Lukman Hakim Bin Husin v Pendakwa Raya (AA-42JSKH-14-06/2023)

The appellant submits due to immediate guilty plea to all charges, it saved the court's time and resources. Appellant relies on the case of San Soo Kim v. PP (1975) 2 MLJ 134; 45 [1975] 1 MLRA 176, 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 ar record without any prior 50 criminal record is also another significant factor to be taken into consideration. In the case of Chian a/p Endin Tin v. Public Prosecutor [2004] 5 MLJ 594; [2004] 4 MLRH 663, S/N l09EE3i2X02eftr9F4m/gw **Note : Serial number will be used to verify the originality of this document via eFILING portal 3 it was stated that offenders without prior records could receive reduced sentence. The court in that case replaced 55 imprisonment with a fine, emphasizing the importance of sentences.

The appellant also requested to consider that he is the 60 primary caregiver for his ailing father, and his long imprisonment would have severe consequences for his dependent. Therefore, the appellant request for the court to consider the impact of his sentence on his dependents. Further, the appellant expressed a genuine remorse and 65 promises not to repeat the offence again. In Raja Izzuddin Shah v Public Prosecutor (1979) 1 MLJ 270; [1978] 1 MLRH 248 and promise to reform as significant factors. So much so, the court replaced the prison sentence with a good behaviour 70 bond, giving emphasis for rehabilitation and to return to the society.

Having perused the grounds of judgment of SCJ, there is no doubt in my mind the learned SCJ had considered the 75 mitigating factors of the appellant discussed above. The sentences meted out by the SCJ for the three (3) charges are as follows: - 80 S/N l09EE3i2X02eftr9F4m/gw **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 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 Section 16 of the Act 85 792. Second Charge: Five years of imprisonment, plus an additional one year of imprisonment and two strokes of the cane under Section 90 16 of the Act 792. Third Charge: Five years of imprisonment, plus an additional one year of imprisonment and two strokes of the cane under Section 95 16 of the Act 792. The prison sentences for each charge will run consecutively. Appellant was also ordered to undergo counselling under Section 26 of Act 792 during the 100 imprisonment period and to undergo police supervision for 2 years under Section 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 105 the mitigation factors had only allowed 5 years for offences committed under section 15(1) of Sexual Offenses Against Children Act 2017 and one (1) year for offence under S/N l09EE3i2X02eftr9F4m/gw **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 section 16 and very minimum strokes of caning. This facts of sentencing by SCJ are aware by the appellant and its why 110 the appellant is not appealing on those aspect of the decision by the SCJ.

limited to sentence on the three counts of offence which the Sessions Court Judge found the 115 appellant guilty of the charges and meted out for all 3 counts to run consecutively and not concurrently. Appellant is not satisfied with sentence ordered to run concurrently.

The appellant argued that the commission of his offenses, 120 committed over consecutive days, at the same location, with the same victim, and using the same modus operandi, should be considered a single transaction. The one transaction rule, supported by Section 282(d) of the Criminal Procedure Code and elaborated in Bachik Bin Abdul Rahman v. PP 125 [2004] 2 CLJ 572; [2004] 2 MLJ 534; [2008] 3 AMR 429; [2004] 1 MLRA 323, it states that when multiple offenses are part of a single transaction, sentences should run concurrently. Respondent's argument 130

The respondent's response to the appeal, on sentencing principles, particularly addressing the appellant's concurrent S/N l09EE3i2X02eftr9F4m/gw **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 sentencing request, with references to cases and sentencing guidelines. 135

Firstly, the respondent submits the strength and clarity of laws and principles that determine whether sentences should be served concurrently or consecutively. 140 [12] The respondent too relies on the case of Bachik Abdul Rahman v. PP (supra), which outlines the criteria for deciding whether sentences should run consecutively or concurrently. The Court of Appeal in established the 'one transaction rule' and the 'totality 145 principle' as guiding standards. Under the one transaction rule, sentences for two or more offences committed as part of a single transaction should be concurrent. This rule considers four critical elements: proximity of time, proximity of place, continuity of action, and continuity of purpose or 150 design.

Based on the case, the respondent argues that for sentences to be concurrent, the offences must exhibit the aforementioned elements of a single transaction. The 155 appellant's offences, committed on distinct dates ie on May 19, 20, and 21 of 2023, as detailed in the charges, lack the proximity in time, thus failing to meet the 'one transaction rule.' 160 S/N l09EE3i2X02eftr9F4m/gw **Note : Serial number will be used to verify the originality of this document via eFILING portal 7

In further supporting their argument, the respondent refers to the case Darvin Satya Manokaran v. PP [2023] 1 LNS 2361, which reiterates that for offences to be considered for concurrent sentences, they must flow from a single transaction. This means there must be proximity in time, 165 place, continuity of action, and consensus of purpose or design. In other words, in offence of this kind if there is a break from one incident of rape with another, it cannot one incident of rape with another is the victim was free from 170 the clutches of the accused, she was free to move away from the accused, in which case, she could sort help. In our present case as mentioned above the appellant's offences, committed on distinct dates of May 19th @ 5 am, 20th @ 6 am, and 21st @ 5 am of 2023. In between each commission 175 of offence there is substantial break of close to 24 hours, which in my considered view cannot constitute one single transaction.

Therefore, the respondent also according concludes that the 180 sentencing judge of the Sessions Court did not err in imposing consecutive sentences for the appellant's charges. This conclusion is grounded in the principle that the appellant's offences did not occur as part of a single transaction, given the distinct times of each offence, thus 185 justifying the decision for consecutive sentences. S/N l09EE3i2X02eftr9F4m/gw **Note : Serial number will be used to verify the originality of this document via eFILING portal 8

In the given circumstances, this court finds the SCJ did not err in imposing consecutive sentence. As a matter of fact, the trial judge had considered all the factors of the appellant 190 being first offender showing genuine remorse and a willingness to turn a new live.

In addition, I find that the sentencing was proper and aligned with the amendment to Section 16, which was enacted to 195 strengthen penalties by increasing the maximum imprisonment term from 20 to 25 years. The amendment highlights the public importance of protecting vulnerable victims and enforcing stricter penalties against family offenders; see Public Prosecutor v. Sigol bin Singki [2021] 200 6 CLJ 897; [2022] 7 MLJ 1. For these reasons, I am compelled to disagree with the appellant's request for concurrent sentences.

There are a number of cases referred to by the learned DPP 205 which emphasis the need for a deterrent sentence, whereto consecutive instead of concurrent sentence is mandated.

In Public Prosecutor v Muhari bin Mohd Jani [1996] 3 MLJ 116 [TAB D], His Lordship K.C. Vohrah express society's 210 detestation for certain crimes through sentencing in the following words: is that society through the courts must show the abhorrence of particular types of crime, and the only way in S/N l09EE3i2X02eftr9F4m/gw **Note : Serial number will be used to verify the originality of this document via eFILING portal 9 which they, the courts, can do this is by the sentence they 215 pass

Reference is made to R v Sargent [1974] 60 Cr App R 74, where the English Court noted that although courts are not simply mirrors of public opinion, they should not completely 220 ignore the demand for deterrent punishment in sexual offences, suggesting that it is their responsibility to create public awareness through judicial decisions. overlooked: it is that society through the courts, must show 225 its abhorrence of particular types of crime and the only way of which they, the courts can do this is by the sentence they pass. The courts do not have to reflect public opinion. On the other hand, courts must not disregard it. Perhaps the main duty of the court is to lead public 230

In the case of Md Adam bin Mustafar lwn Pendakwa Raya [2016] MLJU 1886, [2016] 1 LNS 1604, His Lordship Hassan Abdul Ghani reiterates the society's detestation towards sexual offences: 235 sihat. Jika satu hukuman yang ringan dijatuhkan dan ianya tidak sepadan dengan kesalahan yang dilakukan oleh tertuduh maka berbagai-bagai kritikan akan dilemparkan ke atas penghakiman tersebut. Walaupun mahkamah tidak 240 boleh dipengaruhi oleh sentimen-sentimen kritikan tersebut S/N l09EE3i2X02eftr9F4m/gw **Note : Serial number will be used to verify the originality of this document via eFILING portal 10 secara total semasa menjatuhkan hukuman, tetapi mahkamah juga perlu peka bahawa kritikan itu menunjukkan luahan rasa kebencian masyarakat terhadap kesalahan yang dilakukan oleh tertuduh. Harus diingat 245 kebencian masyarakat adalah salah satu perinsip

Finally, regarding the discretion of judges on appeal to interfere with the sentencing decisions of lower courts, 250 different judges may reach different conclusions on similar cases due to varying perspectives. Therefore, appellate courts rarely interfere with sentences despite potential disparities unless there is a compelling reason where sentencing principles are not adhered to. His Lordship Raja 255 Azlan Shah LP in the case of Bhandulananda Jayatilake v. Public Prosecutor [1981] CLJU 139; [1981] 1 LNS 139; [1982] 1 MLJ 83, stated this aptly in these words: "That is quite inevitable. Human nature being what it is, different judges applying the same principles at the same 260 time in the same country to similar facts may sometimes reach different conclusions (see Jamieson v. Jamieson [1952] AC 525, 549). It is for that reason that some very conscientious judges have thought it their duty to visit particular crimes with exemplary sentences; whilst others 265 equally conscientious have thought it their duty to view the same crimes with leniency. Therefore, sentences do vary in apparently similar circumstances with the habit of mind of the particular judge. It is for that reason also that this court has said it again and again that it will not normally interfere 270 S/N l09EE3i2X02eftr9F4m/gw **Note : Serial number will be used to verify the originality of this document via eFILING portal 11 with sentences, and the possibility or even the probability, that another court would have imposed a different sentence Conclusion 275 [23] I find that the trial judge had appropriately exercised her discretion in sentencing. Considering all factors, this court concludes that the original consecutive sentences imposed by the Sessions Court are justified. The offenses were committed on different dates, and the appellant's position of 280 trust with the victim aggravates the severity of the crimes. Additionally, public interest and the need for deterrence in sexual crimes against children warrant a strict sentence. The sentence imposed, though severe, it commensurate with the seriousness of the offenses and betrayal of filial trust, and the 285 need to serve as a deterrent in cases of this kind. Therefore, the appeal stands dismissed. The sentences imposed by the Sessions Court are affirmed. The sentences for the three charges will run consecutively, starting from the date of arrest (24 May 2023). 290 Date : 6 Jun 2024 Moses Susayan MOSES SUSAYAN 295 Judicial Commissioner High Court in Malaya at Ipoh, Perak S/N l09EE3i2X02eftr9F4m/gw **Note : Serial number will be used to verify the originality of this document via eFILING portal 12 Counsel: 300 For the Appellant : Amani Williams Hunt Abdullah Advocates and Solicitors S. Kumaresan and Associates 305 Teluk Intan, Perak For the Respondent : Izuddin Fakri bin Hamdan (together with Muhammad Fahmi bin Kamaluddin) 310 Deputy Public Prosecutor Prosecution Unit Perak Legal Advisor Offices 315 (Notice: This Grounds of Decision is subject to official editorial revision) Headnotes 320 CRIMINAL PROCEDURE: Appeal on Sentence Whether sentence can be commuted from consecutive to concurrent based on a guilty plea, clean record, and family circumstances. Whether one-transaction rule is met where three counts of rape of the same victim occurred under one roof at intervals of 24 hours each Whether there is a break in the 325 continuity of action from one incident of rape to another. S/N l09EE3i2X02eftr9F4m/gw **Note : Serial number will be used to verify the originality of this document via eFILING portal