran offence punishable with imprisonment with or without fine or other penalties

• marginal note of s294 mentioned ‘first time offenders’ - but ntg in the section limits application to first time offenders

where there is no stipulated amount of fine

• s283(1)(a)- the amount the offender may be liable shall be unlimited but not excessive

If court choose to impose fine sentence over imprisonment

• the trial judge has decided that imprisonment sentence is unnecessary

When imposing fine sentence

• imposition of fine beyond the means of the A or a term of imprisonment in default of payment is tantamount to sentencing the A to a term of imprisonment without the option of fine

• a fine that is so exorbitant - indirect manner of sentencing A to imprisonment - because s283(1)(b)(iv) - defeats the purpose of fine sentence alas

If A unable to pay fine

s283(1)(b)(iv) - has to serve imprisonment in default of fine

s283(1)©(i) - the period of imprisonment that the Mag can order is half the max imprisonment term of the offence

gap principle

[Soosainathan v PP] - current offence - drug - previous - firearms possession and armed robbery

crt consider the gap between the previous conviction and the current offence

• if previous conviction - trivial - long distant past - will treat the offender as someone with previous good character

• core is not so much on the time that has lapsed but the steps taken by the offender to rehabilitate himself - if the latter has been done - it should operate in his favour - [Zaidon Shariff v PP]

if previous conviction is not similar nature

cannot sentence him for his previous convictions again - amount to imposition of fresh penalty on past conviction

whipping

s288(5) - maximum for any given trial - 24 strokes

• [Chai Ah Kau v PP] - s288 applies to situation where A is convicted of 2 more offences in one trial

concurrent or consecutive

concurrent - serve the longerterm sentence

consecutive - one after expiration of another - add up

• only for imprisonment, not whipping [Peter Ting]

totality principle

Is it excessive to impose the sentences in totality

• consecutive may impose a crushing sentence - destroys expectation of meaningful/desirable life after release

c/f

[Bachik v PP] - excessive sentence is one which the A ‘richly deserved’ - A has - by his criminal acts - forfeited any right to have his sentence reduced

One Transaction Principle

charges arise out of the same transaction - look at [Amrita v Emperor] - proximity of time and place - continuity of events - continuity of action

Eg: 2 separate occasions - no proximity or continuity - not applicable

Plea Bargaining

• s172C - court shall give effect to the satisfactory disposition agreed upon by the A and pros

• PP and A work out a mutually satisfactory agreement on how to dispose off the case - A agrees to plead or not contest - in exchange for PP’s reduction of original charge / withdrawal of some charges / limit sentencing

plea bargaining does not fetter the discretion of judge in imposing adequate sentence

• PP’s power merely to prefer the charge (not to proceed or amend) - power to sentence - judicial power exclusive to the court -

• [New Tuck Shen v PP] - right to impose punishment on a guilty party - entirely court’s discretion - will not tolerate any encroachment or semblance of encroachment by pros or A in respect of such right - agreement as to the nature of sentence to be imposed - creates no obligation on court to follow - only pricks the conscience of the defaulting party

• if PP wants to make good of the plea bargaining - should prefer a charge of lower sentence - crt can impose any sentence that it feels appropriate within the sentencing jurisdiction of the offence charged

PP v Manimaran

• if court disagrees with the sentence proposed by parties - must indicate the disagreement to the parties and indicate the sentence it is mindful to impose

• if parties can’t agree - proceed to trial