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1 IN THE MATTER OF THE SESSIONS COURT IN SHAH ALAM SELANGOR DARUL EHSAN, MALAYSIA CASE NO. BA-62RS-29-07/2025 PUBLIC PROSECUTOR vs SHAWN COLIN DOSS A/L ARPUTHAN DOSS Introduction These are the grounds following an appeal by the Accused (OKT) against the sentencing imposed by this Sessions Court. The accused had pleaded guilty to charge of Robbery under Section 392 of the Penal Code (PC) read together with Section 397 of the same Act. Upon conclusion of mitigation submissions by both the prosecution and the OKT (who was unrepresented), this court sentenced the OKT to 3 years imprisonment (to commence upon conclusion of his current sentence for case no.BA-62RS-30-07/2024) and whipping (1 strokes). Brief background of the case On 9/7/2025 the Public Prosecutor preferred against one Shawn Colin Doss a/l Arputhan Doss (accused i.e. OKT) a charge under Section 392 of the S/N ont14u1MoEa/NrjxXQfEA Penal Code (PC) read together with Section 397 (of the same Act) for the offence of Robbery. The charge against the OKT is as the following: Charge for case no. BA-62RS-29-07/2025 Bahawa kamu pada 10/04/2025 jam lebih kurang 7.20 malam di Sunway Multicare Pharmacy, No.93, Jalan SS 19/6, Subang Jaya, dalam Daerah Petaling, di dalam Negeri Selangor Darul Ehsan, telah didapati melakukan rompakan terhadap Nurulizzati Binti Mohd Noor, Kpt : 990502-10-5060 dengan merompak wang tunai berjumlah RM 389.00/- yang merupakan harta dalam kawalan penama tersebut dan ketika melakukan rompakan tersebut telah menggunakan sebilah pisau sebagai senjata. Oleh yang demikian kamu telah melakukan kesalahan yang boleh dihukum di bawah Seksyen 392 Kanun Keseksaan dan dibaca bersama Seksyen 397 Kanun Keseksaan. Hukuman : Penjara sehingga 14 tahun, dan boleh juga dikenakan denda atau sebat. The punishment upon conviction of this section is: A jail sentence which may reach 14 years imprisonment; and also whipping. S/N ont14u1MoEa/NrjxXQfEA The said charge was read and explained in Bahasa Malaysia which was understood by the accused. The accused, pleaded guilty to the charges read to him. The court explained to the accused the consequences and his rights under the law. The accused understood the full extent of his guilty plea i.e. the possible full sentence that he could face. The OKT maintained his plea of guilt. Following the accused’s plea, the DPP proceeded to adduce the necessary documents which were: P1 - The facts of the case; P2 - Complainant’s police report; P3 - the arrest report; P4(a-b) - pictures of the location; and P5(a-g) - pictures from CCTV footage. The facts of the case and each of these above listed items adduced (and marked) were admitted by the accused. This Court then proceeded to convict the accused for the Section 395 PC charge. Following the conviction both the prosecution and OKT made oral submissions for sentencing. S/N ont14u1MoEa/NrjxXQfEA Mitigation Accused (OKT) plea for a minimum and concurrent sentence At the time of sentencing the accused was serving 4 sentences for offence also under Section 395 read with 397 PC (Cases no. BA-62RS-16-05/2025, BA-62RS-30-05/2025 and BA-62RS-29-07/2025). For case BA-62RS-29- 07/2025 the same accused was charged before this court upon which the OKT entered into a plea of guilt. This court sentenced him 3 years imprisonment and whipping (1 stroke). The sentence for case BA-62RS-29- 07/2025 was only to commence upon conclusion of his sentence for case no. BA-62RS-30-05/2025. For this case the OKT applied that this court order a concurrent sentence along with his currently serving sentences. The accused’s mitigating factors are summed up in the following: Background of the accused The accused is 43 years old at the current time; Is not married; and Was a worker for a company that supplies canopies for events; and Has no dependants. General reasons Is remorseful; S/N ont14u1MoEa/NrjxXQfEA Claims that he has a drug problem (methamphetamine i.e. syabu); and Claims that the drug abuse pushed him to commit the crime. Submission of the prosecution for a heavy sentence The DPP applied that the court impose upon the accused a heavy sentence i.e. long period of incarceration. The emphasise was that under the circumstances, public interest ought to supersede the interest of the accused. The DPP argued the following reasons (in brief) for the imposing of such a substantial sentence: the accused committed the robbery during the day; the robbery took place in a public place (a pharmacy); and a lengthy sentence would serve as a proper lesson to the accused and also to society. THE COURT’S VIEW As aforementioned, the learned DPP had strenuously argued that in the instant case public interest ought to supersede the interest of the accused. Among the reasons provided by the prosecution that public interest ought to take priority is that punishment afforded by the section itself reflects on the S/N ont14u1MoEa/NrjxXQfEA seriousness of the offence i.e. up to a maximum of 14 years imprisonment and whipping. This Court does see that the degree of seriousness in this offence as reflected in the severity of punishment provided by the punishing section. In the case of PP v Loo Choon Fatt [1976] 2 MLJ 256 it was highlighted that the various amendments made to the DDA 1952 to enhance sentencing for certain offences under the said act. The Court went on further to explain that such legislative exercise reflected the Governments realisation to the seriousness of drugs abuse in the country and the dangers it imposed upon society. In this case, Section 392 PC carries a maximum sentence of 14 years. The offence is one which brought about the threat of physical harm. It incurred a serious impact on the victim’s life and to an extent creates a rippling effect upon society i.e. that even during the day one cannot feel safe at in a public area. It cannot be said that this was crime that was born out of desperation but what is clear it is a crime which brought intimidation and a very real genuine threat of physical harm. One can only speculate the extent psychological trauma suffered by the victim in her place of work as well as those who were unfortunately there at that particular time. S/N ont14u1MoEa/NrjxXQfEA Considerations of sentencing Under the circumstances, this Court is compelled to go back to the fundamentals of sentencing which is the striking of a proper balance between public interest and the interest of the accused. This principle was explained in the case of PP v Mohd Kamil bin Yahya [1998] 1 LNS 208 where Abdul Wahab Patail J (as he was then) held: “The principles governing sentencing have been stated on numerous occasions and we think no assistance is to be had by going through all the authorities on the subject. Suffice to say that a court should, when sentencing an accused, take into account all considerations relevant to the case, including the gravity of the offence, the circumstances surrounding the commission of the offence, the antecedents of the accused, the deterrent effect that punishment is to have, any factor that warrants special attention either in favour or against the accused and above all the public interest...." This said balance between public interest and interest in of the accused had earlier been ruled in the case of PP v Mohd Ramly [1974] 1 MLJ 95 where Azmi J held that ‘In assessing sentence, a proper balance should be struck between public interest and the interest of the accused..’ S/N ont14u1MoEa/NrjxXQfEA The term of public interest had played a central theme in the prosecution’s plea for a heavy sentence. This Court does not deny that public interest must be viewed with an upmost consideration as it is in all criminal offences. Public interest however varies from each case based upon the particular facts of a case. This principle was explained in the case of R v Ball 35 Cr App R 164 in which it was held: “Public interest varies according to the time, place and circumstances of each case including its nature and prevalence. What may be of public interest in one place may differ from another..” As mentioned earlier, this Court understands there exists a degree of seriousness regarding the offence. This Court however, still has a commitment to bipartisanship in that the accused still retains undiminished rights under the law and his plea of guilt must also be afforded equal consideration. A guilty plea in earnest saves the time and cost of a full public trial. This was expressed in the case of R v Boyd (1980) 2 Cr App R (S) 234: "The policy of the courts is that where a man does plead guilty, which does give rise to public advantage and avoids the expense and nuisance of a trial, which may sometimes be a long one, the court encourages pleas of guilty by knocking something off the sentence which would have been imposed if there had not been a plea of guilty.” S/N ont14u1MoEa/NrjxXQfEA In the current case, as earlier mentioned this Court afforded the opportunity to the accused to explain how he had come about to committing the offence (during his mitigation). The accused explained that he was desperate and his long time habit of drug abuse caused him to act wantonly. The accused further expressed his regret wishes to turn over a new leaf. I appreciate this candid admission by the accused and accept that he is truly remorseful towards his act. This however does not deter from the fact that he entered the victim’s workplace (a pharmacy), used threat of physical harm as a means to force the victim to hand over money from kept in the premises. This not only gave an impact towards the victim but also upon the people who come to the pharmacy seeking medicine, supplements etc. In short, his actions have scarred the local community. In considering the appropriate sentence which befits the crime I refer to the case of Ali bin Deraman v Pendakwa Raya [2016] MLJU 1401 where it was held: “[14] Masyarakat sekarang semakin sensitif terhadap hukuman-hukuman yang dijatuhkan oleh mahkamah. Pada pendapat mahkamah ini adalah satu trend yang 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 boleh dipengaruhi oleh sentimen-sentimen kritikan tersebut secara total semasa S/N ont14u1MoEa/NrjxXQfEA menjatuhkan hukuman, tetapi mahkamah juga perlu peka bahawa kritikan itu menunjukkan luahan rasa kebencian masyarakat terhadap kesalahan yang dilakukan oleh tertuduh. Harus diingat kebencian masyarakat adalah salah satu prinsip kepentingan awam. [32] Setiap hukuman hendaklah berbentuk memberi pengajaran dan mendatangkan rasa takut dan gerun serta serik kepada tertuduh dan kepada masyarakat. Hukuman yang sekadar gigitan semut (pinprick) akan mengakibatkan masyarakat menganggap kesalahan sebagai tidak serius. Di dalam kes Regina v WN Hammar [1958] MLH 4 HC, ianya telah diputuskan “punishment which amounts to a pinprick does not deter.” In light of Ali Deraman’s case (in which a further reference was made to WN Hammar’s case) I would like to put a particular emphasis on the phrase of punishment which amounts to a pinprick does not deter. In the current case, considering the seriousness of the offence, a light sentence would not serve as a deterrent to any future offenders and furthermore it must be shown to the public that such serious offences carry serious consequences. Concurrent and consecutive sentences For the issue as to whether the sentence ought to be concurrent or consecutive I am guided by Sections 282 and 292 of the Criminal Procedure Code (CPC). Section 282(d) of the CPC provides the general rule that a S/N ont14u1MoEa/NrjxXQfEA sentence of imprisonment shall take effect from the date on which it was passed unless the court passing sentence otherwise directs as such. Section 292 however is a specific provision dealing with the date of commencement of a section of imprisonment of a person who is already undergoing imprisonment. Under this Section 292, the court may order the imprisonment to commence either immediately or upon expiration of the imprisonment to which he has been sentenced previously. The application of discretion to determine the date of commencement of the sentence of imprisonment depends on the facts and circumstances of each case. In deciding whether imprisonment terms should be consecutive or commence at another date, the court is guided by the one transaction rule and the principle of totality. With regards to the one transaction rule where two or more offences are committed in the course of a single transaction, all sentences in respect of these offences should be concurrent and not consecutive. In order for an act to fall within one transaction four elements must be present, that is to say, proximity of time, proximity of place, continuity of action and continuity of purpose or design. This is as decided in the case of Amrita Lal Hazra v Emperor 42 Cal 957. S/N ont14u1MoEa/NrjxXQfEA Accused currently serving sentence In the case at hand, the OKT was at the time serving 3 sentence for offences also under s.395 PC. The sentence the accused was serving at the time he was charged in this court are as the following: Case no. BA-62RS-16-05/2025 - pleaded guilty towards 2 charges under Section 392 read with Section 395PC. Sentenced 3 years imprisonment for each charge and whipping (4 strokes for each offence totalling to 8 strokes). Both sentences to run concurrently from date of arrest Case no. BA-62RS-30-05/2025 - pleaded guilty to a charge under Section 392 read with Section 395 PC. Sentenced 2 years imprisonment and whipping (3 strokes). Sentence to commence after sentence for case no. Case no. BA-62RS-16-05/2025 has concluded. Case no. BA-62RS-28-05/2025 - pleaded guilty to a charge under Section 392 read with Section 395 PC before this court. Sentenced 3 years imprisonment and whipping (1 stroke). Sentence to commence after sentence for case no. Case no. BA-62RS-30- 05/2025 has concluded. It is to be noted that the imprisonment sentences for all the abovementioned cases were to commence consecutively. This is based on the reason that the offences for each case to place on different dates, times and occasions. S/N ont14u1MoEa/NrjxXQfEA It is clear that the one transaction rule for these cases cannot apply as per Amrita Lal Hazra’s case. Hemce the sentencing for these cases were ordered to commence separately. This would also be the case for the OKTs matter in this court. The offence in which the OKT pleaded guilty before me to place on a different, time and occasion (than the offence in case no. BA- 62RS-16-05/2025 and case no. BA-62RS-17-05/2025). As such, it is clear the one transaction rule cannot apply. I refer to the case of Bachik bin Abdul Rahman v Public Prosecutor [2004] 2 MLJ 534 in which the Court Of Appeal held: The exercise of the discretion to determine the date of commencement of the sentence of imprisonment is dependent on the facts and circumstances of each case. In deciding whether the terms of imprisonment should be consecutive or commence at another date, the court should be guided by the one transaction rule and the totality principle Bachik Abdul Rahman’s case has clearly provided the principle that ought to be applied under such circumstances where there exists more than 1 offence. In following this, I am of the view that the imprisonment sentence ordered by this court should commence only upon conclusion the OKTs current serving sentences. S/N ont14u1MoEa/NrjxXQfEA Court’s sentencing After considering all the relevant factor, I hereby sentence the accused to 3 years imprisonment with whipping (1 stroke). This sentence is to commence upon conclusion of his sentence for case no. BA-62RS-28- 05/2025. Conclusion Upon a full consideration of the facts, adduced articles evidence as well as great appreciation towards the submission of the prosecution and plea of the accused, this court has sentenced the OKT appropriately in accordance to law and binding legal precedents. (MUHAMAD ANAS MAHADZIR) SESSIONS COURT, SHAH ALAM For the prosecution: DPP Amir Haiqal For the Accused (OKT): Himself S/N ont14u1MoEa/NrjxXQfEA