Sentencing

Sentencing

  • Sentencing is a major examinable part with significant marks.

Process of Sentencing

  • Two scenarios:
    • Accused pleads guilty (Section 173 sub b).
    • Accused claims trial, found guilty after trial (Section 173 c).
  • Court passes sentence according to law upon conclusion of either scenario.
  • References: Sections 173 sub m and 183 (High Court).
  • Pretrial process (Section 172) also provides guidance on sentencing.
  • Court retains discretion regardless of plea bargaining or trial outcome.
  • Sentencing follows established judicial principles and precedent (e.g., case of Jafar).

Penal Code Definitions

  • Section 2: Terms like "shall be punishable" and "shall be liable" need interpretation.
    • "Shall be liable": Court has discretion based on punishable section (case of Jayanathan).
    • "Shall be punishable": Mandatory (case of Glenn Francis Leonard).
    • "Shall be punishable" implies no binding over (case of Philip Lau), but see Mohammad Nouve.

Aims of Sentencing

  • Often tested in essay questions.
  • Conflict exists between different aims.
    • Retributory aim
      • Serious offenses in Penal Code with long imprisonment terms.
      • Examples: Drug trafficking (Section 39b of DDA), murder, sexual offenses, robbery (imprisonment > 7 years).
    • Deterrent aim
      • Cases like Ball, consider public interest to deter others.
      • Heavier sentences during periods of rampant crime.
    • Rehabilitative aim
      • More lenient sentences, giving offenders a chance to reform (case of More).
  • Extension of aims: Courts consider victim impact statements and public protection.
  • Cases: Loor Afizal, Abdul Qaseem, Denisen, Jayatilak.
  • Courts are inclined to give a deterrent sentence, especially for serious offenses.

Process of Passing Sentence (Sections 173 sub m and 183)

  • Court must pass sentence according to law (Jafar bin Dawur).
    • Means following punishable section and established judicial principles.
  • Court considers background of the accused, antecedents, character, and previous convictions.

Procedure for Court to Pass Sentence (Section 176)

  • Record previous convictions, character, mitigation pleas.
  • Accused's plea of mitigation.
  • Aggravating factors presented by the prosecution.
  • Victim impact statements are important (Sections 173 m and 183 capital A).

Appeals and Revisions

  • Aggrieved party can appeal from Subordinate Court to High Court, then to Court of Appeal.
  • Appellate court generally doesn't interfere unless injustice or unlawful sentence exists.
  • Revision can be sought (Sections 325 and 326 of CPC).

Pardons and Commutations

  • Pardon and commutations (Sections 300 and 301 of CPC).
  • Article 42 of Federal Constitution: King has the power to grant pardon on advice of Pardon Board.

Combination with Court's Jurisdiction

  • Sentencing jurisdiction of the court: refer to the first chapter on jurisdiction.

Other Relevant Sections

  • Sections 165, 166, and 276.
  • Definition of "shall be punishable," "shall be liable," and "shall be punished."

Maximum Sentence

  • Normally passed for very serious offenses (e.g., Ahmad Khairul Maha Dallan).
  • Examples: Death sentence for murder (Section 302), drug trafficking (Section 39 b).
  • Maximum sentence is the upper limit; cannot exceed it (case of Lohok Singh).
  • Sentence can be reduced (e.g., death to life imprisonment).

Shall be Liable vs. Shall be Punished

  • Shall be liable: Court has discretion (Manbine Ismail, Jainathan, Abu Saman).
  • Shall be punished: Leonard Glen Francis, Philip Lau.

Types of Sentencing

  • Death sentence
    • Murder (Section 302), drug trafficking (Section 39b DDA), kidnapping (Section 364).
    • Exceptions exist (e.g., cannot impose death sentence on a child).
  • Imprisonment
    • Life imprisonment: generally thirty years. One-third remission for good behavior (Section 3 of CGA).
    • For the accused's natural life (serious firearm offenses).
    • Fixed period
  • Effective date of sentence (Section 282 sub d): Date sentence is pronounced.
  • Section 292: If the accused escaped, sentence becomes immediately effective; can run concurrently or consecutively.
  • Consideration of detention period.
  • Case of Sundar Rajan Sokalingam: Advocate convicted for impersonation, struck off the roll.

Concurrent and Consecutive Sentencing

  • Court can order concurrent or consecutive sentencing.
  • Magistrate Court: Maximum of 20 years imprisonment.
  • Concurrent: Accused serves only the longest sentence.
  • Consecutive: Total of sentences served.
  • Court must clearly state if the sentence is concurrent or consecutive (Bujang Johnny).
  • Concurrent and consecutive refer to imprisonment only.
  • Case of Ayub Abdul Jabbar: Offenses under same penal code should run consecutively, not concurrently.
  • Principles:
    • One transaction principle: Sentences run concurrently (Abu Samant, Amrita Al Hazra, Viramotu Vijayan Kunju).
    • Totality principle: Court considers all sentences passed, may order sentences to run concurrently if excessive (Saul Sukim, Bachik being Abdul Rahman).

Default of Imprisonment in Default of Payment of Fine (Section 283)

  • Look at CPC and scales to calculate.
  • Two scenarios:
    • Offense is punishable with imprisonment.
    • Offense is not punishable with imprisonment.

Other Sentencing Types

  • Weeping
    • Section 286 of CPC: Court decides place and time.
    • Section 103 of Subordinate Courts Act: Can be detained until whipping is carried out.
    • Sections 288 and 289: How whipping will occur
    • Section 311: Automatic stay.
    • Maximum strokes: 24 for adult, 10 for youthful offender (under 21).
    • Cannot whip females, males sentenced to death, or males 50 years and above (certain exceptions exist for penal code offenses).
    • Jay Akau's case: Maximum is 24 strokes in one trial.
    • Section 311 of CPC: Automatic stay if appeal.
    • Serious offenses involving violence.
    • Section 288 sub 4: CBT, use cane like school discipline.
    • Cannot change or enhance whipping sentence (Section 289 of CPC).
    • Section 291: Commute whipping to imprisonment (maximum 24 months).
  • Sentence of Fine
    • Cannot be excessive or too low (Abusamon, Zakaria, Tootin, ). New said it can not be too low.
    • Court can give time to pay in installments.
    • If don't pay, can order imprisonment in default.
    • Section 283 sub 1.
    • If settle anytime with, that normally in default becomes at the end.
    • After finishing sentence.
    • Can appeal and reduce. Look at financial capability or accused
  • Police Supervision (Section 295)
    • Accused has previous conviction of offense punishable with two years imprisonment or more.
    • Currently convicted of offense punishable with imprisonment of two years or upwards.
    • Not less than one year and not more than three years after expiration of sentence.
    • Section 295 one a specifically relates to penal code
  • Good Behavior Bond (Sections 173 capital a and 294):
    • Sometimes called binding over.
    • Section 173 a: Court considers character, antecedents, age, mental condition.
    • Court can dismiss the charge, give a warning, or give a bond of good behavior without convictions exceeding three years.
    • Mostly government personal and no conviction is recorded.
    • Section 294: First-time offenders, taking into account character or circumstances or pay cost to persecution of fine is fit.
    • Conviction is recorded and applicable for adults.
    • But in capital punishment is all or nothing.
    • Abdul Halim, Abdul Samat: battery with dangerous weapons then plead guilty, change behavior bond in sentencing to 10 years imprisonment
    • Section 294 capital a: Tells the bond or conditions to supervision is recorded.
    • Bakr bin Abu give and Winston Raja.
  • Youthful Offenders (18 to 21)
    • Sections 293 and 293 sub 1 sub e (community service).
  • Discharge (unconditional or conditional)
    • Section 173 sub 2
    • Federal Court case: Doctor Tan Chengsui; acquit or pay and fine.

Aggravating and Mitigating Factors

  • Must have a list of things to memorize.
  • Age: Can use to mitigate vs pressing heavier for prosecution: right, and so for
  • Minor, a first time offender.
  • Position of fender and statues and example you can refer to Anwar Ibrahim's case. Now they would want to press for heavier sentence Right!
  • Impact statement of victim of sentence. Important
  • Specific offenses like VDA, rape cases section three seven six, housebreaking.

Forfeiture of Property

  • Under DDA (Dangerous Drug Forfeiture of Property Act).
  • How to deal with seized property.
    1. Five case of Appeal.