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2014 MarsdenLR 1451
HIGH COURT SHAH ALAM SELANGOR
AMIRUL HAKIM DZULKEFLY – Appellant
Versus
PP – Respondent
[Criminal Appeal No: 41H-112-05/2014]
The seriousness of an offence committed by a minor outweighs mitigating factors such as age and first offence status, necessitating a focus on public interest in sentencing.
Headnote:(A) Child Act 2001 - Sections 2, 75, and 91 - Penal Code - Sections 395 and 397 - Charge of armed robbery - Details of the charge including a mobile phone theft - Court found the offence to be serious in nature and affirmed conviction and sentence to rehabilitation at Henry Gurney School for 3 years. (Para 4)
(B) Powers of the Court - Judges must balance public interest with individual interests in sentencing child offenders - Public safety outweighs mitigating factors like the offender's age and first offence status. (Paras 17 and 18)
(C) Sentencing principles - Public interest, deterrence, prevention, and rehabilitation are critical considerations in sentencing, particularly for serious offences. (Paras 11 and 13)
Facts of the case:
The appellant, a child aged 17, was convicted for gang-robbery using a deadly weapon, leading to a sentence of rehabilitation due to the serious nature of the offence despite being a first-time offender. (Para 10)
Findings of Court:
The Court emphasized the seriousness of the offence and upheld the lower Court’s decision based on public interest considerations. (Paras 18-19)
Issues: The main issues included whether the seriousness of the offence was properly considered and whether the child’s circumstances warranted a different sentencing approach. (Para 9)
Ratio Decidendi: The Court ruled that seriousness of the crime justifies a more severe sentence regardless of the offender's age or prior history, emphasizing public safety in such cases. (Paras 16 and 28)
Result: Appeal dismissed; sentence affirmed.
| Table of Content |
|---|
| 1. charge and applicable sections of the penal code. (Para 1 , 2 , 3 , 4) |
| 2. appellant's appeal against sentencing. (Para 5) |
| 3. court's powers regarding child offenders. (Para 6 , 7 , 8) |
| 4. summary of grounds of appeal. (Para 9 , 10) |
| 5. factors influencing sentencing objectives. (Para 11 , 12 , 13) |
| 6. seriousness of offence must outweigh mitigating factors. (Para 14 , 15 , 16 , 17) |
| 7. consideration of probation report's findings. (Para 18 , 19 , 20) |
| 8. (Para 21 , 22 , 23) |
| 9. precedents regarding children in criminal cases. (Para 24) |
[1] The charge in the Sessions Court against the child abovenamed as read in Bahasa Malaysia was as follows:
"Bahawa kamu bersama-sama 2 orang lagi yang masih bebas pada 21 Januari 2014, jam lebih kurang 1815hrs di Jalan Mahagoni 3A/1, Batang Kali, di dalam daerah Hulu Selangor, dalam negeri Selangor telah melakukan rompak bersenjata parang dan telah melarikan sebuah telefon bimbit jenama Nokia warna hitam model 202, milik (1) lelaki India nama : KPL RF/113462 Aruldass a/l Appadorai sehingga menyebabkan kerugian sebanyak RM263. Oleh yang demikian kamu telah melakukan kesalahan di bawah s 395/397 Kanun Keseksaan dan boleh dihukum di bawah peruntukan seksyen yang sama. Pertuduhan dibaca bersama-sama dengan s 34 Kanun Keseksaan.".
[2] Section 395 of the Penal Code (Act 574) imposes a punishment for a term which may extend to twenty years and shall also be liable to whipping for gang-robbery.
[3] Section 397 imposes, in addition to any other punishment to which he may be liable under any other s of the code, whipping if at the time of committing or attempting to commit robbery, the offender is armed with or uses any deadly weapon or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person.
[4] The appellant child was aged 17 years and 21 days at the time of the incident. A child is defined by s 2 of the Child Act 2001 as a person under the age of eighteen years. He pleaded guilty to the charge and was accordingly convicted and was ordered to undergo rehabilitation at the Henry Gurney School, Telok Mas, Malacca for a period of three (3) years from the date of the order.
[5] The appellant child now appeals against the order to send him to the Henry Gurney School.
B) Powers Of The Court
[6] The powers of the Court in respect of children on proof of an offence being committed are contained in s 91 of the Child Act 2001 (Act 611) (the Act). There are several courses of action open to the Court. One of these is s 91(1)(f) of the Act which orders the child to be sent to an approved school or a Henry Gurney school.
[7] Section 75 of the Act outlines when a child can be sent to the Henry Gurney School. Sub-s (1) provides if:
a) A child is found guilty of any offence punishable with imprisonment;
b) The probation report submitted to the Court for Children shows that:
(i) the parents or guardian of the child can no longer exercise or is incapable of exercising any proper control over him;
(ii) the child is habitually in the company of persons of bad character; and
(iii) the child is not suitable to be rehabilitated in an approved school; and
c) it appears to the Court for children:
(i) that the offence committed is serious in nature; and
(ii) by reason of the nature of the child's criminal habits and tendencies it is expedient that the child be subject to detention for such term and under such instruction and discipline as appears most conducive to his reformation and the repression of crime.
[8] The Court for Children shall on the recommendation of the probation officer, send the child to a Henry Gurney School.
C) Grounds Of Appeal
[9] By way of summary, the Petition of Appeal filed discloses five (5) grounds in respect of which the Sessions Court had erred.
They are:
(1) Giving undue emphasis to the seriousness of the offence.
(2) Not considering that public interest would be best served if the appellant child is given a chance to mend his ways.
(3) Failure to consider that
