Samsudin Hassan JC

INTRODUCTION

This is an appeal by the public prosecutor (‘the appellant’) against the decision of the learned sessions court judge (‘SCJ’) made on 17 February 2011, whereby the respondent was convicted on his own plea guilty to a charge under s 376Penal Code

THE CHARGE

The charge against the respondent was as follows:

Amended Charge:

Bahawa kamu di antara bulan November 2007, jam lebih kurang 4.00 pagi bertempat di sebuah rumah beralamat Parit Sentang Batu, Mukim 4, Parit Sulong, di dalam Daerah Pontian, di dalam Negeri Johor Darul Ta’zim telah didapati merogol seorang perempuan Melayu bernama XXX, No. KPT: XXX berumur 14 tahun. Oleh yang demikian, kamu telah melakukan satu kesalahan di bawah seksyen 376Kanun Keseksaan

(The name of the victim is substituted with (XXX) to protect her identity).

THE FACTS OF THE CASE

The facts tendered by the prosecution (exh P2) may be translated as follows:

(a)on 13 September 2008 at about 10am, while the complainant (the victim’s mother) was working at Pasaraya Moheng as a security guard, she was approached by her daughter called Normah and informed her that her another daughter named XXX (victim) 14 years old, gave birth to a baby in toilet in their house at Kg Sepan Beruang, Benut, Pontian;

(b)the complainant then returned to their house and found that her daughter name XXX gave birth to a baby boy in the toilet of their house. The complainant made a call to the Klinik Kesihatan Benut. Later the complainant together with the victim and her son were taken to Hospital Pontian for medical examination;

(c)investigation revealed that, the victim admitted that the baby she conceived is result from a relationship with a man known as Cik Musa. Based on investigation, the complainant confirmed that Cik Musa is Musa bin Ahmad (‘the accused’) who is the younger brother to brother in law of the complainant where the accused brother had married a sister of the complainant;

(d)according to the victim, she went to the house of the accused at Parit Sentang Batu, Parit Sulong, Rengit at beginning of November 2007 during school holidays. At about 4pm, victim was invited by the accused to have sex. Then the accused raped her on that day; and

(e)according to the blood analysis, the victim and the boy named Muhd Amirul Aizatt was sent to the chemistry department at Petaling Jaya for paternity test. The test confirmed that the accused person and victim are the natural father and mother to the baby born on 13 September 2008.

The following exhibits were also tendered by the prosecutions:

(a)P1: Amended charge;

(b)P2: Facts of the case;

(c)P3: Police report by the complainant;

(d)P4: Medical report;

(e)P5: DNA report; and

(f)P6: Birth certificate of the victim.

All these exhibits were admitted by the accused.

THE GROUND OF APPEAL

Although the petition of appeal contained several grounds, the primary issues raised by the appellant were as follows:

(a)whether the learned SCJ had erred when failed to have sufficient regard to the following factors:

(i)sexual act committed on the victim by the accused blatantly in breach of trustworthy and responsibility as elderly member of the family who happened to be the younger brother to brother in law of the complainant;

(ii)the victim was only 14 years old when the offence was committed against her;

(iii)the victim was lured to stay at the accussed house during the school holiday and was raped; and

(b)whether the sentence that had been imposed by the SCJ was manifestly inadequate.

I shall now consider whether the SCJ had erred in principle in imposing on the respondent the sentence appealed against. The grounds of appeal are now separately discussed.

FIRST GROUND

The fact that the respondent had pleaded guilty has always been considered as a mitigating factor. The rationale for making an allowance in respect of a plea of guilty was lucidly explained by Lord Justice General in Du Plooy v HM Advocate

[10] In England it is evident that there are two main justifications for making an allowance