Vladimir Covalenco (KD-62-10-07/2024)

Vladimir Covalenco (hereinafter referred to as ‘the Accused’) faces charges under Section 31(1)(a) of the Child Act 2001 (Act 611). The charge alleged that, as the person responsible for the care of a female child named Aisya Faina, he mistreated her, exposed her to harm, or negligently acted in a manner that could have caused 2 her physical and emotional injury, or subjected her to circumstances that resulted in such harm through his actions.

The charge levelled against the accused is detailed and set out as follows, forming the basis of the prosecution's case in this matter. The Charge “Bahawa kamu, pada tarikh 30.06.2024 jam lebih kurang 8.00 pagi bertempat di Rumah No. 908 Century Suria Service Apartment Mukim Kuah, di dalam daerah Langkawi, di dalam negeri Kedah Darul Aman, sebagai seorang yang mempunyai pemeliharaan terhadap seorang kanak-kanak perempuan bernama Aisya Faina (No. K/P: 080910-02-0864) telah menganiaya atau mendedahkan kanak-kanak atau bertindak secara cuai dengan cara yang mungkin akan menyebabkannya mengalami kecederaan fizikal dan emosi atau yang menyebabkan dianiaya atau didedahkan sedemikian. Oleh itu, kamu telah melakukan kesalahan di bawah seksyen 31(1)(a) Akta Kanak-Kanak 2001 dan boleh 3 dihukum di bawah seksyen 31(1) akta yang sama.”

On 11.12.2024, after the Deputy Public Prosecutor (hereinafter referred to as ‘the learned DPP’) requested the charge to be read to the accused, the counsel representing the accused (hereinafter referred to as ‘the learned counsel’), informed the court of the accused's intention to submit an application for plea bargaining using Form 28A, as provided under Section 172C of the Criminal Procedure Code (CPC).

At the request of learned counsel for the accused, the proceedings were stood down to enable the application for admission Form 28A to be prepared and signed by the accused, for plea bargaining pursuant to section 172C of the Criminal Procedure Code (CPC). Pursuant thereto, the accused signed the application for plea bargaining in the Form 28A. The application for admission ‘’Permohonan Bagi Pengakuan” Form 28A was also signed by the learned DPP and the learned counsel for the accused. (refer to Enclosure A). The specifics of this enclosure are outlined below. “Bahawa kamu, pada tarikh 30.06.2024 … boleh dihukum 4 di bawah seksyen 31(1) akta yang sama.”

Saya, VLADIMIR COVALENCO (NO. K/P: 690216-86- 5013), dengan ini memohon kepada Mahkamah ini supaya tuduhan ditetapkan untuk perbicaraan bagi Tawaran Pengakuan berkenaan hukuman dan Pendakwa Raya hendaklah diberitahu mengenai permohonan ini.

Saya dengan sesungguhnya mengaku bahawa permohonan ini dibuat dengan sukarela selepas memahami jenis dan beratnya hukuman yang diperuntukkan di bawah undang-undang bagi kesalahan-kesalahan yang saya dipertuduh [5] The Accord and Satisfaction of Plea Offer "Penyelesaian Memuaskan Tawaran Pengakuan" was also read to the accused, who confirmed his understanding and consent by signing it. All involved parties have also endorsed the document, (refer to Enclosure B). The specifics of this enclosure are outlined below.

OKT mengaku salah terhadap pertuduhan di bawah seksyen 31(1)(a) Akta Kanak-Kanak 2001 sepertimana pertuduhan;

Pihak-pihak bersetuju hukuman yang akan dikenakan ke atas Tertuduh adalah penjara selama 5 tahun bermula daripada tarikh tangkap 02.07.2024;

Pihak-pihak bersetuju bahawa Tertuduh hendaklah menyempurnakan bon berkelakuan baik dengan seorang penjamin (tanpa cagaran) selama tempoh 2 tahun selepas Tertuduh dibebaskan daripada hukuman penjara; dan

Pihak-pihak bersetuju bahawa Tertuduh hendaklah menyempurnakan perintah khidmat masyarakat selama tempoh 36 jam dan ianya hendaklah disempurnakan dalam tempoh tidak melebihi 6 bulan setelah selesai tempoh penjara 5 tahun. [6] When proceedings resumed, the learned DPP and the learned counsel presented the Form 28A (Enclosures A and B) to the Court and during mitigation, appealed specifically for considerations regarding the terms for the sentence and imprisonment as stipulated in the Form 28A signed and agreed by all parties. [7] The accused and subsequently entered a guilty plea after the charge was read in Malay again by the Court interpreter. The Court took careful steps to ensure that the accused fully understood the details of the charge, the nature of the offence, and the associated penalties. [8] Only after confirming the accused’s comprehension and acknowledgment of these elements did the Court proceeded to record the guilty plea. … tanpa membuang masa Mahkamah setelah berbincang dengan OKT dan pihak pendakwaan, OKT bersedia untuk mengaku salah dan pihak kami juga telah mengemukakan satu borang 28A di bawah seksyen 172C Kanun Tatacara Jenayah (Akta 593). OKT bersedia membantu pihak pendakwaan untuk menyelesaikan kes ini. dan juga ini telah menjimatkan masa mahkamah, masa saksi- saksi yang terlibat dan secara keseluruhan dan kos perbicaraan. Disertakan juga lampiran A dan lampiran B untuk rujukan Mahkamah yang mulia ini. Saya pohon fakta ini diambil kira … [9] The learned DPP then tendered Form 28A (Enclosures A and B) and the learned counsel stated that there was a plea bargaining of the sentence and the DPP had agreed that the parties will not be appealing against the sentence. The plea bargaining was done in chambers. The learned counsel stated that during the plea bargaining, he had asked for five (5) years improsonment and the learned DPP agreed. The learned judge is technically bound by it. The accused plea is a qualified plea. [10] The accused sincerely declare that this application is made voluntarily after understanding the nature and severity of the punishment prescribed under the law for the offenses with which he was charged. [11] The Court then convicted the accused of the abovementioned charge. The court also reminded the parties of their agreement to the terms outlined in Enclosures A and B. Consequently, the Court sentenced the accused to five (5) years imprisonment, commencing from the date of arrest on 2 July 2024. Additionally, the parties concurred that upon release, the accused shall enter into a good behaviour bond with one surety, without collateral, for a duration of two years. Furthermore, the accused is required to complete 36 hours of community service within six months following the completion of the prison term. ACCUSED’S GUILTY PLEA [12] The accused affirmed his understanding of the facts, and the reading was conducted by the court interpreter in Malay, ensuring that the accused fully understood the information being conveyed. The court interpreter’s role was vital in ensuring that the accused’s understanding was clear and that the proceedings were accurately explained. [13] The first issue for determination is whether the plea bargaining in question was in respect of the charge or of the sentence. In this case it is clear that the plea bargain is in respect of the sentence. After proceedings resumed, learned counsel for the respondent tendered the Form 28A. [14] At the request of learned counsel for the accused, the proceedings were stood down to enable the Form 28A to be prepared and signed by the accused for plea bargaining pursuant to section 172C of the Criminal Procedure Code (CPC). Pursuant thereto, the respondent signed the application for plea bargaining in Form 28A and marked as Enclosures A and B respectively. BACKGROUND OF THE CASE [15] I will now provide a concise overview of the facts relevant to this case. For a comprehensive and detailed account, reference should be made to the statement of facts, which has been formally marked as Exhibit P2 and is part of the evidence presented. [16] The facts of the case, as meticulously outlined by the prosecution and officially submitted as Exhibit P2, provide a comprehensive narrative of the events and circumstances surrounding the matter. These details, forming the foundation of the prosecution's argument, are presented as follows:

On 2nd July 2024, at approximately 10:30 a.m., the complainant, Siti Suraya binti Awang, received information from a resident on the 7th floor, specifically from the occupant of Unit 712, Century Suria Condo, Jalan Taman Pelangi, Kelibang, Kuah, 07000 Langkawi, Kedah. The resident reported that a 15-year-old girl named Aisya Faina (the victim) was observed sitting pensively and appearing distressed at the flowerbed area of the 7th-floor corridor.

The minor is the daughter of Mohd Ali Abdullah (also known as Vladimir Covalenco), the accused, who resides on the 9th floor, Unit 908. The complainant approached the victim, persuading her to come down and enter the complainant's office by expressing an intention to assist her. Subsequently, the complainant filed a police report as documented in Kuah/006519/24. The victim was subsequently taken to the Langkawi District Police Headquarters (IPD) and filed a police report under reference number Kuah/006532/24.

The victim alleged that on the 30th of June 2024, at approximately 8:00 a.m., the accused entered her room and reprimanded her. The accused then pulled her hair, choked her neck, and forcefully struck her head against the wardrobe.

The accused's aggression towards the victim was purportedly due to her failure to attend school. The victim explained that her absence was caused by emotional distress stemming from the pressure to seek employment to financially support the family.

The victim disclosed that she had been subjected to frequent physical abuse by the accused, who used both a belt and his hands, since she was six years old. These incidents of abuse caused the victim severe emotional distress, leading her to harbor suicidal thoughts, including self-inflicted cuts and intentions to jump off a building.

The victim was referred to Sultanah Maliha Hospital, Langkawi where the attending medical officer diagnosed her with Persistent Depressive Disorder with Intermittent Major Depressive Episodes (F34.1 Dysthymic Disorder). The injuries observed included lacerations on both hands, legs, and thighs, inflicted by self-harm using a knife. The victim received emergency treatment and was subsequently admitted to the children's ward for seven days, from the 2nd to the 8th of July 2024.

On the 2nd of July 2024, at approximately 4:45 p.m., a team from the Criminal Investigation Division of the Langkawi District Police Headquarters arrested the accused at his residence, located at No. 908 Century Suria Service Apartment, Mukim Kuah, Langkawi, Kedah, as recorded in police report, Kuah report 6539/24.

Consequently, the accused pleaded guilty to the charges preferred against him. [17] At the request of learned counsel for the respondent, the proceedings were stood down to enable the Form 28A to be prepared and signed by the respondent for plea bargaining pursuant to section 172C of the Criminal Procedure Code (CPC). Pursuant thereto, the respondent signed the application for plea bargaining in Form 28A. After proceedings resumed, learned counsel for the respondent tendered the Form 28A. LIST OF EXHIBITS [18] The learned Deputy Public Prosecutor (hereinafter referred to as ‘the learned DPP’) subsequently submitted a series of exhibits into evidence, which were presented in support of the prosecution’s case and form part of the material evidence for consideration: No. Description Exhibits 1. Application for admission Enclosure 1 2. Accord and satisfaction of plea offer Enclosure 2 3. Facts of the case P1 4. Kuah report 6519/24 P2 5. Kuah report 6532/24 P3 6. Kuah report 6539/24 P4 7. NRIC of the Victim P5 8. 13 Photographs of the incident location

11 Photographs of the victim's injuries

Medical report P8 [19] The accused formally acknowledged the exhibits as accurate and authentic, thereby admitting them as true representations of the evidence in question without raising any objection. MITIGATION BY THE ACCUSED [20] The court presented the case facts, which were read aloud to the accused in Malay by the court interpreter, ensuring his comprehension. The accused confirmed his understanding and was given the opportunity to present a plea in mitigation. He stated, "Saya dengan rendah diri merayu Tuan Hakim agar menjatuhkan hukuman seperti yang dinyatakan dalam Lampiran B". Through his counsel, he further requested that the sentence align with Enclosure B. [21] The learned counsel further stated that the accused’s guilty plea did not only save the court’s time and resources but also reduces costs for the prosecution and witnesses. This allows the court to focus on more serious and complex cases. The accused has always intended to plead guilty; the accused had no intention of wasting this honourable court’s time and entered a guilty plea as soon as the charges were presented. [22] Additionally, the learned counsel referenced the case of PP v Ravindran & Ors [1993] 1 MLJ 45, PP v Abdul Halim Ishak & Another [2013] 1 SCR 433 and PP v Yogananthan Boy Kuppu @ Uthirasan [2018] 1 LNS 1486 arguing that a discount or credit should be granted to the offender for pleading guilty, as this contributes to saving both time and costs for the court. He further highlighted that such a plea not only demonstrates the accused’s acknowledgment of the offence but also shows a degree of responsibility and cooperation, which can be considered a mitigating factor. By avoiding a lengthy trial, the accused helps to expedite the judicial process, thereby allowing the court’s resources to be allocated more efficiently. [23] This principle aligns with the broader notion that a guilty plea can be seen as a step towards rehabilitation and accountability, and should therefore be taken into account when determining an appropriate sentence. He then urged the court to recognizing the accused’s willingness to admit wrongdoing and save judicial resources. PROSECUTION'S SUBMISSION [24] The learned DPP referred to the penalty stipulated under Section 31(1)(a) of the Child Act 2001 (Act 611), which provides for a fine not exceeding fifty thousand ringgit, imprisonment for a term not exceeding twenty years, or both. However, it was submitted that the sentence should align with the terms agreed upon by the parties, as detailed in Enclosures A and B. [25] This penalty clearly reflects the gravity of criminal offences related to child abuse and neglect as outlined in the Child Act 2001(Act 611). In recent years, Malaysia has witnessed a significant number of child abuse cases. According to the Ministry of Women, Family, and Community Development, there were many reported cases of child abuse between 2020 and 2022. This underscores the critical need for stringent enforcement of child protection laws to safeguard the welfare of children [26] All exhibits were duly admitted by the Court in accordance with the legal procedures governing the acceptance of evidence under the law. THE LAW [27] Section 31(1)(a) of the Malaysian Child Act 2001 (Act 611) addresses offenses related to the ill-treatment, neglect, abandonment, or exposure of children by individuals responsible for their care. Specifically, it states that any person who, being a person having the care of a child, abuses, neglects, abandons, or exposes the child in a manner likely to cause him physical or emotional injury, or causes or permits him to be so abused, neglected, abandoned, or exposed, commits an offense. Upon conviction, the offender is liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding twenty years, or to both. [28] For the charge of the offense under Section 31(1)(a) of the Act 611, it is provided as follows: Offences in relation to the health and welfare of children Ill-treatment, neglect, abandonment or exposure of children

(1) Any person who, being a person having the care of a child—

abuses, neglects, abandons or exposes the child or acts negligently in a manner likely to cause him physical or emotional injury or causes or permits him to be so abused, neglected, abandoned or exposed; or

... commits an offence and shall on conviction be liable to a fine not exceeding fifty thousand ringgit or to imprisonment for a term not exceeding twenty years or to both. [29] Considering that the parties have mutually agreed upon the sentence as detailed in Enclosure B, the court acknowledges and accepts this agreement, thereby binding itself to the stipulated terms.The Court acknowledges this approach and refrains from issuing any further orders on the sentence. [30] Instead, as explicitly requested by the learned DPP and the learned council for the accused supported by the evidence presented during the proceedings, the Court has sentenced the accused as detailed in Enclosure B. [31] The Court views this decision as a balanced approach, ensuring that the sentence are proportionate and targeted at the contraventions identified, without overstepping the bounds of fairness or reasonableness. This ruling underscores the judiciary’s commitment to upholding the law while considering the rights and responsibilities of all parties involved. [32] When determining a sentence for the accused, the Court must adhere to the principles and provisions established by the law. The foundation for sentencing lies in Section 173(b) of the Criminal Procedure Code (CPC). This section outlines the legal framework for how a court should proceed after an accused has been found guilty or has pleaded guilty to a charge. It ensures that sentencing is conducted in a systematic and fair manner, considering both the statutory requirements and the individual circumstances of the case. It provides:

Procedure In Summary Trials b) If the accused pleads guilty to the charge, weather as originally framed or as amended, the plea shall be recorded and may be convicted on it and the Court shall pass sentence according to law … [33] The section provides detailed guidance on the steps the Court must follow, including hearing any submissions or evidence relevant to sentencing from both the prosecution and the defense. It underscores the importance of considering factors such as the nature and gravity of the offense, any mitigating or aggravating circumstances, and the impact of the offense on society. These elements collectively help ensure that the sentence not only serves as a punishment but also as a deterrent and a means of rehabilitation, depending on the context of the case. [34] In essence, Section 173(b) acts as a safeguard to maintain consistency and justice in sentencing practices. The Court, while exercising its discretion, must balance legal mandates with a fair evaluation of the unique aspects of each case. This ensures that the sentence is proportionate to the offense and aligns with the principles of justice and equity. CONVICTION AND SENTENCE [35] Having ascertained that the accused fully comprehended the nature and implications of his plea, voluntarily admitted to the charge without any reservation, and unequivocally accepted the statement of facts and the exhibits presented, the Court proceeded to convict the accused of the charge in accordance to Enclosures B. [36] The Court then sentenced the accused of the aforementioned offence. The court also reminded the parties of their agreement to the terms outlined in Enclosures A and B. Thereafter, the court sentenced the accused to five (5) years imprisonment, commencing from the date of arrest on 2 July 2024. Additionally, the parties concurred that upon release, the accused shall enter into a good behaviour bond with one surety, without collateral, for a duration of two years. Furthermore, the accused is required to complete 36 hours of community service within six months following the completion of the prison term. THE COURT’S FINDING REGARDING THE SENTENCE [37] Before the Court provides justification regarding the sentence and order imposed on the accused, the Court wishes to draw attention to the accused's guilty plea made prior to sentencing. [38] The accused entered an unconditional plea of guilty after the charge and sentence were read and explained to him. Additionally, the charge and sentence were conveyed by the court’s interpreter in the Malay language, as the accused confirmed his understanding of the language. Moreover, the accused was concurrently represented by his learned council. [39] The Court believes that Section 305 of the Criminal Procedure Code does not permit any accused who has pleaded guilty and been convicted to file an appeal, except on matters concerning the severity or legality of the sentence. This position aligns with the findings of the Court of Appeal in the case of Masni Yusoff v PP [2019] 1 LNS 1984. “In the premises, as correctly submitted by the learned DPP, section 305 of the Criminal Procedure Code applies. The section provides that where accused person has pleaded guilty and has been convicted, there shall be no appeal except as to the extent or legality of the sentence.” [40] The same principle was also affirmed by the Court of Appeal in the case of PP v. Muhammad Kasyfullah Kassim [2017] 1 CLJ 63, where the court upheld the application of this principle in determining an appropriate sentencing as follows; “The conviction of the respondent was never appealed against and canvassed before us. The appeal before us was solely by the prosecution and it was only on sentence. As the respondent has pleaded guilty and had been convicted on that plea, “there shall be no appeal except as to the extent or legality of the sentence”: see s.305 of the Criminal Procedure Code. That being the case, we propose to deal with the issue of sentence only in this judgment.” [41] Therefore, in light of the fact that the accused has entered an unconditional guilty plea, as reflected in the observation and records of the Court, the sole remaining issue for the Court to resolve is the determination of an appropriate sentence. The Court is now tasked with assessing the circumstances surrounding the offence and considering all relevant factors in order to impose a sentence that aligns with the principles of justice and fairness. [42] In making its decision, the Court has comprehensively evaluated a range of factors before imposing the sentence on the accused. [43] In recent times, Langkawi has witnessed a concerning rise in child abuse cases, with numerous individuals being prosecuted under the Child Act 2001 (Act 611). This upward trend in offences against children underscores the pressing need for stringent legal measures to protect vulnerable minors. Given the gravity and increasing prevalence of such crimes in the region, the imposition of a five-year imprisonment sentence upon the accused is deemed appropriate and justifiable. This sentence not only reflects the severity of the offence but also serves as a deterrent to potential offenders, reinforcing the community's commitment to safeguarding its children. [44] The Court must balance the public's interests with that of the accused. The public interest calls for the imposition of a deterrent sentence on the accused. The purpose of such a sentence is not only to prevent the accused from committing the offence again, but also to serve as a deterrent to others in society from engaging in similar offences in the future. However, the fact that the accused pleaded guilty, whether it was at the time the charge was read or at any stage prior to the trial, does not automatically result in a lighter sentence. The Court holds full jurisdiction and discretion in considering all relevant factors before determining an appropriate sentence, particularly in cases with significant public interest. Therefore, a fitting and proportionate sentence must be imposed to serve the public interest, as determined in R v Ball (1951) 35 Cr App R 164 at page 165. "In deciding the appropriate sentence, a court should always be guided by certain considerations. The first and foremost is the public interest. The criminal law is publicly enforced, not only with the object of punishing crime, but also in the hope of preventing it. A proper sentence, passed in public, serves the public interest in two ways. It may deter others who might be tempted to try crime as seeming to offer easy money on the supposition, that if the offender is caught and brought to justice, the punishment will be negligible. Such a sentence may also deter the particular criminal from committing a crime again, or induce him to turn from a criminal to an honest life. The public interest is indeed served, and best served, if the offender is induced to turn from criminal ways to honest living. Our law does not, therefore, fix the sentence for a particular crime, but fixes a maximum sentence and leaves it to the court to decide what is, within the maximum, the appropriate sentence for each criminal in the particular circumstances of each case. Not only in regard to each crime, but in regard to each criminal, the court has the right and the duty to decide whether to be lenient or severe." [45] The Court recognizes that cases prosecuted under Act 611 frequently involves habitual offenders. In this case, the accused is a first time offender. The Court must therefore consider this context when determining the appropriate course of action in the current proceedings. [46] However, the Court believes that the end does not justify the means, regardless of the circumstances, and the law must be upheld without exception. [47] Upon reviewing the arrest report Kuah 6539/24 (refer to Exhibit P4) and the accompanying photographs (refer to Exhibit P7), it is evident that the victim sustained multiple injuries. [48] The sentence imposed on the accused took into consideration several factors, including the fact that the accused has made a plea bargain as their agreement to the terms outlined in Enclosures A and B. The prescribed penalties under Section 31(1)(a) of the Child Act 2001 underscore the gravity with which the Malaysian legal system regards offences involving child abuse and neglect. This provision allows for a fine not exceeding RM50,000, imprisonment for a term not exceeding 20 years, or both, reflecting the severity attributed to such violations. In recent years, there has been a notable increase in reported cases of child abuse across the nation. [49] For instance, between the past few years, the authorities recorded an increased number in cases of child abuse, highlighting a concerning upward trend. In recent years, Malaysia has witnessed a troubling increase in child abuse cases, underscoring the gravity of such offenses under the Child Act 2001 (Act 611). This upward trend highlights the pressing need for stringent enforcement of existing laws to protect vulnerable children. Given the severity and rising incidence of these crimes, a sentence of five years' imprisonment for the accused is deemed appropriate and justifiable. CONCLUSION [50] In light of the parties mutual agreement on the sentencing terms outlined in the plea bargaining using Form 28A, as provided under Section 172C of the Criminal Procedure Code (CPC) marked as Enclosures A and B, the Court is obligated to adhere to this consensus. [51] Consequently, the Court imposed a sentence of five (5) years imprisonment on the accused, commencing from the date of arrest on 2 July 2024. Additionally, upon release, the accused is required to enter into a good behaviour bond with one surety, without collateral, for a duration of two years. Furthermore, the accused must complete 36 hours of community service within six months following the completion of the prison term. [52] This sentence, being the result of a plea agreement, is binding, and the law does not permit the accused to appeal against it as stated under section 172E of the Criminal Procedure Code (CPC). [53] In light of the plea bargain entered into by both parties, which is valid and binding, this Court acknowledges that the accused has voluntarily pleaded guilty pursuant to the terms outlined in Enclosure B. Consequently, the sentence imposed reflects the mutual agreement reached during the plea bargaining process. As such, this judgment is rendered final, and no appeals shall be entertained. Dated on this day, 13 February 2025 -sgd- (ALLAN SUMAN PILLAI) Sessions Court Judge Langkawi Kedah Date of Sentencing : 11 December 2024 On behalf of the Prosecution : Mohd Farhan Aliff Bin Ahmad (DPP) On behalf of the Accused : Hakim Bin Amran