Q-09(S)-367-11/2014
IN THE COURT OF APPEAL OF MALAYSIA
(APPELLATE JURISDICTION)
CRIMINAL APPEAL NO: Q-09(S)-367-11/2014
BETWEEN
NORSHAHRIZAN BIN JUNAIDI
... APPELLANT
AND
PUBLIC PROSECUTOR
... RESPONDENT
CORAM
ABDUL AZIZ BIN ABDUL RAHIM, JCA
ROHANA BINTI YUSUF, JCA
DR. PRASAD SANDOSHAM ABRAHAM, JCA
(Date of decision: 17 August 2015)
GROUNDS OF JUDGMENT
[1]
This is the appellant’s appeal against sentence only.
[2]
The appellant was charged in the Sessions Court at Kuching on an
amended charge for an offence under section 392 of the Penal
Code. The appellant claimed trial. The appellant was called to
enter defence at the end of the prosecution case. But the appellant
elected to remain silent. Accordingly the appellant was found guilty
and convicted. Upon conviction the appellant was sentenced to
nine (9) years imprisonment and one stroke of whipping. The
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appellant appealed to the High Court against the sentence
imposed. His appeal was dismissed. Not satisfied with the High
Court decision, the appellant now appeals to us to review the
sentence imposed.
[3]
The charge under section 392 is for an offence of theft and
voluntarily causing fear of instant hurt to the victim in the course of
committing
the theft. The punishment for the offence
is
imprisonment for a term which may extend to fourteen (14) years
and also liable to fine or to whipping.
[4]
In passing sentence, the learned Sessions Court Judge had taken
into
consideration
the
following
facts:
the
appellant
had
approached the complainant and blamed the complainant for
staring at him. The appellant demanded RM10.00 to settle the
matter. When the complainant refused, the appellant grabbed the
complainant by the collar and took out the complainant’s wallet
from the back pocket of complainant’s trousers. The appellant took
RM200.00 from the complainant’s wallet. The complainant told the
Court that in the process the appellant also pointed an object at
the complainant’s stomach. The complainant said he was too
scared to notice the said object for fear of being beaten by the
appellant. The encounter took place for about 10 minutes before
the appellant fled on his motorcycle.
[5]
In her written grounds on the sentence passed the learned
Sessions Court Judge said she also had taken into consideration
the following factors: (1) by way of judicial notice the increasing
rampancy of offence of robbery in Kuching; (2) the appellant is a
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first offender and the complainant was not physically harmed
though traumatized by the incident; (3) the appellant did not plead
guilty at the first instant but instead chose to be tried without
seriously disputing the evidence of the prosecution; (4) the judicial
trend and precedents in sentencing for similar offences. Finally,
the learned Sessions Court Judge had also taken into account
public interest and weighed those interest with the aggravating
circumstances of the offence and the mitigating factors that favour
the appellant in order to strike a fair balance in sentencing.
[6]
In dismissing the appellant appeal, the learned High Court Judge
agreed with the findings and the sentiments expressed by the
learned Sessions Court Judge in overall assessment of the
appellant’s case and the considerations given in imposing the
sentence. Having given the Sessions Court’s findings and
assessment her utmost consideration, Her Ladyship was of the
opinion that the appellant mitigation of losing his job and promise
to turn over a new leaf cannot override public interest
consideration. In her final analysis of the sentence passed by the
Sessions Court, Her Ladyship said that though she found that the
sentence was on the heavy side, it is not manifestly excessive and
that she was not persuaded to disturb the sentence passed.
[7]
Sentencing has two primary purposes. One is to punish the
offender for the offence that he or she had committed and found
guilty of. Two is to serve as deterrent to others so that the public is
protected from would be future offenders of the same offence or
any other offence. This is the public interest element in sentencing.
In R v Ball 35 Cr Appeal R 164 it was said that public interest is
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first and foremost consideration. In the same case it was also said
that criminal law is public enforced with the objective of punishing
crime as well with the hope of preventing. A proper sentence
passed may achieve these two objectives. Public interest is best
served if the offender is induced to turn from criminal ways to
honest living. See also Ahmad Bin Haji Bakar v PP [1988] 2 MLJ
216.
[8]
In certain cases, depending on the sentence passed and the
relevant statutory provisions on sentencing, the sentence could
also serve as a means to rehabilitate the offender and to keep the
offender (particularly the first offender) away from the path of crime
in the future. It is here that the Court in meting out sentence must
do the balancing act – between public interest and that of the
offender. Too lenient a sentence would not have a deterrent effect
and may be seen as a weakness. Too excessive a sentence
(especially long custodial sentence) may not have the desired
effect on the offender which is to punish him and at the same time
to allow him to rehabilitate. Instead keeping the offender longer
than necessary in custodial sentence, may turn the offender into a
hardened criminal due to prolong association with the undesirable
elements behind the prison walls.
[9]
In any event, sentencing is an exercise of discretion by the trial
Judge. The law simply provides, as in most cases, a spectrum of
sentences – from the minimum to the maximum. The trial Court
has to choose the appropriate sentence in each case within that
spectrum by giving consideration to the peculiar circumstances of
each case and all the relevant factors. The only constraint face by
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the trial Court in exercising its discretion is when the law imposes
the only sentence such in the case of murder under section 302 or
when the law provides for a minimum sentence in which case the
trial Court cannot impose anything less than the minimum. For
illustration reference may be made to the following cases: PP v
Leonard Glenn Francis [1989] 2 MLJ 158; Leong Kok Huat v
PP [1998] 6 MLJ 406 and Philip Lau Chee Heng v PP [1988] 3
MLJ 107.
[10] Because it is an exercise of discretion the appellate Court will not
readily interfere with the sentence imposed by the trial Court on
the ground that in the appellate Court’s opinion a different
sentence could have served the purpose better. The appellate
Court will however intervene if the sentence passed is found to be
manifestly inadequate or manifestly excessive, having regard to
the whole circumstances of any given case. The appellate Court
will also intervene if it can be shown that the trial Court had applied
the wrong principles in passing the sentence. This is trite law.
[11] In the present appeal, the learned High Court Judge found that
sentence imposed was not manifestly excessive and the Sessions
Court had applied the correct principles of sentencing by balancing
the public interest requirement and the interest of the offender i.e.
the appellant. More than that, the learned High Court Judge also
found that the sentence passed was in line with the trends of
sentencing for similar offence. Having carefully read the learned
Sessions Court Judge’s grounds on sentencing ourselves we fully
agree with the observation by the learned High Court Judge.
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[12] As for public interest consideration, the trial judge had cited the
decision of PP v Kamaruzaman Mahmud & Ors [2006] 4 CLJ
792 to guide her in sentencing. In that case the Court held that:
“there is a need to ensure that public safety, their property and
belongings are also well protected.”
[13] For all the above reasons we dismissed the appeal and affirmed
the sentenced imposed.
Dated: 22nd January 2016
(DATO' ABDUL AZIZ BIN ABDUL RAHIM)
Judge
Court of Appeal, Putrajaya
Counsel and Solicitor:
For the appellant:
Norshahrizan bin Junaidi
(in person)
For the respondent:
Tuan Muhamad Yasser bin Mohd Nasri
Deputy Public Prosecutor
Attorney General’s Chamber, Putrajaya
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