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2024 MarsdenLR 626
HIGH COURT MALAYA IPOH
LUKMAN HAKIM HUSIN – Appellant
Versus
PP – Respondent
[Criminal Appeal No: AA-42JSKH-14-06-2023]
The court affirmed consecutive sentencing for sexual offences, emphasizing the lack of proximity in time and the need for deterrent measures against such crimes.
Headnote:(A) Sexual Offences Against Children Act 2017 – Sections 14(d), 16, 26, and 27 – Criminal Procedure Code – Section 282(d) – Appeal against sentence for sexual assault – Appellant convicted on three counts, sentenced to 18 years imprisonment with caning – Appeal seeks concurrent sentences based on mitigating factors including guilty plea and clean record – Court finds no error in consecutive sentencing as offences occurred on distinct dates, lacking proximity to constitute a single transaction. (Paras 1, 3, 4, 9, 16, 23)
(B) Sentencing Principles – The court emphasizes the importance of deterrent sentences for sexual offences, considering public interest and the severity of crimes against children. (Paras 17, 23)
Facts of the case: The appellant was convicted of sexual assault against his stepdaughter, receiving a total of 18 years imprisonment with additional penalties. He appealed for concurrent sentences citing remorse and mitigating factors.
Findings of Court: The court upheld the sentencing judge's decision, affirming the consecutive nature of the sentences based on the distinct timing of the offences.
Issues: Whether the sentences should be commuted from consecutive to concurrent based on mitigating factors.
Ratio Decidendi: The court ruled that the offences did not constitute a single transaction due to the distinct dates, justifying consecutive sentences.
Result: Appeal dismissed.
JUDGMENT
[1] This appeal is understandably an attempt by the appellant to reduce the years of imprisonment on the grounds of excessive sentencing following a conviction for sexual offences against a child, for which Parliament has stiffened the penalties. The appellant, being remorseful for his actions and having repented, seeks the court's mercy to reconsider the mitigating factors and have the sentences imposed by the Sessions court Ipoh run concurrently rather than consecutively, thereby reducing the total years of imprisonment.
Background Facts
[2] The appellant was convicted on three counts of sexual assault against his stepdaughter, under s 14(d) of the Sexual Offences Against Children Act 2017 (Act 792), read together with s 16 of the same Act. The court sentenced him to a total of 18 years of imprisonment, with 6 strokes of caning and orders for counselling and police supervision. The appellant contends that the sentence is excessive and requests that the sentences for all three charges to run concurrently from the date of his arrest.
Issue For Determination
[3] There is only one issue for determination in this appeal and that is whether the sentence meted out by the Sessions court Judge ("SCJ") in respect of all 3 charges should be commuted from consecutive to concurrent sentence.
court's Finding
[4] The appellant submits due to immediate guilty plea to all charges, it saved the court's time and resources. The appellant relies on the case of San Soo Kim v. PP , , where it was established that a guilty plea is a mitigating factor that can lead to a reduced sentence. This principle reiterates the offender's acceptance of responsibility and willingness to cooperate with the judicial process. Further, the appellant's clear record without any prior criminal record is also another significant factor to be taken into consideration. In the case of Chian Endin Tin v. PP & Another Case; , it was stated that offenders without prior records could receive reduced sentence. The court in that case replaced imprisonment with a fine, emphasising the importance of considering an offender's clean record when determining sentences.
[5] The appellant also requested to consider that he is the primary caregiver for his ailing father, and his long imprisonment would have severe consequences for his dependents. Therefore, the appellant requested for the court to consider the impact of his sentence on his dependents. Further, the appellant expressed a genuine remorse and promised not to repeat the offence again. In Raja Izzuddin Shah v. PP , [1979] 1 MLJ 270 , the court considered the first offender's remorse and promise to reform as significant factors. So much so, the court replaced the prison sentence with a good behaviour bond, giving emphasis for rehabilitation and to return to the society.
[6] Having perused the grounds of judgment of SCJ, there is no doubt in my mind the learned SCJ had considered the mitigating factors of the appellant discussed above. The sentences meted out by the SCJ for the three (3) charges are as follows:
First Charge:
Five years of imprisonment from the date of arrest (24 May 2023), plus an additional one year of imprisonment and two strokes of the cane under s 16 of Act 792.
Second Charge:
Five years of imprisonment, plus an additional one year of imprisonment and two strokes of the cane under s 16 of Act 792.
Third Charge:
Five years of imprisonment, plus an additional one year of imprisonment and two strokes of the cane under s 16 of Act 792.
The prison sentence for each charge will run consecutively. The appellant was also ordered to undergo counselling under s 26 of Act 792 during the imprisonment period and to undergo police supervision for 2 years under s 27 of Act 792 after serving the prison sentence.
[7] The maximum sentence allowable for each count of offence is 15 years. However, the learned SCJ, having considered the mitigation factors, had only allowed 5 years for offences committed under s 15(1)
