IWAN BUJANG DARA & ANOR v PUBLIC PROSECUTOR [2017] 3 MLJ 630

COURT OF APPEAL

CRIMINAL PROCEDURE – SENTENCING – IMPRISONMENT

Facts

1.      This appeal arose when two Appellants who were jointly charged with two offences ie gang robbery with murder and voluntarily causing hurt while committing robbery dissatisfied with the sentences imposed on them.  Both of them were each sentenced to 22 years imprisonment and 12 strokes for the first offence meanwhile for the second offence, they were sentenced to 12 years imprisonment and 10 strokes of rotan and the High Court of Bintulu had ordered the sentences to run consecutively.

2.      On May 2014, the Appellants and four others who are still at large put into action their crime at around 10 p.m. when the deceased’s wife arrived home in her car.

3.      The planning for the robbery had begun a week prior and it was part of the plan for them to carry knives and parangs in addition to cellophane tapes for sealing the victims’ lips, rope for tying them up, and towels for covering their own lower faces.

4.      Upon the wife’s arrived home, the robbers entered the compound, resulting in a struggle where she was harmed.  Hearing her distress, the husband intervened and was fatally stabbed by one of the Appellants.  The robbers then stole few valuable items from the residence before fleeing.

5.      In their instant appeal against the sentence, the Appellants argued that given that the two offenses occurred simultaneously and in the same location with the same purpose of committing robbery, the jail terms should have been served concurrently rather than consecutively.

6.      The Appellants also asserted that the imposed jail sentences were overly severe and dashed any aspirations they harboured for rehabilitation and reintegrating into society.

Issues

1.      Whether the jail sentences should have run concurrently and not consecutively

2.   Whether the duration of the imprisonment sentence imposed on the Appellants significantly hindered their prospects for rehabilitation and a return to a positive life.

1.    Whether the jail sentences should have run concurrently and not consecutively.

(a)         The learned counsel argued that the imprisonment sentence should be concurrent rather than consecutive because there is a connection between the first and second offenses in that they were committed for the same purpose of robbery at the same time and location.

(b)         However, the Court of Appeal held that imprisonment sentence should not be imposed consecutively in cases where crimes were perpetrated against two or more distinct victims, even though they were part of the same transaction.

(c)         Reference was made to the case of Public Prosecutor v Yap Huat Heng [1985] 2 MLJ 414 where it was held that –

“Where two or more distinct offences had been committed, sentences of imprisonment should not be made to run concurrently. It should only be made concurrent when an offender had been convicted of a principal and subsidiary offence. In all other cases sentences should be made to run consecutively.”

2.    Whether the duration of the imprisonment sentence imposed on the Appellants significantly hindered their prospects for rehabilitation and a return to a positive life.

(a)         In this case, plea of mitigation was made by both of the Appellants before sentencing.  However, despite the strength of mitigation pleas, the Court’s primary concern is the public interest.  In cases involving violent crimes like those committed by the Appellants, a deterrent sentence must be imposed as a matter of principle, even if the offender pleads guilty at the earliest opportunity.

(b)         This is because, by quoting what have been decided in the case of Bachik bin Abdul Rahman v Public Prosecutor [2004] 2 MLJ 534 –

 “the plea of guilty does not automatically entitle the offender to a lesser punishment.”

(c)         Reference was made to the case of Bachik Abdul Rahman, in which Augustine Paul JCA (as he then was) cited and endorsed the following excerpt from the judgment of O’Brian J in Vaitos v R (1982) 4 ACR 238 :

“I have some difficulty appreciating the concept that a richly deserved sentence, not manifestly excessive, should be disturbed because the person upon whom the sentence is imposed may feel crushed by it. It is quite true that the applicant has to face a very long term of imprisonment before he will be released and because he is a comparatively young man,many of the best years of his life will be spent in custody. However, from the community point of view, his detention for a very substantial period is necessary to protect females from his criminal behavior.”

(d)         The Appellants may indeed feel overwhelmed by the lengthy term of imprisonment (a total of 34 years) imposed by the learned judge.  However, in consideration of the broader public interest, it is imperative that they are incarcerated for this duration to safeguard the public from their criminal conduct.

(e)         Regarding the sentence of whipping, the Court of Appeal failed to perceive how the total number of strokes (22 in total) imposed by the learned judge can be deemed manifestly excessive when considering all the circumstances of the case.  Given the extreme violence involved in such a case, it is imperative that such severity is reflected in the number of strokes the Appellants are required to endure.

(f)           It must be noted that The Court must not disregard those who have endured and continue to endure the consequences of the actions of these criminals.  The court must also consider the plight of the victims, whose lives are irreversibly altered for the worse by the action of these criminals.

Decision

The Appellants’ appeal against sentence was dismissed.

Key Take Away

1.      When a person has two or more convictions, the Court will decide for the imprisonment sentences to either run concurrently or consecutively.  Consecutive sentence means the punishment will commence right after the expiration of the other punishment meanwhile concurrent sentence means the convicted person serves all their sentences at the same time.

2.      For the sentences to run concurrently, the offender must have been convicted with a principal and subsidiary offence.  In this present case, it appears that there are two separate charges being considered, the first charge involves the offense of murdering the deceased while committing gang robbery and the second charge involves the offense of voluntarily causing hurt to the deceased’s wife while committing robbery.  These charges are distinct and separate offenses, each committed against different victims, albeit in the same transaction. Since neither offence is subsidiary to the other, the sentences should not be made to run concurrently.

3.      During sentencing, the offender is allowed to mitigate for a lesser punishment. A plea of mitigation is when the offender asks the court for lenient sentence and the mitigating factors might include family background, employment history, educational qualification as well as the plea of guilty. However, it is important to note that the plea of guilty did not automatically entitle the offender to a lesser punishment.

4.      Being lenient with armed and violent criminals is inappropriate unless there are exceptionally compelling mitigating factors.  The public has the right to be shielded from these reprehensible wrongdoers who infringe upon their fundamental right to live peacefully and safely within their own homes.  This protection is compromised if the Court imposes sentences that are unrealistic and disproportionately lenient.