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2012 MarsdenLR 1761
COURT OF APPEAL PUTRAJAYA
NOR AFIZAL AZIZAN – Appellant
Versus
PP – Respondent
[Criminal Appeal No: M-09-227-10-2011]
The court reinforced the principle that young and first offenders should generally avoid imprisonment, emphasizing the need for individualized consideration in sentencing.
Headnote:(A) Penal Code - Section 376 - Criminal Procedure Code - Section 294 - Statutory rape - Appellant pleaded guilty and was initially sentenced to a bond for good behavior - Prosecution appealed, seeking imprisonment for public interest - High Court reinstated the SCJ's sentence citing the nature of the offence and the appellant's status as a first-time, young offender as relevant considerations. (Paras 1, 2, 4, 8, 9, 14, 22, 27)
(B) Sentencing principles - Appellate court's discretion in sentencing - The court noted that an appellate court should be reluctant to disturb a sentence unless manifestly incorrect, focusing on individual case circumstances. (Paras 15, 16, 19)
Facts of the case:
The appellant, aged 19, engaged in consensual sex with a 13-year-old girl. The matter came to light when her father discovered details in her diary, prompting a police report and subsequent charges. The appellant's background as a first offender was considered during sentencing.
Findings of Court:
The SCJ exercised discretion under Section 294 of the CPC, allowing the appellant to avoid imprisonment based on various mitigating factors, while the JC sought a harsher punishment citing public interest.
Issues: Whether the JC was correct to interfere with the SCJ's original sentence and the significance of public interest versus the characteristics of the appellant.
Ratio Decidendi: The court observed that young and first-time offenders should typically be spared imprisonment, and the circumstances of each case are vital in determining appropriate sentences for such offences. The JC incorrectly emphasized public interest over individual factors.
Result: Appeal allowed, with the reinstatement of the original sentence.
| Table of Content |
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| 1. appellant's initial plea and sentencing context. (Para 1 , 2 , 3) |
| 2. conclusion to reinstate original sentencing. (Para 4) |
[1] The appellant was charged before the Malacca Sessions Court for an offence under s 376 of the Penal Code . The offence was said to have been committed on 5 July 2010, between 12.30 am and 5.00 am in room 225, Tingkat 2, King's Hotel, Malacca. The victim was 13 years and 4 months old.
[2] On 5 July 2011, the appellant pleaded guilty to the charge. The learned Sessions Court Judge (SCJ), after hearing the parties, placed the appellant on a bond in the sum of RM25,000.00 for good behavior for a period of five years under s 294 of the Criminal Procedure Code (CPC).
[3] The prosecution, being dissatisfied with the sentence, appealed to the Malacca High Court. The learned Judicial Commissioner (JC) allowed the appeal and substituted the sentence with an imprisonment term of five years Dissatisfied, the appellant lodged an appeal to the Court of Appeal and pending the appeal the appellant was granted a stay of execution.
[4] We heard the appeal on 8 August 2012. After hearing the parties, we allowed the appeal. We set - aside the sentence passed by the learned JC and reinstated the sentence as ordered by the learned SCJ. We now give our reasons
